EXHIBIT 10.34
SIXTH AMENDMENT dated as of December 7, 2001 (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 JPMORGAN
CHASE BANK (f/k/a 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 or waived in the manner provided for in this
Amendment, and the Lenders are willing to agree to such waivers and
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 AND WAIVERS. (a) Compliance with Sections 5.10,
5.16, 5.17, 5.18, 5.19 and 5.20 of the Credit Agreement is hereby waived to the
extent required to permit the consummation of the Borrower Transaction.
(b) 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
that USANi and its Subsidiaries and, following the
completion of the Expedia Acquisition, Expedia are engaged
in as of September 30, 2001 and natural extensions
thereof.", and
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(ii) The definition of "GUARANTOR" is hereby amended by
deleting the parenthetical therein and substituting in
lieu thereof the following:
"(except for the Borrower, the Foreign Subsidiaries, those
subsidiaries listed on Schedule 1.01(b), the Non-Material
Subsidiaries and the Publicly-Traded Subsidiaries and each
of their respective Subsidiaries)".
(c) Section 1.01 of the Credit Agreement is hereby amended by
inserting the following definitions in their proper alphabetical order:
(i) ""BORROWER TRANSACTION" shall mean (i) the exchange or
conversion (by merger, share exchange or otherwise) of all
of the outstanding membership interests in the Borrower,
other than the membership interests in the Borrower held
by USANi, USANI Holding XI, Inc. and Home Shopping, for or
into shares of USANi capital stock and (ii) the exchange
or conversion (by merger, share exchange or otherwise) of
all of the outstanding capital stock of Home Shopping,
other than the capital stock of Home Shopping held by
USANi, for or into shares of USANi capital stock.",
(ii) ""EXPEDIA" shall mean Expedia, Inc., which, following the
completion of the Expedia Acquisition, will be a
majority-owned Subsidiary of USANi.",
(iii) ""EXPEDIA ACQUISITION" shall mean the acquisition by USANi
of a Controlling interest in Expedia in exchange for,
among other things, newly issued shares of USANi common
stock, up to 13,125,000 newly issued shares of Series A
Stock and warrants to acquire shares of USANi common
stock, in each case as described in the Expedia
Agreement.",
(iv) ""EXPEDIA AGREEMENT" shall mean the Amended and Restated
Agreement and Plan of Recapitalization and Merger, dated
as of July 15, 2001, by and among USANi, Taipei, Expedia,
and the other parties thereto, and the exhibits and other
attachments thereto, with such changes thereto that are
not in the aggregate materially adverse to the interests
of the Lenders.",
(v) ""EXPEDIA TRANSACTIONS" shall mean the Expedia
Acquisition, the NLG Payment, the Travel Channel Option,
the USA Media Transaction, the MS Guarantee and such other
related transactions as are described in the Expedia
Agreement.",
(vi) ""HRN" shall mean Hotel Reservations Network, Inc., a
majority-owned Subsidiary of USANi.",
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(vii) ""MS GUARANTEE" shall mean USANi's agreement, in
connection with the completion of the Expedia Acquisition,
to Guarantee Expedia's payment obligations to Microsoft
Corporation under various service agreements between
Microsoft and Expedia.",
(viii) ""NLG PAYMENT" shall mean the payment of $20 million in
cash that USANi may be required to make to Expedia
pursuant to the Expedia Agreement following the completion
of the Expedia Acquisition as a result of the termination
of USANi's agreement to acquire National Leisure Group.",
(ix) ""PUBLICLY-TRADED SUBSIDIARIES" shall mean, collectively,
HRN, Styleclick, TM and, following the completion of the
Expedia Acquisition, Expedia.",
(x) ""SERIES A STOCK" shall mean the USANi Series A cumulative
convertible preferred stock, $50 per share face value,
with a term of 20 years and that is entitled to quarterly
dividend payments.",
(xi) ""STYLECLICK" shall mean Styleclick, Inc., a
majority-owned Subsidiary of USANi.",
(xii) ""TAIPEI" shall mean Taipei, Inc., a Wholly Owned
Subsidiary of USANi.","
(xiii) ""TM" shall mean Ticketmaster (f/k/a Ticketmaster
OnlineCitySearch, Inc.), a majority-owned Subsidiary of
USANi.",
(xiv) ""TRAVEL CHANNEL OPTION" shall mean the two year option
granted pursuant to the Expedia Agreement for Expedia to
acquire from USANi one-third of USANi's original equity
and economic interest in the travel channel cable network
currently under development by USANi for a purchase price
equal to one-third of the aggregate cost to date of
exercise incurred by USANi and its Subsidiaries in the
development of the travel channel plus interest at USANi's
cost of funds (such interest not to exceed the prime rate
plus 1%).",
(xv) ""USA MEDIA" shall mean USA Media, LLC, a Wholly Owned
Subsidiary of USANi.", and
(xvi) ""USA MEDIA TRANSACTION" shall mean the transfer pursuant
to the Expedia Agreement by USANi to Expedia of all of the
outstanding equity of USA Media, which will have as its
sole asset the right to receive at no cost to USA Media
advertising, marketing and promotional time valued at $15
million per year for each of the next five years, on the
various media outlets owned by USANi and
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its Subsidiaries, which right can only be used to promote
the business of USA Media and its affiliates and their
respective partners, business affiliates and suppliers.".
(d) Section 5.01 of the Credit Agreement is hereby amended by adding
the following sentence at the end of the last paragraph thereof:
"Notwithstanding anything in this Agreement to the contrary, so long as the
Borrower is a Wholly Owned Subsidiary of USANi, the obligation of the Borrower
to provide the Administrative Agent, the Lenders and the Issuing Bank with the
financial statements of the Borrower set forth in this Section 5.01 shall cease
upon the later of (i) the consummation of the Borrower Transaction and (ii) the
date on which the Borrower is no longer required to file regular SEC Reports
with the Securities and Exchange Commission.".
(e) Section 5.07 of the Credit Agreement is hereby amended by:
(i) in clause (h) thereof, deleting the reference therein to
"$35,000,000" and replacing it with a reference to
"$70,000,000",
(ii) deleting clause (m) thereof in its entirety and replacing
it with the following: "Indebtedness of any Subsidiary
(other than the Publicly-Traded Subsidiaries and each of
their respective Subsidiaries) that is not a Guarantor to
the Borrower, USANi or any Guarantor in an aggregate
principal amount (together with all such other outstanding
Indebtedness of such Subsidiaries and Investments
outstanding under Section 5.19(h)) at any time outstanding
not in excess of $300,000,000;",
(iii) deleting "and" at the end of clause (o) thereof, and
(iv) deleting the period at the end of clause (p) thereof and
substituting the following therefor: "; (q) the MS
Guarantee; and (r) Indebtedness of the Publicly-Traded
Subsidiaries and each of their respective Subsidiaries to
the Borrower, USANi or any Guarantor in an aggregate
principal amount (together with all such other outstanding
Indebtedness of such Persons and Investments outstanding
under Section 5.19(j)) at any time outstanding not in
excess of $500,000,000.".
(f) Section 5.10 of the Credit Agreement is hereby amended by
deleting the last sentence thereof and replacing it with the following: "Nothing
in this Section 5.10 shall prohibit USANi, the Borrower or any Guarantor from
complying with the provisions of the Investment Agreement, the agreements listed
on Schedule 5.17 and the Expedia Agreement.".
(g) Section 5.16 of the Credit Agreement is hereby amended by:
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(i) adding the following at the beginning of clause (a):
"except to consummate a transaction expressly permitted by
Section 5.17 or 5.20,", and
(ii) adding the following immediately after "PROVIDED, HOWEVER,
that none of the foregoing transactions shall be permitted
if a Default or an Event of Default has occurred and is
continuing or would result from the consummation of any
such transaction": ", and PROVIDED FURTHER, HOWEVER, that,
for purposes of this Section 5.16, none of the
Publicly-Traded Subsidiaries or any of their respective
Subsidiaries shall be considered a Material Subsidiary or
a Subsidiary constituting part of a Material Subsidiary
Group.".
(h) Section 5.17 of the Credit Agreement is hereby amended by:
(i) deleting "and" at the end of clause (i) thereof and
replacing the period at the end of clause (j) thereof with
"; and (k) the sale or other disposition of the rights of
USANi and/or one or more of its Subsidiaries as required
by the Expedia Agreement, including with respect to the
Travel Channel Option, the USA Media Transaction and the
NLG Payment.", and
(ii) adding the following at the end of such Section:
"Notwithstanding the foregoing, for purposes of this
Section 5.17, none of the Publicly-Traded Subsidiaries or
any of their respective Subsidiaries shall be considered a
Credit Party, a Material Subsidiary or a Subsidiary
constituting part of a Material Subsidiary Group.".
(i) Section 5.18(a) of the Credit Agreement is hereby amended by:
(i) in clause (i) thereof, adding the following immediately
after "except that USANi": "and the Publicly-Traded
Subsidiaries",
(ii) in clause (i) thereof, deleting the reference therein to
"$300,000,000" and replacing it with a reference to
"$500,000,000",
(iii) in clause (i) thereof, replacing "redeem shares of its
capital stock" with "redeem shares of their respective
capital stock",
(iv) in clause (i) thereof, adding the following before the ";"
at the end of such clause: "; PROVIDED that none of an
Investment made pursuant to Section 5.19(j), the
consummation of the Travel Channel Option, the
consummation of the USA Media Transaction or the
conversion or redemption of the Series A Stock in
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accordance with its terms shall constitute a repurchase,
redemption or acquisition for purposes of this
clause (i)", and
(v) in clause (ii) thereof, deleting "and" at the end of
clause (B) thereof and replacing it with a "," and
inserting the following at the end of clause (C) thereof:
", (D) USANi may declare, make and pay (whether in cash or
shares of its capital stock, at USANi's option) dividends
on the Series A Stock in accordance with the terms
thereof, (E) USANi and any of its Subsidiaries may
declare, make and pay and agree to declare make and pay
dividends or other distributions consisting solely of
capital stock and/or rights to acquire capital stock of
the Person declaring, making or paying or agreeing to
declare make or pay such dividend or other distribution,
(F) any Subsidiary of any of the Publicly-Traded
Subsidiaries may declare, make or pay or agree to declare
make or pay dividends or other distributions to its
stockholders, and (G) in addition to the matters specified
in clauses (A) through (F) above, USANi and any of its
Subsidiaries may declare, make and pay cash dividends on
shares of its respective capital stock in an aggregate
annual amount of up to $2,000,000."
(j) Section 5.19 of the Credit Agreement is hereby amended by:
(i) in clause (e) thereof, deleting the reference therein to
"$300,000,000" and replacing it with a reference to
"$750,000,000",
(ii) in clause (h) thereof, deleting the reference therein to
"$200,000,000" and replacing it with a reference to
"$500,000,000", deleting the first parenthetical therein
in its entirety and replacing it with the following:
"(excluding the Publicly-Traded Subsidiaries and each of
their respective Subsidiaries)", and inserting the
following immediately prior to "not to exceed
$500,000,000": "outstanding",
(iii) deleting "and" at the end of clause (i) thereof,
(iv) deleting clause (j) thereof in its entirety and replacing
it with the following: " (j) Investments made after the
Effective Date in the Publicly-Traded Subsidiaries and any
of their respective Subsidiaries in an aggregate
outstanding amount not to exceed $500,000,000; PROVIDED
that any such Investment is evidenced by an intercompany
note", and
(v) inserting the following after clause (j) thereof: "; (k)
the MS Guarantee; and (l) in connection with the Expedia
Acquisition and immediately following the merger of Taipei
with and into Expedia,
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the contributions of the Travel Channel Option and the
outstanding equity of USA Media to Expedia.".
(k) Section 5.20 of the Credit Agreement is hereby amended by:
(i) in clause (a) thereof, deleting the reference therein to
"$200,000,000" and replacing it with a reference to
"$500,000,000",
(ii) in clause (b) thereof, adding the following immediately
after "solely of capital stock": ", and/or rights to
acquire capital stock,", and
(iii) deleting "and" at the end of clause (c) thereof and
replacing the period at the end of clause (d) thereof with
"; and (e) the Expedia Acquisition.".
(l) Section 5.25 of the Credit Agreement is hereby amended by:
(i) in clause (a) thereof, adding the following at the end of
the last sentence of such Section: "; PROVIDED that,
notwithstanding the foregoing, neither USANi nor the
Borrower will be required to comply with this Section
5.25(a) with respect to any of the Publicly-Traded
Subsidiaries or any of their respective Subsidiaries
unless and until such Person becomes a Wholly Owned
Subsidiary of USANi", and
(ii) in clause (b) thereof, adding the following at the end of
the last sentence of such Section: "; PROVIDED that,
notwithstanding the foregoing, neither USANi nor the
Borrower will be required to comply with this Section
5.25(b) with respect to any of the Publicly-Traded
Subsidiaries or any of their respective Subsidiaries
unless and until such Person becomes a Wholly Owned
Subsidiary of USANi.".
(m) Set forth on Schedule I hereto is a true and complete list
of each Guarantor as of the date hereof.
3. NO OTHER AMENDMENTS; CONFIRMATION. Except as expressly
amended, waived, modified or 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 and as
of the Amendment Effective Date (as defined below) as follows:
(a) No Default or Event of Default has occurred and is continuing.
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(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 on
the date (the "AMENDMENT EFFECTIVE DATE") that the following conditions
precedent are satisfied in full:
(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 & Xxxxx, 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.
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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/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Controller
USANi LLC,
by
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Controller
JPMORGAN CHASE BANK
by
/s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
ABN AMRO BANK NV
by
/s/ Xxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Group Vice President
by
/s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Corporate Banking Officer
BNP PARIBAS
by
/s/ Xxx Xxxxxx
------------------------------------
Name: Xxx Xxxxxx
Title: Director
Media & Telecom Finance
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by
/s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Head of Asset Managment
Media & Telecom Finance
BANK OF AMERICA, N.A.
by
/s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Principal
THE BANK OF NEW YORK COMPANY, INC.
by
/s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Authorized Signer
THE BANK OF NOVA SCOTIA
by
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
CFP CAPITAL CORPORATION
(f/k/a Banque Worms Capital Corporation)
by
/s/ Xxxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: CEO
CREDIT INDUSTRIEL ET COMMERCIAL
by
/s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
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by
/s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
DAI-ICHI KANGYO BANK, LIMITED
by
/s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Credit Officer
FIRST HAWAIIAN BANK
by
/s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Media Finance Officer
FLEET NATIONAL BANK
by
/s/ Xxxxxx Bergueno
------------------------------------
Name: Xxxxxx Bergueno
Title: Vice President
UNION BANK OF CALIFORNIA
by
/s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
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XXXXX FARGO BANK, NA
by
/s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
SCHEDULE I
Guarantors
--------------------------------------------- -----------------------------
NAME JURISDICTION
--------------------------------------------- -----------------------------
Home Shopping Network, Inc. Delaware
--------------------------------------------- -----------------------------
USANi Sub LLC Delaware
--------------------------------------------- -----------------------------
USAi Sub, Inc. Delaware
--------------------------------------------- -----------------------------
HSN, LP Delaware
--------------------------------------------- -----------------------------
National Call Center LP Delaware
--------------------------------------------- -----------------------------
HSN Capital LLC Delaware
--------------------------------------------- -----------------------------
HSN Fulfillment LLC Delaware
--------------------------------------------- -----------------------------
HSN Realty LLC Delaware
--------------------------------------------- -----------------------------
HSN of Nevada LLC Delaware
--------------------------------------------- -----------------------------
New-U Studios Holdings, Inc. Delaware
--------------------------------------------- -----------------------------
HSN General Partner LLC Delaware
--------------------------------------------- -----------------------------
Studios USA LLC Delaware
--------------------------------------------- -----------------------------
USA Networks Partner LLC Delaware
--------------------------------------------- -----------------------------
USA Cable (New York General Partnership) New York
--------------------------------------------- -----------------------------
Studios USA Television LLC Delaware
--------------------------------------------- -----------------------------
Studios USA First-Run Television LLC Delaware
--------------------------------------------- -----------------------------
Studios USA Pictures LLC Delaware
--------------------------------------------- -----------------------------
Studios USA Programming LLC Delaware
--------------------------------------------- -----------------------------
Studios USA Talk Productions LLC Delaware
--------------------------------------------- -----------------------------
Studios USA Talk Television LLC Delaware
--------------------------------------------- -----------------------------
Studios USA Pictures Development LLC Delaware
--------------------------------------------- -----------------------------
Studios USA Television Distribution LLC Delaware
--------------------------------------------- -----------------------------
Studios USA Talk Video LLC Delaware
--------------------------------------------- -----------------------------
New-U Pictures Facilities LLC Delaware
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