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EXHIBIT 10.36
TICKETMASTER GROUP, INC.
SIXTH AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT
This SIXTH AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT
(this "AMENDMENT") is dated as of September 27, 1996 and entered into by and
among Ticketmaster Group, Inc., an Illinois corporation ("BORROWER"), the
financial institutions listed on the signature pages hereof ("LENDERS"), Xxxxx
Fargo Bank, National Association, as agent for Lenders ("AGENT"), the
undersigned Guarantors (for purposes of Sections 3 and 6A hereof only), and
Third Party Pledgor (for purposes of Section 6B hereof only) and is made with
reference to that certain Credit Agreement, dated as of November 18, 1994, as
amended by the First Amendment to Credit Agreement, dated as of January 6,
1995, the Second Amendment to Credit Agreement, dated as of January 30, 1995,
the Third Amendment and Limited Waiver to Credit Agreement and Amendment to
Guarantor Pledge Agreement, dated as of April 7, 1995, the Fourth Amendment and
Limited Waiver to Credit Agreement, Amendment to Guarantor Pledge Agreement and
Amendment to Third Party Pledge Agreement, dated as of August 28, 1995, the
Waiver Dated as of April 30, 1996 to Credit Agreement, and the Fifth Amendment
to Credit Agreement, dated as of June 6, 1996 (as so amended, the "CREDIT
AGREEMENT"), by and among Borrower, the Lenders and Agent. Capitalized terms
used herein without definition shall have the same meanings herein as set forth
in the Credit Agreement.
RECITALS
A. Borrower has requested that Lenders make additional
Term Loans on a pro rata basis in an aggregate principal amount of $30,000,000
(as hereinafter defined, the "Term Bridge Loans") as provided in this Amendment
to provide up to $11,000,000 of funds to enable a wholly owned newly formed
direct or indirect Unrestricted Entity of Borrower, TMC Realty Holdings Co.
("TMC REALTY"), to acquire the property and building located at 0000 Xxxxxx
Xxxxxxxxx in Los Angeles to be used by Borrower as its business headquarters
(the "HEADQUARTERS PURCHASE"), and to provide up to $19,000,000 of funds to
enable Borrower to consummate the Delaware Valley Acquisition (as defined
herein).
B. Borrower has requested that Lenders amend or waive
certain provisions of the Credit Agreement to permit the Headquarters Purchase
and the Delaware Valley Acquisition and to also permit Borrowers to consummate
the other Acquisition Transactions (as defined herein). Borrower, Agent, and
each Lender desire to amend the Credit Agreement as set forth herein. Third
Party Pledgor has agreed that the Term Bridge Loans will be secured by the
Collateral pledged by the Third Party Pledgor under the Third Party Pledge
Agreement. Third Party Pledgor and each Guarantor have agreed to this
Amendment.
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NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO ARTICLE I.
A. Section 1.21 of the Credit Agreement is amended and
restated as follows:
"Section 1.21. 'Commitment' means the Term Loan
Commitments and the Revolving Loan Commitments in the
aggregate principal amount of TWO HUNDRED FIVE MILLION DOLLARS
($205,000,000)."
B. The first sentence of the definition of "EBITDA" in
Section 1.27 of the Credit Agreement is amended by adding the
following words after the words "such date of determination":
"less any dividends paid in respect of preferred stock issued
in connection with the Indiana Acquisition"
C. Section 1.65 of the Credit Agreement is amended and
restated as follows:
"Section 1.65. "Notes" means, collectively, the
Revolving Loan Notes in the form of Exhibit 1.65A, the Term
Loan Notes in the form of Exhibit 1.65B and the Term Bridge
Notes in the form of Exhibit 1.65C, and any promissory notes
that may be issued in substitution, renewal, extension
replacement or exchange therefore."
D. Section 1.93 of the Credit Agreement is amended and
restated as follows:
"Section 1.93. "Term Loan" means the Term Loans made
by Lenders as of or after the Closing Date pursuant to Section
2.2, including but not limited to any Term Bridge Loans."
E. Section 1.95 of the Credit Agreement is amended and
restated as follows:
"Section 1.95. "Term Loan Commitment" means the
commitment of a Lender to make a Term Loan to Borrower
pursuant to Section 2.2, including but not limited to the
commitment of a Lender to make Term
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Bridge Loans to Borrower pursuant to Section 2.2, and "Term Loan
Commitments" means such commitments of all Lenders in the aggregate.
F. Article I of the Credit Agreement is amended by
adding the following definitions in Section 2.06:
"SECTION 2.06.
(a) "Acquisition Transactions" means the Delaware
Valley Acquisition, the Florida Acquisition, the Indiana
Acquisition and the Texas Acquisition.
(b) "Delaware Valley Acquisition" means the
transaction pursuant to which Borrower will acquire the
license rights and certain related assets of Ticketmaster of
Delaware Valley, Inc. in consideration for approximately
$19,000,000 in cash as further described in the letter of
intent dated August 7, 1996 among Ticketmaster Ticketing
Company, Inc. and Ticketmaster of Delaware Valley, Inc. that
has been delivered to Lenders.
(c) "Delaware Valley Loan Payment Date" means the
date that is the earlier of (a) the first Business Day after
the Borrower receives any proceeds from a public offering of
any of its equity securities or (b) the date that is one year
after the Sixth Amendment Effective Date.
(d) "Florida Acquisition" means the transaction
pursuant to which Borrower or one of its wholly owned
Subsidiaries will acquire certain equity interests in
Ticketmaster - Florida, Inc. in exchange for Borrower's common
stock as further described in the draft letter of intent dated
September 16, 1996 that has been delivered to Lenders.
(e) "Headquarters Purchase" means the purchase by
TMC Realty of the property and building, located at 0000
Xxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, that will serve as
the business headquarters of Borrower for a purchase price
that is not greater than $11,200,000.
(f) "Headquarters Loan Payment Date" means the
date that is earliest of (i) the first Business Day after the
Borrower receives any proceeds from a public offering of any
of its equity securities, (ii) the first Business Day on which
TMC Realty enters into any loan secured by the headquarters
property or (iii) the date that is one year after the Sixth
Amendment Effective Date.
(g) "Indiana Acquisition" means the transaction
pursuant to Ticketmaster-Indiana, an Indiana joint venture,
will redeem all of the partnership interests of
Ticketmaster-Indiana, other than the partnership
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interests owned by Ticketmaster - Indiana, Inc., in exchange for
preferred stock with a liquidation preference of $27,000,000, as
further described in the letter of intent dated September 12, 1996
among Borrower, Ticketmaster-Indiana and New East Associates LLC and
its members.
(h) "Sixth Amendment" means the Sixth Amendment
to Credit Agreement dated as of September 27, 1996 among
Borrower, Agent, Lenders, Guarantors and the Third Party
Pledgor.
(i) "Sixth Amendment Effective Date" means the
date on which the Sixth Amendment becomes affective in
accordance with Section 4 of the Sixth Amendment.
(j) "Term Bridge Loans" shall have the meaning
set forth in Section 2.2 hereof.
(k) "Term Bridge Loan Commitment" means the
commitment of a Lender to make a Term Bridge Loan to Borrower
pursuant to Section 2.2, and "Term Bridge Loan Commitments"
means such commitments of all Lenders in the aggregate.
(l) "TMC Realty" means TMC Realty Holdings Co., a
wholly owned direct or indirect Subsidiary of Borrower that
has been designated as an Unrestricted Entity."
(m) "Texas Acquisition" means the transaction
pursuant to which Borrower or one of its wholly owned
Subsidiaries will acquire certain shares of Southwest
Ticketing, Inc. for a purchase price not to exceed $5 million
as further described in the draft letter of intent dated
September 17, 1996 that has been delivered to the Lenders.
1.2 AMENDMENTS TO ARTICLE II.
A. Section 2.2(a) of the Credit Agreement is amended by
adding the following paragraph after the first paragraph of Section
2.2(a):
Subject to the terms and conditions of this
Agreement, each Lender severally (but not jointly and not
jointly and severally) agrees to make loans (the "Term Bridge
Loans") to Borrower on the Sixth Amendment Effective Date and
from time to time thereafter up to October 31, 1996, not to
exceed at any time the aggregate principal amount of such
Lender's Pro Rata Share of the Term Bridge Loan Commitments,
the proceeds of which shall be used by Borrower solely (a) to
make an advance to TMC Realty to be used by TMC Realty solely
to make the Headquarters Purchase and (b) to make the Delaware
Valley Acquisition, it being understood that (1)
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Borrower shall not be entitled to make a Borrowing of Term Bridge
Loans for the purpose described in clause (a) of this paragraph unless
TMC Realty has made the Headquarters Purchase or will make the
Headquarters Purchase concurrently with the making of such Borrowing
of Term Bridge Loans and not more than $11,000,000 of Term Bridge
Loans may be made for the purpose described in clause (a) of this
paragraph and (2) Borrower shall not be entitled to make a Borrowing
of Term Bridge Loans for the purpose described in clause (b) of this
paragraph unless Borrower has made the Delaware Valley Acquisition or
will make the Delaware Valley Acquisition concurrently with the making
of such Borrowing of Term Bridge Loans and not more than $19,000,000
of Term Bridge Loans may be made for the purpose described in clause
(b) of this paragraph. Each Lender's commitment to maintain and make
Term Bridge Loans to Borrower pursuant to this Section 2.2(a) is
hereby called its "TERM BRIDGE LOAN COMMITMENT" and such commitments
of all the Lenders in the aggregate are herein called the "TERM BRIDGE
LOAN COMMITMENTS." The amount of each Lender's Term Bridge Loan
Commitment is set forth in Schedule A and the aggregate amount of all
Term Bridge Loan Commitments is THIRTY MILLION DOLLARS ($30,000,000).
The amount of the Term Bridge Loan Commitments shall be reduced by the
amount of all reductions thereof made pursuant to Section 2.7 or
Section 7 through the date of determination. In no event shall the
aggregate principal amount of the Term Bridge Loans from any Lender
outstanding at any time exceed the amount of its Term Bridge Loan
Commitment then in effect. In no event may Borrower make more than
two (2) borrowings of Term Bridge Loans. The Term Bridge Loans shall
for all purposes under this Agreement and the other Loan Documents,
including the Third Party Pledgor Agreement, be deemed to be Term
Loans."
B. Section 2.2(b) of the Credit Agreement is amended by
adding the following proviso at the end of Section 2.2(b):
"provided that all Term Loans that consist of Term Bridge Loans
shall be payable earlier as provided in Section 2.8(c)."
C. Section 2.8(c) of the Credit Agreement is amended by
adding the following after the end of the second sentence of Section
2.8(c):
"Borrower shall repay all Term Bridge Loans borrowed
to fund the Headquarters Purchase on the Headquarters Loan
Payment Date, and shall prepay all Term Bridge Loans Borrowed
to make the Delaware Valley Acquisition on the Delaware Valley
Loan Payment Date."
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1.3 ACTIONS AND AMENDMENTS UNDER ARTICLE V.
A. Borrower hereby designates TMC Realty as an
Unrestricted Entity pursuant to Section 5.3(c)(ii) of the Credit
Agreement.
B. Section 5.9(b) of the Credit Agreement is amended by
adding the following sentence at the end of Section 5.9(b):
"Notwithstanding the foregoing, for purposes the
calculation of the Maximum Leverage Ratio as of October 31,
1996 and January 31, 1997, all outstanding Term Loans in
excess of $75,000,000 shall be excluded from the calculation
of Debt under clause (i) of the definition of Maximum Leverage
Ratio."
C. Section 5.9(c)(ii) of the Credit Agreement is amended
by adding the phrase "plus dividends paid in cash on any equity
securities" after the phrase "Schedule 2.1(a))" in Section 5.9(c)ii).
1.4 AMENDMENTS TO ARTICLE VI.
A. Section 6.2 of the Credit Agreement is amended by
adding the following as an additional proviso to Section 6.2:
";provided, however, notwithstanding the generality of the
foregoing, the aggregate Capital Expenditures of Borrower,
together with all Restricted Entities and TMC Realty, and
including the Headquarters Purchase and all improvements
thereto, during Borrower's 1996 Fiscal Year shall not exceed
$23,000,000."
B. Section 6.4(e) of the Credit Agreement is amended by
adding the following words at the end of Section 6.4(e) after the
words "under Section 6.12(a)":
"and up to $5,000,000 in principal amount of Debt incurred to
finance the Texas Acquisition and up to $27,000,000 in
preferred stock issued in connection with the Indiana
Acquisition; provided that such Debt incurred to finance the
Texas Acquisition and such preferred stock shall not be
permitted to remain outstanding after a public offering of
equity securities of Borrower,"
C. Section 6.8(k) of the Credit Agreement is amended by
adding the following proviso at the end of Section 6.8(k):
"; provided, further, that Borrower may make an investment in
an amount not to exceed $11,200,000 in TMC Realty to allow TMC
Realty to make
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the Headquarters Purchase, may also invest in TMC Realty an
additional amount not to exceed $2,800,000 to enable TMC Realty
to make improvements to the property and building acquired in
connection with the Headquarters Purchase and may make
additional investments in TMC Realty for purposes reasonably
related to the headquarters property; provided, further, that
Borrower shall cause all ownership interests in TMC Realty to
be pledged to Agent on behalf of Lenders and that Borrower
shall not make investments in TMC Realty except as expressly
permitted in the preceding proviso."
D. The first sentence of Section 6.9 of the Credit
Agreement is amended by adding the following words after the words "on
Schedule 6.9" and before the proviso in such sentence:
"and except that Borrower may pay accrued dividends on the
preferred stock issued in connection with the Indiana
Acquisition"
1.5 WAIVER OF ARTICLES IV, V AND VI. Required Lenders
hereby waive the provisions of Articles IV, V and VI of the Credit Agreement to
the extent necessary (without regard to any exception or basket which may be
provided for therein) to permit Borrower and its Subsidiaries to enter into and
consummate the Acquisition Transaction; provided that nothing in this Section
1.5 shall be deemed to amend or waive Sections 6.2, 6.4, 6.8 and 6.9, or to
amend or waive the application of Articles IV, V and VI of the Credit Agreement
to the Borrower and its Subsidiaries, after giving effect to the Acquisition
Transactions or relating to any transaction, event or condition other than to
permit the entry into and consummation of the Acquisition Transactions.
1.6 ADDITION OF EXHIBIT. The form of Term Bridge Loan
Note attached as Annex A to this Sixth Amendment is added to the Credit
Agreement as Exhibit 1.65C.
1.7 AMENDMENT OF SCHEDULE A. Schedule A annexed to the
Credit Agreement is amended to add the information regarding the Term Bridge
Loans annexed as Annex B hereto.
SECTION 2. REPLACEMENT REVOLVING LOAN NOTES
Company agrees to execute and deliver to Agent for each Lender
a Term Bridge Loan Note in the amount of each such Lender's Term Bridge Loan
Commitment (each a "TERM BRIDGE LOAN NOTE"), in the form of Exhibit 1.65C to
the Credit Agreement. Each of the parties hereto hereby acknowledges and
agrees that each Term Bridge Loan Note is a Note for all purposes under the
Credit Agreement and the other Loan Documents and that the loans evidenced by
the Term Bridge Loan Notes shall
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constitute Term Loans for all purposes under the Credit Agreement and the other
Loan Documents.
SECTION 3. MODIFICATION OF GUARANTY
Lenders hereby authorize and direct, and Agent and the party
to the Guaranty hereby agree, that the phrase "One Hundred Seventy Five Million
Dollars ($175,000,000)" appearing in paragraph (2) of the Guaranty shall be
deleted and "Two Hundred Five Million Dollars ($205,000,000)" substituted
therefore.
SECTION 4. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "SIXTH
AMENDMENT EFFECTIVE DATE"):
A. On or before the Sixth Amendment Effective Date, Borrower
shall deliver to Lenders (or to Agent for Lenders with sufficient originally
executed copies, where appropriate, for each Lender and its counsel) the
following, each, unless otherwise noted, dated the Sixth Amendment Effective
Date:
1. Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of this Amendment
and approving and authorizing the issuance, delivery and payment of
the Term Bridge Loan Notes (as defined herein), certified as of the
Sixth Amendment Effective Date by its corporate secretary or an
assistant secretary as being in full force and effect without
modification or amendment;
2. Signature and incumbency certificates of its officers
executing this Amendment and the Term Bridge Loan Notes;
3. Executed copies of this Amendment; and
4. Executed Term Bridge Loan Notes.
B. On or before the Sixth Amendment Effective Date, Agent shall
have received from all of the Lenders an executed copy of this Amendment and
shall also have received written confirmation from each Lender that such Lender
has received the letters of intent entered into by Borrower and its
Subsidiaries in connection with the Acquisition Transactions.
C. On or before the Sixth Amendment Effective Date, Agent shall
have received originally executed copies of one or more favorable opinions from
Xxxx Xxxxxx
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and Xxxxxxxxx, counsel to Borrower, in form and substance reasonably
satisfactory to Agent and its counsel, dated as of the Sixth Amendment
Effective Date with respect to the enforceability of the Amended Agreement (as
hereinafter defined), the Term Bridge Loan Notes and as to such other matters
as Agent acting on behalf of Lenders may reasonably request.
D. On or before the Sixth Amendment Effective Date, Borrower
shall pay to Agent, for distribution to each Lender on a pro rata basis, an
amendment fee equal to 0.03% of the sum of Lenders' aggregate Revolving Loan
Commitments, outstanding Term Loans and Term Bridge Loan Commitments after
giving effect to this Amendment.
E. On or before the Sixth Amendment Effective Date, all corporate
and other proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Agent, acting on behalf of Lenders, and its counsel shall be
satisfactory in form and substance to Agent and such counsel, and Agent and
such counsel shall have received all such counterpart originals or certified
copies of such documents as Agent may reasonably request.
In addition to the foregoing, on or before the date that is
five Business Days after the Sixth Amendment Effective Date, Borrower shall
pledge and deliver to Agent for the benefit of Lenders all share certificates
evidencing its ownership interest in TMC Realty and shall supplement the
applicable schedule to the applicable Pledge Agreement. On or before the date
that is five Business Days after the Sixth Amendment Effective Date, Borrower
shall deliver to Agent a list of Restricted Subsidiaries, Unrestricted
Subsidiaries and other entities in which the Borrower directly or indirectly
owns an interest as of the Sixth Amendment Effective Date that is updated and
contains the information set forth on the list delivered pursuant to Section 2K
of the Fifth Amendment to the Credit Agreement (the "Ownership List") and on or
before such date, Borrower shall cause any security interests to be granted or
guaranties to be entered into that are required under Sections 2.15 or 2.16 of
the Credit Agreement, including with respect to any Persons or equity interests
listed on the Ownership List that were not listed on the lists delivered
pursuant to the Fifth Amendment to the extent required under said Sections 2.15
and 2.16.
SECTION 5. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment,
Borrower represents and warrants to each Lender that the following statements
are true, correct and complete:
A. CORPORATE POWER AND AUTHORITY. Borrower has all
requisite corporate power and authority to enter into this Amendment and the
Term Bridge Loan Notes, and to carry out the transactions contemplated by, and
perform its obligations
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under, the Credit Agreement as amended by this Amendment (the "AMENDED
AGREEMENT"), the Term Bridge Loan Notes and the other Loan Documents.
B. AUTHORIZATION OF AGREEMENTS. The execution and
delivery of this Amendment, the issuance, delivery and payment of the Term
Bridge Loan Notes and the pledge of the equity securities of TMC Realty have
been duly authorized by all necessary corporate action on the part of Borrower
and each Guarantor.
C. NO CONFLICT. The execution, delivery and performance
by Borrower and each Guarantor of this Amendment and the Term Bridge Loan
Notes, do not violate any provision of any law or regulation applicable to
Borrower or any Guarantor, the violation of which could reasonably be expected
to have a Material Adverse Effect, or contravene any provision of Borrower's,
any Guarantor's or TMC Realty's articles of incorporation or by-laws, or result
in or constitute a Defined Default under any contract, obligation, indenture or
other instrument to which Borrower, any Guarantor or TMC Realty is a party or
by which Borrower, any Guarantor or TMC Realty may be bound which default could
reasonably be expected to have a Material Adverse Effect.
D. GOVERNMENTAL CONSENTS. No Governmental Approval is
required in connection with the execution, delivery and performance by Borrower
or any Guarantor of this Amendment and the Term Bridge Loan Notes, and the
performance by Borrower or any Guarantor of the Amended Agreement or to ensure
the legality, validity or enforceability hereof or thereof.
E. BINDING OBLIGATION. This Amendment and the Term
Bridge Loan Notes have been duly executed and delivered by Borrower and each
Guarantor, and this Amendment, the Term Bridge Loan Notes and the Amended
Agreement are the legally valid and binding obligations of Borrower,
enforceable against Borrower in accordance with their respective terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM
CREDIT AGREEMENT. The representations and warranties contained in Section 4 of
the Credit Agreement and in the other Loan Documents are and will be true,
correct and complete in all material respects on and as of the Sixth Amendment
Effective Date to the same extent as though made on and as of that date, except
to the extent such representations and warranties specifically relate to an
earlier date, in which case they were true, correct and complete in all
material respects on and as of such earlier date.
G. ABSENCE OF DEFAULT. Upon giving effect to this
Amendment, no event has occurred and is continuing or will result from the
consummation of the transactions contemplated by this Amendment that would
constitute an Event of Default or a Potential Event of Default.
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SECTION 6. ACKNOWLEDGEMENT AND CONSENT
A. Guarantors are parties to the Guaranty, the Guarantor
Pledge Agreement (in the case of certain Guarantors), the Security Agreement
dated as of March 31, 1995 and as the same has been and may be amended from
time to time (the "SECURITY AGREEMENT") by the Guarantors named therein (in the
case of certain Guarantors) and the Second Amended and Restated Trademark
Mortgage Agreement dated as of March 31, 1995 (as amended, the "TRADEMARK
AGREEMENT") between Ticketmaster Corporation and Agent (in the case of
Ticketmaster Corporation) pursuant to which each Guarantor has guarantied the
Obligations on the terms (and to the extent) set forth in the Guaranty and
certain Guarantors have created Liens in favor of Agent on certain Collateral
to secure the Obligations on the terms (and to the extent) set forth in the
Guarantor Pledge Agreement, the Security Agreement and the Trademark Agreement.
The Guaranty, the Guarantor Pledge Agreement, the Security Agreement and the
Pledge Agreement are collectively referred to herein as the "GUARANTOR
DOCUMENTS."
Each Guarantor hereby acknowledges that it has reviewed the
terms and provisions of the Credit Agreement and this Amendment and consents to
the amendment of the Credit Agreement effected pursuant to this Amendment.
Each Guarantor hereby confirms that each Guarantor Document to which it is a
party or otherwise bound and all Collateral encumbered thereby will continue to
guaranty or secure, as the case may be, to the fullest extent possible in
accordance with the applicable provisions of the Guarantor Documents the
payment and performance of all guarantied or secured obligations.
Without limiting the generality of the foregoing each
Guarantor hereby expressly acknowledges and consents to the $30,000,000
increase in the Term Loans pursuant to the Term Bridge Loan Commitments to be
effected by this Amendment and hereby agrees that, for the purposes of each
Guarantor Document, the "Term Loan" shall mean the Term Loan as so increased.
Each Guarantor hereby agrees that this Amendment shall evidence its consent to
such increase in the Term Loans pursuant to the Term Bridge Loan Commitments.
Each Guarantor acknowledges and agrees that any of the
Guarantor Documents to which it is a party or otherwise bound shall continue in
full force and effect and that all of its obligations thereunder shall be valid
and enforceable and shall not be impaired or limited by the execution or
effectiveness of this Amendment. Each Guarantor represents and warrants that
all representations and warranties contained in the Guarantor Documents to
which it is a party or otherwise bound are true, correct and complete in all
material respects on and as of the Sixth Amendment Effective Date to the same
extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as of
such earlier date.
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Each Guarantor acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Amendment,
such Guarantor is not required by the terms of the Credit Agreement or any
other Loan Document to consent to the amendments to the Credit Agreement
effected pursuant to this Amendment and (ii) nothing in the Credit Agreement,
this Amendment or any other Loan Document shall be deemed to require the
consent of such Guarantor to any future amendments to the Credit Agreement.
B. THIRD PARTY PLEDGOR. The Third Party Pledgor has
created a Lien on certain Collateral to secure the Obligations pursuant to (and
to the extent set forth in) the Third Party Pledge Agreement. The Third Party
Pledgor hereby acknowledges that he has reviewed the terms and provisions of
the Credit Agreement and this Amendment and consents to the amendment of the
Credit Agreement effected pursuant to this Amendment.
Without limiting the generality of the foregoing the Third
Party Pledgor hereby expressly acknowledges and consents to the $30,000,000
increase in the Term Loans pursuant to the Term Bridge Commitments to be
effected by this Amendment and hereby agrees that, for the purposes of the
Third Party Pledge Agreement, the "Term Loan" shall mean the Term Loans as so
increased. The Third Party Pledgor hereby agrees that this Amendment shall
evidence his consent to such increase in the Term Loan Commitments and Term
Loans for the purposes of the Third Party Pledge Agreement, including Section
15(f) thereof.
The Third Party Pledgor confirms that the Third Party Pledge
Agreement and all Collateral encumbered thereby will continue to secure in
accordance with the applicable provisions of the Third Party Pledge Agreement
the payment and performance of all secured obligations.
The Third Party Pledgor acknowledges and agrees that the Third
Party Pledge Agreement shall continue in full force and effect and that all of
his obligations thereunder shall be valid and enforceable and shall not be
impaired or limited by the execution or effectiveness of this Amendment. The
Third Party Pledgor represents and warrants that all representations and
warranties contained in the Third Party Pledge Agreement are true, correct and
complete in all material respects on and as of the Sixth Amendment Effective
Date to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
SECTION 7. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND
THE OTHER LOAN DOCUMENTS. On and after the Sixth Amendment Effective Date,
each reference in
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the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Amended Agreement. Except as specifically amended by this
Amendment, the Credit Agreement and the other Loan Documents shall remain in
full force and effect and are hereby ratified and confirmed. The execution,
delivery and performance of this Amendment shall not, except as expressly
provided herein, constitute a waiver of any provision of, or operate as a
waiver of any right, power or remedy of Agent or any Lender under, the Credit
Agreement or any of the other Loan Documents.
B. FEES AND EXPENSES. Borrower acknowledges that all
reasonable cost, fees and expenses as described in subsection 9.3 of the Credit
Agreement incurred by Agent and its counsel with respect to this Amendment and
the documents and transactions contemplated hereby shall be for the account of
the Borrower.
C. HEADINGS. Section and subsection headings in this
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given any
substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWER:
TICKETMASTER GROUP, INC.,
an Illinois corporation
By:
-------------------------------
Title:
----------------------------
GUARANTORS (FOR THE PURPOSES OF
SECTIONS 3 AND 6A ONLY):
TICKETMASTER CORPORATION,
an Illinois corporation
TICKETMASTER-SOUTHERN
CALIFORNIA, INC., a California
corporation
TICKETMASTER-ARIZONA, INC., an
Arizona corporation
TICKETMASTER CORPORATION OF
WASHINGTON, a Washington
corporation
TICKETMASTER-COLORADO, INC., a
Colorado corporation
TICKETMASTER-INDIANA, INC., an
Indiana corporation
TICKETMASTER-GEORGIA, INC., a
Georgia corporation
TICKETMASTER-CHICAGO, INC., an
Illinois corporation
TICKETMASTER-MIDWEST, INC., a
Minnesota corporation
By:_____________________________
Xxxxx X. Xxxxxxx
Its: Senior Vice President and
Chief Financial Officer
S-1
15
TICKETMASTER ADVERTISING
COMPANY, an Illinois corporation
TMC CONSULTANTS, INC., an
Illinois corporation
TICKETMASTER-TENNESSEE, INC., a
Tennessee corporation
TICKETMASTER-LAS VEGAS, INC., a
Nevada corporation
TMNY HOLDINGS, INC., a New York
corporation
TICKETMASTER-NEW YORK, INC., a
Delaware corporation
TICKETMASTER-MICHIGAN, INC., a
Michigan corporation
TICKETMASTER FLORIDA
MANAGEMENT CORPORATION, a
Florida corporation
TICKETMASTER EUROPE, INC.,
a Delaware corporation
TICKETMASTER-TEXAS MANAGEMENT
CORPORATION, a Delaware
Corporation
ENTERTAINMENT STRATEGIES, LTD.,
a California corporation
TICKETMASTER-NEW ORLEANS, INC.,
a Louisiana corporation
TICKETMASTER CORPORATION,
a Delaware corporation
TICKETMASTER TICKETING CO., INC., a
Delaware corporation
TM OVERSEAS, INC., a
Delaware corporation
TICKETMASTER EUROPE GROUP, a
Delaware joint venture
By:_____________________________
Xxxxx X. Xxxxxxx
Authorized Officer
S-2
16
THIRD PARTY PLEDGOR (FOR THE PURPOSES OF
SECTION 6B ONLY):
XXXX XXXXX
__________________________________
LENDERS:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, individually as a Lender and
as Agent
By:
--------------------------------
Title:
-----------------------------
U.S. BANK OF WASHINGTON, N.A.,
as a Lender
By:
-------------------------------
Title:
----------------------------
BANQUE NATIONALE DE PARIS,
as a Lender
By:
-------------------------------
Title:
----------------------------
FIRST BANK NATIONAL ASSOCIATION,
as a Lender
By:
-------------------------------
Title:
----------------------------
X-0
00
XXXX XXXXXXXX XXXX,
as a Lender
By:
-------------------------------
Title:
----------------------------
THE NIPPON CREDIT BANK, LTD., LOS
ANGELES AGENCY, as a Lender
By:
-------------------------------
Title:
----------------------------
SEATTLE FIRST NATIONAL BANK,
as a Lender
By:
-------------------------------
Title:
----------------------------
KREDIETBANK N.V.,
as a Lender
By:
-------------------------------
Title:
----------------------------
SUMITOMO BANK OF CALIFORNIA,
as a Lender
By:
-------------------------------
Title:
----------------------------
S-4
18
ANNEX A
PROMISSORY NOTE
(TERM BRIDGE LOAN NOTE)
ORIGINAL FACE AMOUNT: $[Dollar Amount]
MAKER: TICKETMASTER GROUP, INC., an Illinois corporation
DATED AS OF: ____________________, 1996
1. PROMISE TO REPAY. FOR VALUE RECEIVED, Ticketmaster
Group, Inc., an Illinois corporation ("Maker"), promises to pay to [INSERT
LENDER'S NAME] ("Holder"), or order, the principal sum of [DOLLAR AMOUNT]
($[Dollar Amount]) or such lesser amount as shall equal Holder's Pro Rata Share
of the outstanding principal amount of the Term Bridge Loan Commitment
described in Section 2.2(a) of that certain Credit Agreement, dated as of
November 18, 1994 (as amended, the "Credit Agreement"), by and among Maker,
Holder and the other financial institutions which are or hereafter become
signatories thereto and which are identified on Schedule A thereto, as amended
from time to time (each a "Lender" and collectively the "Lenders"), and Xxxxx
Fargo Bank, National Association, a national banking association, as agent for
the Lenders thereunder ("Agent").
2. DEFINED TERMS. Initially capitalized terms used but
not defined herein shall have the meanings assigned to such terms in the Credit
Agreement. This Promissory Note (Term Bridge Loan Note) (this "Note") is a
"Term Loan Note" as such term is used in the Credit Agreement and is subject to
the terms and provisions of the Credit Agreement. In the event of any
irreconcilable conflict between any terms of this Note and the terms of the
Credit Agreement, the terms of the Credit Agreement shall prevail.
3. PAYMENTS OF PRINCIPAL AND INTEREST.
(A) Maker hereby promises to make payments of
principal and interest with respect to the Loan evidenced hereby at the rates
and times, and in the amounts, and, in all other respects, in the manner
provided in the Credit Agreement.
(B) As more fully set forth in the Credit
Agreement, Maker shall not be obligated to pay, and the Holder of this Note
shall not be obligated to charge, collect, receive, reserve or take interest
(it being understood that interest shall be calculated as the aggregate of all
charges which constitute interest under applicable law that are contracted for,
charged, reserved, received or paid) in excess of the Highest Lawful Rate.
(C) The Credit Agreement provides for, among
other things, the acceleration of the maturity of the unpaid principal amount
hereof upon the occurrence
A-1
19
of certain Events of Default and voluntary and mandatory prepayments in certain
circumstances and upon certain terms and conditions. Furthermore, the Credit
Agreement allows the assignment by Holder of, and the granting of
participations by Holder in, this Note in the manner more fully set forth in
the Credit Agreement. Reference should be made to the Credit Agreement for the
foregoing provisions.
4. PAYMENTS OF FEES AND OTHER AMOUNTS AND PREPAYMENTS.
All payments of fees and other amounts due under the Credit Agreement and any
prepayments made under this Note shall be made in accordance with the terms and
provisions of the Credit Agreement. All payments (including prepayments) made
hereunder shall be applied as set forth in the Credit Agreement.
5. SECURED NOTE. The obligations of Maker under this
Note, the Credit Agreement and the other Loan Documents are secured by certain
Collateral pursuant to the terms of those certain Collateral Documents of even
date herewith.
6. WAIVERS. Except as specifically set forth in the
Credit Agreement, Maker, for itself and its legal representatives, successors
and assigns, expressly waives presentment, protest, demand, notice of dishonor,
notice of nonpayment, notice of maturity, notice of intent to accelerate,
notice of acceleration, presentment for the purpose of accelerating maturity
and diligence in collection.
7. INCORPORATION. ALL OF THE COVENANTS, CONDITIONS,
WARRANTIES, REPRESENTATIONS, AND AGREEMENTS CONTAINED IN THE CREDIT AGREEMENT,
IN THE OTHER LOAN DOCUMENTS, OR IN ANY OTHER AGREEMENT AMONG MAKER, AGENT OR
THE LENDERS WHICH IS EXECUTED IN CONNECTION WITH THE CREDIT AGREEMENT OR THIS
NOTE, IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREUNDER OR UNDER THE
CREDIT AGREEMENT, ARE HEREBY INCORPORATED HEREIN BY THIS REFERENCE AND MADE A
PART HEREOF.
8. ATTORNEYS' FEES. Maker hereby agrees to pay (a) the
reasonable out-of-pocket costs and expenses, (including reasonable attorneys'
fees and expenses, including allocated fees and expenses of in-house counsel of
Agent on a real hourly basis) incurred by Agent and the Lenders to correct any
default, to enforce any provision of this Note or to prosecute or defend any
lawsuit (whether in pretrial, trial or appellate proceedings) or administrative
proceeding arising from or relating to this Note, or the transactions or
occurrences arising hereunder or thereunder or relating hereto or thereto
(provided that solely with respect to any litigation between Maker and Agent
and the Lenders arising in connection with actions described in this clause
(a), Agent and the Lenders shall only be entitled to reimbursement of such
costs and expenses to the extent their position has substantially prevailed in
court), and (b) the reasonable out-of-pocket costs and expenses (including
reasonable attorneys' fees and expenses, including allocated fees and expenses
of in-house counsel on a real hourly basis, and the fees and expenses of other
professionals) incurred by Agent or any Lender in connection with any
A-2
20
bankruptcy or other insolvency proceeding, reorganization, workout, composition
or other creditor arrangement of Maker or any Subsidiary or Partnership.
9. HEADINGS. Section headings used in this Note are
solely for convenience of reference, shall not constitute a part of this Note
for any other purpose and shall not affect the construction of this Note.
10. GOVERNING LAW AND VENUE. THIS NOTE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, EXCEPT
TO THE EXTENT THAT AGENT OR LENDER HAS GREATER RIGHTS OR REMEDIES UNDER FEDERAL
LAW, WHETHER AS A NATIONAL BANK OR OTHERWISE, IN WHICH CASE SUCH CHOICE OF
CALIFORNIA LAW SHALL NOT BE DEEMED TO DEPRIVE AGENT OR LENDER OF SUCH RIGHTS
AND REMEDIES AS MAY BE AVAILABLE TO IT UNDER FEDERAL LAW.
Dated: ____________________, 1996
TICKETMASTER GROUP, INC.,
an Illinois corporation
By: _________________________
Name:
Title:
X-0
00
XXXXX X
SCHEDULE A
SCHEDULE A
LENDERS, PRO RATA SHARES AND TERM BRIDGE COMMITMENTS
Term Bridge Loan
Lender Pro Rate Share Commitment
------ -------------- ----------
Xxxxx Fargo Bank, N.A. 34.857142851% $10,457,142.86
First Bank National Association 14.28571429% $ 4,285,714.29
Seattle First National Bank 11.428571428% $ 3,428,571.43
U.S. Bank of Washington, N.A. 8.57142857% $ 2,571,428.57
The Nippon Credit Bank, Ltd.,
Los Angeles Agency 8.57142857% $ 2,571,428.57
Banque Nationale de Paris 5.14285714% $ 1,542,857.14
City National Bank 2.85714286% $ 857,142.86
Kredietbank N.V. 8.571428571% $ 2,571,428.57
Sumitomo Bank of California 5.714285714% $ 1,714,285.71
------------ ------------
Total: 100% $30,000,000.00
B-1
