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Exhibit 10.4
AMENDMENT NO. 1 (this "Amendment") dated as
of April 17 2000, to the AMENDED AND RESTATED CREDIT
AGREEMENT (the "Agreement") entered into as of
December 10, 1999, among INFINITY BROADCASTING
CORPORATION, a Delaware corporation ("Infinity");
each Subsidiary Borrower (as defined in the
Agreement); CBS CORPORATION, a Pennsylvania
corporation ("CBS"), as a guarantor; the Lenders (as
defined in the Agreement); BANK OF AMERICA, N.A.
("Bank of America") and THE TORONTO-DOMINION BANK
("Toronto Dominion"), as syndication agents for the
Lenders (in such capacity, the "Syndication Agents");
THE CHASE MANHATTAN BANK, a New York banking
corporation ("Chase"), as documentation agent for the
Lenders; and XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, a New York banking corporation ("Xxxxxx"), as
administrative agent for the Lenders.
The Agreement is hereby amended as follows:
SECTION 1. Amendment. (a) The definition of the term "CBS
Consolidated EBITDA" is hereby deleted and replaced in its entirety by the
following new definition:
"CBS Consolidated EBITDA" shall mean, with respect to CBS and
its Consolidated Subsidiaries for any period, operating profit
(loss) (excluding that related to Discontinued Operations),
plus other income (loss), plus interest income, plus
depreciation and amortization (excluding amortization related
to programming rights, prepublication costs and
videocassettes), excluding (a) gains (losses) on sales of
assets (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
(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), in each case determined for such period on a basis
consistent with that reported in CBS's Form 10-Q for the
fiscal quarter ended September 30, 1998 filed with the SEC,
minus cash payments made
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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) and (c)
nonrecurring expenses incurred in connection with the merger
of CBS and Viacom Inc. ("Viacom") pursuant to the Agreement
and Plan of Merger dated as of September 6, 1999, as amended
and restated as of October 8, 1999 and as of November 23,
1999, by and among CBS, Viacom and Viacom/CBS LLC.
(b) The definition of the term "CBS Consolidated Total Funded
Indebtedness" in Section 1.1 of the Agreement is hereby deleted and replaced in
its entirety by the following new definition:
"CBS Consolidated Total Funded Indebtedness" shall mean with
respect to CBS and its Consolidated Subsidiaries at any date,
without duplication, (i) all obligations of such Person for
borrowed money (including, without limitation, in the case of
the Borrower, the obligations of the Borrower for borrowed
money under this Agreement), (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay the
deferred purchase price of Property or services, except as
provided below, (iv) all obligations of such Person as lessee
under Capital Lease Obligations, (v) all Indebtedness of
others secured by a Lien on any Property of such Person,
whether or not such Indebtedness is assumed by such Person,
(vi) all Indebtedness of others directly or indirectly
guaranteed or otherwise assumed by such Person, including any
obligations of others endorsed (otherwise than for collection
or deposit in the ordinary course of business) or discounted
or sold with recourse by such Person, or in respect of which
such Person is otherwise directly or indirectly liable,
including, without limitation, any Indebtedness in effect
guaranteed by such Person through any agreement (contingent or
otherwise) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for
the payment or discharge of such obligation, or to maintain
the solvency or any balance sheet or other financial condition
of the obligor of such obligation, provided that Indebtedness
of the Borrower and its Subsidiaries shall not include
guarantees of Indebtedness that
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are identified on Schedule 1.1 hereto, (vii) all obligations
of such Person as issuer, customer or account party under
letters of credit or bankers' acceptances that are either
drawn or that back financial obligations that would otherwise
be Indebtedness; provided, however, that in each of the
foregoing clauses (i) through (vii) Indebtedness shall not
include (a) obligations of CBS and its Subsidiaries in
connection with Discontinued Operations and (b) obligations
(other than under the Existing Credit Agreement, as amended
and restated, or the Amended and Restated Viacom International
Inc. Credit Agreement, dated as of March 26, 1997, among
Viacom International Inc., the banks parties thereto, The Bank
of New York, Citibank, N.A., Xxxxxx Guaranty Trust Company of
New York, Bank of America NT&SA and The Chase Manhattan Bank,
as Managing Agents, The Bank of New York, as Documentation
Agent, Citibank, N.A., as the Administrative Agent, XX Xxxxxx
Securities Inc. and Bank of America NT&SA, as the Syndication
Agents, 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) specifically with
respect to the production, distribution and acquisition of
motion pictures or other programming rights, talent or
publishing rights.
(c) Section 1.1 of the Agreement is hereby amended by
inserting the following definition for the term "New Infinity Credit Agreements"
in the appropriate alphabetical order:
"New Infinity Credit Agreements" shall mean the 364-Day Credit
Agreement and the Five-Year Credit Agreement among Infinity,
the Subsidiary Borrowers (as defined therein) parties thereto,
the lenders named therein, Bank of America, N.A. and
FleetBoston, as syndication agents, The 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.
(d) Section 5.6 of the Agreement is hereby amended:
(i) by inserting the words "and the New Infinity Credit
Agreements" before the word "and" in clause (ii) thereof; and
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(ii) by substituting "$600,000,000" for "$300,000,000" at the
end thereof.
(e) Section 5.7 of the Agreement is hereby amended by
inserting a comma followed by the following words immediately preceding the
colon therein:
provided that as soon as and for so long as the senior
unsecured long-term debt ratings of Infinity are equal to or
greater than A- by S&P and A3 by Xxxxx'x for any period, such
condition shall be suspended.
(f) Section 5.8 of the Agreement is hereby amended by
inserting a comma immediately followed by the following words at the end
thereof:
provided that as soon as and for so long as the senior
unsecured long-term debt ratings of Infinity are equal to or
greater than A- by S&P and A3 by Xxxxx'x for any period, such
condition shall be suspended.
(g) Section 5.11 of the Agreement is hereby deleted in its
entirety.
SECTION 2. Conditions to Effectiveness. This Amendment shall
become effective as of the date of the consummation of the merger of CBS and
Viacom pursuant to the Agreement and Plan of Merger dated as of September 6,
1999, as amended and restated as of October 8, 1999 and as of November 23, 1999,
by and among CBS Corporation, Viacom Inc. and Viacom/CBS LLC; provided that
Sections 1(d) and 1(g) of this Amendment, shall become effective as of the date
on which the Administrative Agent shall have received counterparts of this
Amendment that, when taken together, bear the signatures of the Borrower and the
Required Lenders under the Agreement.
Except as expressly set forth above, all the provisions of the
Agreement are hereby ratified and confirmed by all the parties and shall remain
in full force and effect. All references in the Agreement to "this Agreement"
shall be read as references to the Agreement, as amended by this Amendment.
SECTION 3. Counterparts. This Amendment may be executed in two
or more counterparts, all of which shall be considered one and the same
agreement.
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SECTION 4. Applicable Law. This Amendment shall be construed
in accordance with and governed by the laws of the State of New York applicable
to agreements made within such State, without regard to conflicts of law
provisions and principles of such State.
IN WITNESS WHEREOF, each of the parties hereto have executed
this Amendment as of the date first above written.
INFINITY BROADCASTING CORPORATION,
by /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Executive Vice President,
Chief Financial Officer
and Treasurer
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Administrative Agent,
by /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Associate
CBS CORPORATION, as guarantor,
by /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Xx. Vice President, Finance
and Treasurer
