EXHIBIT 10.1
AMENDMENT NO. 5, dated as of March 28, 2000 (the "Amendment") to the
AMENDED AND RESTATED CREDIT AGREEMENT (the "Credit Agreement"), dated as of
March 26, 1997, as amended, among VIACOM INC., a Delaware corporation (the
"Borrower"), the Bank 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, BANK OF AMERICA, N.A. (formerly known as BANK OF
AMERICA NT&SA), as a Managing Agent, THE CHASE MANHATTAN BANK, as a Managing
Agent, JP MORGAN SECURITIES INC., as a Syndication Agent, BANC of AMERICA
SECURITIES, LLC (formerly known as BANK OF AMERICA NT&SA), as 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.
WITNESSETH:
WHEREAS, the parties who have heretofore entered into the Credit
Agreement now desire to amend certain provisions thereof to provide for changes
in the covenants in the Credit Agreement, and for certain other matters.
NOW THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendments.
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(a) Section 1.1 of the Credit Agreement is hereby amended by
inserting the following:
"'CBS' shall mean CBS Corporation, a Pennsylvania corporation."
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"'Discontinued Operations' shall mean the operations classified as
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"discontinued operations" pursuant to Accounting Principles Board Opinion
No. 30 as presented in the quarterly report of CBS on Form 10-Q for the
quarter ended September 30, 1997 and filed with the SEC on December 14,
1997."
"'Disposition' shall mean, with respect to any Property, any sale,
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lease, assignment, conveyance, transfer or other disposition thereof; and
the terms
"Dispose" and "Disposed of" shall have correlative meanings."
"'Excluded Indebtedness' shall mean Indebtedness of any Person which
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is or was acquired by CBS, the Borrower or any of their Subsidiaries after
August 29, 1996, which Indebtedness was outstanding prior to the date of
acquisition of such Person and was not created in anticipation thereof."
"'Infinity' shall mean Infinity Broadcasting Corporation, a Delaware
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corporation."
"'Infinity Credit Agreement' shall mean the Credit Agreement, dated as
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of December 10, 1999, among Infinity, the Subsidiary Borrowers (as defined
therein) parties thereto, the lenders named therein, Bank of America, N.A.
and Toronto Dominion Bank, as syndication agents, The Chase Manhattan Bank,
as documentation agent and Morgan Guaranty and Trust Company of New York,
as administrative agent, as amended, supplemented or otherwise modified
from time to time."
"'Material Acquisition' shall mean any acquisition of Property or
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series of related acquisitions of Property (including by way of merger)
which (a) constitutes assets comprising all or substantially all of an
operating unit of a business or constitutes all or substantially all of the
common stock of a Person and (b) involves the payment of consideration by
the Borrower and its Subsidiaries (valued at the initial principal amount
thereof in the case of non-cash consideration consisting of notes or other
debt securities and valued at fair market value in the case of other non-
cash consideration) in excess of $50,000,000."
"'Material Disposition' shall mean any Disposition of Property or
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series of related Dispositions of Property which yields gross proceeds to
the Borrower or any of its Subsidiaries (valued at the initial principal
amount thereof in the case of non-cash proceeds consisting of notes or
other debt securities and valued at fair market value in the case of other
non-cash consideration) in excess of $50,000,000."
"'New Infinity Credit Agreement' shall mean the 364-Day Credit
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Agreement and the Five-Year Credit Agreement among Infinity, the Subsidiary
Borrowers (as
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defined therein) parties thereto, the lenders named therein, Bank of
America, N.A. and FleetBoston, as syndication agents, Bank of New York, as
documentation agent and The Chase Manhattan Bank, as administrative agent,
as amended, supplemented or otherwise modified from time to time."
(b) Section 1.1 of the Credit Agreement is hereby amended by amending
the definition of "EBIDT" to read as follows:
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"'EBIDT' shall mean, at any time, with respect to the Borrower and its
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consolidated Subsidiaries for any period, operating profit (loss)
(excluding that related to Discontinued Operations) for the immediately
preceding four Fiscal Quarters, plus other income (loss) for such period,
plus interest income for such period, plus depreciation and amortization
(excluding amortization related to programming rights, pre-publication
costs and videocassettes) for such period, excluding (a) gains (losses) on
sales of assets during such period (except (I) gains (losses) on sales of
inventory sold in the ordinary course of business and (II) gains (losses)
on sales of other assets if such gains (losses) are less than $10,000,000
individually and less than $50,000,000 in the aggregate during such
period), (b) other non-cash items for such period (including (i) provisions
for losses and additions to valuation allowances, (ii) provisions for
restructuring, litigation and environmental reserves and losses on the
Disposition of businesses and (iii) pension settlement charges), and (c)
nonrecurring expenses incurred during such period in connection with the
merger of CBS and the Borrower pursuant to the Agreement and Plan of Merger
entered into by CBS, the Borrower and Viacom/CBS LLC dated as of September
6, 1999, as amended and restated as of October 8, 1999 and as of November
23, 1999, minus cash payments made during such period in respect of non-
cash charges taken during any previous period (excluding cash payments in
respect of non-cash charges taken prior to December 31, 1998)."
(c) Section 1.1 of the Credit Agreement is hereby amended by amending
the definition "Indebtedness" by inserting the following between the words
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"include" and "obligations" in the proviso at the end thereof:
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"(a) obligations of the Borrower and its Subsidiaries in connection
with Discontinued Operations and (b)"
(d) Section 1.1 of the Credit Agreement is hereby amended by amending
the definition of "Total Cash Interest and Preferred Dividends" to read as
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follows:
"'Total Cash Interest and Preferred Dividends' means, for any period,
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the sum of the following amounts: (i) the cash interest expense incurred
by the Borrower and its Subsidiaries during the preceding four Fiscal
Quarters with respect to the aggregate amount of all Indebtedness
outstanding during such period plus (ii) the cash dividends paid by the
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Borrower and its Subsidiaries to Persons other than the Borrower and its
wholly owned Subsidiaries during such four Fiscal Quarters with respect to
preferred stock but excluding (iii) the gross cash interest expense of the
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Discontinued Operations for such period."
(e) Section 1.1 of the Credit Agreement is hereby amended by amending
the definition of "Total Debt" to read as follows:
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"'Total Debt' of the Borrower and its Subsidiaries means, on any date,
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the total outstanding Indebtedness of the Borrower and its Subsidiaries on
a consolidated basis."
(f) Section 1.1 of the Credit Agreement is hereby amended by deleting
the definition of "Earnings from Operations" and the definition of "Net Worth".
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(g) Section 1.3 of the Credit Agreement is hereby amended by
inserting an (a) prior to the existing text and inserting new subsections (b)
and (c) as follows:
"(b) For the purposes of calculating EBIDT and Total Cash Interest
Expense and Preferred Dividends for any period (a "Test Period"),
(i) if at any time from the period (a "Pro Forma Period")
commencing on the second day of such Test Period and ending on the
date which is ten days prior to the date of delivery of a compliance
certificate in respect of such Test Period (or, in the case of any pro
forma
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calculation made pursuant hereto in respect of a particular
transaction, ending on the date such transaction is consummated after
giving effect thereto), the Borrower or any Subsidiary shall have made
any Material Disposition, the EBIDT for such Test Period shall be
reduced by an amount equal to the EBIDT (if positive) attributable to
the Property which is the subject of such Material Disposition for
such Test Period or increased by an amount equal to the EBIDT (if
negative) attributable thereto for such Test Period, and Total Cash
Interest Expense and Preferred Dividends for such Test Period shall be
reduced by an amount equal to the Total Cash Interest Expense and
Preferred Dividends for such Test Period attributable to any
Indebtedness of the Borrower or any Subsidiary repaid, repurchased,
defeased or otherwise discharged with respect to the Borrower and its
Subsidiaries in connection with such Material Disposition (or, if the
capital stock of any Subsidiary is sold, the Total Cash Interest
Expense and Preferred Dividends for such Test Period directly
attributable to the Indebtedness of such Subsidiary to the extent the
Borrower and its continuing Subsidiaries are no longer liable for such
Indebtedness after such disposition);
(ii) if during such Pro Forma Period the Borrower or any
Subsidiary shall have made a Material Acquisition, EBIDT and Total
Cash Interest Expense and Preferred Dividends for such Test Period
shall be calculated after giving pro forma effect thereto (including
the incurrence or assumption of any Indebtedness in connection
therewith) as if such Material Acquisition (and the incurrence or
assumption of any such Indebtedness) occurred on the first day of such
Test Period;
(iii) if during such Pro Forma Period any Person that
subsequently became a Subsidiary or was merged with or into the
Borrower or any Subsidiary since the beginning of such Pro Forma
Period shall have entered into any disposition or acquisition
transaction that would have required an adjustment pursuant to clause
(i) or (ii) above if made by the Borrower or a Subsidiary during such
Pro Forma Period, EBIDT and Total Cash
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Interest Expense and Preferred Dividends for such Test Period shall be
calculated after giving pro forma effect thereto as if such
transaction occurred on the first day of such Test Period; and
(iv) the financial results and effects of the operations of the
Eye on People and TeleNoticias businesses shall be entirely excluded
from EBIDT.
For the purposes of this paragraph, whenever pro forma effect is to be
given to a Material Disposition or Material Acquisition, the amount of
income or earnings relating thereto and the amount of Total Cash Interest
Expense and Preferred Dividends associated with any Indebtedness discharged
or incurred in connection therewith, the pro forma calculations shall be
determined in good faith by a Financial Officer of the Borrower. If any
Indebtedness bears a floating rate of interest and the incurrence or
assumption thereof is being given pro forma effect, the interest expense on
such Indebtedness shall be calculated as if the rate in effect on the last
day of the relevant Pro Forma Period had been the applicable rate for the
entire relevant Test Period (taking into account any interest rate
protection agreement applicable to such Indebtedness if such interest rate
protection agreement has a remaining term in excess of 12 months).
(c) For the purposes of the financial covenants, (i) the Discontinued
Operations shall be disregarded and (ii) the businesses classified as
Discontinued Operations shall be limited to those businesses treated as
such in the financial statements of the Borrower referred to in the
definition of "Discontinued Operations" and the accounting treatment of
Discontinued Operations shall be consistent with the accounting treatment
thereof in such financial statements."
(h) Section 7.3 of the Credit Agreement is hereby deleted in its
entirety.
(i) Section 8.8 (a) of the Credit Agreement is hereby amended by
deleting the following therefrom.
"and (ii) a report certified by such Responsible Financial Officer of
all commitments for program license fees that are not reflected on the
balance
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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
the Borrower or any Subsidiary during such Fiscal Quarter, together with a
statement of all such obligations outstanding at the end of such Fiscal
Quarter"
(j) Section 8.8(b) of the Credit Agreement is hereby amended by
deleting the following text:
", 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 the Borrower or any Subsidiary during the last Fiscal Quarter
of such Fiscal Year, together with a statement of all such obligations
outstanding at the end of such Fiscal Year"
(k) Section 9.6 of the Credit Agreement is hereby amended to read as
follows:
"SECTION 9.6. Limitation on Subsidiary Indebtedness. The Borrower
will not permit any of its Subsidiaries, other than the Guarantor
Subsidiary, to create, incur, assume or suffer to exist any Indebtedness
for borrowed money (which includes, for the purposes of this Section 9.6,
any preferred stock), except (i) Indebtedness for borrowed money of CBS
Broadcasting Inc. outstanding on August 29, 1996 (but not any refinancing,
refunding or other replacement thereof), (ii) Excluded Indebtedness, (iii)
Indebtedness for borrowed money incurred on any date when, after giving
effect thereto, the aggregate principal amount of Indebtedness for borrowed
money incurred pursuant to this clause (iii) that is outstanding on such
date (it being understood that, for the purposes of this clause (iii), the
term "Indebtedness" does not include borrowings under this Agreement or
Excluded Indebtedness) does not exceed the EBIDT of Infinity and its
consolidated Subsidiaries (determined in a manner comparable to that set
forth in the definition of 'EBIDT') for the most recent period of four
consecutive fiscal quarters for which the relevant financial information is
available less, in the case of any such Indebtedness for borrowed money
incurred by Infinity or any of its consolidated
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Subsidiaries, the then actual aggregate outstanding balances of
Indebtedness for borrowed money incurred pursuant to this clause (iii) by
Subsidiaries other than Infinity and its consolidated Subsidiaries,
provided that the aggregate outstanding principal amount of Indebtedness
for borrowed money incurred pursuant to this clause (iii) by Subsidiaries
other than Infinity and its consolidated Subsidiaries shall not exceed
$800,000,000 at any time, (iv) Indebtedness for borrowed money of Infinity
and its Subsidiaries under the Infinity Credit Agreement up to an aggregate
principal amount of $1,500,000,000 and the New Infinity Credit Agreement up
to an aggregate principal amount of $2,000,000,000 and (v) unsecured
Indebtedness for borrowed money incurred by Blockbuster Inc.."
(l) Section 9.7 of the Credit Agreement is hereby deleted in its
entirety.
(m) Section 10.1(d) of the Credit Agreement is hereby amended to read
as follows:
"(d) The Borrower or any of its Subsidiaries shall fail to pay any
principal of, or premium or interest on, any Indebtedness in an aggregate
principal amount of $50,000,000 or more (excluding Indebtedness hereunder)
of the Borrower or such Subsidiary, when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise); or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Indebtedness, if the
effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness or to terminate any
commitment to lend; or any such Indebtedness shall be declared to be due
and payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), prior to the stated maturity thereof and, with
respect to all of the foregoing, after the expiration of any applicable
grace period or the giving of any required notice or both; provided,
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however, that (i) no extension of any grace period applicable to any such
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Indebtedness shall be taken into account for the purposes of this
subsection (d) and (ii) this subclause (d) shall not apply to any provision
that permits the holders, or a trustee on their behalf, to cause
Indebtedness to become due prior to its stated maturity because of the
failure to
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deliver to such holders or such trustee financial statements or
certificates for any Subsidiary that is not required by law or regulation
to file financial statements with the SEC, unless such Indebtedness has
become due prior to its stated maturity as a result of such failure); or"
SECTION 2. Effectiveness. This Amendment will be effective upon (1)
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the execution of counterparts hereof by the Borrower and each of the Facility
Agents and Managing Agents on their own behalf and on behalf of the Banks
consenting to the execution of this Amendment, and the execution of written
consents by the Majority Banks and (2) the consummation of the merger of the CBS
with the Borrower.
SECTION 3. Representations and Warranties. The Borrower hereby
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represents and warrants that as of the date hereof (i) the representations and
warranties contained in Article VI of the Credit Agreement (other than those
stated to be made as of a particular date) are true and correct in all material
respects on and as of the date hereof as though made on the date hereof, and
(ii) no Default or Event of Default shall exist or be continuing under the
Credit Agreement.
SECTION 4. Miscellaneous. (a) Capitalized terms used herein and not
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otherwise defined herein shall have the meanings ascribed to them in the Credit
Agreement.
(b) Except as amended hereby, all of the terms of the Credit
Agreement shall remain and continue in full force and effect and are hereby
confirmed in all respects.
(c) This Amendment shall be a Loan Document for the purposes of the
Credit Agreement.
(d) This Amendment may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
were upon the same instrument. Delivery of an executed counterpart of a
signature page of this Amendment by telecopier shall be effective as delivery of
a manually executed counterpart of this Amendment.
(e) THIS AMENDMENT 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
VIACOM INC., as Borrower
By: /s/ George S. Smith, Jr.
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Name: George S. Smith, Jr.
Title: Senior Vice President
Chief Financial Officer
Managing Agents
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THE BANK OF NEW YORK, as Managing
Agent, the Documentation Agent and
a Bank
By: /s/ Geoffrey C. Brooks
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Name: Geoffrey C. Brooks
Title: Vice President
CITIBANK, N.A., as Managing Agent,
the Administrative Agent and a Bank
By: /s/ R. Parr
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Title: M.D.
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Managing Agent and a
Bank
By: /s/ Dennis Wilczek
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Name: Dennis Wilczek
Title: Associate
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BANK OF AMERICA, N.A. (formerly
known as BANK OF AMERICA NT&SA), as
Managing Agent and a Bank
By: /s/ James T. Gilland
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Name: James T. Gilland
Title: Managing Director
THE CHASE MANHATTAN BANK, as
Managing Agent and a Bank
By: /s/ Bruce Langenkamp
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Title: VP
Syndication Agents
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JP MORGAN SECURITIES INC., as
Syndication Agent
By: /s/ Anne M. Kelly
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Name: Anne Kelly
Title: Vice President
BANC OF AMERICA SECURITIES, LLC
(formerly known as THE BANK OF
AMERICA NT&SA), as Syndication
Agent
By: /s/ James T. Gilland
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Name: James T. Gilland
Title: Managing Director
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