EX-10 4 form8-kexh10_3may2005.txt AMENDMENT NO. 4 TO 5 YEAR CREDIT AGREEMENT EXHIBIT 10.3 AMENDMENT NO. 4 TO FIVE-YEAR CREDIT AGREEMENT This AMENDMENT NO. 4, 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, Salomon Smith Barney Inc., as Syndication Agent, and Fleet National Bank and Bank of America, N.A., as Co-Documentation Agents, previously entered into that certain Five-Year Credit Agreement, dated as of March 7, 2001, as amended by Amendment No. 1 thereto, dated as of March 5, 2002, Amendment No. 2 thereto, dated as of February 28, 2003, and Amendment No. 3 thereto, dated as of February 19, 2004 (as so amended, 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 "The Chase Manhattan 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 "JP Morgan, a division of Chase 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 2 Disposition of businesses and (iii) pension settlement charges" in its entirety and 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) 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". (e) 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 Bank, N.A., 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. "SFAS" shall have the meaning assigned to such term in Section 1.2(b). "Viacom Credit Agreements" shall mean the $3.0 Billion Five-Year Credit Agreement and the $2.5 Billion 18-Month Credit Agreement. (f) Canadian Administrative Agent. The definition of "Canadian Administrative Agent" contained in Annex II is hereby amended in its entirety to read as follows: "Canadian Administrative Agent" shall mean JPMorgan Chase Bank, N.A., Toronto Branch, together with its affiliates, as the administrative agent for the US-Canadian Lenders (with respect to C$ Loans and fees) under this Agreement, and any successor thereto pursuant to Section VIII. 3 (g) 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" in its entirety and substituting therefor the new phrase "and December (commencing on the first of such dates to occur after the Closing Date), and on the Revolving Credit Maturity Date or such earlier date on which the Commitments shall be terminated". (h) Corporate Existence. Section 3.1 is hereby amended by deleting the phrase "or as proposed to be" in its entirety. (i) Limitation on Subsidiary Indebtedness. Section 5.6 is hereby amended by deleting the phrase "existing at any time under the $3.0 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". (j) Notices. Subsections (a), (b) and (c) of Sections 9.1 are hereby amended in their entirety to read as follows: "(a) if to Viacom, to it at Viacom Inc., 1515 Broadway, New York, New York 10036, Attention of Treasurer (Telecopy No. (212) 846-1896), with a copy to General Counsel (Telecopy No. (212) 258-6099): (b) if to Viacom International, to it c/o Viacom Inc., 1515 Broadway, New York, New York 10036, Attention of Treasurer (Telecopy No. (212) 846-1896), with a copy to General Counsel (Telecopy No. (212) 258-6099); (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 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);" (k) Patriot Act Notice. Article IX is hereby amended by adding the following new Section 9.17 at the end thereof: 4 "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." (l) 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(g) 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(g) 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 5 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. 6 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.] S-1 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 S-2 Lenders JPMORGAN CHASE BANK, N.A. (as successor to The Chase Manhattan Bank), as a Lender By: /s/ James L. Stone ----------------------------------- Name: James L. Stone Title: Managing Director JPMORGAN CHASE BANK, N.A., TORONTO BRANCH (as successor to The Chase Manhattan Bank, Toronto Branch), 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 CITIBANK N.A., CANADIAN BRANCH, as a Lender By: ----------------------------------- Name: Title: S-3 BANK OF AMERICA, N.A., as a Lender By: /s/ Thomas J. Kane ----------------------------------- Name: Thomas J. Kane Title: Senior Vice President BANK OF AMERICA, N.A. (acting through its Canada branch), as a Lender By: /s/ Medina Sales De Andrade ----------------------------------- Name: Medina Sales De Andrade Title: Assistant Vice President FLEET NATIONAL BANK, as a Lender By: /s/ Thomas J. Kane ----------------------------------- Name: Thomas J. Kane Title: Senior Vice President SUMITOMO MITSUI BANKING CORPORATION (as successor to The Sumitomo Bank, Limited), as a Lender By: /s/ Yoshihiro Hyakutome ----------------------------------- Name: Yoshihiro Hyakutome Title: Joint General Manager S-4 THE BANK OF NEW YORK, as a Lender By: /s/ Steven J. Correll ----------------------------------- Name: Steven J. Correll Title: Vice President THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH, as a Lender By: /s/ Linda Tam ----------------------------------- Name: Linda Tam Title: Authorized Signatory DEUTSCHE BANK AG, NEW YORK BRANCH and/or CAYMAN ISLANDS BRANCH, as a Lender By: /s/ Andreas Neumeier ----------------------------------- Name: Andreas Neumeier Title: Director By: /s/ Yvonne Preil ----------------------------------- Name: Yvonne Preil Title: Vice President DEUTSCHE BANK AG, CANADA BRANCH, as a Lender By: /s/ Paul M. Jurist ----------------------------------- Name: Paul M. Jurist Title: Managing Director & Principal Officer By: /s/ Robert A. Johnston ----------------------------------- Name: Robert A. Johnston Title: Vice President S-5 MIZUHO CORPORATE BANK, LTD. (as successor in interest to The Dai-Ichi Kangyo Bank Ltd., The Fuji Bank, Limited, and The Industrial Bank of Japan, Limited), as a Lender By: /s/ Mark Gronich ----------------------------------- Name: Mark Gronich Title: Senior Vice President THE BANK OF NOVA SCOTIA, as a Lender By: /s/ Brenda S. Insull ----------------------------------- Name: Brenda S. Insull Title: Authorized Signatory By: /s/ Rob King ----------------------------------- Name: Rob King Title: Director BARCLAYS BANK PLC, as a Lender By: /s/ Nicholas Bell ----------------------------------- Name: Nicholas Bell Title: Director S-6 UFJ BANK LIMITED (as successor to The Sanwa Bank, Limited, New York Branch, and The Tokai Bank, Limited, New York Branch), as a Lender By: ----------------------------------- Name: Title: DRESDNER BANK AG, 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 MELLON BANK, N.A., as a Lender By: /s/ Laurie G. Dunn ----------------------------------- Name: Laurie G. Dunn Title: First Vice President S-7 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 CREDIT SUISSE FIRST BOSTON Toronto Branch, as a Lender By: /s/ Alain Daoust ----------------------------------- Name: Alain Daoust Title: Director By: /s/ Bruce Wetherly ----------------------------------- Name: Bruce Wetherly Title: Director THE ROYAL BANK OF SCOTLAND PLC, as a Lender By: /s/ Andrew Wynn ---------------------------------- Name: Andrew Wynn Title: Senior Vice President S-8 WACHOVIA BANK, N.A., as a Lender By: /s/ Russ Lyons ----------------------------------- Name: Russ Lyons Title: Director WESTLB AG, NEW YORK BRANCH (as successor to Westdeutsche Landesbank Girozentrale, New York Branch), as a Lender By: ----------------------------------- Name: Title: By: ----------------------------------- Name: Title: 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 S-9 THE NORINCHUKIN BANK, NEW YORK BRANCH, as a Lender By: /s/ Masanori Shoji ----------------------------------- Name: Masanori Shoji Title: Joint General Manager SUNTRUST BANK, as a Lender By: /s/ Brian Combs ----------------------------------- Name: Brian Combs Title: Director 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 UBS AG, STAMFORD BRANCH, as a Lender By: /s/ Winslowe Ogbourne ----------------------------------- Name: Winslowe Ogbourne Title: Associate Director Banking Products Services, US By: /s/ Joselin Fernandes ----------------------------------- Name: Joselin Fernandes Title: Associate Director Banking Products Services, US S-10 MERRILL LYNCH BANK USA, as a Lender By: /s/ Frank Stepan ----------------------------------- Name: Frank Stepan Title: Vice President NATIONAL AUSTRALIA BANK LIMITED, as a Lender By: ----------------------------------- Name: Title: BANK OF SCOTLAND, as a Lender By: ----------------------------------- Name: Title: