EXHIBIT 10.39
THIRD AMENDMENT dated as of April 29, 1999
(this "AMENDMENT") to the Credit Agreement dated as
of February 12, 1998 (as amended, supplemented or
otherwise modified from time to time, the "CREDIT
AGREEMENT"), among USA NETWORKS, INC., a Delaware
corporation ("USANI"), USANi LLC, a Delaware limited
liability company (the "BORROWER"), the several banks
and other financial institutions and entities from
time to time parties thereto (the "LENDERS"), BANK OF
AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION and THE
BANK OF NEW YORK, as co-documentation agents (in such
capacity, the "CO-DOCUMENTATION AGENTS") and THE
CHASE MANHATTAN BANK, as administrative agent (in
such capacity, the "ADMINISTRATIVE AGENT") and as
collateral agent (in such capacity, the "COLLATERAL
AGENT").
WHEREAS, pursuant to the Credit Agreement, the Lenders have
agreed to make certain loans to the Borrower and the Issuing Bank has agreed to
issue certain Letters of Credit for the account of the Borrower; and
WHEREAS the Borrower has requested that certain provisions of
the Credit Agreement be modified in the manner provided for in this Amendment,
and the Lenders are willing to agree to such modifications as provided for in
this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used and not defined
herein shall have the meanings given to them in the Credit Agreement.
2. AMENDMENTS TO THE CREDIT AGREEMENT. (a) Section 1.01 of the
Credit Agreement is hereby amended by inserting the following definitions in
their proper alphabetical order:
"`HOTEL RESERVATIONS NETWORK ACQUISITION' means the
acquisition by HRN, Inc., a subsidiary of USANi, of
substantially all the assets of TMF, Inc. and HRN Marketing
Corporation in exchange for the assumption of certain
liabilities, the issuance of a promissory note and certain
other payments (collectively the "HRN Obligations"); PROVIDED,
THAT such transaction is consummated substantially in
accordance with the terms of the Asset Purchase Agreement
dated as of April 13, 1999, among HRN, Inc., USANi and the
other parties thereto (the "HRN Agreement"), previously
delivered to the Lenders and that any changes to the HRN
Agreement are not materially adverse to the interests of the
Lenders.
`UNIVERSAL ADVANCE' means an interest bearing advance to
Universal Studios Holding I Corp. or one or more of its
affiliates in a principal amount of up to $200,000,000;
PROVIDED, THAT such advance is made in accordance with the
terms of the Letter Agreement dated April 6, 1999 between
Universal Studios Holding I Corp. and USA Networks, Inc.,
including the schedules and exhibits thereto (collectively,
the "Letter Agreement"), previously delivered to the Lenders
and
that any changes to the terms of the advance as set forth in
the Letter Agreement are not materially adverse to the
interests of the Lenders.
(b) Section 5.07 of the Credit Agreement is hereby amended by:
(i) deleting "subsection (k)" in clause (i) thereof and
substituting "subsections (k), (o) and (p)" therefor;
and
(ii) deleting the period at the end of clause (n) thereof
and substituting the following therefor: "; (o) the
HRN Obligations; and (p) the Guarantee of HRN
Obligations by USANi set forth in the HRN Agreement".
(c) Section 5.17 of the Credit Agreement is hereby amended by:
(i) deleting "and" at the end of clause (h) thereof;
(ii) replacing the period at the end of clause (i) thereof
with "; and"; and
(iii) inserting the following after clause (i):
"(j) the sale or other disposition of the rights of
USANi and/or one or more of its subsidiaries with
respect to the Universal Advance".
(c) Section 5.19 of the Credit Agreement is hereby amended by:
(i) deleting "and" at the end of clause (g) thereof;
(ii) replacing the period at the end of clause (h) thereof
with "; and"; and
(iii) inserting the following after clause (h): "(i) the
Universal Advance."
(d) Section 5.20 of the Credit Agreement is hereby amended by:
(i) deleting "and" at the end of clause (b) thereof;
(ii) replacing the period at the end of clause (c) thereof
with "; and"; and
(iii) inserting immediately after clause (c) thereof the
following:
"(d) The Hotel Reservations Network Acquisition."
3. NO OTHER AMENDMENTS; CONFIRMATION. Except as expressly
amended, modified and supplemented hereby, the provisions of the Credit
Agreement are and shall remain in full force and effect.
4. REPRESENTATIONS AND WARRANTIES. Each of USANi and the
Borrower hereby represents and warrants to the Administrative Agent, the
Collateral Agent, the Issuing Bank and the Lenders as of the date hereof:
(a) No Default or Event of Default has occurred and is
continuing.
(b) The execution, delivery and performance by each of USANi
and the Borrower of this Amendment are within the scope of its
corporate or company powers, and have been duly authorized by all
necessary corporate, company and, if required, stockholder or member
action on the part of each of them, and no authorizations, approvals or
consents of, and no filings or registrations with, any governmental or
regulatory authority or agency
are necessary for the execution or delivery of this Amendment by either
of them or for the validity or enforceability of this Amendment. The
Credit Agreement as amended by this Amendment constitutes the legal,
valid and binding obligation of each of USANi and the Borrower,
enforceable against each of them in accordance with its terms, except
as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general
applicability affecting the enforcement of creditors' rights and (b)
the application of general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(c) All representations and warranties of USANi and the
Borrower contained in the Credit Agreement (other than representations
or warranties expressly made only on and as of the Effective Date) are
true and correct in all material respects on and as of the date hereof
with the same force and effect as if made on and as of the date hereof.
5. EFFECTIVENESS. This Amendment shall become effective only
upon the satisfaction in full of the following conditions precedent:
(a) The Administrative Agent shall have received counterparts
hereof, duly executed and delivered by USANi, the Borrower and the
Required Lenders; and
(b) The Administrative Agent shall have received such opinions
and certificates from USANi and the Borrower and their counsel as it
may reasonably request in form reasonably satisfactory to its counsel.
6. EXPENSES. The Borrower agrees to reimburse the
Administrative Agent and the Collateral Agent for its out-of-pocket expenses in
connection with this Amendment, including the reasonable fees, charges and
disbursements of Cravath, Swaine & Moore, counsel for the Administrative Agent.
7. GOVERNING LAW; COUNTERPARTS. (a) This Amendment and the
rights and obligations of the parties hereto shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties to
this Amendment on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. This Amendment may be delivered by facsimile transmission of the
relevant signature pages hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
USA NETWORKS, INC.,
by /s/ Michael Durney
-----------------------------------
Name: Michael Durney
Title: V.P. & Controller
USANi LLC,
by /s/ Michael Durney
-----------------------------------
Name: Michael Durney
Title: V.P. & Controller
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent, Collateral
Agent and Issuing Bank,
by /s/ Constance M. Coleman
-----------------------------------
Name: Constance M. Coleman
Title: V.P.
BANK OF AMERICA NT&SA,
by /s/ Sean W. Cassidy
-----------------------------------
Name: Sean W. Cassidy
Title: Vice President
THE BANK OF NEW YORK COMPANY, INC.,
individually and as Co-Documentation
Agent,
by /s/ John C. Lambert
-----------------------------------
Name: John C. Lambert
Title: Vice President
ABN AMRO BANK, N.V.,
by /s/ Frances O.R. Lagan
-----------------------------------
Name: Frances O.R. Lagan
Title: V.P.
by /s/ Ann Schwalenberg
-----------------------------------
Name: Ann Schwalenberg
Title: Vice President
BANCA COMMERCIALE ITALIANA, NEW YORK,
by /s/ Charles Dougherty
-----------------------------------
Name: Charles Dougherty
Title: VP
by /s/ T. Gallonetto
-----------------------------------
Name: T. Gallonetto
Title: A.V.P.
BANK OF HAWAII,
by /s/ Bernardine M. Havertine
-----------------------------------
Name: Bernardine M. Havertine
Title: Corporate Banking Officer
BANK OF MONTREAL,
by /s/ W.T. Calder
-----------------------------------
Name: W.T. Calder
Title: Managing Director
THE BANK OF NOVA SCOTIA,
by /s/ Ian A. Hodgart
-----------------------------------
Name: Ian A Hodgart
Title: Authorized Signatory
BANQUE NATIONALE DE PARIS,
by /s/
-----------------------------------
Name:
Title:
by
-----------------------------------
Name:
Title:
BANQUE WORMS CAPITAL CORPORATION,
by /s/ F. Jamet
-----------------------------------
Name: F. Jamet
Title: S.V.P.
/s/ Constance DeClerk
-----------------------------------
Name: Constance DeClerk
Title: V.P.
CITY NATIONAL BANK,
by /s/ Rod Bollins
-----------------------------------
Name: Rod Bollins
Title: Vice President
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE,
by
-----------------------------------
Name:
Title:
by
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Name:
Title:
CREDIT AGRICOLE INDOSUEZ,
by /s/ Craig Welch
-----------------------------------
Name: Craig Welch
Title: V.P.
by /s/ Sarah McLinmore
-----------------------------------
Name: Sarah McLinmore
Title: V.P.
CREDITANSTALT CORPORATE FINANCE, INC.,
by
-----------------------------------
Name:
Title:
by
-----------------------------------
Name:
Title:
CRESTAR BANK,
by /s/ Lantanya B.Mason
-----------------------------------
Name: Latanya B. Mason
Title: Assistant Vice President
THE DAI-ICHI KANGYO BANK LTD., NEW YORK
BRANCH,
by
-----------------------------------
Name:
Title:
DE NATIONALE INVESTERINGSBANK, N.V.,
by
-----------------------------------
Name:
Title:
by
-----------------------------------
Name:
Title:
FIRST HAWAIIAN BANK,
by
-----------------------------------
Name:
Title:
FLEET NATIONAL BANK,
by /s/ Russ Lopinto
-----------------------------------
Name: Russ Lopinto
Title: Vice President
THE FUJI BANK LIMITED, LOS ANGELES
AGENCY,
by /s/ Masahito Fukuda
-----------------------------------
Name: Masahito Fukuda
Title: Joint General Manager
ISTITUTO BANCARIO SAN PAOLO DI TORINO
- ISTITUTO MOBILIARE ITALIANO, SPA,
by /s/ Robert Wurster
-----------------------------------
Name: Robert Wurster
Title: V.P.
by /s/ Glen Binder
-----------------------------------
Name: Glen Binder
Title: Vice President
KBC BANK N.V.,
by
-----------------------------------
Name:
Title:
by
-----------------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED,
by
-----------------------------------
Name:
Title:
MELLON BANK, N.A.,
by /s/ Paul F. Noel
-----------------------------------
Name: Paul F. Noel
Title: Vice President
PARIBAS,
by /s/ William B. Schink
-----------------------------------
Name: William B. Schink
Title: Director
PNC BANK, NATIONAL ASSOCIATION,
by /s/ Kristen E. Talaber
-----------------------------------
Name: Kristen E. Talaber
Title: Vice President
ROYAL BANK OF CANADA,
by /s/ Wayne P. Gray
-----------------------------------
Name: Wayne P. Gray
Title: Manager
SOCIETE GENERALE,
by /s/ Mark Vigil
-----------------------------------
Name: Mark Vigil
Title: Director
THE SUMITOMO TRUST & BANKING, CO.,
LTD., NEW YORK BRANCH,
by /s/ Stephen E. Stratico
-----------------------------------
Name: Stephen E. Stratico
Title: Vice President
SUNTRUST BANK, CENTRAL FLORIDA N.A.,
by /s/ Harold Binder
-----------------------------------
Name: Harold Binder
Title: Authorized Signatory
UNION BANK OF CALIFORNIA, N.A.,
by /s/ Stender E. Sweeney
-----------------------------------
Name: Stender E. Sweeney
Title: Assistant Vice President
WELLS FARGO BANK,
by /s/ Anthony Turner
-----------------------------------
Name: Anthony Turner
Title: V.P.
WESTDEUTSCHE LANDESBANK, NEW YORK BRANCH
by
-----------------------------------
Name:
Title:
by
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Name:
Title: