Exhibit 10.40
FOURTH AMENDMENT dated as of January 31,
2000 (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:
(i) inserting the following definitions in their
proper alphabetical order:
"`SAVOY DEBENTURES' means the 7% Convertible
Subordinated Debentures of Savoy due July 1,
2003 in an aggregate principal amount of
$37,782,000.
`SENIOR NOTES' means the 6.75% Senior Notes due
November 15, 2005 of the Borrower and USANi in
an aggregate principal amount of $500,000,000.
(ii) deleting the following from the definition of
Fixed Charges: "(excluding Capital Expenditures by SKTV,
the Home Shopping Persons and their respective
subsidiaries)".
(b) Section 5.14 of the Credit Agreement is hereby deleted in
its entirety and the following substituted therefor:
"SECTION 5.14 [Reserved]".
(c) Subsection 5.16(a) of the Credit Agreement is hereby
amended by:
(i) inserting "(i)" between the words "except
that" and "a Guarantor"; and
(ii) inserting the following immediately prior to ";":
"and (ii) Internet Shopping Network, L.L.C. may merge
on an arm's-length basis into a publicly traded
company for at least fair consideration paid solely
in publicly traded stock of such company".
(d) Section 5.18 of the Credit Agreement is hereby amended by
(i) inserting the following immediately prior to
clause (x) in subsection (a)(iii) thereof:
"(v) the repurchase of up to $20,000,000 of Savoy
Debentures, (w) the repurchase of up to $50,000,000
of Senior Notes"; and
(ii) replacing "$1,000,000" in clause (z) of
subsection (a)(iii) thereof with "$10,000,000".
(e) Section 5.19 of the Credit Agreement is hereby amended by:
(i) deleting clause (a) thereof in its entirety
and substituting the following therefor: "(a)
Investments in any Wholly Owned Subsidiary
that is a Guarantor;"
(ii) replacing "$125,000,000" in clauses (e) and (g)
thereof with "$300,000,000"; and
(iii) replacing "$20,000,000" in clause (h) thereof
with "$200,000,000".
(f) Section 5.20 of the Credit Agreement is hereby amended by
deleting "or the Borrower" in Section (b) thereof and substituting ", the
Borrower or any Subsidiary that is not a Guarantor" therefor.
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 as
follows:
(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: VP & Controller
USANi LLC,
by /s/ Michael Durney
--------------------------
Name: Michael Durney
Title: VP & Controller
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent,
Collateral Agent and Issuing Bank,
by /s/ Joan M. Fitzgibbon
----------------------------
Name: Joan M. Fitzgibbon
Title: Managing Director
BANK OF AMERICA, N.A.,
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
------------------------------
Name:
Title:
by
------------------------------
Name:
Title:
BANCA COMMERCIALE ITALIANA, NEW
YORK BRANCH,
by /s/ Charles Dougherty
------------------------------
Name: Charles Dougherty
Title: Vice President
by /s/ E. Bermant
------------------------------
Name: E. Bermant
Title: First Vice President/
Deputy Manager
BANK OF HAWAII,
by /s/ Luke Yeh
------------------------------
Name: Luke Yeh
Title: Assistant Vice President
BANK OF MONTREAL,
by /s/ W.T. Calder
------------------------------
Name: W.T. Calder
Title: Managing Director
THE BANK OF NOVA SCOTIA,
by
/s/ Vincent J. Fitzgerald, Jr.
----------------------------------
Name: Vincent J. Fitzgerald, Jr.
Title: Authorized Signatory
BANQUE NATIONALE DE PARIS,
by
/s/ Serge Desrayaud
----------------------------------
Name: Serge Desrayaud
Title: Vice President/Team Leader
by
/s/ Gregg W. Bonardi
----------------------------------
Name: Gregg W. Bonardi
Title: Vice President
BANQUE WORMS CAPITAL CORPORATION,
by
----------------------------------
Name:
Title:
CITY NATIONAL BANK,
by
/s/ David C. Burdge
----------------------------------
Name: David C. Burdge
Title: Senior Vice President
CREDIT INDUSTRIEL ET COMMERCIAL,
by
/s/ Albert Calo
----------------------------------
Name: Albert Calo
Title: Vice President
by
/s/ Marie-Rose Sensenbrenner
----------------------------------
Name: Marie-Rose Sensenbrenner
Title: Vice President
CREDIT AGRICOLE INDOSUEZ,
by
/s/ Craig Welch
----------------------------------
Name: Craig Welch
Title: First Vice President
by
/s/ John McCloskey
----------------------------------
Name: John McCloskey
Title: Vice President, SRM
CREDITANSTALT CORPORATE FINANCE, INC.,
by
----------------------------------
Name:
Title:
by
----------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK LTD., NEW
YORK BRANCH,
by
/s/ Marvin M. Lazar
----------------------------------
Name: Marvin M. Lazar
Title: Assistant Vice President
DE NATIONALE INVESTERINGSBANK, N.V.,
by
----------------------------------
Name:
Title:
by
----------------------------------
Name:
Title:
FIRST HAWAIIAN BANK,
by
/s/ Travis Ruetenik
----------------------------------
Name: Travis Ruetenik
Title: Assistant Vice President
FLEET NATIONAL BANK,
by
/s/ Manuel Burgueno
----------------------------------
Name: Manuel Burgueno
Title: Vice President
THE FUJI BANK LIMITED, LOS ANGELES
AGENCY,
by
/s/ Masahito Fukuda
----------------------------------
Name: Masahito Fukuda
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL CORPORATION,
by
/s/ Karl Kieffer
----------------------------------
Name: Karl Kieffer
Title: Duly Authorized Signatory
ISTITUTO BANCARIO SAN PAOLO DI TORINO
- ISTITUTO MOBILIARE ITALIANO, SPA,
by
----------------------------------
Name:
Title:
by
----------------------------------
Name:
Title:
KBC BANK N.V.,
by
----------------------------------
Name:
Title:
by
----------------------------------
Name:
Title:
MELLON BANK, N.A.,
by
/s/ Raghunatha Reddy
----------------------------------
Name: Raghunatha Reddy
Title: Lending Officer
PARIBAS,
by
----------------------------------
Name:
Title:
by
----------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION,
by
/s/ Karen L. Kooman
----------------------------------
Name: Karen L. Kooman
Title: Assistant Vice President
ROYAL BANK OF CANADA,
by
/s/ Stephanie Babich
----------------------------------
Name: Stephanie Babich
Title: Vice President
SOCIETE GENERALE,
by
/s/ Robert G. Robin
----------------------------------
Name: Robert G. Robin
Title: Vice President
THE SUMITOMO TRUST & BANKING, CO.,
LTD., NEW YORK BRANCH,
by
/s/ Stephen Stratico
----------------------------------
Name: Stephen Stratico
Title: Vice-President
SUNTRUST BANK, CENTRAL FLORIDA N.A.,
by
/s/ W. David Wisdom
----------------------------------
Name: W. David Wisdom
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.,
by
/s/ Stender E. Sweeney
----------------------------------
Name: Stender E. Sweeney
Title: Assistant Vice President
WELLS FARGO BANK,
by
----------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK, NEW YORK
BRANCH,
by
/s/ Cynthia M. Niesen
----------------------------------
Name: Cynthia M. Niesen
Title: Managing Director
by
/s/ Pascal Kabemba
----------------------------------
Name: Pascal Kabemba
Title: Associate