Exhibit 10.21


 


AMENDMENT NO. 2, dated as of
June 24, 2003 (this “Amendment”), to the AMENDED AND
RESTATED LIMITED LIABILITY LIMITED PARTNERSHIP AGREEMENT (as
previously amended, supplemented or otherwise modified, the “Partnership
Agreement”) of VIVENDI UNIVERSAL ENTERTAINMENT LLLP (the “Partnership”)
dated as of May 7, 2002, by and among USI ENTERTAINMENT INC., a Delaware
corporation, as general partner, USANI HOLDINGS XX, INC., a Delaware
corporation, UNIVERSAL PICTURES INTERNATIONAL HOLDINGS BV, a corporation
organized under the laws of The Netherlands, UNIVERSAL PICTURES INTERNATIONAL
HOLDINGS 2 BV, a corporation organized under the laws of The Netherlands,
NYCSPIRIT CORP. II, a Delaware corporation, INTERACTIVECORP (formerly known as
USA Interactive and, prior thereto, as USA Networks, Inc.), a Delaware
corporation, USANi SUB LLC, a Delaware limited liability company, NEW-U STUDIOS
HOLDINGS, INC., a Delaware corporation, and BARRY DILLER, as limited partners,
VIVENDI UNIVERSAL, S.A., a société anonyme organized under the laws of France,
UNIVERSAL STUDIOS, INC., a Delaware corporation (“Universal”),
and, SUB I - USA Holding LLC, a Delaware limited liability company, USI - USA
Holding LLC, a Delaware limited liability company, USIE - USA Holding LLC, a
Delaware limited liability company, and V - USA Holding LLC, a Delaware limited
liability company.


 


A. The Partnership intends
to enter into the VUE Term Loan Agreement (as


defined below).


 


B. As a condition to the VUE
Term Loan Agreement, the Partners are required


to amend certain provisions
of the Partnership Agreement as set forth herein.


 


 


C. Each capitalized term
used and not otherwise defined herein shall have the


meaning assigned to such
term in the Partnership Agreement.


 


Accordingly, in
consideration of the mutual agreements herein contained and


other good and valuable
consideration, the sufficiency and receipt of which are hereby


acknowledged, the parties
hereto agree as follows:


 


SECTION 1. Amendments.


 


(a) Section 1.01 of the
Partnership Agreement is hereby amended by amending


and restating the following definitions therein:


 


““VUE Term Loan Agreement” shall mean the Loan Agreement,
dated as of June 24, 2003, by and among the Partnership, Bank of America
Securities, N.A and J.P. Morgan Chase Bank as, co-administrative agents,
Barclays Bank plc, as syndication agent, J.P. Morgan Chase Bank, as collateral
agent and paying agent and the Lenders from time to time party thereto.”


 

















 


 


““VUE Security Agreement” shall mean the Amended and Restated
Guarantee and Security Agreement, dated as of June 24, 2003, among the
Partnership, the guarantors party thereto and JPMorgan Chase Bank, as
administrative agent.”


 


(b) Article XIII of the
Partnership Agreement is hereby amended and restated in its entirety to read as
follows:


 


“SECTION 13.06. VUE Term
Loan Agreement. The Partnership shall not at any time on or prior to the
91st day following the date on which all of the Release Conditions (as defined
in the VUE Security Agreement) are satisfied, take any action of the sort
contemplated by Section 7(e)(iii) of the VUE Term Loan Agreement with respect
to the Partnership or any of its Subsidiaries (as defined in the VUE Term Loan
Agreement) or the assets of any of the foregoing without the prior written
agreement of all Partners holding Common Interests at such time.”


 


(c) Section 10.03(c) of the
Partnership Agreement is hereby amended by deleting in its entirety the second
sentence thereof and replacing it with the following sentence:


 


“Except as set forth in
Section 10.03(e), the purchase and sale of the Selling Party’s Common Interests
shall be consummated at a closing the date and time of which shall be selected
by the Purchasing Party and provided in writing at least seven days prior
thereto; provided that, in the case of a Diller Put or a Diller Call,
such date shall not be later than the 20th Business Day following the date of
receipt by the relevant party of the applicable exercise notice, and in all
other cases the such date shall not be later than the 20th Business Day
following the date of the determination of the Appraised Value.”


 


(d) Section 10.03(d)(iii) of
the Partnership Agreement is hereby amended and restated in its entirely as
follows:


 


“(iii) notwithstanding
anything to the contrary in clauses (i) or (ii) of this Section 10.03(d), the
Appraised Value of the Partnership with respect to a Diller Put or a Diller
Call shall be determined as of April 1, 2003 by a single Investment Bank that
is mutually agreeable to Universal and Diller (each acting in its sole
discretion). In the event that Universal and Diller are unable to mutually
agree for any reason on the Investment Bank within 5 days following the date of
receipt by the relevant party of the applicable exercise notice, Universal and
Diller hereby agree that for purposes of Section 10.03(b) of the Partnership
Agreement, the purchase price with respect to the Diller Put and the Diller
Call shall be $275,000,000.”


 


(e) Section 10.03(e) of the
Partnership Agreement is hereby amended and restated in its entirety to read as
follows: 


 


“(e) At the election of the
Purchasing Party and in accordance with this Section 10.03(e), payment of the
purchase price upon the exercise of a Call or a Put may be made in Vivendi
Ordinary Shares. In order for the Purchasing Party to elect to deliver Vivendi
Ordinary Shares, the Purchasing


 

















 


Party shall specify that it
is electing to deliver Vivendi Ordinary Shares in lieu of cash in the written
notice of the Purchasing Party designating the closing date pursuant to Section
10.03(c) (without giving effect to the proviso therein) (the “Closing Date
Notice”). In the event that the Purchasing Party elects to deliver Vivendi
Ordinary Shares pursuant to this Section 10.03(e), the Selling Party shall be
entitled to the rights set forth in Section 10.03(f), and the closing of the
Put or Call shall take place over a consecutive 15 Business Day period
commencing on the closing date specified in the Closing Date Notice; provided
that the closing date specified in the Closing Date Notice shall be a date
within 20 Business Days following the date of receipt by the relevant party of
the Closing Date Notice. On each day during the 15 Business Day closing period,
the Purchasing Party shall deliver to USAi or its Affiliates or Diller, as the
case may be, 1/15th of the applicable purchase price set forth in
Section 10.03(a) or Section 10.03(b) in Vivendi Ordinary Shares (or, if Diller
requests, other common equity securities of Vivendi listed on an exchange other
than that on which the Vivendi Ordinary Shares are listed and representing an
equivalent number of Vivendi Ordinary Shares) valued based on the closing price
on that day of Vivendi Ordinary Shares on the primary exchange on which it
trades, as reported by Bloomberg in U.S. dollars. Any Vivendi Ordinary Shares
(or other common equity securities of Vivendi) delivered by the Purchasing
Party pursuant to this Section 10.03(e) shall be delivered no later than one
hour after the primary exchange on which the Vivendi Ordinary Shares (or other
common equity securities of Vivendi) being delivered hereunder closes free and
clear of all Liens and shall, in the case of Vivendi Ordinary Shares, be listed
for trading on the Paris Bourse and freely transferable on the Paris Bourse.
Solely for purposes of this Section 10.03(e), the Selling Party shall be
required to deliver the assignments and bills of sale referenced in Section
10.03(c) assigning 1/15th of its Common Interests to the Purchasing
Party free and clear of any Liens, on each day of the 15 Business Day closing
period described herein. The ability of Vivendi or any successor or new parent
entity to Vivendi to issue any shares hereunder shall be subject to (i)
satisfaction of the listing provisions of the definition of Vivendi Ordinary
Shares, (ii) the Selling Party receiving over the 15 Business Day closing
period securities that represent less than 5% of the publicly-traded common
stock or ordinary shares of Vivendi or such successor or new parent entity
immediately prior to such 15 Business Day period, assuming, for purposes of
calculating compliance with such 5% threshold, that the number of securities
issued is calculated based on the closing price of such securities on the
primary exchange on which such securities trade on the date of the Closing Date
Notice, and (iii) Vivendi’s (or such successor’s or such new parent entity’s)
continued ownership and control of the Partnership and the cable assets
contained therein. For purposes of this Section 10.03(e), a Business Day means
any day other than a Saturday, Sunday, a U.S. Federal holiday or a day on which
banks in France are closed.”


 


SECTION 2.        Effectiveness.
This Amendment shall be effective as of the date first set forth above.


 


SECTION 3.        Effect
of Amendment. Except as expressly set forth herein, this 


 

















 


 


Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of any of
the parties to the Partnership Agreement, and shall not alter, modify, amend or
in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Partnership Agreement, all of which are hereby
ratified and affirmed in all respects and shall continue in full force and
effect.


 


SECTION 4.        Counterparts.
This Amendment may be executed in multiple counterparts, each of which shall be
deemed an original and all of which, taken together, shall constitute one and
the same instrument. Delivery of any executed counterpart of a signature page
of this Amendment by facsimile transmission shall be as effective as delivery
of a manually executed counterpart hereof.


 


SECTION 5.        Applicable
Law. THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.


 


SECTION 6. Jurisdiction. Each of the Partners (i)
consents to and submits itself and its property to the personal jurisdiction of
any Federal or state court located in the State of Delaware in the event of any
dispute arising out of or relating to this Amendment, (ii) agrees that it will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (iii) agrees that it will not bring any
action relating to this Agreement in any court other than a Federal or state
court sitting in the State of Delaware and (iv) hereby waives any rights such
Partner may have to personal service of summons, complaint or other process in
connection therewith, and agrees that service may be made by registered or
certified mail addressed to such Partner and sent in accordance with the
provisions of Article XIV of the Partnership Agreement. It is hereby expressly
understood by the parties hereto that this Section 6 shall also be applicable
to Amendment No. 1, dated as of November 25, 2002, to the Partnership
Agreement.


 


 


 

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed by their
respective authorized officers as of the day and year first above written.


 


	
  USI ENTERTAINMENT, INC.

  
	
  By:

  	
  /s/ KAREN RANDALL

  
	
   

  	
  Name:

  	
  Karen Randall

  
	
   

  	
  Title:

  	
  Executive Vice President

  



 


	
  USANI HOLDING XX, INC.

  
	
  By:

  	
  /s/ KAREN RANDALL

  
	
   

  	
  Name: 

  	
  Karen Randall

  
	
   

  	
  Title: 

  	
  Executive Vice President

  



 


	
  UNIVERSAL PICTURES

  
	
  INTERNATIONAL HOLDINGS BV

  
	
  By:

  	
  /s/ AD HESKES

  
	
   

  	
  Name:

  	
  Ad Heskes

  
	
   

  	
  Title:

  	
  Vice President, Legal

  



 


	
  UNIVERSAL PICTURES

  	 

	
  INTERNATIONAL HOLDINGS 2 BV

  	 

	
  By:

  	
  /s/ AD HESKES

  
	
   

  	
  Name:

  	
  Ad Heskes

  
	
   

  	
  Title:

  	
  Vice President, Legal

  
				



 


	
  NYCSPIRIT CORP. II

  	 

	
  By:

  	
  /s/ AUTHORIZED REPRESENTATIVE

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 

















 


	
  INTERACTIVECORP,

  
	
  By:

  	
  /s/ DARA KHOSROWSHAHI

  
	
   

  	
  Name:

  	
  Dara Khosrowshahi

  
	
   

  	
  Title:

  	
  Executive Vice President and Chief Financial Officer

  



 


	
   USANi SUB LLC,

  
	
  By:

  	
  /s/  DARA KHOSROWSHAHI

  
	
   

  	
  Name: 

  	
  Dara Khosrowshahi

  
	
   

  	
  Title: 

  	
  Vice President

  



 


 


	
  NEW-U STUDIOS HOLDINGS, INC.,

  	 

	
  By:

  	
  /s/  DARA KHOSROWSHAHI

  
	
   

  	
  Name:

  	
  Dara Khosrowshahi

  
	
   

  	
  Title:

  	
  Vice President

  
				



 


 


	
  BARRY DILLER

  	 

	
  /s/ Barry Diller

  



 


	
  UNIVERSAL STUDIOS, INC.,

  	 

	
  By:

  	
  /s/ Karen
  Randall

  
	
   

  	
  Name:

  	
  Karen Randall

  
	
   

  	
  Title:

  	
  Executive Vice President and General Counsel