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Exhibit 10.39
CONFORMED COPY
FIRST AMENDMENT AND CONSENT dated as of June
24, 1998 (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, as amended
hereby.
2. Amendments to the Credit Agreement. (a) Section 1.01 of the
Credit Agreement is hereby amended by inserting after the definition of "Class"
and before the definition of "Code" the following definition:
"'Client Accounts' shall mean any amounts held by Ticketmaster
or any of its subsidiaries for the account of vendors of tickets and
merchandise."
(b) Section 8.08 of the Credit Agreement is hereby amended by
inserting at the end thereof the following:
"Notwithstanding the foregoing, neither the Lenders nor any of
their Affiliates shall have the right to set off and apply any Client
Accounts or any deposits held in other trust accounts of Ticketmaster
or any of its subsidiaries against any of the obligations of the
Borrower now or hereafter existing under this Agreement held by such
Lender.
3. Consent. The Lenders hereby consent to the amendment of the
Guarantee Agreement to insert at the end of Section 21 thereof the following:
"Notwithstanding the foregoing, no Secured Party shall have
the right to set off
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and apply any Client Accounts or any deposits held in other trust
accounts of Ticketmaster or any of its subsidiaries against any of the
obligations of any Guarantor now or hereafter existing under this
Agreement and the other Loan Documents held by such Secured Party."
4. 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.
5. 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 requred, 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.
6. 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;
(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;
and
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(c) The Administrative Agent shall have received each of the
following from USANi and the Borrower:
(i) A copy of resolutions passed by the board of
directors of USANi and a copy of the actions taken by the
members of the Borrower, each certified by the Secretary or an
Assistant Secretary of USANi and the Borrower, as the case may
be, as being in full force and effect on the date hereof,
authorizing the execution, delivery and performance of this
Amendment; and
(ii) A certificate as to the name and signature of
each officer of USANi and the Borrower authorized to sign this
Amendment.
7. Expenses. The Borrower agrees to reimburse the
Administrative 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.
8. 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 P. Durney
______________________
Name: Michael P. Durney
Title: VP & Controller
USANi LLC,
by /s/ Michael P. Durney
______________________
Name: Michael P. Durney
Title: VP & Controller
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THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
Collateral Agent and Issuing Bank,
by /s/ Mitchell J. Gervis
___________________________
Name: Mitchell J. Gervis
Title: Vice President
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION, individually and as
Co-Documentation Agent,
by /s/ Carl F. Salas
___________________________
Name: Carl F. Salas
Title: Vice President
THE BANK OF NEW YORK COMPANY, INC.,
individually and as Co-Documentation Agent,
by /s/ Kalpara Raina
___________________________
Name: Kalpara Raina
Title: Authorized Signatory
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ABN AMRO BANK, N.V.,
by /s/ William S. Bennett
___________________________
Name: William S. Bennett
Title: Vice President
by /s/ Thomas T. Rogers
___________________________
Name: Thomas T. Rogers
Title: Vice President
AMARA-2 FINANCE LTD.,
by /s/ Andrew Ian Wignall
___________________________
Name: Andrew Ian Wignall
Title: Director
BANCA COMMERCIALE ITALIANA, NEW
YORK,
by /s/ Charles Dougherty
___________________________
Name: Charles Dougherty
Title: Vice President
by /s/ Tiziano Gallonetto
___________________________
Name: Tiziano Gallonetto
Title: Assistant Vice President
BANK OF HAWAII,
by /s/ Robert L. Wilson
___________________________
Name: Robert L. Wilson
Title: Vice President
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BANK OF MONTREAL,
by /s/ W. T. Calder
---------------------------
Name: W.T. Calder
Title: Director
PARIBAS NEW YORK,
by /s/ William B. Schink
---------------------------
Name: William B. Schink
Title: Director
by /s/ Lynne S. Randall
---------------------------
Name: Lynne S. Randall
Title: Director
BANQUE WORMS CAPITAL
CORPORATION,
by /s/ F. Launet
---------------------------
Name: F. Launet
Title: Senior Vice President
by /s/ Constance DeKlerk
---------------------------
Name: Constance DeKlerk
Title: Vice President
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BAYERISCHE VEREINSBANK AG
NEW YORK BRANCH,
by /s/ Sylvia K. Cheng
___________________________
Name: Sylvia K. Cheng
Title: Vice President
by /s/ Hans Dick
___________________________
Name: Hans Dick
Title: Vice President
CAPTIVA FINANCE LTD.,
by /s/ John H. Cullinane
___________________________
Name: John H. Cullinane
Title: Director
CIBC INC.,
by /s/ Elizabeth Fischer
___________________________
Name: Elizabeth Fischer
Title: Executice Director
CITY NATIONAL BANK,
by /s/ Rod Bollins
___________________________
Name: Rod Bollins
Title: Vice President
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE,
by /s/ Anthony Rock
___________________________
Name: Anthony Rock
Title: Vice President
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by /s/ Sean Mounier
___________________________
Name: Sean Mounier
Title: First Vice President
CREDIT AGRICOLE INDOSUEZ,
by /s/ Craig Welch
___________________________
Name: Craig Welch
Title: First Vice President
by /s/ Sarah McClintock
___________________________
Name: Sarah McClintock
Title: Vice President
CREDITANSTALT CORPORATE FINANCE,
INC.,
by /s/ Scott Kray
___________________________
Name: Scott Kray
Title: Vice President
by /s/ Carl G. Drake
___________________________
Name: Carl G. Drake
Title: Vice President
CRESTAR BANK,
by /s/ Latanya B. Mason
___________________________
Name: Latanya B. Mason
Title: Assistant Vice President
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DE NATIONALE INVESTERINGSBANK,
N.V.,
by /s/ Eric H. Snaterse
___________________________
Name: Eric H. Snaterse
Title: Senior Vice President
by /s/ Paul Meijerhof
___________________________
Name: Paul Meijerhof
Title: Vice President
FIRST HAWAIIAN BANK,
by /s/ Donald C. Young
___________________________
Name: Donald C. Young
Title: Vice President
FLEET NATIONAL BANK,
by /s/ Leonard Maddox
___________________________
Name: Leonard Maddox
Title: Senior Vice President
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDINGS, LDC
BY: ING CAPITAL ADVISORS, INC. AS
INVESTMENT ADVISOR
by /s/ Michael D. Hatley
___________________________
Name: Michael D. Hatley
Title: Senior Vice President
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ISTITUTO BANCARIO SAN PAOLO DI
TORINO SPA,
by /s/ Robert Wurster
___________________________
Name: Robert Wurster
Title: First Vice President
by /s/ Glen Binder
___________________________
Name: Glen Binder
Title: Vice President
KBC BANK N.V.,
by /s/ Robert Snauffer
___________________________
Name: Robert Snauffer
Title: Vice President
by /s/ Tod R. Angus
___________________________
Name: Tod R. Angus
Title: Vice President
KZH - CRESCENT-2 CORPORATION,
by /s/ Virginia Conway
___________________________
Name: Virginia Conway
Title: Authorized Agent
KZH HOLDING CORPORATION III,
by /s/ Virginia Conway
___________________________
Name: Virginia Conway
Title: Authorized Agent
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KZH - ING-3 CORPORATION,
by /s/ Virginia Conway
__________________________
Name: Virginia Conway
Title: Authorized Agent
KZH - SOLEIL-2 CORPORATION,
by /s/ Virginia Conway
__________________________
Name: Virginia Conway
Title: Authorized Agent
MELLON BANK, N.A.,
by /s/ G. Louis Ashley
__________________________
Name: G. Louis Ashley
Title: First Vice President
MERRILL LYNCH PRIME RATE
PORTFOLIO,
BY: MERRILL LYNCH ASSET
MANAGEMENT, L.P., AS INVESTMENT
ADVISOR
by /s/ Joseph Matteo
__________________________
Name: Joseph Matteo
Title: Authorized Signatory
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MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC.,
by /s/ Joseph Matteo
___________________________
Name: Joseph Matteo
Title: Authorized Signatory
PNC BANK, NATIONAL ASSOCIATION,
by /s/ Steven J. McGehrin
___________________________
Name: Steven J. McGehrin
Title: Vice President
MORGAN STANLEY DEAN WITTER
PRIME INCOME TRUST,
by /s/ Peter Gewirtz
___________________________
Name: Peter Gewirtz
Title: Authorized Signatory
ROYAL BANK OF CANADA,
by /s/ Barbara Maijer
___________________________
Name: Barbara Maijer
Title: Senior Manager
SENIOR DEBT PORTFOLIO,
BY: BOSTON MANAGEMENT AND
RESEARCH AS INVESTMENT ADVISOR
by /s/ Payson F. Swaffield
___________________________
Name: Payson F. Swaffield
Title: Vice President
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SOCIETE GENERALE,
by /s/ Mark Vigil
___________________________
Name: Mark Vigil
Title: Director
STRATA FUNDING LIMITED,
by /s/ John H. Cullinane
___________________________
Name: John H. Cullinane
Title: Director
SUNTRUST BANK, CENTRAL FLORIDA
N.A.,
by /s/ David D. Miller
___________________________
Name: David D. Miller
Title: Vice President
THE BANK OF NOVA SCOTIA,
by /s/ Vincent J. Fitzgerald, Jr.
___________________________
Name: Vincent J. Fitzgerald
Title: Authorized Signatory
THE DAI-ICHI KANGYO BANK LTD., NEW
YORK BRANCH,
by /s/ Kazuki Shimizu
___________________________
Name: Kazuki Shimizu
Title: Vice President
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THE FUJI BANK LIMITED, LOS ANGELES
AGENCY,
by /s/ Masahito Fukuda
___________________________
Name: Masahito Fukuda
Title: Joint General Manager
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED,
by /s/ Thomas Meyer
___________________________
Name: Thomas Meyer
Title: Senior Vice President
THE SUMITOMO TRUST & BANKING,
CO., LTD., NEW YORK BRANCH,
by /s/ Stephen Stratico
___________________________
Name: Stephen Stratico
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.,
by /s/ Lena M. Bryant
___________________________
Name: Lena M. Bryant
Title: Assistant Vice President
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VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST,
by /s/ Jeffrey M. Maillet
___________________________
Name: Jeffrey M. Maillet
Title: Senior Vice President & Director
WELLS FARGO BANK,
by /s/ Cindy Sullivan
___________________________
Name: Cindy Sullivan
Title: Vice President
WESTDEUTSCHE LANDESBANK,
NEW YORK BRANCH
by /s/ Lucie L. Guernsey
___________________________
Name: Lucie L. Guernsey
Title: Director
by /s/ Walter T. Duffy
___________________________
Name: Walter T. Duffy III
Title: Associate