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EXHIBIT 10.37
FOURTH AMENDMENT, dated as of February 13, 1996, to the SECOND
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 30, 1994 (as amended
by the First Amendment thereto, dated as of March 29, 1995, as further amended
by the Second Amendment thereto, dated as of June 28, 1995, and as further
amended by the Third Amendment thereto, dated as of September 28, 1995, the
"Credit Agreement"), among HOME SHOPPING NETWORK, INC., a Delaware corporation,
as borrower (the "Company"), HOME SHOPPING CLUB, INC., a Delaware corporation
("HSC"), HSN REALTY, INC., a Delaware corporation ("HSNR"; together with HSC,
the "Guarantors"), the banks signatory thereto (individually, a "Bank" and
collectively, the "Banks"), LTCB TRUST COMPANY, as Agent, THE BANK OF NEW YORK
COMPANY, INC., TORONTO DOMINION [TEXAS], INC. and BANK OF MONTREAL, each as a
Co-Agent (each in such capacity, a "Co-Agent"), LTCB TRUST COMPANY, as
Administrative Agent for the Banks (in such capacity, the "Administrative
Agent"), and LTCB TRUST COMPANY, as collateral agent for the Banks (in such
capacity, the "Collateral Agent").
WHEREAS, the Company and each of the Guarantors have
requested, and the Banks and the Administrative Agent are willing, to amend
certain provisions of the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereby agree as follows:
Section 1. Certain Defined Terms. Except as expressly set
forth in this Fourth Amendment, terms defined in the Credit Agreement and used
herein shall have their respective defined meanings when used herein.
Section 2. Amendments to the Credit Agreement. Subject to the
fulfillment of the conditions precedent set forth in Section 5 hereof, the
Credit Agreement is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended
by inserting the parenthetical "(except for any such other event relating to
the Contemplated Change of Control)" immediately after the words "or any other
event" appearing in clause (i) of the definition of "Change in Control" set
forth in such Section.
(b) Section 1.1 of the Credit Agreement is hereby further
amended by inserting the words "and Section 2.8(c)" immediately after the
reference to "Section 2.3" appearing within the parenthetical appearing in the
definition of "Commitment" set forth in such Section.
(c) Section 1.1 of the Credit Agreement is hereby further
amended by inserting the following new sentence at the
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end of the definition of "Operating Cash Flow" set forth in such Section:
Operating Cash Flow for each of the following Fiscal
Quarters, and for any period including any such Fiscal Quarter, shall
be calculated without giving effect to in the case of (a) the Fiscal
Quarter ending on September 30, 1995, $5,427,000 of severance and
restructuring charges, (b) the Fiscal Quarter ending on December 31,
1995, up to but not exceeding $21,000,000 in the aggregate of
non-recurring charges as reflected in the Company's financial
statements for such Fiscal Quarter (the nature of which charges shall
be substantially the same as those described by the Company to the
Administrative Agent and the Banks prior to the Fourth Amendment
Effective Date), and (c) to the extent less than $21,000,000 of such
non-recurring charges occurred in the Fiscal Quarter ending on
December 31, 1995, the Fiscal Quarter ending on March 31, 1996, up to
but not exceeding the lesser of (x) such remainder and (y) $2,500,000
of such non-recurring charges as reflected in the Company's financial
statements for such Fiscal Quarter.
(d) Section 1.1 of the Credit Agreement is hereby further
amended by adding the following new definitions thereto in the appropriate
alphabetical position as follows:
"Contemplated Change of Control" shall have the meaning
assigned to that term in Section 3 of the Fourth Amendment.
"Fourth Amendment" shall mean the Fourth Amendment to this
Agreement dated as of February 13, 1996.
"Permitted Indebtedness" shall mean, for any Person (but
without duplication):
(a) loans, not under this Agreement, outstanding on the Third
Amendment Effective Date, but not any extension, renewal, refinancing
or replacement thereof;
(b) Loans to the Company under this Agreement in accordance
with Section 9.20(e) hereof;
(c) Indebtedness of the Company and the Guarantors under the
BNY L/C Facility and in connection with the Insurance Standby Letter
of Credit; and
(d) the Permitted Subordinated Debentures of the Company.
"Permitted Subordinated Debentures" shall mean Indebtedness of
the Company under convertible subordinated debentures up to
approximately an aggregate principal amount of $100,000,000; provided
that the Permitted Subordinated
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Debentures (a) shall have a final maturity at least six months after
the Commitment Termination Date under each of this Agreement and the
BNY Facility Agreement, (b) shall be issued at par and shall bear
interest at a rate per annum not greater than 8.5%, (c) shall be
unsecured and (d) shall be expressly subordinated in all respects to
the payment in full in cash of all of the Obligations and all of the
obligations of the Company and the other obligors under the BNY L/C
Facility; and, provided, further, that the terms of subordination of
the Permitted Subordinated Debentures, including, without limitation,
stop payment provisions which shall become effective upon the
occurrence of an Event of Default under this Agreement, shall have
been approved in writing in advance by the Majority Banks. The Banks
agree to respond promptly to any such request for approval made by the
Company.
"Schedule 13D" shall have the meaning assigned to that term in
Section 3 of the Fourth Amendment.
(e) Section 2.4 of the Credit Agreement is hereby amended by adding
the following new subparagraph (c) at the end thereof:
(c) On March 31, 1996, if by such date the Company has not
received cash proceeds in an aggregate principal amount of at least
$50,000,000 from the issuance of Permitted Subordinated Debentures,
the Company shall pay to the Administrative Agent for the account of
each Bank a fee in an amount equal to .075% of such Bank's outstanding
Commitment (whether or not utilized) as in effect on such date.
(f) Section 2.8 of the Credit Agreement is hereby amended
by adding the following new subparagraph (c) at the end thereof:
(c) The Company shall apply an amount equal to 30% of
the principal amount of any Permitted Subordinated Debentures that the
Company issues to permanently reduce the Commitments. If any such
reduction in the Commitments shall result in the aggregate principal
amount of the Loans exceeding the Commitments, the Company shall
prepay the Loans in an amount equal to such excess so that the
aggregate principal amount of the Loans does not exceed the
Commitments. Each such prepayment shall be made within five Business
Days after the date on which cash proceeds are received by the Company
from each issuance of the Permitted Subordinated Debentures.
(g) Section 8.2 of the Credit Agreement is hereby amended
by (i) deleting the reference to "June 30, 1995" appearing in the first
sentence thereof and inserting "September
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30, 1995" in lieu thereof, (ii) deleting the words "two-Fiscal Quarter period"
appearing in the first sentence thereof and inserting the words "three-Fiscal
Quarter period" in lieu thereof and (iii) deleting the words "Third Amendment"
appearing at the end of the last sentence thereof and inserting the words
"Fourth Amendment" in lieu thereof.
(h) Section 9.13 of the Credit Agreement is hereby amended by
inserting the following proviso immediately before the period appearing at the
end thereof:
; and, provided, further, that Consolidated Net Worth
for the Fiscal Quarter ending on December 31, 1995 and each subsequent
Fiscal Quarter shall be calculated without giving effect to an amount
equal to the after-tax effect of up to but not exceeding $29,300,000 of
pre-tax non-recurring charges including non-Operating Cash Flow items
(the nature of which charges shall be substantially the same as those
described by the Company to the Administrative Agent and the Banks
prior to the Fourth Amendment Effective Date) as reflected in the
Company's financial statements for such Fiscal Quarter
(i) Section 9.18 of the Credit Agreement is hereby amended by
inserting the following new sentence at the end thereof:
In addition, the Company shall not prepay, redeem or otherwise
repurchase any of the Permitted Subordinated Debentures.
(j) Section 9.20(a) of the Credit Agreement is hereby amended
by deleting the proviso set forth in such Section in its entirety.
(k) Section 9.20(d) of the Credit Agreement is hereby amended
by deleting the parenthetical set forth in such Section and inserting "(other
than Permitted Indebtedness)" in lieu thereof.
(l) Section 9 of the Credit Agreement is hereby further amended
by adding the following new Section 9.24:
9.24. Permitted Subordinated Debentures. The Company shall
not amend, modify, terminate or waive any of the terms and conditions
of the Permitted Subordinated Debentures or any agreement or document
related thereto or any term thereof in any manner which would have any
adverse effect upon the rights of the Banks.
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(m) Section 10 of the Credit Agreement is hereby amended by (i)
inserting the word "or" immediately after the semi-colon appearing at the end of
subparagraph (m) set forth in such Section and (ii) adding the following new
subparagraph (n):
(n) The Contemplated Change of Control shall be
consummated in a manner other than substantially as described in the
Schedule 13D;
(n) References in the Credit Agreement to "this Agreement" and
the words "hereof", "herein", "hereto" and the like, shall refer to the Credit
Agreement as amended by this Fourth Amendment; provided that the words "the date
of this Agreement" and "the date hereof" shall continue to refer to the date of
the Credit Agreement (being August 30, 1994).
Section 3. Consent of the Administrative Agent and the Banks
to the Contemplated Change of Control. Subject to the fulfillment of the
conditions set forth in Sections 5 and 6 of this Fourth Amendment, the
Administrative Agent and the Banks hereby consent to the consummation of (i)
the transfer by Liberty Media Corporation, a Wholly-Owned Subsidiary of TCI, of
all of its shares of the Company's common stock to Silver King Communications,
Inc. substantially in the manner described in Amendment No. 2 to the Schedule
13D of TCI (as filed with the Securities and Exchange Commission on November
30, 1995, a copy of which has been provided to the Administrative Agent and the
Banks (the "Schedule 13D")), and (ii) the other transactions described in the
Schedule 13D substantially in the manner described therein (collectively, the
"Contemplated Change of Control"). No other transaction affecting the assets,
shares or agreements of the Company is hereby authorized by the Administrative
Agent and the Banks.
Section 4. Representations and Warranties. To induce the
Administrative Agent and each Bank to consent to the Contemplated Change of
Control and to enter into this Fourth Amendment, each of the Company and the
Guarantors hereby represents and warrants that each of the representations and
warranties set forth in Section 8 of the Credit Agreement is true, correct and
complete on and as of the date of this Fourth Amendment (whether or not the
Fourth Amendment Effective Date (as defined in Section 5 hereof) occurs), and
on and as of the Fourth Amendment Effective Date, both before and after giving
effect to the amendments set forth in Section 2 of this Fourth Amendment on
either such date, as if each reference therein to "this Agreement" were a
reference to "this Agreement as amended by the Fourth Amendment", except that
the representations and warranties in the last sentence of Section 8.2 of the
Credit Agreement shall, each time when they are made under this Section 4, be
deemed to have been amended as provided in Section 2(f) of this Fourth
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Amendment. Each of the Company and the Guarantors further represents and
warrants that, as of the date of this Fourth Amendment and as of the Fourth
Amendment Effective Date, no Default or Event of Default has occurred and is
continuing.
Section 5. Conditions Precedent to Effectiveness. The
amendments set forth in Section 2 of this Fourth Amendment and the consent of
the Administrative Agent and the Banks set forth in Section 3 of this Fourth
Amendment shall become effective as of the date (the "Fourth Amendment
Effective Date"), as specified by the Administrative Agent, when counterparts
hereof shall have been duly executed and delivered by the Majority Banks, the
Administrative Agent, the Company and each of the Guarantors, and when each of
the conditions precedent set forth in this Section 5 shall have been fulfilled
to the satisfaction of the Administrative Agent; provided that, as of the
Fourth Amendment Effective Date, (i) the amendment set forth in Section 2(a) of
this Fourth Amendment shall be deemed to be effective as of November 27, 1995
and (ii) the amendments set forth in Sections 2(c) and 2(h) of this Fourth
Amendment shall be deemed to be effective as of December 31, 1995:
A. The Administrative Agent shall have received each
of the following documents, each of which shall be satisfactory to the
Administrative Agent in form and substance:
(1) Certified copies of all corporate action and
(if necessary) stockholder action taken by the Company and
each Guarantor approving this Fourth Amendment and the Credit
Agreement, as amended hereby, and the consummation of the
transactions contemplated hereby and thereby (including,
without limitation, a certificate setting forth the
resolutions of the Boards of Directors of the Company and each
Guarantor adopted in respect of the transactions contemplated
hereby and thereby).
(2) A certificate of each of the Company and each
Guarantor in respect of each of the officers (i) who is
authorized to sign this Fourth Amendment on its behalf and
(ii) who will, until replaced by another officer or officers
duly authorized for that purpose, act as its representative
for the purposes of signing documents and giving notices and
other communications in connection with the Credit Agreement,
as amended hereby, and the transactions contemplated thereby
and hereby. The Administrative Agent, the Agent, the Co-Agents
and the Banks may conclusively rely on such certificate until
the Administrative Agent receives notice in writing from the
Company or either Guarantor, respectively, to the contrary.
(3) A certificate of each of the Company and each
Guarantor as to (i) the absence of changes to the
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certified copies of the certificate of incorporation and
by-laws of the Company and each Guarantor delivered to the
Administrative Agent and the Banks on the Third Amendment
Effective Date and (ii) the continued good standing of the
Company and each Guarantor in each jurisdiction in which the
Company and each Guarantor are incorporated or qualified to do
business.
(4) An opinion of Counsel to the Company and the
Guarantors, substantially in the form of Annex A hereto.
(5) A certificate of a senior officer of each of
the Company and each Guarantor to the effect set forth in
Section 5.C of this Fourth Amendment.
(6) Evidence of the payment of the fees provided
for in Section 5.B of this Fourth Amendment, and of all other
fees and expenses then payable, including, without limitation,
pursuant to Section 12.3 of the Credit Agreement.
(7) Evidence of payment (to the extent then payable)
of (a) all interest on the Loans outstanding under the Credit
Agreement and (b) all facility fees accrued through the Fourth
Amendment Effective Date.
(8) Evidence of the fulfillment of all the conditions
precedent to the effectiveness of the consent to the
Contemplated Change of Control under, and the amendments to,
the BNY Facility Agreement, which shall be substantially in the
same form as the consent and amendments set forth in this
Fourth Amendment.
(9) Such other documents and information as the
Administrative Agent or any Bank may reasonably request,
including, without limitation, all requisite governmental
approvals and filings.
B. The Company shall have paid to the Administrative
Agent, for the account of each Bank, a non-refundable amendment fee in an
amount equal to .05% of the amount of such Bank's Commitment (whether or not
utilized) as in effect immediately prior to the Fourth Amendment Effective
Date.
C. As of such date:
(1) No Default or Event of Default shall have occurred
and be continuing; and
(2) The representations and warranties made by the
Company and each of the Guarantors in Section 4 hereof and
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in any other certificate or other document delivered in connection
with this Fourth Amendment or the Credit Agreement, as amended hereby,
shall be true, correct and complete on and as of each such date with
the same force and effect as if made on and as of such date.
The Administrative Agent will promptly notify the other parties of the
occurrence of the Fourth Amendment Effective Date.
Section 6. Condition Subsequent to Effectiveness. The consent
of the Administrative Agent and the Banks to the Contemplated Change of Control
set forth in Section 3 of this Fourth Amendment shall be subject to receipt by
the Company on or before March 31, 1996 of cash proceeds in an aggregate
principal amount of at least $50,000,000 from the issuance of Permitted
Subordinated Debentures.
Section 7. Miscellaneous.
A. This Fourth Amendment may be executed in any number
of counterparts, all of which taken together and when delivered to the
Administrative Agent shall constitute one and the same instrument, and any of
the parties hereto may execute this Fourth Amendment by signing any such
counterpart.
B. Each of the Company and each Guarantor hereby
confirms its obligation, pursuant to Section 12.3(a) of the Credit Agreement,
to pay all of the Administrative Agent's costs and expenses (including, without
limitation, the reasonable fees and expenses of all special counsels to the
Administrative Agent) in connection with this Fourth Amendment, whether or not
the Fourth Amendment Effective Date occurs.
C. THIS FOURTH AMENDMENT AND THE CREDIT AGREEMENT AS
AMENDED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
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D. Except as expressly set forth in this Fourth
Amendment, the Credit Agreement as amended prior to the date hereof shall
remain unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be duly executed as of the date first above written.
HOME SHOPPING NETWORK, INC.,
as Borrower
By /s/ Xxxxx X. XxXxxx
----------------------------------
Title: Sr. V.P. of Accounting and
Finnace and Treasurer
HOME SHOPPING CLUB, INC.,
as a Guarantor
By /s/ Xxxxx X. XxXxxx
----------------------------------
Title: Secretary and Treasurer
HSN REALTY, INC.,
as a Guarantor
By /s/ Xxxxx X. XxXxxx
----------------------------------
Title: Secretary and Treasurer
The Banks
---------
LTCB TRUST COMPANY, as a Bank and
as Agent
By /s/ Xxxx X. Knob
----------------------------------
Title: Senior Vice President
THE BANK OF NEW YORK COMPANY, INC.,
as a Bank and as a Co-Agent
By /s/ Xxxxxxx Xxxxx
----------------------------------
Title: Senior Vice President
TORONTO DOMINION [TEXAS], INC.,
as a Bank and as a Co-Agent
By /s/ Xxxxx Xxxxxx
----------------------------------
Title: Vice President
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BANK OF MONTREAL, as a Bank and as a
Co-Agent
By /s/ Xxxxxx Xxx
----------------------------------
Title: Managing Director
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By /s/ X. X. Xxxxxx
----------------------------------
Title: Senior Vice President
PNC BANK, KENTUCKY, INC.
By /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Title: Vice President
THE DAIWA BANK, LIMITED
By: THE SUMITOMO BANK, LIMITED, as
Agent for The Daiwa Bank, Limited
By /s/ Xxxxx X. Xxxxxx
-------------------------------
Title: Vice President & Manager
By /s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------------
Title: Vice President
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The Administrative Agent
------------------------
LTCB TRUST COMPANY,
as Administrative Agent
By /s/ Xxxx X. Knob
----------------------------------
Title: Senior Vice President
The Collateral Agent
--------------------
LTCB TRUST COMPANY,
as Collateral Agent
By /s/ Xxxx X. Knob
----------------------------------
Title: Senior Vice President
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FIRST AMENDMENT, dated as of February 13, 1996, to the LETTER
OF THE CREDIT FACILITY AGREEMENT, dated as of September 28, 1995 (the
"Agreement"), among HOME SHOPPING CLUB, INC., a Delaware corporation ("HSC"),
HSN MAIL ORDER, INC., A Delaware corporation ("HSN Mail Order"), and HSN DIRECT,
INC., a Delaware corporation ("HSN Direct"; together with HSC and HSN Mail
Order, the "Applicants"), HSN REALTY, INC., a Delaware corporation ("HSNR"), and
HOME SHOPPING NETWORK, INC., a Delaware corporation ("HSN"); together with HSNR,
the "Guarantors"), THE BANK OF NEW YORK, (the "Issuer"), THE BANK OF NEW YORK
COMPANY, INC. (the "Participant"), and THE BANK OF NEW YORK, as Administrative
Agent (in such capacity, together with its successors, the "Administrative
Agent").
WHEREAS, each of the Applicants and each of the Guarantors
have requested, and the Issuer, the Participant and the Administrative Agent
are willing, to amend certain provisions of the Agreement.
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereby agree as follows:
Section 1. Certain Defined Terms. Except as expressly
set forth in this First Amendment, terms defined in the Agreement and used
herein shall have their respective defined meanings when used herein.
Section 2. Amendments to the Agreement. Subject to the
fulfillment of the conditions precedent set forth in Section 5 hereof, the
Agreement is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended
by deleting the words "even date herewith" appearing in the third line of the
definition of "Amended Revolving Credit Agreement" set forth in such Section
and inserting the phrase "September 28, 1995, as further amended by the Fourth
Agreement, dated as of February 13, 1996" lieu thereof.
(b) Section 1.1 of the Agreement is hereby further
amended by adding the following new definitions thereto in the appropriate
alphabetical position as follows:
"First Amendment" shall mean the First Amendment to this
Agreement dated as of February 13, 1996.
"First Amendment Effective Date" shall have the meaning
assigned to that term in Section 5 of the First Amendment.
"Permitted Subordinated Debentures" shall mean Indebtedness of
HSN under convertible subordinated debentures up to approximately an
aggregate principal amount of $100,000,000; provided that the
Permitted Subordinated
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Debentures (a) shall have a final maturity at least six months after
the Commitment Termination Date under each of this Agreement and the
Amended Revolving Credit Agreement, (b) shall be issued at par and
shall bear interest at a rate per annum not greater than 8.5%, (c)
shall be unsecured and (d) shall be expressly subordinated in all
respects to the payment in full in cash of all of the Secured
Obligations and all of the obligations of HSN and the other obligors
under the Amended Revolving Credit Agreement; and, provided, further,
that the terms of subordination of the Permitted Subordinated
Debentures, including, without limitation, stop payment provisions
which shall become effective upon the occurrence of an Event of
Default under this Agreement, shall have been approved in writing in
advance by the Issuer and the Participants holding a majority of the
Participation Percentages hereunder. The Issuer and the Participants
agree to respond promptly to any such request for approval made by
HSN.
(c) Section 6 of the Agreement is hereby amended by
inserting the phrase ", except that the representations and warranties set
forth in the last sentence of Section 8.2 of the Amended Revolving Credit
Agreement shall be as in effect on the First Amendment Effective Date"
immediately after the words "date hereof" appearing in the fifth line of the
first sentence thereof.
(d) Section 7 of the Agreement is hereby amended by (i)
deleting the words "to a waiver" in both places where they appear in the
provided, however clause of the first sentence thereof and inserting the words
"or waivers" in lieu thereof and (ii) deleting the word "to" in the second
sentence thereof and inserting the word "the" in lieu thereof.
(e) Section 7 of the Agreement is hereby further amended
by adding the following new Section 7.4:
7.4. Permitted Subordinated Debentures. HSN shall
not amend, modify, terminate or waive any of the terms and conditions
of the Permitted Subordinated Debentures or any agreement or document
related thereto or any term thereof in any manner which would have any
adverse effect upon the rights of the Issuer and the Participants.
(f) Section 8(e) of the Agreement is hereby amended by
deleting the parenthetical appearing therein and inserting " (as in effect on
the First Amendment Effective Date") in lieu thereof.
(g) References in the Agreement to "this Agreement" and
the words "hereof", "herein", "hereto" and the like, shall refer to the
Agreement as amended by this First Amendment;
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provided that the words "the date of this Agreement" and "the date hereof"
shall continue to refer to the date of the Agreement (being September 28,
1995).
Section 3. Consent of the Administrative Agent, the
Issuer and the Participant to the Contemplated Change of Control and the
Amendments to the Amended Revolving Credit Agreement.
(a) Subject to the fulfillment of the conditions set
forth in Sections 5 and 6 of this First Amendment, the Administrative Agent,
the Issuer and the Participant hereby consent to the consummation of (i) the
transfer by Liberty Media Corporation, a Wholly-Owned Subsidiary of
Tele-Communications, Inc., a Delaware corporation (formerly called TCI/Liberty
Holdings, Inc., "TCI"), of all of its shares of HSN's common stock to Silver
King Communications, Inc. substantially in the manner described in Amendment
No. 2 to the Schedule 13D of TCI (as filed with the Securities and Exchange
Commission on November 30, 1995, a copy of which has been provided to the
Administrative Agent, the Issuer and the Participant (the "Schedule 13D")), and
(ii) the other transactions described in the Schedule 13D substantially in the
manner described therein (collectively, the "Contemplated Change of Control").
No other transaction affecting the assets, shares or agreements of HSN is
hereby authorized by the Administrative Agent, the Issuer and the Participant.
(b) Subject to the fulfillment of the conditions set
forth in Section 5 of this First Amendment, the Administrative Agent, the
Issuer and the Participant hereby consent to the amendments to be made to the
Amended Revolving Credit Agreement, including, without limitation, the
amendments to be made to Sections 9.13, 9.18, 9.20(a) and 9.20(d) thereof, set
forth in the Fourth Amendment thereto, dated as of the date hereof, a copy of
which has been provided to the Administrative Agent, the Issuer and the
Participant. No other amendment to the Amended Revolving Credit Agreement is
hereby authorized by the Administrative Agent, the Issuer and the Participant.
Section 4. Representations and Warranties. To induce
the Administrative Agent, the Issuer and the Participant to consent to the
Contemplated Change of Control and each of the amendments to the Amended
Revolving Credit Agreement set forth in the Fourth Amendment thereto, dated as
of the date hereof, and to enter into this First Amendment, each of the
Applicants and the Guarantors hereby represents and warrants that each of the
representations and warranties set forth in Section 6 of the Agreement is true,
correct and complete on and as of the date of this First Amendment (whether or
not the First Amendment Effective Date (as defined in Section 5 hereof)
occurs), and on and as of the First Amendment Effective Date, both before and
after giving effect to the amendments set forth in Section 2 of this First
Amendment on either such date, as if each reference
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therein to "this Agreement" were a reference to "this Agreement as amended by
the First Amendment", except that the representations and warranties in the
last sentence of Section 8.2 of the Amended Revolving Credit Agreement
incorporated in the Agreement by reference shall, each time when they are made
under this Section 4, be deemed to have been amended as provided in Section
2(c) of this First Amendment. Each of the Applicants and the Guarantors
further represents and warrants that, as of the date of this First Amendment and
as of the First Amendment Effective Date, no Default or Event of Default has
occurred and is continuing.
Section 5. Conditions Precedent to Effectiveness. The
amendments set forth in Section 2 of this First Amendment and the consents of
the Administrative Agent, the Issuer and the Participant set forth in Section 3
of this First Amendment shall become effective as of the date (the "First
Amendment Effective Date"), as specified by the Administrative Agent, when
counterparts hereof shall have been duly executed and delivered by the
Participant, and the Administrative Agent, the Issuer, each of the Applicants
and each of the Guarantors, and when each of the conditions precedent set forth
in this Section 5 shall have been fulfilled to the satisfaction of the
Administrative Agent:
A. The Administrative Agent shall have received
each of the following documents, each of which shall be satisfactory
to the Administrative Agent in form and substance:
(1) Certified copies of all corporate action and
(if necessary) stockholder action taken by each Applicant and each
Guarantor approving this First Amendment and the Agreement, as
amended hereby, and the consummation of the transactions
contemplated hereby and thereby (including, without limitation, a
certificate setting forth the resolutions of the Boards of
Directors of each Applicant and each Guarantor adopted in respect
of the transactions contemplated hereby and thereby).
(2) A certificate of each Applicant and each
Guarantor in respect of each of the officers (i) who is
authorized to sign this First Amendment on its behalf and (ii)
who will, until replaced by another officer or officers duly
authorized for that purpose, act as its representative for the
purposes of signing documents and giving notices and other
communications in connection with the Agreement, as amended
hereby, and the transactions contemplated thereby and hereby.
The Administrative Agent, the Issuer and the Participant may
conclusively rely on such certificate until the Administrative
Agent receives notice in writing from
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any Applicant or either Guarantor, respectively, to the contrary.
(3) A certificate of each Applicant and each
Guarantor as to (i) the absence of changes to the certified
copies of the certificate of incorporation and by-laws of each
Applicant and each Guarantor delivered to the Administrative
Agent, the Issuer and the Participant on September 28, 1995 and
(ii) the continued good standing of each Applicant and each
Guarantor in each jurisdiction in which each Applicant and each
Guarantor are incorporated or qualified to do business.
(4) A certificate of a senior officer of each
Applicant and each Guarantor to the effect set forth in Section
5.B of this First Amendment.
(5) Evidence of the fulfillment of all the
conditions precedent to the effectiveness of the consent to the
Contemplated Change of Control under, and the amendments to, the
Amended Revolving Credit Agreement, which shall be substantially
in the same form as the consent and amendments set forth in this
First Amendment.
(6) Such other documents and information as the
Administrative Agent, the Issuer or the Participant may reasonably
request, including, without limitation, all requisite governmental
approvals and filings.
B. As of such date:
(1) No Default or Event of Default shall have occurred
and be continuing; and
(2) The representations and warranties made by each of
the Applicants and each of the Guarantors in Section 4 hereof and in
any other certificate or other document delivered in connection with
this First Amendment or the Agreement, as amended hereby, shall be
true, correct and complete on and as of each such date with the same
force and effect as if made on and as of such date.
The Administrative Agent will promptly notify the other parties of the
occurrence of the First Amendment Effective Date.
Section 6. Condition Subsequent to Effectiveness. The
consent of the Administrative Agent, the Issuer and the Participant to the
Contemplated Change of Control set forth in Section 3 of this First Amendment
shall be subject to receipt by HSN on or before March 31, 1996 of cash proceeds
in an aggregate
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principal amount of at least $50,000,000 from the issuance of Permitted
Subordinated Debentures.
Section 7. Miscellaneous
A. This First Amendment may be executed in any number of
counterparts, all of which taken together and when delivered to the
Administrative Agent shall constitute one and the same instrument, and any of
the parties hereto may execute this First Amendment by signing any such
counterpart.
B. Each Applicant and each Guarantor hereby confirms its
obligation, pursuant to Section 11.3(a) of the Agreement, to pay all of the
Administrative Agent's costs and expenses (including, without limitation, the
reasonable fees and expenses of all special counsels to the Administrative
Agent) in connection with this First Amendment, whether or not the First
Amendment Effective Date occurs.
C. THIS FIRST AMENDMENT AND THE AGREEMENT AS AMENDED
HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
D. Except as expressly set forth in this First
Amendment, the Agreement as amended prior to the date hereof shall remain
unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed as of the date first above written.
HOME SHOPPING CLUB, INC.,
as an Applicant
By /s/ Xxxxx X. XxXxxx
--------------------------------
Title: Treasurer
HSN MAIL ORDER, INC., as an Applicant
By /s/ Xxxxx X. XxXxxx
--------------------------------
Title: Treasurer
HSN DIRECT, INC., as an Applicant
By /s/ Xxxxx X. XxXxxx
--------------------------------
Title: Treasurer
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HSN REALTY, INC., as a Guarantor
By /s/ Xxxxx X. XxXxxx
--------------------------------
Title: Treasurer
HOME SHOPPING NETWORK, INC.,
as a Guarantor
By /s/ Xxxxx X. XxXxxx
--------------------------------
Title: Treasurer
THE BANK OF NEW YORK, as the Issuer
By /s/ Xxxx Xxxxxx
--------------------------------
Title:
THE BANK OF NEW YORK, as the
Administrative Agent
By /s/ Xxxx Xxxxxx
--------------------------------
Title:
THE BANK OF NEW YORK COMPANY, INC.,
as the Participant
By Xxxxxxx Xxxxx
--------------------------------
Title: Senior Vice President
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ANNEX A
[Form of Opinion of Counsel to the Company and the Guarantors]
February 13, 1996
To the Banks party to the Credit
Agreement referred to below and
LTCB Trust Company, as Administrative
Agent and as Collateral Agent
Ladies and Gentlemen:
I am the General Counsel to Home Shopping Network, Inc., a
Delaware corporation (the "Company"), Home Shopping Club, Inc., a Delaware
corporation ("HSC"), and HSN Realty, Inc., a Delaware corporation ("HSNR";
together with HSC, the "Guarantors"), and have acted as such in connection with
the Fourth Amendment, dated as of February 13, 1996 (the "Fourth Amendment"),
to the Second Amended and Restated Credit Agreement, dated as of August 30,
1994 (as amended by the First Amendment, dated as of March 29, 1995, as further
amended by the Second Amendment, dated as of June 28, 1995, and as further
amended by the Third Amendment, dated as of September 28, 1995, the "Credit
Agreement"), among the Company, the Guarantors, the Banks named therein, LTCB
Trust Company, as Agent, The Bank of New York Company, Inc.,
Toronto Dominion [Texas], Inc. and Bank of Montreal, as Co-Agents, LTCB Trust
Company, as Administrative Agent, and LTCB Trust Company, as Collateral Agent,
providing for loans to be made to the Company in the aggregate principal amount
of $150,000,000 under the joint and several guarantee of the Guarantors. Terms
defined in the Credit Agreement are used herein as defined therein.
In rendering the opinions expressed below, we have examined
and relied upon the originals or conformed copies of such corporate records,
agreements and instruments of the Company and the Guarantors, certificates of
public officials and of officers of the Company and the Guarantors, and such
other documents and records, and such matters of law, as we have deemed
appropriate as a basis for the opinions hereinafter expressed.
Based upon the foregoing, I am of the opinion that:
20
1. Each of the Company and each of the Guarantors is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware; each of them has the necessary corporate power
to enter into and perform the Fourth Amendment and the Credit Agreement as
amended thereby and, in the case of the Company, to borrow under the Credit
Agreement as amended by the Fourth Amendment. Each of the Guarantors is a
Wholly-Owned Subsidiary of the Company.
2. The execution, delivery and performance by each of
the Company and each of the Guarantors of the Fourth Amendment and the Credit
Agreement as amended by the Fourth Amendment and the borrowings under the
Credit Agreement as amended by the Fourth Amendment have been duly authorized
by all necessary corporate action, and do not and will not violate any
provision of law, regulation, order, writ, injunction or decree of any court or
governmental authority or agency or any provision of the certificate of
incorporation or by-laws of the Company or either Guarantor or result in the
breach of, or constitute a default or require any consent under, or result in
the creation of any Lien upon any of its respective properties, revenues or
assets pursuant to, any indenture or other agreement or instrument to which the
Company, either Guarantor or any Subsidiary of any thereof is a party or by
which the Company or either Guarantor or any Subsidiary of any thereof or its
respective properties may be bound, except pursuant to the Pledge Agreement.
3. The Fourth Amendment and the Credit Agreement as
amended by the Fourth Amendment have been duly executed and delivered by the
Company and each Guarantor and, assuming due execution and delivery thereof by
the Administrative Agent and the Banks, constitute the legal, valid and binding
obligations of the Company and each Guarantor enforceable in accordance with
their respective 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), and except
that no opinion is expressed as to the fourth sentence of Section 4.7 of the
Credit Agreement.
4. Except as disclosed to the Administrative Agent and
the Banks in SEC Reports delivered to the Administrative Agent and the Banks
prior to the date hereof, to my knowledge after due inquiry, there are no
legal or arbitral proceedings, and no proceedings by or before any governmental
or regulatory authority or agency, pending or threatened against or affecting
the Company or either Guarantor or any of the Subsidiaries of any thereof, or
any properties or rights of the Company or either Guarantor or any of the
Subsidiaries of any thereof, which, if adversely determined, would have a
material adverse effect on the
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consolidated financial condition or operations, or the business taken as a
whole, of the Company, the Guarantors and the Subsidiaries.
5. As of February 13, 1996, there were 1,000 shares of
capital stock of HSC and 1,000 shares of capital stock of HSNR issued and
outstanding. All of such outstanding shares of capital stock constitute the
Pledged Securities and are duly authorized, validly issued, fully paid and
non-assessable and owned of record and beneficially by the Company, free and
clear of any Lien, other than that created by the Pledge Agreement.
I am admitted to practice law in the State of New York and the
Commonwealth of Pennsylvania. The opinions expressed herein relate only to the
laws of the State of New York, the General Corporation Law of the State of
Delaware and the federal laws of the United States.
The opinions expressed in this letter are based upon the law
in effect on the date hereof, and I assume no obligation to revise or
supplement this opinion should such law be changed in any respect by
legislative action, judicial decision or otherwise.
This opinion is being furnished to you solely for your benefit
and only with respect to the transactions referred to herein. Accordingly, it
may not be relied upon by any other person or entity without, in each instance,
my prior written consent.
Very truly yours,
------------------------------
Xxxxx X. Xxxxxxxxxx
General Counsel
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