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Exhibit 10.40
CONFORMED COPY
SECOND AMENDMENT dated as of October 9, 1998 (this
"Amendment") to the Credit Agreement dated as of February 12,
1998, as amended by the First Amendment and Consent thereto
dated as of June 24, 1998 (as further 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) The following amendments
are made to the definitions contained in Section 1.01 of the Credit Agreement:
(i) The definition of "Core Business" is hereby amended by deleting
such definition in its entirety and substituting in lieu thereof the
following:
"Core Business" shall mean any of the primary businesses in
which (i) USANi and the Acquired Assets are engaged on the date of
this Agreement (including broadcast programming of SKTV and the
Acquired Assets, as it may change from time to time, and third-party
fulfillment business and natural extensions thereof such as
teleservices and information services) or (ii) Ticketmaster and its
wholly owned subsidiaries were engaged in on the date Ticketmaster
became a Wholly-Owned Subsidiary.
(ii) The definition of "Loan Documents" is hereby amended by
deleting the references to "the Pledge Agreement, the other Security
Documents," and "each Intercompany Note" contained therein.
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(iii) The definition of "Total Debt Ratio" is hereby amended by
replacing clause (a) thereof with the following: "(a) Total Debt
less Offsetting Cash of the Combined Group on a combined
consolidated basis as of such time".
(b) Section 1.01 of the Credit Agreement is hereby amended by
inserting the following definitions in their proper alphabetical order:
(i) "Offsetting Cash" shall mean the sum of the cash and cash
equivalents of the Combined Group less any cash or cash equivalents
held in Client Accounts.
(ii) "Permitted Bonds" shall mean senior unsecured bonds or notes of
USANi and the Borrower in an aggregate principal amount not in
excess of $500,000,000 and Guarantees thereof by any Guarantor, each
issued on terms satisfactory to the Administrative Agent.
(c) Section 1.01 of the Credit Agreement is hereby amended by
deleting the following terms: "Intercompany Note", "Pledge Agreement", "Pledged
Securities" and "Security Documents".
(d) Section 2.11(b) of the Credit Agreement is hereby amended by
deleting from clause (i) thereof "40%" and substituting in lieu thereof "30%".
(e) Section 3.04 of the Credit Agreement is hereby amended by
deleting the reference to ",except as set forth in the Pledge Agreement,"
contained in clause (c) thereof.
(f) Section 3.16 of the Credit Agreement is hereby replaced in its
entirety with the following: "SECTION 3.16. [INTENTIONALLY LEFT BLANK]".
(g) Section 5.05 of the Credit Agreement is hereby amended by (i)
replacing clause (j) thereof with the following: "(j) [INTENTIONALLY LEFT
BLANK];" and (ii) deleting from the proviso thereto the reference to "the
Security Documents and".
(h) Section 5.07 of the Credit Agreement is hereby amended by (i) in
clause (c) thereof, (A) replacing the "," between clause (i) and (ii) thereof
with "and", (B) deleting "and" immediately prior to clause (iii) thereof and (C)
deleting clause (iii) thereof including all language before the semicolon, (ii)
deleting from clause (j)(ii) thereof the words "or Subordinated Indebtedness, in
each case" and replacing the dollar amount "$500,000,000" therein with the
dollar amount "$250,000,000", (iii) deleting the "and" at the end of clause (l)
thereof, (iv) replacing the "." at the end of clause (m) thereof with "; and"
and (c) inserting the following immediately after clause (m) thereof: "(n) the
Permitted Bonds."
(i) Section 5.12 of the Credit Agreement is hereby amended by
replacing the ratio "5.0 to 1.0" therein with the ratio "4.0 to 1.0" and
replacing the ratio "4.5 to 1.0" therein with the ratio "4.0 to 1.0".
(j) Section 5.18 of the Credit Agreement is hereby amended by
replacing the dollar amount "$100,000,000" therein with "$300,000,000".
(k) Section 5.19 of the Credit Agreement is hereby amended by
replacing clause (b) thereof with the following: "(b) loans or advances between
any of USANi, the Borrower and any Wholly Owned Subsidiary that is a
Guarantor;".
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(l) Section 5.25 of the Credit Agreement is hereby amended by (i)
deleting clause (a) thereof, (ii) redesignating clause (b) thereof as clause
"(a)", (iii) deleting from the redesignated clause (a) thereof (A) the reference
to "(i)" in the second line thereof, (B) the "and" immediately before clause
(ii) thereof and (C) clause (ii) thereof, (iv) redesignating clause (c) thereof
as clause "(b)", (v) redesignating clause (d) thereof as clause "(c)", (vi)
redesignating clause (e) thereof as "(d)" and (vii) replacing the redesignated
clause (d) thereof with the following:
"(d) In the event that USANi, the Borrower or any Subsidiary conveys,
sells, leases, assigns, transfers or otherwise disposes of all or
substantially all the capital stock, other equity interests, assets or
property of USANi, the Borrower or any of the Subsidiaries in a
transaction not prohibited by this Agreement, or in the event the Borrower
shall so request with respect to any Guarantor that is not a Material
Subsidiary, the Administrative Agent and the Collateral Agent shall
promptly (and the Lenders hereby authorize the Administrative Agent and
the Collateral Agent to) take such action and execute any such documents
as may be reasonably requested by the Borrower and at the Borrower's
expense in order to terminate such Guarantor's obligations under the
Guarantee Agreement and the Indemnity, Subrogation and Contribution
Agreement. Any representation, warranty or covenant contained in any Loan
Document relating to any such capital stock, equity interests, assets,
property or Subsidiary shall no longer be deemed to be made once such
capital stock, equity interests, assets or property is conveyed, sold,
leased, assigned, transferred or disposed of."
(m) Section 5.26 of the Credit Agreement is hereby amended by (i)
deleting the reference to "(other than Liens arising under the Pledge Agreement
in favor of the Collateral Agent for the benefit of the Secured Parties)"
contained in clause (a) thereof and (ii) deleting from clause (b) thereof (A)
the reference to "(i)" in the second line thereof, (B) deleting the "and"
immediately before clause (ii) thereof and (C) deleting clause (ii) thereof.
(n) Article VI of the Credit Agreement is hereby amended by
replacing clause (l) thereof with the following: "(l) [INTENTIONALLY LEFT
BLANK]".
(o) Section 8.02 of the Credit Agreement is hereby amended by
replacing clause (vii) contained in clause (b) thereof with the following:
"(vii) [INTENTIONALLY LEFT BLANK],".
(p) Section 8.13 of the Credit Agreement is hereby deleted.
3. Release of Liens Under Security Documents. The Lenders hereby
agree that the Security Documents are hereby terminated and that all Liens
created under the Security Documents are hereby released and terminated and the
Lenders hereby authorize and direct the Collateral Agent to take such action and
execute such documents as may be reasonably requested by the Borrower and at the
Borrower's expense to evidence such release and termination, including the
surrender to or upon the order of the Borrower of all Pledged Securities held by
the Collateral Agent on the date of effectiveness of this Amendment and the
filing of UCC-3 termination statements in respect of any Uniform Commercial Code
financing statements previously filed by the Collateral Agent with respect to
the Collateral.
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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 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.
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 each Lender
(after giving effect to any assignments on the date this Amendment becomes
effective); and
(b) The Borrower shall have prepaid, as an optional prepayment, at
least $500,000,000 of Tranche A Term Borrowings in accordance with Section
2.10 of the Credit Agreement.
7. 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
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for the Administrative Agent, and any expenses incurred in connection with the
release of Liens contemplated by Section 3 of this Amendment.
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 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/ Mitchell J. Gervis
____________________________________
Name:Mitchell J. Gervis
Title:Vice President
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BANK OF AMERICA NT&SA,
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/ Kalpana Raina
___________________________________
Name:Kalpana Raina
Title:Authorized Signer
ABN AMRO BANK, N.V.,
by
/s/ Frances O. Logan
___________________________________
Name:Frances O. Logan
Title:Group Vice President
by
/s/ David C. Carrington
___________________________________
Name:David C. Carrington
Title:Vice President
BANCA COMMERCIALE ITALIANA, NEW
YORK,
by
/s/ T. Gallonetto
___________________________________
Name:T. Gallonetto
Title:Assistant Vice President
by
/s/ Karen Purelis
___________________________________
Name:Karen Purelis
Title:Vice President
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BANK OF HAWAII,
by
/s/ Bernadine M. Havertine
___________________________________
Name:Bernadine M. Havertine
Title:Corporate Banking Officer
BANK OF MONTREAL,
by
/s/ W. T. Calder
___________________________________
Name:W. T. Calder
Title:Director
THE BANK OF NOVA SCOTIA,
by
/s/ Terry K. Fryett
___________________________________
Name:Terry K. Fryett
Title:Authorized Signatory
BANQUE NATIONALE DE PARIS,
by
/s/ Marcus C. Jones
___________________________________
Name:Marcus C. Jones
Title:Vice President
by
/s/ Stephanie Rogers
___________________________________
Name:Stephanie Rogers
Title:Vice President
BANQUE WORMS CAPITAL CORPORATION,
by
/s/ Dominique Picon
___________________________________
Name:Dominique Picon
Title:CEO
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CITY NATIONAL BANK,
by
/s/ David Burdge
___________________________________
Name:David Burdge
Title:Senior Vice President
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE,
by
/s/ Anthony Rock
___________________________________
Name:Anthony Rock
Title:Vice President
by
/s/ Brian O'Leary
___________________________________
Name:Brian O'Leary
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, Team Leader
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CREDITANSTALT CORPORATE FINANCE, INC.,
by
/s/ William E. McCollum
___________________________________
Name:William E. McCollum
Title:Senior Associate
by
/s/ John G. Taylor
___________________________________
Name:John G. Taylor
Title:Senior Associate
CRESTAR BANK,
by
/s/ LaTarnya B. Mason
___________________________________
Name:LaTarnya B. Mason
Title:Assistant Vice President
THE DAI-ICHI KANGYO BANK LTD., NEW
YORK BRANCH,
by
/s/ D. Murdoch
___________________________________
Name:D. Murdoch
Title:Vice President
DE NATIONALE INVESTERINGSBANK, N.V.,
by
/s/ Eric H. Snaterse
___________________________________
Name:Eric H. Snaterse
Title:Senior Vice President
by
/s/ P. Zippro
___________________________________
Name:P. Zippro
Title:Senior Vice President
FIRST HAWAIIAN BANK,
by
/s/ James C. Polk
___________________________________
Name:James C. Polk
Title:Assistant Vice President
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FLEET NATIONAL BANK,
by
/s/ Adam Bester
____________________________________
Name:Adam Bester
Title:Senior Vice President
THE FUJI BANK LIMITED, LOS ANGELES
AGENCY,
by
/s/ Hideo Nakajima
____________________________________
Name:Hideo Nakajima
Title:General Manager
ISTITUTO BANCARIO SAN PAOLO DI TORINO
SPA,
by
/s/ Carlo Persico
____________________________________
Name:Carlo Persico
Title:Deputy General Manager
by
/s/ Glen Binder
____________________________________
Name:Glen Binder
Title:Vice President
KBC BANK N.V.,
by
/s/ Robert M. Surdam, Jr.
____________________________________
Name:Robert M. Surdam, Jr.
Title:Vice President
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by
/s/ Marcel Claes
____________________________________
Name:Marcel Claes
Title:Deputy General Manager
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED,
by
/s/ Thomas N. Meyer
____________________________________
Name:Thomas N. Meyer
Title:Senior Vice President
MELLON BANK, N.A.,
by
/s/ Michael Hrycenko
____________________________________
Name:Michael Hrycenko
Title:Vice President
PARIBAS,
by
/s/ William B. Schink
____________________________________
Name:William B. Schink
Title:Director
by
/s/ Salo Aizenberg
____________________________________
Name:Salo Aizenberg
Title:Vice President
PNC BANK, NATIONAL ASSOCIATION,
by
/s/ Kristen E. Talaber
____________________________________
Name:Kristen E. Talaber
Title:Assistant Vice President
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ROYAL BANK OF CANADA,
by
/s/ Barbara Meijer
____________________________________
Name:Barbara Meijer
Title:Senior Manager
SOCIETE GENERALE,
by
/s/ Mark Vigil
____________________________________
Name:Mark Vigil
Title:Director
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/ David D. Miner
____________________________________
Name:David D. Miner
Title:Vice President
UNION BANK OF CALIFORNIA, N.A.,
by
/s/ Sonia L. Isaacs
____________________________________
Name:Sonia L. Isaacs
Title:Vice President
WELLS FARGO BANK,
by
/s/ Cindy Sullivan
____________________________________
Name:Cindy Sullivan
Title:Regional Vice President
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WESTDEUTSCHE LANDESBANK, NEW YORK
BRANCH
by
/s/ Salvatore Battinelli
____________________________________
Name:Salvatore Battinelli
Title:Director, Credit Department
by
/s/ Lucie L. Guernsey
____________________________________
Name:Lucie L. Guernsey
Title:Director