As filed with the Securities and Exchange Commission on February 14, 1995
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
------------------------
AMENDMENT NO. 19
to
SCHEDULE 14D-1(*)
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
QVC, INC.
(Name of Subject Company)
QVC PROGRAMMING HOLDINGS, INC.
COMCAST CORPORATION
TELE-COMMUNICATIONS, INC.
(Bidders)
Common Stock, $.01 Par Value Per Share
(Title of Class of Securities)
747262 10 3
(CUSIP Number of Class of Securities)
Stanley L. Wang Stephen M. Brett
Comcast Corporation Tele-Communications, Inc.
1500 Market Street 5619 DTC Parkway
Philadelphia, PA 19102 Englewood, CO 80111
(215) 665-1700 (303) 267-5500
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Bidder)
------------------------
Copies to:
Dennis S. Hersch Frederick H. McGrath
Davis Polk & Wardwell Baker & Botts, L.L.P.
450 Lexington Avenue 885 Third Avenue
New York, NY 10017 New York, NY 10022
(212) 450-4000 (212) 705-5000
* This Statement also constitutes Amendment No. 20 to the Schedule 13D filed
by Tele-Communications, Inc. and Amendment No. 41 to the Schedule 13D filed
by Comcast Corporation in each case with respect to the securities of the
Subject Company.
QVC Programming Holdings, Inc., Comcast Corporation and
Tele-Communications, Inc. hereby amend and supplement their Tender Offer
Statement on Schedule 14D-1 filed with the Securities and Exchange Commission
on August 11, 1994 (as previously amended and supplemented, the "Schedule
14D-1") with respect to Bidders' Offer to Purchase for cash all outstanding
shares of Common Stock and Preferred Stock of the Company.
Information contained in the Schedule 14D-1 as hereby amended and
supplemented with respect to Comcast, Liberty, TCI and the Purchaser and their
respective executive officers, directors and controlling persons is given
solely by such person, and no other person has responsibility for the accuracy
or completeness of information supplied by such other persons.
Capitalized terms used but not defined herein have the meaning
assigned to them in the Offer to Purchase, the Supplement and the Schedule
14D-1.
Item 4. Source and Amount of Funds or Other Consideration.
(a) and (b) The information set forth under "Special Factors
- -- Financing of the Transaction" in the Offer to Purchase and "Financing of
the Transaction" in the Supplement is hereby amended and supplemented to
include the information set forth in Item 10 of this Amendment.
A copy of the Credit Agreement, dated as of February 9, 1995,
between the Purchaser and the Banks listed on the signature pages thereto
relating to the Tender Offer Facility is attached hereto as Exhibit (b)(5).
Item 10. Additional Information.
(c) and (f) The information set forth under "Introduction", "The
Tender Offer -- 1. Terms of the Tender Offer" and "-- 2. Acceptance for
Payment and Payment" in the Offer to Purchase is hereby amended and
supplemented to include the following information:
On February 13, 1995, the Purchaser deposited with the Depositary
an amount sufficient for the Depositary to make payment for the 32,963,460
Common Shares (including Common Shares issued upon the exercise of outstanding
Options) and 321,070 Preferred Shares tendered as of the Expiration Date,
which amount consisted of funds contributed to the Purchaser by the Parent
Purchasers and funds drawn by the Purchaser under the Tender Offer Facility
and the Company Loan. Payment for Shares validly tendered is expected to be
made by the Depositary promptly following receipt of certificates for such
Shares or, in the case of Common Shares, of a confirmation of book-entry
transfer of such Common Shares into the Depositary's account at one of the
Book-Entry Transfer Facilities, a properly completed and duly executed Letter
of Transmittal (or facsimile thereof) and any other required documents.
Item 11. Material to be Filed as Exhibits.
(b)(5) -- Credit Agreement, dated as of February 9, 1995, among
the Purchaser and the Banks listed on the signature pages thereto.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: February 14, 1995
QVC PROGRAMMING HOLDINGS, INC.
By: /s/ JULIAN A. BRODSKY
-------------------------
Name: Julian A. Brodsky
Title: Vice Chairman
COMCAST CORPORATION
By: /s/ JULIAN A. BRODSKY
-------------------------
Name: Julian A. Brodsky
Title: Vice Chairman
TELE-COMMUNICATIONS, INC.
By: /s/ STEPHEN M. BRETT
-------------------------
Name: Stephen M. Brett
Title: Executive Vice
President
EXHIBIT INDEX
Exhibit Sequentially
Number Description Numbered Page
------- ----------- -------------
(b)(5) Credit Agreement, dated _
as of February 9, 1995,
among the Purchaser
and the Banks listed on
the signature pages
thereto.
_________________________________________________________________________
_________________________________________________________________________
$1,150,000,000
CREDIT AGREEMENT
Dated as of February 9, 1995
Among
QVC PROGRAMMING HOLDINGS, INC.,
THE BANKS LISTED ON THE
SIGNATURE PAGES HEREOF,
THE BANK OF NEW YORK COMPANY, INC.,
BARCLAYS BANK PLC,
CHEMICAL BANK,
NATIONSBANK, N.A. (CAROLINAS)
and
THE TORONTO-DOMINION BANK,
as Managing Agents
and
THE BANK OF NEW YORK,
as Administrative Agent
_________________________________________________________________________
_________________________________________________________________________
TABLE OF CONTENTS
Page
----
ARTICLE 1
CREDIT FACILITY
Section 1.01. Commitment to Lend.................................... 1
(a) Loans..................................................... 1
(b) Type of Loans............................................. 1
Section 1.02. Manner of Borrowing................................... 1
Section 1.03. Interest.............................................. 3
(a) Rates..................................................... 3
(b) Payment................................................... 3
(c) Conversion and Continuation............................... 3
(d) Maximum Interest Rate..................................... 4
Section 1.04. Repayment............................................. 5
Section 1.05. Optional Prepayments.................................. 5
Section 1.06. Limitation on Types of Loans.......................... 5
Section 1.07. Reductions of Total Commitment........................ 5
Section 1.08. Commitment Fees....................................... 6
Section 1.09. Computation of Interest and Fees...................... 6
Section 1.10. Payments by the Borrower.............................. 6
(a) Time, Place and Manner.................................... 6
(b) No Reductions............................................. 7
(c) Authorization to Charge Accounts.......................... 7
(d) Extension of Payment Dates................................ 7
Section 1.11. Distribution of Payments by the Administrative Agent.. 7
Section 1.12. Taxes on Payments..................................... 8
(a) Taxes Payable by the Borrower............................. 8
(b) Taxes Payable by any Bank or Agent........................ 9
(c) Credits and Deductions.................................... 9
(d) Exemption from U.S. Withholding Taxes..................... 9
Section 1.13. Evidence of Indebtedness............................. 10
Section 1.14. Pro Rata Treatment................................... 11
ARTICLE 2
CONDITIONS TO LOANS
Section 2.01. Conditions to Initial Loans.......................... 11
Section 2.02. Conditions to Each Loan.............................. 15
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
Section 3.01. Organization; Power; Qualification................... 16
Section 3.02. Capitalization; Subsidiaries......................... 16
Section 3.03. Authorization; Enforceability; Required Consents;
Absence of Conflicts............................... 22
Section 3.04. Litigation........................................... 18
Section 3.05. Burdensome Provisions................................ 18
Section 3.06. No Adverse Change or Event........................... 18
Section 3.07. Taxes................................................ 18
Section 3.08. No Default........................................... 19
Section 3.09. Not an Investment Company............................ 19
Section 3.10. Hazardous Materials.................................. 19
Section 3.11. Solvency............................................. 20
Section 3.12. Benefit Plans........................................ 20
Section 3.13. Security Interest.................................... 20
ARTICLE 4
CERTAIN COVENANTS
Section 4.01. Preservation of Existence and Properties, Scope of
Business, Compliance with Law, Payment of Taxes and Claims,
Preservation of Enforceability................................ 21
Section 4.02. Use of Proceeds...................................... 21
Section 4.03. Guaranties........................................... 21
Section 4.04. Liens................................................ 21
Section 4.05. Restricted Payments.................................. 22
Section 4.06. Merger or Consolidation; Acquisitions................ 22
Section 4.07. Disposition of Assets................................ 22
Section 4.08. Indebtedness......................................... 22
Section 4.09. Transactions with Affiliates......................... 22
Section 4.10. Subsidiaries......................................... 22
Section 4.11. Issuance or Disposition of Capital Securities........ 22
Section 4.12. Investments.......................................... 23
Section 4.13. QVC Indebtedness..................................... 23
Section 4.14. QVC Merger or Consolidation; Acquisitions;
Dispositions....................................... 23
Section 4.15. QVC Subordinated Indebtedness........................ 23
ARTICLE 5
INFORMATION
Section 5.01. Information to Be Furnished.......................... 24
(a) Requested Information.................................... 24
(b) Notice of Events of Default and Other Matters............ 24
Section 5.02. Accuracy of Information.............................. 24
(a) Historical Information................................... 24
(b) Future Information....................................... 25
Section 5.03. Additional Covenants Relating to Disclosure.......... 25
Section 5.04. Authorization of Third Parties to Deliver Information 26
ARTICLE 6
DEFAULT
Section 6.01. Events of Default.................................... 26
Section 6.02. Remedies upon Event of Default....................... 29
ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01. Mandatory Suspension and Conversion of Eurodollar Rate
Loans......................................................... 29
Section 7.02. Regulatory Changes................................... 31
Section 7.03. Capital and Reserve Requirements..................... 32
Section 7.04. Funding Losses....................................... 32
Section 7.05. Determinations....................................... 33
Section 7.06. Change of Lending Office............................. 33
Section 7.07. Replacement of Banks................................. 33
ARTICLE 8
THE AGENTS
Section 8.01. Appointment and Powers............................... 34
Section 8.02. Limitation on Agents' Liability...................... 35
Section 8.03. Defaults............................................. 35
Section 8.04. Rights as a Bank..................................... 36
Section 8.05. Indemnification...................................... 36
Section 8.06. Non Reliance on Agents and Other Banks............... 36
Section 8.07. Resignation of the Administrative Agent.............. 37
ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices and Deliveries............................... 37
(a) Manner of Delivery....................................... 37
(b) Addresses................................................ 38
(c) Effectiveness............................................ 39
Section 9.02. Expenses; Indemnification............................ 40
Section 9.03. Amounts Payable Due upon Request for Payment......... 41
Section 9.04. Remedies of the Essence.............................. 41
Section 9.05. Rights Cumulative.................................... 41
Section 9.06. Confidentiality...................................... 42
Section 9.07. Amendments; Waivers.................................. 42
Section 9.08. Set Off; Suspension of Payment and Performance....... 43
Section 9.09. Sharing of Recoveries................................ 43
Section 9.10. Assignments and Participations....................... 44
(a) Assignments.............................................. 44
(b) Participations........................................... 44
(c) Rights of Assignees and Participants.................... 45
Section 9.11. Governing Law........................................ 45
Section 9.12. Judicial Proceedings; Waiver of Jury Trial........... 45
Section 9.13. Severability of Provisions........................... 46
Section 9.14. Counterparts......................................... 46
Section 9.15. Survival of Obligations.............................. 46
Section 9.16. Entire Agreement..................................... 46
Section 9.17. Successors and Assigns............................... 46
ARTICLE 10
INTERPRETATION
Section 10.01. Definitional Provisions............................. 46
(a) Defined Terms............................................ 46
(b) Other Definitional Provisions............................ 61
Section 10.02. Accounting Matters.................................. 62
Section 10.03. Representations and Warranties...................... 62
Section 10.04. Captions............................................ 62
SCHEDULES AND EXHIBITS
----------------------
Annex A - Banks, Lending Offices and Notice Addresses
Schedule 1.02 - Form of Notice of Borrowing
Schedule 1.03(c)(iv) - Form of Notice of Conversion or
Continuation
Schedule 1.05 - Form of Notice of Prepayment
Schedule 2.01(a)(i) - Form of Certificate as to Resolutions, etc.
Schedule 2.01(a)(iv)-1 - Form of Opinion of Counsel for Borrower
Schedule 2.01(a)(iv)-2 - Form of Opinion of Counsel for Each Loan
Party other than Borrower
Schedule 2.01(a)(v) - Form of Opinion of Special Counsel for
Administrative Agent
Schedule 3.02 - Capitalization and Subsidiaries
Schedule 3.03 - Required Consents and Governmental
Approvals
Schedule 3.04 - Material Litigation
Schedule 3.13 - Existing Benefit Plans
Exhibit A - Form of Note
CREDIT AGREEMENT
Dated as of February 9, 1995
QVC PROGRAMMING HOLDINGS, INC., a Delaware corporation, the BANKS
listed on the signature pages hereof, THE BANK OF NEW YORK COMPANY, INC.,
BARCLAYS BANK PLC, CHEMICAL BANK, NATIONSBANK, N.A. (CAROLINAS) and THE
TORONTO-DOMINION BANK, as Managing Agents, and THE BANK OF NEW YORK, as
Administrative Agent, agree as follows (with certain terms used herein being
defined in Article 10):
ARTICLE 1
CREDIT FACILITY
Section 1.01. Commitment to Lend. (a) Loans. Upon the terms
and subject to the conditions of this Agreement, each Bank agrees to make,
from time to time during the period from and including the Tender Offer
Funding Date to but excluding the date that is ten Business Days following the
Agreement Date, one or more Loans to the Borrower in an aggregate amount not
exceeding at any time such Bank's Pro Rata Share of (i) the lesser of (A)
$1,150,000,000 and (B) the Maximum Amount of the Loans minus (ii) the Reserve.
On each day on which interest, fees, costs, expenses or any other amount
becomes due and payable by the Borrower hereunder, unless the Commitment
Termination Date shall have occurred prior thereto, each Bank agrees, upon the
terms and subject to the conditions of this Agreement, to make a Loan to the
Borrower in the amount of its Pro Rata Share of an amount equal to the amount
so due and payable hereunder, provided that (x) the aggregate principal amount
of such Loans, together with the aggregate principal amount of all other Loans
made hereunder, shall not exceed the Total Commitment and (y) the aggregate
principal amount of such Loans, together with the aggregate principal amount
of all other Loans made hereunder, shall not exceed the Maximum Amount of the
Loans. The Borrower may not reborrow any amount that has been repaid. The
Total Commitment on the Agreement Date is $1,150,000,000.
(b) Type of Loans. Subject to Section 1.06 and the other terms
and conditions of this Agreement, the Loans may, at the option of the
Borrower, be made as, and from time to time continued as or converted into,
Base Rate Loans or Eurodollar Rate Loans of any permitted Type, or any
combination thereof.
Section 1.02. Manner of Borrowing. (a) The Borrower shall give
the Administrative Agent notice (which shall be irrevocable) no later than
10:00 a.m. (New York time) on, in the case of Base Rate Loans, the day of and,
in the case of Eurodollar Rate Loans, the third Eurodollar Business Day before
the requested date for the making of such Loans. Each such notice shall be in
the form of Schedule 1.02 and shall specify (i) the requested date for the
making of the requested Loans, which shall be, in the case of Base Rate Loans,
a Business Day and, in the case of Eurodollar Rate Loans, a Eurodollar Business
Day, (ii) the Type or Types of Loans requested and (iii) the amount of each
such Type of Loan, which amount shall be, except for Loans made pursuant to
the second sentence of Section 1.01(a), $5,000,000 or any integral multiple of
$1,000,000 in excess thereof or the amount of the unused Total Commitment.
Upon receipt of any such notice, the Administrative Agent shall promptly
notify each Bank of the contents thereof and of the amount and Type of each
Loan to be made by such Bank on the requested date specified therein.
(b) Not later than 12:00 noon (New York time) on each requested
date for the making of Loans, each Bank shall make available to the
Administrative Agent, in Dollars in funds immediately available to the
Administrative Agent at the Administrative Agent's Office, the Loans to be
made by such Bank on such date. The obligations of the Banks hereunder are
several and, accordingly, any Bank's failure to make any Loan to be made by it
on the requested date therefor shall not relieve any other Bank of its
obligation to make any Loan to be made by such other Bank on such date, but
such other Bank shall not be liable for such failure.
(c) Unless the Administrative Agent shall have received notice
from a Bank prior to 12:00 noon (New York time) on the requested date for the
making of any Loans that such Bank will not make available to the
Administrative Agent the Loans requested to be made by such Bank on such date,
the Administrative Agent may assume that such Bank has made such Loans
available to the Administrative Agent on such date in accordance with Section
1.02(b) and the Administrative Agent in its sole discretion may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount on behalf of such Bank. If and to the extent such Bank
shall not have so made available to the Administrative Agent the Loans
requested to be made by such Bank on such date and the Administrative Agent
shall have so made available to the Borrower a corresponding amount on behalf
of such Bank, such Bank shall, on demand, pay to the Administrative Agent such
corresponding amount together with interest thereon, for each day from the date
such amount shall have been so made available by the Administrative Agent to
the Borrower until the date such amount shall have been paid to the
Administrative Agent, at the Federal Funds Rate until (and including) the
third Business Day after demand is made and thereafter at the Base Rate. If
such Bank does not pay such corresponding amount promptly upon the
Administrative Agent's demand therefor, the Administrative Agent shall
promptly notify the Borrower and the Borrower shall promptly repay such
corresponding amount to the Administrative Agent together with accrued
interest thereon at the applicable rate or rates provided in Section 1.03(a);
provided, however, that, with respect to such repayment, the Borrower shall
have no liability with respect to losses, costs or expenses otherwise
compensable under Section 7.04 in connection therewith.
(d) All Loans made available to the Administrative Agent in
accordance with Section 1.02(b) shall be disbursed by the Administrative Agent
promptly and in any event not later than 3:00 p.m. (New York time) on the
requested date therefor in Dollars in funds immediately available to the
Borrower by credit to an account of the Borrower at the Administrative Agent's
Office or in such other manner as may have been specified in the applicable
notice and as shall be acceptable to the Administrative Agent.
Section 1.03. Interest. (a) Rates. Each Loan shall bear
interest on the outstanding principal amount thereof until due at a rate per
annum equal to, (i) so long as it is a Base Rate Loan, the Base Rate as in
effect from time to time and (ii) so long as it is a Eurodollar Rate Loan, the
applicable Eurodollar Rate plus 2.50%. If all or any part of a Loan or any
other amount due and payable under the Borrower Loan Documents is not paid
when due (whether at maturity, by reason of notice of prepayment or
acceleration or otherwise), such unpaid amount shall, to the maximum extent
permitted by Applicable Law, bear interest for each day during the period from
the date such amount became so due until it shall be paid in full (whether
before or after judgment) at a rate per annum equal to the applicable
Post-Default Rate.
(b) Payment. Interest shall be payable, (i) in the case of Base
Rate Loans, on each Interest Payment Date, (ii) in the case of Eurodollar Rate
Loans, on the last day of each applicable Interest Period and (iii) in the
case of any Loan, when such Loan shall be due (whether at maturity, upon
mandatory prepayment, by reason of notice of prepayment or acceleration or
otherwise) or converted, but only to the extent then accrued on the amount
then so due or converted. Interest at the Post-Default Rate shall be payable
on demand.
(c) Conversion and Continuation. (i) All or any part of the
principal amount of Loans of any Type may, on any Business Day, be converted
into any other Type or Types of Loans, except that (A) Eurodollar Rate Loans
may be converted only on the last day of the applicable Interest Periods
therefor and (B) Base Rate Loans may be converted into Eurodollar Rate Loans
only on a Eurodollar Business Day.
(ii) Base Rate Loans shall continue as Base Rate Loans unless
and until such Loans are converted into Loans of another Type. Eurodollar
Rate Loans of any Type shall continue as Loans of such Type until the end of
the then current Interest Period therefor, at which time they shall be
automatically converted into Base Rate Loans unless the Borrower shall have
given the Administrative Agent notice in accordance with Section 1.03(c)(iv)
requesting either that such Loans continue as Loans of such Type for another
Interest Period or that such Loans be converted into Loans of another Type at
the end of such Interest Period.
(iii) Notwithstanding anything to the contrary contained in
Section 1.03(c)(i) or (ii), so long as an Event of Default shall have occurred
and be continuing, the Administrative Agent may (and, at the request of Banks
having more than 662/3% of the Loans outstanding (or, if there are no Loans
outstanding, more than 662/3% of the Total Commitment), shall) notify the
Borrower that Loans may only be converted into or continued upon the
expiration of the applicable current Interest Period therefor as Loans of
certain specified Types and, thereafter, until no Event of Default shall
continue to exist, Loans may not be converted into or continued as Loans of
any Type other than one or more of such specified Types.
(iv) The Borrower shall give the Administrative Agent notice
(which shall be irrevocable) of each conversion of Loans or continuation of
Eurodollar Rate Loans no later than 11:00 a.m. (New York time) on, in the case
of a conversion into Base Rate Loans, the Business Day and, in the case of a
conversion into or continuation of Eurodollar Rate Loans, the third Eurodollar
Business Day before the requested date of such conversion or continuation.
Each notice of conversion or continuation shall be in the form of Schedule
1.03(c)(iv) and shall specify (A) the requested date of such conversion or
continuation, (B) the amount and Type and, in the case of Eurodollar Rate
Loans, the last day of the applicable Interest Period for the Loans to be
converted or continued and (C) the amount and Type or Types of Loans into
which such Loans are to be converted or as which such Loans are to be
continued. Upon receipt of any such notice, the Administrative Agent shall
promptly notify each Bank of (x) the contents thereof, (y) the amount and Type
and, in the case of Eurodollar Rate Loans, the last day of the applicable
Interest Period for each Loan to be converted or continued by such Bank and
(z) the amount and Type or Types of Loans into which such Loans are to be
converted or as which such Loans are to be continued.
(d) Maximum Interest Rate. Nothing contained in the Loan
Documents shall require the Borrower at any time to pay interest at a rate
exceeding the Maximum Permissible Rate. If interest payable by the Borrower
on any date would exceed the maximum amount permitted by the Maximum
Permissible Rate, such interest payment shall automatically be reduced to such
maximum amount permitted, and interest for any subsequent period, to the
extent less than the maximum amount permitted for such period by the Maximum
Permissible Rate, shall be increased by the unpaid amount of such reduction.
Any interest actually received for any period in excess of such maximum amount
permitted for such period shall be deemed to have been applied as a prepayment
of the corresponding Loans.
Section 1.04. Repayment. The aggregate outstanding principal
amount of the Loans shall mature and become due and payable, and shall be
repaid by the Borrower, on the Commitment Termination Date.
Section 1.05. Optional Prepayments. The Borrower may, at any
time and from time to time, prepay the Loans in whole or in part, without
premium or penalty, except that any optional partial prepayment shall be in an
aggregate principal amount of $5,000,000 or any integral multiple of
$1,000,000 in excess thereof. Any prepayment of Eurodollar Rate Loans made on
a day other than the last day of the applicable Interest Periods therefor
shall be accompanied by the amount, if any, required to be paid in respect
thereof pursuant to Section 7.04. The Borrower shall give the Administrative
Agent notice of each prepayment no later than 11:00 a.m. (New York time) on
the first Business Day before the date of such prepayment. Each such notice
of prepayment shall be in the form of Schedule 1.05 and shall specify (i) the
date such prepayment is to be made and (ii) the amount and Type and, in the
case of Eurodollar Rate Loans, the last day of the applicable Interest Periods
for the Loans to be prepaid. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each Bank of the contents thereof
and the amount and Type and, in the case of Eurodollar Rate Loans, the last
day of the applicable Interest Periods for the Loans of such Bank to be
prepaid. Amounts to be so prepaid shall irrevocably be due and payable on the
date specified in the applicable notice of prepayment, together with interest
thereon as provided in Section 1.03(b).
Section 1.06. Limitation on Types of Loans. Notwithstanding
anything to the contrary contained in this Agreement, the Borrower shall
borrow, prepay, convert and continue Loans in a manner such that (a) the
aggregate principal amount of Eurodollar Rate Loans of the same Type and
having the same Interest Period shall at all times be not less than
$10,000,000 and (b) there shall not be, at any one time, more than six
Interest Periods in effect with respect to Eurodollar Rate Loans of all Types.
Section 1.07. Reductions of Total Commitment. The Borrower may
reduce the Total Commitment by giving the Administrative Agent notice (which
shall be irrevocable) thereof no later than 11:00 a.m. (New York time) on the
third Business Day before the requested date of such reduction, except that
each partial reduction thereof shall be in an amount equal to $5,000,000 or
any integral multiple of $1,000,000 in excess thereof and that no reduction
shall reduce the Total Commitment to an amount less than the sum of the
aggregate principal amount of all Loans outstanding at such time and the
Reserve. Upon receipt of any such notice, the Administrative Agent shall
promptly notify each Bank of the contents thereof and the amount to which such
Bank's Commitment is to be reduced.
Section 1.08. Commitment Fees. The Borrower shall pay to the
Administrative Agent, for the account of each Bank, a commitment fee on the
daily unused amount of such Bank's Commitment for each day from the Agreement
Date through the Commitment Termination Date at a rate per annum of 0.375%,
payable in arrears on successive Interest Payment Dates and on the date of any
reduction of such Commitment (to the extent accrued and unpaid on the amount
of such reduction).
Section 1.09. Computation of Interest and Fees. Interest
calculated on the basis of the Eurodollar Rate shall be computed on the basis
of a year of 360 days and paid for the actual number of days elapsed.
Commitment fees and interest calculated on the basis of the Base Rate shall be
computed on the basis of a year of 365 or 366 days, as applicable, and paid for
the actual number of days elapsed. Interest for any period shall be
calculated from and including the first day thereof to but excluding the last
day thereof.
Section 1.10. Payments by the Borrower. (a) Time, Place and
Manner. All payments due to the Administrative Agent under the Borrower Loan
Documents shall be made to the Administrative Agent at the Administrative
Agent's Office or to such other Person or at such other address as the
Administrative Agent may designate by notice to the Borrower. All payments due
to any Bank under the Borrower Loan Documents shall, in the case of payments
on account of principal of or interest on the Loans or fees, be made to the
Administrative Agent at the Administrative Agent's Office and, in the case of
all other payments, be made directly to such Bank at its Domestic Lending
Office or at such other address as such Bank may designate by notice to the
Borrower. All payments due to any Bank under the Borrower Loan Documents,
whether made to the Administrative Agent or directly to such Bank, shall be
made for the account of, in the case of payments in respect of Eurodollar Rate
Loans, such Bank's Eurodollar Lending Office and, in the case of all other
payments, such Bank's Domestic Lending Office. A payment shall not be deemed
to have been made on any day unless such payment has been received by the
required Person, at the required place of payment, in Dollars in funds
immediately available to such Person, no later than 12:00 noon (New York time)
on such day; provided, however, that the failure of the Borrower to make any
such payment by such time shall not constitute a Default hereunder so long as
such payment is received no later than 3:00 p.m. (New York time) on such day,
but any such payment received later than 12:00 noon (New York time) on such
day shall be deemed to have been made on the next Business Day for the purpose
of calculating interest on the amount paid, which interest, in the case of any
such payment received later than 3:00 p.m. (New York time), shall be
calculated for such one-day period on the basis of the applicable Post-Default
Rate; provided further, however, that any such payment made with the proceeds
of Loans made under the second sentence of Section 1.01(a) shall be deemed to
have been made on the date of the making of such Loan, so long as such
proceeds are immediately so applied and are not otherwise disbursed to the
Borrower.
(b) No Reductions. All payments due to the Administrative Agent
or any Bank under the Borrower Loan Documents, and all other terms,
conditions, covenants and agreements to be observed and performed by the
Borrower thereunder, shall be made, observed or performed by the Borrower
without any reduction or deduction whatsoever, including any reduction or
deduction for any set-off, recoupment, counterclaim (whether sounding in tort,
contract or otherwise) or Tax, except for, so long as the Borrower is in
compliance with Section 1.12, any withholding or deduction for Taxes required
to be withheld or deducted under Applicable Law.
(c) Authorization to Charge Accounts. The Borrower hereby
authorizes the Administrative Agent and each Bank, if and to the extent any
amount payable by the Borrower under the Borrower Loan Documents (whether
payable to such Person or to any other Person that is the Administrative Agent
or a Bank) is not otherwise paid when due, to charge such amount against any
or all of the demand deposit or other transaction accounts of the Borrower
with such Person or, to the extent permitted under Applicable Law, with any of
such Person's Affiliates (whether maintained at a branch or office located
within or without the United States), with the Borrower remaining liable for
any deficiency. The Person so charging any such account shall give the
Borrower prompt notice thereof, but any failure to give or delay in giving
such notice shall not affect such Person's right to effect such charge.
(d) Extension of Payment Dates. Whenever any payment to the
Administrative Agent or any Bank under the Borrower Loan Documents would
otherwise be due (except by reason of acceleration) on a day that is not a
Business Day or, in the case of payments of the principal of Eurodollar Rate
Loans, a Eurodollar Business Day, such payment shall instead be due on the
next succeeding Business or Eurodollar Business Day, as the case may be,
unless, in the case of a payment of the principal of Eurodollar Rate Loans,
such extension would cause payment to be due in the next succeeding calendar
month, in which case such due date shall be advanced to the next preceding
Eurodollar Business Day. If the due date for any payment under the Borrower
Loan Documents is extended (whether by operation of any Borrower Loan
Document, Applicable Law or otherwise), such payment shall bear interest for
such extended time at the rate of interest applicable hereunder.
Section 1.11. Distribution of Payments by the Administrative
Agent. (a) The Administrative Agent shall promptly distribute to each Bank
its ratable share of each payment received by the Administrative Agent under
the Loan Documents for the account of the Banks by credit to an account of
such Bank at the Administrative Agent's Office or by wire transfer to an
account of such Bank at an office of any other commercial bank located in the
United States or at any Federal Reserve Bank, in each case as may be specified
by such Bank.
(b) Unless the Administrative Agent shall have received notice
from the applicable Loan Party prior to the date on which any payment is due
to the Banks under the Loan Documents that such Loan Party will not make such
payment in full, the Administrative Agent may assume that such Loan Party has
made such payment in full to the Administrative Agent on such date and the
Administrative Agent in its sole discretion may, in reliance upon such
assumption, cause to be distributed to each Bank on such due date a
corresponding amount with respect to the amount then due such Bank. If and to
the extent such Loan Party shall not have so made such payment in full to the
Administrative Agent and the Administrative Agent shall have so distributed to
any Bank a corresponding amount, such Bank shall, on demand, repay to the
Administrative Agent the amount so distributed together with interest thereon,
for each day from the date such amount is distributed to such Bank until the
date such Bank repays such amount to the Administrative Agent, at the Federal
Funds Rate until (and including) the third Business Day after demand is made
and thereafter at the Base Rate.
Section 1.12. Taxes on Payments. (a) Taxes Payable by the
Borrower. If any Tax is required to be withheld or deducted from, or is
otherwise payable by the Borrower in connection with, any payment due to any
Bank or any Agent that is not a "United States person" (as such term is
defined in Section 7701(a)(30) of the Code) hereunder, the Borrower (i) shall,
if required, withhold or deduct the amount of such Tax from such payment and,
in any case, pay such Tax to the appropriate taxing authority in accordance
with Applicable Law and (ii) except in the case of any Bank Tax, shall pay to
such Bank or Agent such additional amounts as may be necessary so that the net
amount received by such Bank or Agent with respect to such payment, after
withholding or deducting all Taxes required to be withheld or deducted, is
equal to the full amount payable hereunder. If any Tax is withheld or
deducted from, or is otherwise payable by the Borrower in connection with, any
payment due to any such Bank or Agent hereunder, the Borrower shall furnish to
such Bank or Agent the original or a certified copy of a receipt (if any) for
such Tax from the applicable taxing authority or other evidence of payment
thereof satisfactory to such Bank or Agent within 30 days after the date of
such payment (or, if such receipt shall not have been made available by such
taxing authority within such time, the Borrower shall use reasonable efforts
to promptly obtain and furnish such receipt). If the Borrower fails to pay
any such Taxes when due to the appropriate taxing authority or fails to remit
to any such Bank or Agent the required receipts or other evidence of payment
thereof satisfactory to such Bank or Agent, the Borrower shall indemnify such
Bank or Agent for any Taxes, interest, penalties or additions to Tax that may
become payable by such Bank or Agent as a result of any such failure.
(b) Taxes Payable by any Bank or Agent. The Borrower shall,
promptly upon request by any Bank or Agent that is not a United States person
for the payment thereof, pay to any such Bank or Agent an amount equal to (i)
all Taxes (other than Bank Taxes and without duplication of amounts paid
pursuant to Section 1.12(a)) payable by such Bank or Agent with respect to any
payment due to such Bank or Agent hereunder and (ii) all Taxes (other than
Bank Taxes) payable by such Bank or Agent as a result of payments made by the
Borrower (whether made to a taxing authority or to such Bank or Agent)
pursuant to Section 1.12(a) or this Section 1.12(b).
(c) Credits and Deductions. If any Agent or Bank is, in its sole
opinion, able to apply for any refund, offset, credit, deduction or other
reduction in Taxes by reason of any payment made by the Borrower under Section
1.12(a) or (b), such Agent or Bank, as the case may be, shall use reasonable
efforts to obtain such refund, offset, credit, deduction or other reduction
and, upon receipt thereof, will pay to the Borrower such amount, not exceeding
the increased amount paid by the Borrower, as is equal to the net after-tax
value to such Agent or Bank, in its sole opinion, of such part of such refund,
offset, credit, deduction or other reduction as it considers to be allocable
to such payment by the Borrower, having regard to all of such Agent's or
Bank's dealings giving rise to similar refunds, offsets, credits, deductions
or other reductions in relation to the same tax period and to the cost of
obtaining the same; provided, however, that if an Agent or Bank has made a
payment to the Borrower pursuant to this Section 1.12(c) and the applicable
refund, offset, credit, deduction or other reduction in Tax is subsequently
disallowed, the Borrower shall refund, promptly upon request by such Agent or
Bank, to such Agent or Bank that portion of such payment determined by such
Agent or Bank, in its sole opinion, to which such disallowance relates; and
provided, further, that (i) such Agent or Bank, as the case may be, shall not
be obligated to disclose to the Borrower any information regarding its Tax
affairs or computations and (ii) nothing in this Section 1.12(c) shall
interfere with the right of such Agent or Bank to arrange its Tax affairs as
it deems appropriate.
(d) Exemption from U.S. Withholding Taxes. (i) Each Bank that
is not a United States person shall submit to the Borrower and the
Administrative Agent, on or before the fifth day prior to the first Interest
Payment Date occurring after the Tender Offer Funding Date (or, in the case of
a Person that is not a United States person that became a Bank by assignment,
promptly upon such assignment), two duly completed and signed copies of either
(A) Form 1001 of the United States Internal Revenue Service entitling such
Bank to a complete exemption from withholding on all amounts to be received by
such Bank pursuant to this Agreement and the Loans or (B) Form 4224 of the
United States Internal Revenue Service relating to all amounts to be received
by such Bank pursuant to this Agreement and the Loans. Each such Bank shall,
from time to time after submitting either such Form, submit to the Borrower
and the Administrative Agent such additional duly completed and signed copies
of one or the other such Forms (or any successor forms as shall be adopted from
time to time by the relevant United States taxing authorities) as may be (A)
requested in writing by the Borrower or the Administrative Agent and (B)
appropriate under the circumstances and under then current United States law
or regulations to avoid or reduce United States withholding taxes on payments
in respect of all amounts to be received by such Bank pursuant to this
Agreement or the Loans. Upon the request of the Borrower or the
Administrative Agent, each Bank that is a United States person shall submit to
the Borrower and the Administrative Agent a certificate to the effect that it
is a United States person.
(ii) If any Bank determines that it is unable to submit to
the Borrower or the Administrative Agent any form or certificate that such
Bank is obligated to submit pursuant to the preceding paragraph, or that it is
required to withdraw or cancel any such form or certificate, or that any such
form or certificate previously submitted has otherwise become ineffective or
inaccurate, such Bank shall promptly notify the Borrower and the
Administrative Agent of such fact.
(iii) Notwithstanding anything to the contrary contained
herein, the Borrower shall not be required to pay any additional amount in
respect of United States withholding taxes pursuant to Section 1.12(a) or
Section 7.02 to any Bank that (A) is not, on the date this Agreement is
executed by such Bank (or, in the case of a Person that became a Bank by
assignment, on the date of such assignment), either (x) entitled to submit
Form 1001 of the United States Internal Revenue Service entitling such Bank
to a complete exemption from withholding on all amounts to be received by such
Bank pursuant to this Agreement and the Loans or Form 4224 of the United
States Internal Revenue Service relating to all amounts to be received by such
Bank pursuant to this Agreement and the Loans or (y) a United States person,
(B) is no longer entitled or, in the case of a Bank that is no longer a United
States person, is not entitled, to submit either such Form (or any successor
form as shall be adopted from time to time by the relevant United States
taxing authorities) as a result of any change in circumstances or other event
other than a Regulatory Change or (C) with respect to any affected interest
payments, fails to fulfill its requirements set forth in Section 1.12(d)(i).
Section 1.13. Evidence of Indebtedness. Each Bank's Loans and
the Borrower's obligation to repay such Loans with interest in accordance with
the terms of this Agreement shall be evidenced by this Agreement, the records
of such Bank and a single Note payable to the order of such Bank. The records
of each Bank shall be prima facie evidence of such Bank's Loans and accrued
interest thereon and of all payments made in respect thereof.
Section 1.14. Pro Rata Treatment. Except to the extent otherwise
provided herein, (a) Loans shall be made by the Banks pro rata in accordance
with their respective Commitments, (b) Loans of the Banks shall be converted
and continued pro rata in accordance with their respective amounts of Loans of
the Type being so converted or continued, (c) each reduction of the Total
Commitment shall be applied to the Commitments pro rata in accordance with the
respective amounts thereof and (d) each payment of the principal of or
interest on the Loans or of commitment fees shall be made for the account of
the Banks pro rata in accordance with their respective amounts thereof then due
and payable.
ARTICLE 2
CONDITIONS TO LOANS
Section 2.01. Conditions to Initial Loans. The obligation of
each Bank to make its initial Loan is subject to:
(a) the Managing Agents' receipt of each of the following, in form
and substance and, in the case of the materials referred to in clauses (vi),
(x), (xi), (xii), (xiii), (xiv) and (xv) below, certified in a manner
satisfactory to the Managing Agents:
(i) a certificate of the Secretary or an Assistant
Secretary or a Responsible Officer of each of the Loan Parties, dated
the requested date for the making of such Loan, substantially in the
form of Schedule 2.01(a)(i), to which shall be attached copies of the
resolutions and by-laws referred to in such certificate;
(ii) copies of the certificate of incorporation of each of
the Loan Parties, in each case certified, as of a recent date, by the
Secretary of State or other appropriate official of the jurisdiction of
incorporation of such Loan Party;
(iii) a good standing certificate with respect to the
Borrower and each other Loan Party, issued as of a recent date by the
Secretary of State or other appropriate official of such Person's
jurisdiction of incorporation, together with a telegram from such
Secretary of State or other official, updating the information in such
certificate;
(iv) an opinion of counsel for the Borrower and an opinion
of counsel for each other Loan Party, each dated the requested date for
the making of such Loan, in the form of Schedules 2.01(a)(iv)-1 and
2.01(a)(iv)-2, respectively, with such changes as the Managing Agents
shall approve;
(v) an opinion of Winthrop, Stimson, Putnam & Roberts,
special counsel for the Managing Agents, dated the requested date for
the making of such Loan, in the form of Schedule 2.01(a)(v);
(vi) except as set forth therein, a copy of each
Governmental Approval and other consent or approval listed on Schedule
3.03 that has been obtained on or prior to the requested date for the
making of such Loan;
(vii) a certificate of a Responsible Officer of the
Borrower, dated the requested date for the making of such Loan, with
respect to the conditions set forth in Sections 2.02(b) and (c);
(viii) a duly executed Note for each Bank and a duly
executed copy of each of the other Loan Documents;
(ix) such instruments and other documents as the Managing
Agents may request, the possession of which is necessary or appropriate
in the Managing Agents' determination to create or perfect a first
priority security interest in the Collateral under Applicable Law,
including but not limited to the certificates representing the Pledged
Securities (including an agreement satisfactory in form and substance to
the Managing Agents whereby the Depositary agrees to hold such
certificates as the agent for the Secured Party pending delivery thereof
to the Secured Party), together with undated stock powers for such
certificates duly executed in blank, or, with respect to any Pledged
Securities delivered by book-entry transfer, evidence satisfactory to
the Managing Agents that (A) the Depositary as agent for the Secured
Party has had such Pledged Securities credited to its account at the
relevant book-entry transfer facility, (B) unless such book-entry
transfer facility is a clearing corporation (as defined in Section 8-320
of the Uniform Commercial Code), the book-entry transfer facility has
sent to the Secured Party, or the Depositary as agent for the Secured
Party, confirmation thereof and (C) the Depositary has identified, by
book entry or otherwise, such Pledged Securities as being subject to the
Security Interest and sent confirmation thereof to the Secured Party,
and duly executed UCC-1 financing statements;
(x) evidence satisfactory to the Managing Agents as to the
solvency, ability to pay debts and adequacy of capital of the Borrower
after giving effect to the making of the initial Loans and the
application of the proceeds thereof, together with evidence satisfactory
to the Managing Agents as to the solvency, ability to pay debts and
adequacy of capital of QVC after giving effect to the consummation of
the Merger in accordance with the Merger Agreement and the incurrence of
the Indebtedness contemplated to be incurred in connection therewith,
including a pro forma balance sheet and pro forma consolidated financial
projections for QVC and its consolidated Subsidiaries, which shall be in
reasonable detail and shall reflect the consummation of the Merger in
accordance with the Merger Agreement and the incurrence of such
Indebtedness and shall be in form satisfactory to the Managing Agents;
(xi) copies of the Tender Offer Documents, the Joint
Ownership and Management Agreements and the Merger Agreement;
(xii) evidence reasonably satisfactory to the Managing
Agents that the Borrower shall have received capital contributions of
the Common Stock and Preferred Stock contemplated to be so contributed
to it under the Joint Ownership and Management Agreements, and such
amount of cash as will enable the Borrower, when added to the proceeds
of the initial Loans hereunder, to consummate the Tender Offer and to do
so in compliance with Regulations G, T, U and X;
(xiii) evidence reasonably satisfactory to the Managing
Agents that all Governmental Approvals necessary in connection with the
Tender Offer and the Merger have been obtained or, with respect to the
Merger, can be timely obtained, and, in the case of those that have been
obtained, remain in full force and effect, and that all applicable
waiting periods shall have expired without any action being taken by any
competent authority which restrains, prevents or imposes materially
adverse conditions upon the consummation of the Tender Offer or the
Merger;
(xiv) evidence satisfactory to the Managing Agents that,
concurrently with the initial Loans hereunder, all warrants or similar
rights to purchase shares of Common Stock or Preferred Stock contributed
to the Borrower shall be exercised by the Borrower and the Borrower
shall purchase pursuant to the Tender Offer at least that number of
shares of Common Stock and Preferred Stock that when added to the number
of shares of Common Stock and Preferred Stock already owned by or
simultaneously contributed to the Borrower (after giving effect to such
exercise) represents the number of fully diluted shares of Common Stock
necessary for the Borrower to effect the Merger without the affirmative
vote of any other holder of shares of Common Stock, Preferred Stock or
any other Capital Security of QVC in accordance with Applicable Law and
the organizational documents of QVC, and that such purchased shares of
Preferred Stock and Common Stock are free and clear of all restrictions
to purchase imposed by Applicable Law or otherwise and any voting
trusts, proxies or similar arrangements that would restrict the
Borrower's right to exercise the voting rights attributable to such
shares, except for any such restrictions arising under the Joint
Ownership and Management Agreements, the Merger Agreement and the Diller
Letter;
(xv) evidence satisfactory to the Managing Agents that
Comcast, Liberty or any of their respective Affiliates will provide any
additional funding to the Borrower to enable it to consummate the Merger
in accordance with the Merger Agreement, such funding to be provided on
a basis satisfactory to the Managing Agents;
(xvi) copies of all documents, agreements or instruments
evidencing or relating to the QVC Subordinated Indebtedness, the terms
and conditions of which shall be satisfactory to the Managing Agents,
together with evidence satisfactory to the Managing Agents that no
default shall have occurred and be continuing with respect to the QVC
Subordinated Indebtedness; and
(xvii) evidence that the Borrower shall have paid all of the
fees required to be paid to the Agents and other Banks on the date of
the initial Loans; and
(b) the fulfillment of each of the following conditions:
(i) the Merger Agreement and the Stockholders Agreement
shall have been executed and delivered by the parties thereto, shall be
reasonably satisfactory to the Managing Agents and shall be in full
force and effect, and there shall not have occurred or exist any default
thereunder;
(ii) all material terms and conditions of the Tender Offer
(including all conditions contained in the Offer to Purchase), and the
Tender Offer Documents, shall be reasonably satisfactory to the Managing
Agents;
(iii) all conditions of the Tender Offer shall have been
satisfied (unless waived with the consent of the Managing Agents), to
the reasonable satisfaction of the Managing Agents;
(iv) there shall not exist any judgment, order, injunction
or other restraint prohibiting or imposing materially adverse conditions
upon the purchase of shares of Common Stock and Preferred Stock by the
Borrower pursuant to the Tender Offer, and no actions, suits or
proceedings shall be pending or threatened with respect to the Borrower
or QVC or its Subsidiaries that could reasonably be expected to have a
Materially Adverse Effect on the Tender Offer;
(v) the corporate and capital structure of the Borrower and
QVC, all agreements relating thereto, and all organizational documents
of the Borrower and QVC shall be consistent with the provisions of
Section 6.01(k), and there shall exist no options, warrants or other
rights to acquire Common Stock or securities convertible into or
exchangeable for Common Stock except for those owned by or in favor of
Comcast, Liberty or Barry Diller or any of their respective Affiliates,
or owned by or in favor of other officers, directors or employees of QVC
with respect to an aggregate amount of Common Stock not in excess of
1,950,000 shares thereof, or those otherwise reasonably satisfactory to
the Managing Agents; and
(vi) except for changes affecting the cable television
industry generally, since January 31, 1994, no change in the business,
assets, Liabilities, financial condition or results of operations of QVC
and its consolidated Subsidiaries, taken as a whole, shall have
occurred, and no event shall have occurred or failed to occur, that has
had or could reasonably be foreseen as having, either alone or in
conjunction with all other such changes, events and failures, a
Materially Adverse Effect on QVC and its Consolidated Subsidiaries,
taken as a whole;
Section 2.02. Conditions to Each Loan. The obligation of each
Bank to make each Loan requested to be made by it, including its initial Loan,
is subject to the fulfillment of each of the following conditions:
(a) the Administrative Agent shall have received a notice of
borrowing with respect to such Loan complying with the requirements of Section
1.02;
(b) each Loan Document Representation and Warranty shall be true
and correct in all material respects at and as of the time such Loan is to be
made, both with and without giving effect to such Loan and all other Loans to
be made at such time and to the application of the proceeds thereof, except,
in the case of Loans other than the initial Loans, to the extent waived by the
Required Banks;
(c) no Default (other than a Default that shall have been waived
by the Required Banks) shall have occurred and be continuing at the time such
Loan is to be made or would result from the making of such Loan and all other
Loans to be made at such time or from the application of the proceeds thereof;
(d) there shall not exist any judgment, order, injunction or other
restraint prohibiting or imposing materially adverse conditions upon the
consummation of the Merger, and no actions, suits or proceedings shall be
pending or threatened with respect to the Borrower or QVC or its Subsidiaries
that could reasonably be expected to (i) have a Materially Adverse Effect on
the Borrower or QVC and its Subsidiaries, taken as a whole, or (ii) have a
Materially Adverse Effect on the Merger, the rights and remedies of the Banks
hereunder or on the ability of the Borrower to perform its obligations
hereunder;
(e) such Loan will not contravene any Applicable Law applicable to
the Bank, including Regulation U.
Except to the extent that the Borrower shall have disclosed in the
notice of borrowing, or in a subsequent notice given to the Banks prior to
5:00 p.m. (New York time) on the Business Day before the requested date for
the making of the requested Loans, that a condition specified in Section
2.02(b) or (c) will not be fulfilled as of the requested time for the making
of such Loans, the Borrower shall be deemed to have made a Representation and
Warranty as of the time of the making of such Loans that the conditions
specified in such clauses have been fulfilled as of such time. No such
disclosure by the Borrower that a condition specified in Section 2.02(b) or
(c) will not be fulfilled as of the requested time for the making of the
requested Loans shall affect the right of each Bank to not make the Loans
requested to be made by it if such condition has not been fulfilled at such
time.
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
In order to induce each Bank to enter into this Agreement and to
make each Loan requested to be made by it, the Borrower represents and
warrants as follows:
Section 3.01. Organization; Power; Qualification. The Borrower
is a corporation duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation, has full corporate power and
authority to own its properties and to carry on its business as now being and
hereafter proposed to be conducted and is duly qualified and in good standing
as a foreign corporation, and is authorized to do business, in all
jurisdictions in which the character of its properties or the nature of its
business requires such qualification or authorization, except for
qualifications and authorizations the lack of which, singly or in the
aggregate, has not had and will not have a Materially Adverse Effect on (a) the
Borrower, (b) any Material Loan Document or (c) the Collateral.
Section 3.02. Capitalization; Subsidiaries. Schedule 3.02 sets
forth, as of the Agreement Date, all of the Capital Securities of the Borrower
and the Persons owning such Capital Securities, the jurisdictions of
organization of such Persons (other than individuals) and the percentages of
such Capital Securities so owned. The Borrower has no Subsidiaries.
Section 3.03. Authorization; Enforceability; Required Consents;
Absence of Conflicts. The Borrower has the power, and has taken all necessary
action (including, if a corporation, any necessary stockholder action) to
authorize it, to execute, deliver and perform in accordance with their
respective terms the Loan Documents to which it is a party and to borrow
hereunder in the amount of the unused Total Commitment. This Agreement has
been, and each of the other Loan Documents to which the Borrower is a party
when delivered to the Administrative Agent will have been, duly executed and
delivered by the Borrower and is, or when so delivered will be, a legal, valid
and binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and equitable principles of general application.
The execution, delivery and performance in accordance with their respective
terms by the Borrower of the Loan Documents to which it is a party, and each
borrowing hereunder, whether or not in the amount of the unused Total
Commitment, and the transactions contemplated by the Tender Offer Documents
and the Merger Agreement, do not and (absent any change in any Applicable Law
or applicable Contract) will not (a) require any Governmental Approval or any
other consent or approval, including any consent or approval of any Subsidiary
or any consent or approval of the stockholders of the Borrower or any
Subsidiary, other than Governmental Approvals and other consents and approvals
(i) that have been obtained, are in full force and effect and are final and,
in the case of Governmental Approvals, not subject to review on appeal or to
collateral attack (or, with respect to the transactions contemplated by the
Offer to Purchase and the Merger Agreement, the absence of which could not
reasonably be expected to have a Materially Adverse Effect on (i) the
Borrower, (ii) any Material Loan Document or (iii) the Collateral) and, in the
case of any such required under any Applicable Law or Contract as in effect on
the Agreement Date, are listed on Schedule 3.03 or (ii) that are required in
order to validly consummate the Merger, that can and will be obtained and
become final and not subject to review on appeal or to collateral attack prior
to the consummation of the Merger and that are also listed, and designated as
such, on Schedule 3.03 or (b) violate, conflict with, result in a breach of,
constitute a default under, or result in or require the creation of any Lien
upon any assets of the Borrower under, (i) any Contract to which the Borrower
is a party or by which the Borrower or any of its properties may be bound or
(ii) any Applicable Law, except for such violations, breaches or defaults of
or under Contracts or Applicable Law (A) so long as, in the case of any
Contract, such Contract is not expressly identified or contemplated herein or
in any other Loan Document, and no Loan Party is party thereto, or, in the
case of Applicable Law, such Applicable Law is not applicable to the Borrower,
(B) that could not reasonably be expected to expose any Agent or Bank to any
liability, loss, cost or expense and (C) that, either alone or in conjunction
with all other such violations, breaches or defaults, could not have a
Materially Adverse Effect on (x) the Borrower, (y) any Material Loan Document
or (z) the Collateral.
Section 3.04. Litigation. Except as set forth on Schedule 3.04,
there are not, in any court or before any arbitrator of any kind or before or
by any governmental or non-governmental body, any actions, suits or
proceedings pending or, to the knowledge of the Borrower, threatened against
or in any other way relating to or affecting (i) the Borrower or any of its
businesses or properties, (ii) any Material Loan Document to which the
Borrower is a party or (iii) the Collateral (except actions, suits or
proceedings that may affect the cable television industry generally but with
respect to which neither the Borrower nor any other Loan Party is a party)
with respect to which there is a reasonable probability of a determination
adverse to the interests of the Borrower that, if adversely determined, would,
singly or in the aggregate, have a Materially Adverse Effect on (A) the
Borrower, (B) any Material Loan Document or (C) the Collateral.
Section 3.05. Burdensome Provisions. As of the Agreement Date
and as of the Tender Offer Funding Date, the Borrower is not a party to or
bound by any Contract or Applicable Law (other than Applicable Law affecting
the cable television industry generally), compliance with which could
reasonably be expected to have a Materially Adverse Effect on (a) the Borrower,
(b) any Material Loan Document or (c) the Collateral.
Section 3.06. No Adverse Change or Event. Except for changes
affecting the cable television industry generally, since January 31, 1994, no
change in the business, assets, Liabilities, financial condition or results of
operations of the Borrower has occurred, and no event has occurred or, in the
case of events anticipated by the Borrower to have occurred prior to the making
of this representation and warranty, failed to occur, that has had or could
reasonably be expected to have, either alone or in conjunction with all other
such changes, events and failures, a Materially Adverse Effect on (a) the
Borrower, (b) any Material Loan Document or (c) the Collateral. Such an
adverse change may have occurred, and such an event may have occurred or
failed to occur, within the meaning of this Section 3.06 at any particular
time without regard to whether such change, event or failure constitutes a
Default or whether any other Default shall have occurred and be continuing.
Section 3.07. Taxes. The Borrower has filed (either directly or
indirectly through the Affiliate of the Borrower responsible (whether as
common parent or agent of a filing group or otherwise) under Applicable Law
for such filing) all United States Federal income tax returns (if any) and all
other material Tax returns (if any) that are required to be filed by such
Person and have paid (either directly or indirectly through the Affiliate of
the Borrower responsible (whether as common parent or agent of a filing group
or otherwise) under Applicable Law for such payment) all Taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any of
its Affiliates and relating to the Borrower, except such Taxes, if any, as are
being contested in good faith by appropriate proceedings, if any, and as to
which adequate reserves have been provided. The charges, accruals and
reserves on the books of the Borrower in respect of Taxes and other
governmental charges are, in the opinion of the Borrower, adequate. There is
currently in effect no tax sharing, tax allocation or similar agreement to
which the Borrower is a party.
Section 3.08. No Default. The Borrower is not in default in the
payment or performance or observance of any Contract to which it is a party or
by which it or its properties or assets may be bound that, individually or
together with all other such defaults, could have a Materially Adverse Effect
on (a) the Borrower, (b) any Material Loan Document or (c) the Collateral.
Section 3.09. Not an Investment Company. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of 1940.
Section 3.10. Hazardous Materials. The Borrower has obtained all
permits, licenses and other authorizations which are required under all
Environmental Laws, except to the extent failure to have any such permit,
license or authorization would not have a Materially Adverse Effect on (a) the
Borrower, (b) any Material Loan Document or (c) the Collateral. The Borrower
is in compliance with the terms and conditions of all such permits, licenses
and authorizations, and is also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in any applicable Environmental Law or in
any regulation, code, plan, order, decree, judgment, injunction, notice or
demand letter issued, entered, promulgated or approved thereunder, except to
the extent failure to comply would not reasonably be expected to have a
Materially Adverse Effect on (i) the Borrower, (ii) any Material Loan Document
or (iii) the Collateral. In addition, to the knowledge of the Borrower, no
notice, notification, demand, request for information, citation, summons or
order has been issued, no complaint has been filed, no penalty has been
assessed and no investigation or review is pending or threatened by any
governmental or other entity with respect to any alleged failure by the
Borrower to have any permit, license or authorization required in connection
with the conduct of the business of the Borrower or with respect to any
generation, treatment, storage, recycling, transportation, discharge, disposal
or "release" (as such term is defined in 42 U.S.C. Section 9601(22)) of
Hazardous Materials generated by the Borrower, the consequences of any of
which would have a Materially Adverse Effect on (x) the Borrower, (y) any
Material Loan Document or (z) the Collateral.
Section 3.11. Solvency. As of the Tender Offer Funding Date, and
after giving effect to the making of the initial Loans and the application of
the proceeds thereof, (a) the Fair Saleable Value of the assets of the
Borrower exceeds the amount that will be required to be paid on or in respect
of the existing debts and other liabilities (including contingent liabilities)
of the Borrower, as such debts and liabilities become absolute and mature, (b)
the property of the Borrower does not constitute unreasonably small capital
for it to carry on its business as now conducted and as proposed to be
conducted, including the capital needs of the Borrower, taking into account
the particular capital requirements of the business conducted by it and
projected capital requirements and capital availability and (c) the Borrower
does not intend to incur debts or liabilities beyond its ability to pay such
debts and liabilities as they mature, taking into account the timing and
amounts of cash to be received by it (including cash to be received pursuant
to committed credit facilities) and of amounts to be payable on or in respect
of debts and liabilities of it. The Borrower believes that its cash flow
(including cash to be received pursuant to committed credit facilities), after
taking into account all anticipated uses of its cash, will at all times be
sufficient to pay all such amounts on or in respect of debt and liabilities of
the Borrower when such amounts are scheduled to be paid. For purposes of this
Section 3.11, "Fair Saleable Value" means, with respect to any asset at any
time, the amount that a willing buyer would pay a willing seller for such
asset on the assumption that the sale of such asset must take place within a
reasonable period after such time.
Section 3.12. Benefit Plans. As of the Agreement Date, the
Borrower does not have any Benefit Plans other than Existing Benefit Plans.
Section 3.13. Security Interest. When the Secured Party, or the
Depositary as agent for the Secured Party, has taken possession of the
certificates representing the Pledged Securities, duly endorsed or together
with instruments of transfer with respect thereto duly executed, in each case
in blank, or, with respect to any such Pledged Securities delivered by
book-entry transfer, when (i) the Depositary as agent for the Secured Party
has had such Pledged Securities credited to its account at the relevant
book-entry transfer facility, (ii) unless such book-entry transfer facility is
a clearing corporation (as defined in Section 8-320 of the Uniform Commercial
Code), the book-entry transfer facility has sent to the Secured Party, or the
Depositary as agent for the Secured Party, confirmation thereof and (iii) the
Depositary has identified, by book entry or otherwise, such Pledged Securities
as being subject to the Security Interest and sent confirmation thereof to the
Secured Party, the Security Interest will constitute a valid and perfected
security interest in the Pledged Securities and the Pledged Securities will
not be subject to any other Lien.
ARTICLE 4
CERTAIN COVENANTS
From the Agreement Date and until the Repayment Date,
A. The Borrower shall:
Section 4.01. Preservation of Existence and Properties, Scope of
Business, Compliance with Law, Payment of Taxes and Claims, Preservation of
Enforceability. (a) Preserve and maintain its corporate existence (except
pursuant to the Merger) and all of its other franchises, licenses, rights and
privileges, (b) preserve, protect and obtain all Intellectual Property, and
preserve and maintain in good repair, working order and condition all other
properties, required for the conduct of its business, (c) comply with
Applicable Law, (d) pay or discharge when due all Taxes and all Liabilities
that might become a Lien on any of its properties and (e) take all action and
obtain all consents and Governmental Approvals required so that its
obligations under the Loan Documents will at all times be legal, valid and
binding and enforceable in accordance with their respective terms, except that
this Section 4.01 (other than clause (a) above (insofar as it requires the
Borrower to preserve its corporate existence) and clause (e) above) shall not
apply in any circumstance where noncompliance, together with all other
noncompliances with this Section 4.01, will not have a Materially Adverse
Effect on (i) the Borrower, (ii) any Material Loan Document or (iii) the
Collateral.
Section 4.02. Use of Proceeds. Use the proceeds of the Loans
only to (a) finance the purchase of Common Stock and Preferred Stock pursuant
to the Tender Offer, (b) to pay interest and fees hereunder and (c) to pay
other fees and expenses relating to the Tender Offer. None of the proceeds of
any of the Loans shall be used in violation of Regulation G, T, U or X.
Unless otherwise directed by any Bank, the Borrower shall complete and sign
Part I of Federal Reserve Form U-1 referred to in Regulation U and deliver the
same to each Bank.
B. The Borrower shall not, directly or indirectly:
Section 4.03. Guaranties. Be obligated, at any time, in respect
of any Guaranty.
Section 4.04. Liens. Permit to exist, at any time, any Lien upon
any of its properties or assets of any character, whether now owned or
hereafter acquired, or upon any income or profits therefrom, except that this
Section 4.04 shall not apply to Permitted Liens; provided, however, that if,
notwithstanding this Section 4.04, any Lien to which this Section 4.04 is
applicable shall be created or arise, the Liabilities of the Loan Parties
under the Loan Documents shall, to the extent such Lien attaches to any asset
that does not constitute Collateral or to any asset with respect to which such
Lien would be prior to the Security Interest, automatically be secured by such
Lien to the full extent permitted by Applicable Law equally and ratably with
the other Liabilities secured thereby, and the holder of such other
Liabilities, by accepting such Lien, shall, to such extent, be deemed to have
agreed thereto and to share with the Banks, on that basis, the proceeds of
such Lien, whether or not the Banks' security interest shall be perfected;
provided further, however, that notwithstanding such equal and ratable
securing and sharing, the existence of such Lien shall constitute a default by
the Borrower in the performance or observance of this Section 4.04.
Section 4.05. Restricted Payments. Make or declare or otherwise
become obligated to make any Restricted Payment.
Section 4.06. Merger or Consolidation; Acquisitions. Merge or
consolidate with any Person, or acquire any assets or business from or Capital
Securities of any Person, except pursuant to the Tender Offer, the Merger
Agreement and the Merger.
Section 4.07. Disposition of Assets. Sell, lease, license,
transfer or otherwise dispose of any asset or any interest therein.
Section 4.08. Indebtedness. Incur, create, assume or suffer to
exist any Indebtedness, except that this Section 4.08 shall not apply to
Indebtedness under the Loan Documents or the QVC Subordinated Indebtedness.
Section 4.09. Transactions with Affiliates. Effect any
transaction with any Affiliate (other than QVC or any of its Subsidiaries) on
a basis less favorable than would at the time be obtainable for a comparable
transaction in arms-length dealing with an unrelated third party, except that
this Section 4.09 shall not apply to (i) transactions to which this Agreement
is by its express terms inapplicable, (ii) the Shareholders Agreement and
(iii) the Merger Agreement.
Section 4.10. Subsidiaries. Have any Subsidiaries at any time.
Section 4.11. Issuance or Disposition of Capital Securities.
Issue any of its Capital Securities, except that this Section 4.11 shall not
apply to any issuance by the Borrower of any of its Capital Securities to
Comcast, Liberty or any Affiliate of either Comcast or Liberty pursuant to the
terms of the Joint Ownership and Management Agreements.
Section 4.12. Investments. Purchase or acquire obligations or
Capital Securities of, or any other interest in, or make loans to, any Person,
except that this Section 4.12 shall not apply to any such obligation, Capital
Security, interest or loan consisting of (a) obligations issued or guaranteed
by the United States of America with a remaining maturity not exceeding three
months, (b) commercial paper with maturities of not more than three months and
a published rating of not less than A-1 by Standard & Poor's Ratings Group
("S&P") or P-1 by Moody's Investors Service, Inc. ("Moody's") (or the
equivalent rating), (c) certificates of time deposit and bankers' acceptances
having maturities of not more than three months of any Bank or other
commercial bank if (i) such bank has a combined capital and surplus of at
least $100,000,000 and (ii) its unsecured long-term debt obligations, or those
of a holding company of which it is a Subsidiary, are rated not less than A-
or A3 (or the equivalent rating) by a nationally recognized investment rating
agency, (d) repurchase agreements with any Bank for periods not in excess of
three months fully collateralized by securities constituting obligations
issued or guaranteed by the United States of America, (e) notes and other
instruments that are exempt from Federal income taxation with a remaining
maturity not exceeding three months, provided that such notes and other
instruments are rated in the highest safety category (MIG1 or equivalent) by
Moody's or S&P, and (f) Common Stock and Preferred Stock.
C. The Borrower shall not permit QVC or any of its Subsidiaries to:
Section 4.13. QVC Indebtedness. Incur any Indebtedness in excess
of its Indebtedness on the Agreement Date other than (a) Indebtedness
outstanding, or incurred pursuant to credit facilities available to QVC or any
of its Subsidiaries and in existence, on the Agreement Date and (b)
Indebtedness secured by mortgages on real property in an aggregate principal
amount not in excess of $10,000,000.
Section 4.14. QVC Merger or Consolidation; Acquisitions;
Dispositions. Merge or consolidate with any Person, or acquire any assets or
business from or Capital Securities of any Person, or sell any assets or
business to any Person, except that this Section 4.14 shall not apply to (a)
any sales of assets or acquisitions of inventory, property, plant or equipment
in the ordinary course of business, (b) any merger or consolidation of any
Subsidiary of QVC with any other Subsidiary of QVC and (c) the Merger.
D. The Borrower shall not:
Section 4.15. QVC Subordinated Indebtedness. (a) Agree to or
otherwise amend, modify, supplement or otherwise change any of the
subordination provisions of any document, agreement or instrument evidencing
or relating to the QVC Subordinated Indebtedness or, if such change is in any
way adverse to the Borrower or the Banks, any of the other terms and
conditions of the QVC Subordinated Indebtedness or (b) purchase, redeem,
retire or otherwise acquire for value, or set apart any money for a sinking,
defeasance or other analogous fund for, the purchase, redemption, retirement
or other acquisition of, or make any voluntary payment or prepayment of the
principal of or interest on, or any other amount owing in respect of, the QVC
Subordinated Indebtedness.
ARTICLE 5
INFORMATION
Section 5.01. Information to Be Furnished. From the Agreement
Date and until the Repayment Date, the Borrower shall furnish to the
Administrative Agent, with sufficient copies for each of the Banks:
(a) Requested Information. From time to time and with reasonable
promptness upon request of any Bank, such Information regarding the Loan
Documents, the Loans or the business, assets, Liabilities, financial
condition, results of operations or business prospects of the Borrower as such
Bank may reasonably request.
(b) Notice of Events of Default and Other Matters. Prompt notice
of: (i) any Event of Default, after a Responsible Officer of the Borrower
shall have become aware thereof, describing such Event of Default and the
action, if any, that the Borrower is proposing to take with respect thereto,
(ii) the occurrence or non-occurrence of any change or event that would cause
the Representation and Warranty contained in Section 3.09 to be incorrect if
made at such time and (iii) any material amendment to the certificate of
incorporation or by-laws of the Borrower.
Section 5.02. Accuracy of Information.
(a) Historical Information. The Borrower hereby represents and
warrants that all Information furnished to the Administrative Agent or the
Banks in writing by or on behalf of and concerning the Borrower or QVC, and
not the cable television industry generally, prior to the Agreement Date in
connection with or pursuant to the Loan Documents and the relationships
established thereunder, at the time the same was so furnished, but in the case
of Information dated as of a prior date, as of such date, when taken together
(giving effect to Information so furnished that corrects, supplements or
supersedes Information previously furnished), (i) in the case of any
Information prepared in the ordinary course of business, was correct in all
material respects in the light of the purpose for which it was prepared and
(ii) in the case of any Information the preparation of which was requested by
any Bank, (A) did not contain any untrue statement of a material fact and (B)
did not omit to state a material fact necessary in order to make the statements
contained therein not misleading in the light of the circumstances under which
they were made. The Borrower hereby represents and warrants that the final
financial projections furnished to the Administrative Agent or the Banks in
writing by or on behalf of the Borrower or QVC, as the case may be, prior to
the Tender Offer Funding Date, which are not to be construed as guaranties of
the financial performance of the Borrower or QVC, as the case may be, for the
period or periods to which such projections relate, were based on reasonable
estimates and assumptions made by the Borrower or QVC, as the case may be, in
good faith and are the projections used in the capitalization and financial
planning of the Borrower or QVC, as the case may be, for such period or
periods, and no fact is known to the Borrower on the Agreement Date that has
not been disclosed in writing to the Banks that would result in any material
change in any such projections or in any estimate or assumption reflected
therein.
(b) Future Information. All Information furnished to the
Administrative Agent or the Banks in writing by or on behalf of and concerning
the Borrower or QVC, and not the cable television industry generally, on or
after the Agreement Date in connection with or pursuant to the Loan Documents
or in connection with or pursuant to any amendment or modification of, or
waiver of rights under, the Loan Documents, shall, at the time the same is so
furnished, but in the case of Information dated as of a prior date, as of such
date, when taken together (giving effect to Information so furnished that
corrects, supplements or supersedes Information previously so furnished) (i)
in the case of any Information prepared in the ordinary course of business,
be correct in all material respects in the light of the purpose for which it
was prepared and (ii) in the case of any Information required by the terms of
the Loan Documents or the preparation of which was requested by any Bank, not
contain any untrue statement of a material fact, and not omit to state a
material fact necessary in order to make the statements contained therein not
misleading in the light of the circumstances under which they were made, and
the furnishing of the same to the Administrative Agent or any Bank shall
constitute a representation and warranty by the Borrower made on the date the
same are so furnished to the effect specified in clauses (i) and (ii) above.
Section 5.03. Additional Covenants Relating to Disclosure. From
the Agreement Date and until the Repayment Date, the Borrower shall permit
representatives (whether or not officers or employees) of any Bank, from time
to time, as often as may be reasonably requested and upon reasonable notice,
to (i) visit any of its premises or property or any premises or property of
others on which any of its property or books and records (or books and records
of others relating to it) may be located, (ii) inspect, and verify the amount,
character and condition of, any of its property, (iii) review and make
extracts from its books and records and books and records of others relating
to it and (iv) discuss its affairs, finances and accounts with its officers,
employees and, upon prior notice to the Borrower, its independent public
accountants (and by this provision the Borrower authorizes such accountants to
discuss the finances and affairs of the Borrower and the Subsidiaries).
Section 5.04. Authorization of Third Parties to Deliver
Information. The Borrower hereby agrees that any opinion, report or other
Information delivered to the Administrative Agent, the Managing Agents or the
Banks pursuant to the Loan Documents (including under Article 2 or this Article
5) is hereby deemed to have been authorized and directed by the Borrower to be
delivered for the benefit of the Administrative Agent, the Managing Agents and
the Banks.
ARTICLE 6
DEFAULT
Section 6.01. Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary, or within or without the control of the
Borrower or any other Loan Party, or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule or
regulation of any governmental or nongovernmental body:
(a) Any payment of principal of or interest on any of the Loans
or the Notes or of any fee shall not be made when and as due (whether at
maturity, by reason of notice of prepayment or acceleration or otherwise) and
in accordance with the terms of this Agreement and the Notes and, except in
the case of payments of principal, such failure shall continue for three
Business Days;
(b) Any Loan Document Representation and Warranty shall at any
time prove to have been incorrect or misleading in any material respect when
made;
(c) The Borrower shall default in the performance or observance
of:
(i) any term, covenant, condition or agreement contained in
(y) Section 4.01(a) (insofar as such Section requires the preservation
of the corporate existence of the Borrower), 4.01(e), 4.02 through 4.15
or 5.01(b)(i) of this Agreement or (z) Sections 2 and 3 of the Pledge
Agreement; or
(ii) any term, covenant, condition or agreement contained
in this Agreement or the Pledge Agreement (other than a term, covenant,
condition or agreement a default in the performance or observance of
which is elsewhere in this Section 6.01 specifically dealt with) and, if
capable of being remedied, such default shall continue unremedied for a
period of 30 days;
(d) A default by the Borrower shall be continuing under any
Contract binding upon the Borrower, except a default that, together with all
other such defaults, has not had and will not have a Materially Adverse Effect
on (i) the Borrower, (ii) any Material Loan Document or (iii) the Collateral;
(e) (i) The Borrower or any other Loan Party shall (A) commence
a voluntary case under the Federal bankruptcy laws (as now or hereafter in
effect), (B) file a petition seeking to take advantage of any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding up or composition or adjustment of debts, (C) consent to or fail to
contest in a timely and appropriate manner any petition filed against it in an
involuntary case under such bankruptcy laws or other laws, (D) apply for, or
consent to, or fail to contest in a timely and appropriate manner, the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, liquidator or the like of itself or of a substantial part of its
assets, domestic or foreign, (E) admit in writing its inability to pay, or
generally not be paying, its debts (other than those that are the subject of
bona fide disputes) as they become due, (F) make a general assignment for the
benefit of creditors or (G) take any corporate action for the purpose of
effecting any of the foregoing; or
(ii) (A) A case or other proceeding shall be commenced
against the Borrower or any other Loan Party seeking (x) relief under the
Federal bankruptcy laws (as now or hereafter in effect) or under any other
laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding up or composition or adjustment of debts or (y) the appointment of a
trustee, receiver, custodian, liquidator or the like of the Borrower or any
other Loan Party, or of all or any substantial part of the assets, domestic or
foreign, of the Borrower or any other Loan Party, and such case or proceeding
shall continue undismissed or unstayed for a period of 60 days or (B) an order
granting the relief requested in such case or proceeding against the Borrower
or any other Loan Party (including an order for relief under such Federal
bankruptcy laws) shall be entered;
(f) A judgment or order shall be entered against the Borrower by
any court and (i) in the case of a judgment or order for the payment of money,
such judgment or order shall continue undismissed, unbonded, undischarged or
unstayed for a period of 30 days in which the aggregate amount of all such
judgments and orders exceeds $10,000,000 and (ii) in the case of any judgment
or order for other than the payment of money, such judgment or order could, in
the reasonable judgment of the Required Banks, together with all other such
judgments or orders, have a Materially Adverse Effect on the Borrower;
(g) (i) any Termination Event shall occur with respect to any
Benefit Plan of the Borrower or any of its ERISA Affiliates, (ii) any
Accumulated Funding Deficiency, whether or not waived, shall exist with
respect to any such Benefit Plan, (iii) any Person shall engage in any
Prohibited Transaction involving any such Benefit Plan, (iv) the Borrower or
any of its ERISA Affiliates shall be in "default" (as defined in Section
4219(c)(5) of ERISA) with respect to payments owing to any such Benefit Plan
that is a Multiemployer Benefit Plan as a result of such Person's complete or
partial withdrawal (as described in Section 4203 or 4205 of ERISA) therefrom,
(v) the Borrower or any of its ERISA Affiliates shall fail to pay when due an
amount that is payable by it to the PBGC or to any such Benefit Plan under
Title IV of ERISA, (vi) a proceeding shall be instituted by a fiduciary of any
such Benefit Plan against the Borrower or any of its ERISA Affiliates to
enforce Section 515 of ERISA and such proceeding shall not have been dismissed
within 30 days thereafter or (vii) any other event or condition shall occur or
exist with respect to any such Benefit Plan, except that no event or condition
referred to in clauses (i) through (vii) above shall constitute an Event of
Default if it, together with all other such events or conditions at the time
existing, has not subjected and is not reasonably likely to subject the
Borrower to any Liability that, alone or in the aggregate, has had or could
have a Materially Adverse Effect on (x) the Borrower, (y) any Material Loan
Document or (z) the Collateral;
(h) Any Loan Party asserts, or any Loan Party institutes any
proceedings seeking to establish, that (i) any provision of the Loan Documents
is invalid, not binding or unenforceable or (ii) the Security Interest is not
a valid and perfected first priority security interest in the Collateral
subject only to Permitted Liens;
(i) Any Person which is party to the QVC Subordinated
Indebtedness (i) asserts, or institutes any proceedings seeking to establish,
that any of the subordination provisions of any document, agreement or
instrument evidencing or relating to the QVC Subordinated Indebtedness is
invalid, not binding or enforceable, (ii) shall have breached any of the
subordination provisions of any document, agreement or instrument evidencing or
relating to the QVC Subordinated Indebtedness or shall otherwise be in default
of any such provisions thereunder or (iii) shall have sent a notice to the
Administrative Agent of its intent to exercise any remedy thereunder or take
any action in contemplation or in furtherance of any remedy thereunder;
(j) The Joint Ownership and Management Agreements shall have been
amended, modified or supplemented in any material respect without the consent
of the Required Banks (such consent not to be unreasonably withheld), other
than any such amendment, modification or supplement that has been consented to
in writing by the Required Banks (such consent not to be unreasonably
withheld); and
(k) (i) Comcast and Liberty, collectively, shall at any time
cease to beneficially own issued and outstanding capital stock and other
issued and outstanding Capital Securities of the Borrower having not less than
51% of the total equity value of the Borrower, or Comcast, any of its
Affiliates, Liberty or any of its Affiliates, collectively, shall at any time
cease to have at least 51% control over the Borrower and (ii) either Comcast or
Liberty, individually, shall at any time cease to beneficially own issued and
outstanding capital stock and other issued and outstanding Capital Securities
of the Borrower having not less than 19.9% of the total equity value of the
Borrower. As used in this Section 6.01(k), the term "beneficially own" refers
to a Person's proportionate direct and indirect attributable economic interest
in another Person's Capital Securities, and the term "51% control" refers to a
Person's or group of Persons' direct ownership of another Person's Capital
Securities having 51% or more of the ordinary voting power for the election of
directors (or other persons having similar functions) of such other Person.
Section 6.02. Remedies upon Event of Default. During the
continuance of any Event of Default (other than one specified in Section
6.01(e) with respect to the Borrower) and in every such event, the
Administrative Agent, upon notice to the Borrower, may (but shall not be
obligated to), and if so directed by the Required Banks shall, do either or
both of the following: (a) declare, in whole or, from time to time, in part,
the principal of and interest on the Loans and the Notes and all other amounts
owing under the Borrower Loan Documents to be, and the Loans and the Notes and
all such other amounts shall thereupon and to that extent become, due and
payable and (b) terminate, in whole or, from time to time, in part, the
Commitments. Upon the occurrence of an Event of Default specified in Section
6.01(e) with respect to the Borrower, automatically and without any notice to
the Borrower, (i) the principal of and interest on the Loans and the Notes and
all other amounts owing under the Borrower Loan Documents shall be due and
payable and (ii) the Commitments shall terminate. Presentment, demand,
protest or notice of any kind (other than the notice provided for in the first
sentence of this Section 6.02) are hereby expressly waived.
ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01. Mandatory Suspension and Conversion of Eurodollar
Rate Loans. A Bank's obligations to make, continue or convert into Eurodollar
Rate Loans of any Type shall be suspended, all such Bank's outstanding Loans
of such Type shall be converted on the last day of their applicable Interest
Periods (or, if earlier, in the case of clause (c) below, on the last day such
Bank may lawfully continue to maintain Loans of such Type or, in the case of
clause (d) below, on the day determined by such Bank to be the last Business
Day before the effective date of the applicable restriction) into, and all
pending requests for the making or continuation of or conversion into Loans of
such Type by such Bank shall be deemed requests for, Base Rate Loans, if:
(a) on or prior to the determination of an interest rate for a
Eurodollar Rate Loan of such Type for any Interest Period, the Administrative
Agent determines that for any reason appropriate information is not available
to it for purposes of determining the Eurodollar Rate for such Interest Period;
(b) on or prior to the first day of any Interest Period for a
Eurodollar Rate Loan of such Type, the Required Banks have informed the
Administrative Agent of their determination that the Eurodollar Rate as
determined by the Administrative Agent for such Interest Period would not
accurately reflect the cost to such Banks of making, continuing or converting
into a Eurodollar Rate Loan of such Type for such Interest Period;
(c) at any time such Bank determines that any Regulatory Change
makes it unlawful or impracticable for such Bank or its applicable Lending
Office to make, continue or convert into a Eurodollar Rate Loan of such Type,
or to comply with its obligations hereunder in respect thereof; or
(d) such Bank notifies the Administrative Agent of its
determination that (i) by reason of any Regulatory Change, such Bank or its
applicable Lending Office is restricted, directly or indirectly, in the amount
that it may hold of (A) a category of liabilities that includes deposits by
reference to which, or on the basis of which, the interest rate applicable to
Eurodollar Rate Loans of such Type is directly or indirectly determined or (B)
the category of assets that includes Eurodollar Rate Loans of such Type and
(ii) such Bank has elected that this Section 7.01(d) shall apply to its
Eurodollar Rate Loans of such Type.
If, as a result of this Section 7.01, any Loan of any Bank that would
otherwise be made or maintained as or converted into a Eurodollar Rate Loan of
any Type for any Interest Period is instead made or maintained as or converted
into a Base Rate Loan, then, unless the corresponding Loan of each of the
other Banks is also to be made or maintained as or converted into a Base Rate
Loan, such Loan shall be treated as being a Eurodollar Rate Loan of such Type
for such Interest Period for all purposes of this Agreement (including the
timing, application and proration among the Banks of interest payments,
conversions and prepayments) except for the calculation of the interest rate
borne by such Loan. The Administrative Agent shall promptly notify the
Borrower and each Bank of the existence or occurrence of any condition or
circumstance specified in clause (a) or (b) above, and each Bank shall
promptly notify the Borrower and the Administrative Agent of the existence,
occurrence or termination of any condition or circumstance specified in clause
(c) or (d) above applicable to such Bank's Loans, but the failure by the
Administrative Agent or such Bank to give any such notice shall not affect
such Bank's rights hereunder.
Section 7.02. Regulatory Changes. If in the determination of any
Bank (a) any Regulatory Change shall directly or indirectly (i) reduce the
amount of any sum received or receivable by such Bank with respect to any
Eurodollar Rate Loan or the return to be earned by such Bank on any Eurodollar
Rate Loan, (ii) impose a cost on such Bank or any Affiliate of such Bank that
is attributable to the making or maintaining of, or such Bank's commitment to
make, any Eurodollar Rate Loan, (iii) require such Bank or any Affiliate of
such Bank to make any payment on or calculated by reference to the gross
amount of any amount received by such Bank under any Loan Document in respect
of its Eurodollar Rate Loans or its obligations to make Eurodollar Rate Loans
or (iv) reduce, or have the effect of reducing, the rate of return on any
capital of such Bank or any Affiliate of such Bank that such Bank or such
Affiliate is required to maintain on account of any Eurodollar Rate Loan or
such Bank's commitment to make any Eurodollar Rate Loan and (b) such
reduction, increased cost or payment shall not be fully compensated for by an
adjustment in the applicable rates of interest payable under the Loan
Documents, then the Borrower shall pay to such Bank such additional amounts as
such Bank determines will, together with any adjustment in the applicable
rates of interest payable hereunder, fully compensate for such reduction,
increased cost or payment. Such additional amounts shall be payable, in the
case of those applicable to prior periods, within 15 Business Days after
request by such Bank for such payment accompanied by the certificate described
in Section 7.05 and, in the case of those applicable to future periods, on the
dates specified, or determined in accordance with a method specified, by such
Bank. Each Bank will promptly notify the Borrower of any determination made
by it referred to in clauses (a) and (b) above, but the failure to give such
notice shall not affect such Bank's right to such compensation; provided,
however, that the Borrower shall not be required to pay such additional
amounts in respect of any Regulatory Change for any period ending prior to the
date that is 90 days prior to the giving of the notice of the determination of
such additional amounts (unless such period shall have commenced after the
date that such Bank notified the Borrower of the possibility that additional
amounts may be payable as a result of such Regulatory Change), except, if such
Regulatory Change shall have been imposed retroactively, for the period from
the effective date of such Regulatory Change to the date that is 90 days after
the first date on which such Bank reasonably should have had knowledge of such
Regulatory Change.
Section 7.03. Capital and Reserve Requirements. If, in the
determination of any Bank, such Bank or any Affiliate of such Bank is
required, under Applicable Law (including Regulation D), interpretations,
directives, requests and governmental or regulatory guidelines (whether or not
having the force of law), to maintain capital or deposit any reserve on
account of any Loan or such Bank's commitment to make any Loan, then, upon
request by such Bank, the Borrower shall from time to time thereafter pay to
such Bank such additional amounts as such Bank determines will fully
compensate for any reduction in the rate of return on the capital that such
Bank or such Affiliate is so required to maintain on account of such Loan or
commitment suffered as a result of such capital requirement or for the cost
imposed on such Bank or such Affiliate by such reserve requirement. Such
additional amounts shall be payable, in the case of those applicable to prior
periods, within 15 Business Days after request by such Bank for such payment
accompanied by the certificate described in Section 7.05 and, in the case of
those relating to future periods, on the dates specified, or determined in
accordance with a method specified, by such Bank; provided, however, that the
Borrower shall not be required to pay such additional amounts in respect of
any capital or reserve requirement for any period ending prior to the date
that is 90 days prior to the making of such Bank's initial request for such
additional amounts (unless such period shall have commenced after the date
that such Bank notified the Borrower of the possibility that additional
amounts may be payable as a result of such capital or reserve requirement),
except, if such capital or reserve requirement shall have been imposed
retroactively, for the period from the effective date of such capital or
reserve requirement to the date that is 90 days after the first date on which
such Bank reasonably should have had knowledge of such capital or reserve
requirement.
Section 7.04. Funding Losses. The Borrower shall pay to each
Bank, upon request, such amount or amounts as such Bank determines are
necessary to compensate it for any loss, cost or expense (excluding loss of
the Applicable Margin) incurred by it as a result of (a) any payment,
prepayment or conversion of a Eurodollar Rate Loan on a date other than the
last day of an Interest Period for such Eurodollar Rate Loan or (b) a
Eurodollar Rate Loan for any reason not being made or converted, or any
payment of principal thereof or interest thereon not being made, on the date
therefor determined in accordance with the applicable provisions of this
Agreement. At the election of such Bank, and without limiting the generality
of the foregoing, but without duplication, such compensation on account of
losses may include an amount equal to the excess of (i) the interest that
would have been received from the Borrower under this Agreement (excluding the
Applicable Margin) on any amounts to be reemployed during an Interest Period
or its remaining portion over (ii) the interest component of the return that
such Bank determines it could have obtained had it placed such amount on
deposit in the interbank Dollar market selected by it for a period equal to
such Interest Period or remaining portion.
Section 7.05. Determinations. In making the determinations
contemplated by Sections 7.01, 7.02, 7.03 and 7.04, each Bank may make such
estimates, assumptions, allocations and the like that such Bank in good faith
determines to be appropriate, and such Bank's selection thereof in accordance
with this Section 7.05, and the determinations made by such Bank on the basis
thereof, shall be final, binding and conclusive upon the Borrower, except, in
the case of such determinations, for manifest errors. Each Bank shall furnish
to the Borrower, at the time of any request for compensation under Section
7.02 or 7.03 and otherwise upon request, a certificate outlining in reasonable
detail the computation of any amounts claimed by it under this Article 7 and
the assumptions underlying such computations, which shall include a statement
of an officer of such Bank certifying that such request for compensation is
being made pursuant to a policy adopted by such Bank to seek such compensation
generally from customers similar to the Borrower and having similar provisions
in agreements with such Bank.
Section 7.06. Change of Lending Office. If an event occurs with
respect to a Lending Office of any Bank that obligates the Borrower to pay any
amount under Section 1.12, makes operable the provisions of Section 7.01(c) or
(d) or entitles such Bank to make a claim under Section 7.02 or 7.03, such
Bank shall, if requested by the Borrower, use reasonable efforts to designate
another Lending Office or Offices the designation of which will reduce the
amount the Borrower is so obligated to pay, eliminate such operability or
reduce the amount such Bank is so entitled to claim, provided that such
designation would not, in the sole and absolute discretion of such Bank, be
disadvantageous to such Bank in any manner or contrary to such Bank's
policies. Each Bank may at any time and from time to time change any Lending
Office and shall give notice of any such change to the Administrative Agent
and the Borrower. Except in the case of a change in Lending Offices made at
the written request of the Borrower, the designation of a new Lending Office
by any Bank shall not obligate the Borrower to pay any amount to such Bank
under Section 1.12, make operable the provisions of Section 7.01(c) or (d) or
entitle such Bank to make a claim under Section 7.02 or 7.03 if such
obligation, the operability of such clause or such claim results solely from
such designation and not from a subsequent Regulatory Change.
Section 7.07. Replacement of Banks. If any Bank requests
compensation pursuant to Section 1.12, 7.02 or 7.03, or such Bank's obligation
to make or continue, or to convert Loans of any other Type into, any Type of
Eurodollar Rate Loan shall be suspended pursuant to Section 7.01, the
Borrower, upon three Business Days' notice, may require that such Bank
transfer all of its right, title and interest under this Agreement and such
Bank's Notes to any bank or financial institution identified by the Borrower
with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld) (a) if such proposed transferee agrees to assume all of
the obligations of such Bank for consideration equal to the outstanding
principal amount of such Bank's Loans, together with interest thereon to the
date of such transfer, and satisfactory arrangements are made for payment to
such Bank of all other amounts payable hereunder to such Bank on or prior to
the date of such transfer (including any fees accrued hereunder and any
amounts that would be payable under Section 7.04 as if all of such Bank's
Loans were being prepaid in full on such date) and (b) if such Bank being
replaced has requested compensation pursuant to Section 1.12, 7.02 or 7.03,
such proposed transferee's aggregate requested compensation, if any, pursuant
to Section 1.12, 7.02 or 7.03 with respect to such replaced Bank's Loans is
lower than that of the Bank replaced. Without prejudice to the survival of
any other agreement of the Borrower hereunder, the agreements of the Borrower
contained in Sections 1.12, 7.02, 7.03, 7.04 and 9.02 (without duplication of
any payments made to such Bank by the Borrower or the proposed transferee)
shall survive for the benefit of any Bank replaced under this Section 7.07
with respect to the time prior to such replacement.
ARTICLE 8
THE AGENTS
Section 8.01. Appointment and Powers. Each Bank hereby
irrevocably appoints and authorizes the Agents, individually in their
respective capacities as Agents, to act as the agents for such Bank under
the Loan Documents with such powers as are delegated to the respective
Agents by the terms thereof, together with such other powers as are
reasonably incidental thereto. The Agents' duties shall be purely
ministerial and they shall have no duties or responsibilities except those
expressly set forth in the Loan Documents. None of the Agents shall be
required under any circumstances to take any action that, in its judgment,
(a) is contrary to any provision of the Loan Documents or Applicable Law or
(b) would expose it to any Liability or expense against which it has not
been indemnified to its satisfaction. None of the Agents shall, by reason
of its serving as an Agent, be a trustee or other fiduciary for any Bank.
By its execution and delivery hereof, each Bank authorizes the
Administrative Agent to act as its agent under, and to execute and deliver,
in its name and on its behalf, the Pledge Agreement and the Guaranty
Agreement. The Administrative Agent shall consent to any amendment of any
term, covenant, agreement or condition of, or to any waiver of any right
under, the Pledge Agreement or the Guaranty Agreement if, but only if, the
Administrative Agent is directed to do so in writing by the Required Banks;
provided, however, that the Administrative Agent shall not (i) be required
to consent to any such amendment or waiver that affects its rights or
duties and (ii) unless directed to do so in writing by each Bank, consent
to any assignment by any other Person party to the Pledge Agreement or the
Guaranty Agreement of any of such Person's rights or obligations thereunder
or release such Person from its obligations thereunder.
Section 8.02. Limitation on Agents' Liability. None of the
Agents nor any of their respective directors, officers, employees or agents
shall be liable or responsible for any action taken or omitted to be taken by
them under or in connection with the Loan Documents, except for its or their
own gross negligence or willful misconduct. None of the Agents shall be
responsible to any Bank for (a) any recitals, statements, representations or
warranties contained in the Loan Documents or in any certificate or other
document referred to or provided for in, or received by any of the Banks
under, the Loan Documents, (b) the validity, effectiveness or enforceability
of the Loan Documents or any such certificate or other document, (c) the value
or sufficiency of the Collateral or (d) any failure by the Loan Parties to
perform any of their obligations under the Loan Documents. Each of the Agents
may employ agents and attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact so long as
such Agent was not grossly negligent in selecting or directing such agents or
attorneys-in-fact. Each of the Agents shall be entitled to rely upon any
certification, notice or other communication (including any thereof by
telephone, telex, telecopier, telegram or cable) believed by it to be genuine
and correct and to have been signed or given by or on behalf of the proper
Person or Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by such Agent. As to any matters not
expressly provided for by the Loan Documents, each of the Agents shall in all
cases be fully protected in acting, or in refraining from acting, under the
Loan Documents in accordance with instructions signed by the Required Banks,
and such instructions of the Required Banks and any action taken or failure to
act pursuant thereto shall be binding on all of the Banks.
Section 8.03. Defaults. The Administrative Agent shall not be
deemed to have knowledge of the occurrence of a Default (other than the
non-payment to it of fees or principal of or interest on Loans) unless the
Administrative Agent has received notice from a Bank or the Borrower
specifying such Default and stating that such notice is a "Notice of
Default." In the event that the Administrative Agent receives such a notice
of the occurrence of a Default, the Administrative Agent shall give prompt
notice thereof to the Banks. In the event of any Default, the
Administrative Agent shall (a) in the case of a Default that constitutes an
Event of Default, take either or both of the actions referred to in Section
6.02(a) and Section 6.02(b) if so directed by the Required Banks and (b) in
the case of any Default, take such other action with respect to such
Default as shall be reasonably directed by the Required Banks. Unless and
until the Administrative Agent shall have received such directions, in the
event of any Default, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable in the best interests of
the Banks.
Section 8.04. Rights as a Bank. Each Person acting as an Agent
that is also a Bank shall, in its capacity as a Bank, have the same rights and
powers under the Loan Documents as any other Bank and may exercise the same as
though it were not acting as an Agent, and the term "Bank" or "Banks" shall
include such Person in its individual capacity. Each Person acting as an
Agent and its Affiliates may (without having to account therefor to any Bank)
accept deposits from, lend money to and generally engage in any kind of
banking, trust or other business with the Loan Parties and their Affiliates as
if it were not acting as an Agent, and such Person and its Affiliates may
accept fees and other consideration from the Borrower and its Affiliates for
services in connection with the Loan Documents or otherwise without having to
account for the same to the Banks.
Section 8.05. Indemnification. The Banks agree to indemnify
each of the Agents (to the extent not reimbursed by the Loan Parties under the
Loan Documents), ratably on the basis of the respective principal amounts of
the Loans outstanding made by the Banks (or, if no Loans are at the time
outstanding, ratably on the basis of their respective Commitments), for any
and all Liabilities, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against such Agent in its capacity as an
Agent (including the costs and expenses that the Borrower is obligated to pay
under the Loan Documents) in any way relating to or arising out of the Loan
Documents or any other documents contemplated thereby or referred to therein
or the transactions contemplated thereby or the enforcement of any of the
terms thereof or of any such other documents, provided that no Bank shall be
liable for any of the foregoing to the extent they arise from gross negligence
or willful misconduct by such Agent.
Section 8.06. Non-Reliance on Agents and Other Banks. Each Bank
agrees that it has made and will continue to make, independently and without
reliance on any of the Agents or any other Bank, and based on such documents
and information as it deems appropriate, its own credit analysis of the Loan
Parties, its own evaluation of the Collateral and its own decision to enter
into the Loan Documents and to take or refrain from taking any action in
connection therewith. None of the Agents shall be required to keep itself
informed as to the performance or observance by the Loan Parties of the Loan
Documents or any other document referred to or provided for therein or to
inspect the properties or books of any Loan Party or any Subsidiary thereof
or the Collateral. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by the
Administrative Agent under the Loan Documents, none of the Agents shall have
any obligation to provide any Bank with any information concerning the
business, status or condition of any Loan Party or any Subsidiary thereof, the
Loan Documents or the Collateral that may come into the possession of such
Agent or any of its Affiliates.
Section 8.07. Resignation of the Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided below, the Administrative Agent may resign at any time by
giving notice thereof to the Banks and the Borrower. Upon receipt of any
such notice of resignation, the Required Banks may, with the consent of the
Borrower (which consent shall not be unreasonably withheld), appoint any
bank or financial institution as the successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Banks and shall have accepted such appointment within 30 days after the
retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Banks and with the
consent of the Borrower (which consent shall not be unreasonably withheld),
appoint any bank or financial institution as the successor Administrative
Agent. Upon the acceptance by any Person of its appointment as a successor
Administrative Agent, such Person shall thereupon succeed to and become
vested with all the rights, powers, privileges, duties and obligations of
the retiring Administrative Agent and the retiring Administrative Agent
shall be discharged from its duties and obligations as Administrative Agent
under the Loan Documents. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Article 8 shall
continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent.
ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices and Deliveries.
(a) Manner of Delivery. All notices, communications and
materials (including all Information) to be given or delivered pursuant to the
Borrower Loan Documents shall, except in those cases where giving notice by
telephone is expressly permitted, be given or delivered in writing (which
shall include telecopy transmissions). Notices under Sections 1.02, 1.03(c),
1.05, 1.07 and 6.02 may be by telephone, promptly confirmed in writing. In
the event of a discrepancy between any telephonic notice and any written
confirmation thereof, such written confirmation shall be deemed the effective
notice except to the extent that the Administrative Agent has acted in
reliance on such telephonic notice.
(b) Addresses. All notices, communications and materials to be
given or delivered pursuant to the Borrower Loan Documents shall be given or
delivered at the following respective addresses and telecopier and telephone
numbers and to the attention of the following individuals or departments:
(i) if to the Borrower, to it at:
1105 Market Street
Suite 1219
Wilmington, DE 19801
Telecopier No.: (302) 427-7664
Telephone No.: (302) 427-8991
Attention: Howard Grabelle
with a copy to:
Comcast Corporation
1500 Market Street
Philadelphia, PA 19102-4735
Telecopier No.: (215) 981-7744
Telephone No.: (215) 981-7503
Attention: John R. Alchin, Senior
Vice President and
Treasurer
and
Tele-Communications, Inc.
5619 DTC Parkway
Englewood, CO 80111
Telecopier No.: (303) 488-3216
Telephone No.: (303) 267-5500
Attention: Chief Financial Officer
and
Liberty Media Corporation
8101 E. Prentice Avenue, Suite 500
Englewood, CO 80111
Telecopier No.: (303) 721-5415
Telephone No.: (303) 721-5400
Attention: David Koff
(ii) if to the Administrative Agent, to it at:
One Wall Street
16th Floor
New York, New York 10286
Telecopier No.: (212) 635-8593 or 8595
Telephone No.: (212) 635-8843
Attention: James W. Whitaker
with a copy to:
The Bank of New York
One Wall Street
18th Floor
New York, New York 10286
Telecopier No.: (212) 635-6365 or 6366
Telephone No.: (212) 635-4696
Attention: Patricia Clancy
(iii) if to any Bank, to it at the address or telecopier
or telephone number and to the attention of the
individual or department set forth below such
Bank's name under the heading "Notice Address" on
Annex A;
or at such other address or telecopier or telephone number or to the attention
of such other individual or department as the party to which such information
pertains may hereafter specify for the purpose in a notice specifically
captioned "Notice of Change of Address" given to (x) if the party to which
such information pertains is the Borrower, the Administrative Agent and each
Bank, (y) if the party to which such information pertains is the
Administrative Agent, the Borrower and each Bank and (z) if the party to which
such information pertains is a Bank, the Borrower and the Administrative Agent.
(c) Effectiveness. Each notice and communication and any
material to be given or delivered pursuant to the Borrower Loan Documents
shall be deemed so given or delivered (i) if sent by registered or certified
mail, postage prepaid, return receipt requested, on the third Business Day
after such notice, communication or material, addressed as above provided, is
delivered to a United States post office and a receipt therefor is issued
thereby, (ii) if sent by any other means of physical delivery, when such
notice, communication or material is delivered to the appropriate address as
above provided, (iii) if sent by telecopier, when such notice, communication
or material is transmitted to the appropriate telecopier number as above
provided and is received at such number and (iv) if given by telephone, when
communicated to the individual or any member of the department specified as
the individual or department to whose attention notices, communications and
materials are to be given or delivered, or, in the case of notice by the
Administrative Agent to the Borrower under Section 6.02 given by telephone as
above provided, if any individual or any member of the department to whose
attention notices, communications and materials are to be given or delivered
is unavailable at the time, to any other officer of the Borrower, except that
notices of a change of address, telecopier or telephone number or individual or
department to whose attention notices, communications and materials are to be
given or delivered shall not be deemed given until received.
Section 9.02. Expenses; Indemnification. Whether or not any
Loans are made hereunder, the Borrower shall:
(a) pay or reimburse the Administrative Agent and each Bank for
all transfer, documentary, stamp and similar taxes, and all recording and
filing fees and taxes, payable in connection with, arising out of, or in any
way related to, the execution, delivery and performance of the Loan Documents
or the making of the Loans, excluding, however, any such taxes imposed as a
result of the assignment of any Loan or portion thereof;
(b) pay or reimburse the Administrative Agent for all reasonable
out-of-pocket costs and expenses (including reasonable fees and disbursements
of legal counsel collectively retained by the Managing Agents or, other than
with respect to clause (i) below, appraisers, accountants and other experts
employed or retained collectively by the Managing Agents or the Administrative
Agent) incurred by the Administrative Agent (or, in the case of fees and
disbursements of legal counsel, the Managing Agents) in connection with,
arising out of, or in any way related to (i) the negotiation, preparation,
execution and delivery of (A) the Loan Documents and (B) whether or not
executed, any waiver, amendment or consent thereunder or thereto, (ii) the
administration of and any operations under the Loan Documents, (iii)
consulting with respect to any matter in any way arising out of, related to,
or connected with, the Loan Documents, including (A) the protection or
preservation of the Collateral, (B) the protection, preservation, exercise or
enforcement of any of the rights of the Administrative Agent or the Banks in,
under or related to the Collateral or the Loan Documents during a Default or
(C) the performance of any of the obligations of the Administrative Agent or
the Banks under or related to the Loan Documents, (iv) protecting or
preserving the Collateral or (v) protecting, preserving, exercising or
enforcing any of the rights of the Administrative Agent or the Banks in, under
or related to the Collateral or the Loan Documents during a Default, including
defending the Security Interest as a valid, perfected, first priority security
interest in the Collateral subject only to Permitted Liens;
(c) pay or reimburse each Bank for all reasonable costs and
expenses (including reasonable fees and disbursements of legal counsel and
other experts employed or retained by such Bank) incurred by such Bank in
connection with, arising out of, or in any way related to protecting,
preserving, exercising or enforcing during a Default any of its rights in,
under or related to the Collateral or the Loan Documents; and
(d) indemnify and hold each Indemnified Person harmless from and
against all losses (including judgments, penalties and fines) suffered, and
pay or reimburse each Indemnified Person for all costs and reasonable expenses
(including reasonable fees and disbursements of legal counsel and other
experts employed or retained by such Indemnified Person) incurred, by such
Indemnified Person in connection with, arising out of or in any way related to
(i) any Loan Document Related Claim (whether asserted by such Indemnified
Person or the Borrower or any other Person), including the prosecution or
defense thereof and any litigation or proceeding with respect thereto (whether
or not, in the case of any such litigation or proceeding, such Indemnified
Person is a party thereto), or (ii) any investigation, governmental or
otherwise, arising out of, related to, or in any way connected with, the Loan
Documents or the relationships established thereunder, except that the
foregoing indemnity shall not be applicable to (A) any loss suffered by any
Indemnified Person to the extent such loss is determined by a judgment of a
court that is binding on the Borrower and such Indemnified Person, final and
not subject to review on appeal to be the result of acts or omissions on the
part of such Indemnified Person constituting gross negligence or willful
misconduct or (B) any such losses, costs and expenses incurred in connection
with any examination of such Indemnified Person by governmental authorities
and arising other than with respect to this Agreement and the Loans
specifically.
Section 9.03. Amounts Payable Due upon Request for Payment.
All amounts payable by the Borrower under Section 9.02 and under the other
provisions of the Borrower Loan Documents shall, except as otherwise
expressly provided, be immediately due upon request for the payment thereof
accompanied by a certificate of the requesting Bank setting forth the basis
for the request and the computation for the amount thereof in reasonable
detail.
Section 9.04. Remedies of the Essence. The various rights and
remedies of the Administrative Agent and the Banks under the Borrower Loan
Documents are of the essence of those agreements, and, to the extent permitted
under Applicable Law, the Administrative Agent and the Banks shall be entitled
to obtain a decree requiring specific performance of each such right and
remedy.
Section 9.05. Rights Cumulative. Each of the rights and remedies
of the Administrative Agent and the Banks under the Loan Documents shall be in
addition to all of their other rights and remedies under the Loan Documents
and Applicable Law, and nothing in the Loan Documents shall be construed as
limiting any such rights or remedies.
Section 9.06. Confidentiality. Each Bank agrees to exercise all
reasonable efforts to keep any information delivered or made available by or
on behalf of the Borrower confidential from anyone other than persons employed
or retained by such Bank who are or are expected to become engaged in
evaluating, approving, structuring or administering the Loans; provided,
however, that nothing herein shall prevent any Bank from disclosing such
information (a) to any other Bank, (b) upon the order of any court or
administrative agency, (c) upon the request or demand of any regulatory agency
or authority having jurisdiction over such Bank, (d) that has been publicly
disclosed other than in breach hereof, (e) in connection with any litigation
relating to the Loans, this Agreement or any transaction contemplated hereby
to which any Bank, any Loan Party or any Agent may be a party, (f) to the
extent reasonably required in connection with the exercise of any remedy
hereunder and (g) to such Bank's legal counsel and independent auditors.
Section 9.07. Amendments; Waivers. Any term, covenant, agreement
or condition of any Loan Document to which the Banks are party may be amended,
and any right under the Loan Documents may be waived, if, but only if, such
amendment or waiver is in writing and is signed by the Required Banks and, if
the rights and duties of the Administrative Agent are affected thereby, by the
Administrative Agent and by each Loan Party that is a party thereto; provided,
however, that no such amendment or waiver shall be effective, unless in
writing and signed by each Bank affected thereby, to the extent it (a) changes
the amount or extends the term of such Bank's Commitment, (b) reduces the
principal of or the rate of interest on such Bank's Loans or Notes or any fees
payable to such Bank hereunder, (c) postpones any date fixed for, or reduces
the amount of, any scheduled reduction of Commitments or any mandatory
prepayment of principal of or interest on such Bank's Loans or Notes or any
fees payable to such Bank hereunder, (d) releases any portion of the
Collateral from the Security Interest, (e) waives any material condition
precedent under Section 2.01, (f) releases Comcast from its obligations under
the Guaranty Agreement or (g) amends this Section 9.07 or any provision of
this Agreement requiring the consent or other action of all of the Banks.
Unless otherwise specified in such waiver, a waiver of any right under the
Borrower Loan Documents shall be effective only in the specific instance and
for the specific purpose for which given. No election not to exercise,
failure to exercise or delay in exercising any right, nor any course of
dealing or performance, shall operate as a waiver of any right of the
Administrative Agent or any Bank under the Borrower Loan Documents or
Applicable Law, nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right of the Administrative Agent or any Bank under the Borrower Loan
Documents or Applicable Law.
Section 9.08. Set-Off; Suspension of Payment and Performance.
The Administrative Agent and each Bank is hereby authorized by the Borrower,
to the extent permitted under Applicable Law, at any time and from time to
time, without notice, (a) during any Event of Default, to set off against, and
to appropriate and apply to the payment of, the Liabilities of the Borrower
under the Borrower Loan Documents (whether owing to such Person or to any
other Person that is the Administrative Agent or a Bank and whether matured or
unmatured, fixed or contingent or liquidated or unliquidated) any and all
Liabilities owing by such Person to the Borrower (whether payable in Dollars
or any other currency, whether matured or unmatured and, in the case of
Liabilities that are deposits, whether general or special, time or demand and
however evidenced and whether maintained at a branch or office located within
or without the United States) and (b) during any Event of Default, to suspend
the payment and performance of such Liabilities owing by such Person and, in
the case of Liabilities that are deposits, to return as unpaid for
insufficient funds any and all checks and other items drawn against such
deposits.
Section 9.09. Sharing of Recoveries. (a) Each Bank agrees that,
if, for any reason, including as a result of (i) the exercise of any right of
counterclaim, set-off, banker's lien or similar right, (ii) its claim in any
applicable bankruptcy, insolvency or other similar proceeding being deemed
secured by a Debt owed by it to any Loan Party, including a claim deemed
secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of
payments by the Administrative Agent or any Loan Party in a manner contrary to
the provisions of Section 1.14, such Bank shall receive payment of a
proportion of the aggregate amount due and payable to it hereunder as
principal, interest or fees that is greater than the proportion received by
any other Bank in respect of the aggregate of such amounts due and payable to
such other Bank hereunder, then the Bank receiving such proportionately
greater payment shall purchase participations (which it shall be deemed to
have done simultaneously upon the receipt of such payment) in the rights of
the other Banks hereunder so that all such recoveries with respect to such
amounts due and payable hereunder (net of costs of collection) shall be pro
rata; provided, however, that if all or part of such proportionately greater
payment received by the purchasing Bank is thereafter recovered by or on
behalf of any Loan Party from such Bank, such purchases shall be rescinded and
the purchase prices paid for such participation shall be returned to such Bank
to the extent of such recovery, but without interest (unless the purchasing
Bank is required to pay interest on the amount recovered to the Person
recovering such amount, in which case the selling Bank shall be required to
pay interest at a like rate). The Borrower expressly consents to the
foregoing arrangements and agrees that any holder of a participation in any
rights hereunder so purchased or acquired pursuant to this Section 9.09(a)
shall, with respect to such participation, to the extent permitted under
Applicable Law, be entitled to all of the rights of a Bank under Sections
7.02, 9.02 and 9.08 and may exercise any and all rights of set-off with
respect to such participation as fully as though the Borrower were directly
indebted to the holder of such participation for Loans in the amount of such
participation.
(b) Notwithstanding anything to the contrary contained herein,
Section 9.09(a) shall not be deemed to limit each Bank's entitlement to
exercise any right of counterclaim, set-off, banker's lien or similar right
that it may have in respect of any Loan Party in any manner as it may choose
and to apply the amount subject to such exercise to the payment of Liabilities
of such Loan Party other than obligations subject to the sharing provisions of
Section 9.09(a).
Section 9.10. Assignments and Participations. (a) Assignments.
(i) The Borrower may not assign any of its rights or obligations under the
Borrower Loan Documents without the prior written consent of the
Administrative Agent and each Bank, and no assignment of any such obligation
shall release the Borrower therefrom unless the Administrative Agent and each
Bank shall have consented to such release in a writing specifically referring
to the obligation from which the Borrower is to be released.
(ii) Except pursuant to a request by the Borrower under
Section 7.07, no Bank may assign any or all of its rights and obligations
under the Loan Documents and with respect to the Collateral; provided,
however, that any Bank may assign all or a portion of such rights and
obligations (x) to any Affiliate of such Bank or (y) at any time that an
Event of Default shall have occurred and be continuing, and, in the event
of any such assignment, shall promptly notify the Borrower and the
Administrative Agent of the details thereof. Any such assignment by a Bank
of any or all of its obligations under the Loan Documents shall release
such Bank therefrom. In the event of any such assignment, the Borrower
shall, against receipt of the existing Note of the assignor Bank, issue a
new Note to the assignee Bank, and, in the case of a partial assignment, to
the assignor Bank, appropriately reflecting such assignment. Nothing in
this Section 9.10 shall limit the right of any Bank to assign its interest
in the Loans and Notes to a Federal Reserve Bank as collateral security
under Regulation A of the Board of Governors of the Federal Reserve System,
but no such assignment shall release such Bank from its obligations
hereunder.
(b) Participations. No Bank may sell or otherwise grant
participations in any or all of its rights and obligations under the Borrower
Loan Documents and with respect to the Collateral other than to any Affiliate
of such Bank; provided, however, that nothing in this Section 9.10(b) shall
limit the right or obligation of any Bank to sell or purchase participations
pursuant to Section 9.09 hereof.
(c) Rights of Assignees and Participants. Each assignee of, and
each holder of a participation in, the rights of any Bank under the Loan
Documents and with respect to the Collateral (i) shall, in the case of
assignees and with respect to its assignment, be entitled to all of the rights
of a Bank and (ii) may, to the extent permitted under Applicable Law, exercise
any and all rights of set-off or banker's lien with respect thereto (as fully,
in the case of a holder of a participation, as though the Borrower were
directly indebted to such holder for amounts payable under the Loan Documents
to which such holder is entitled pursuant to such participation).
Section 9.11. Governing Law. This Agreement and the Notes
(including matters relating to the Maximum Permissible Rate) shall be
construed in accordance with and governed by the law of the State of New York
(without giving effect to its choice of law principles, other than Sections
5-1401 and 5-1402 of the General Obligations Law of the State of New York).
Section 9.12. Judicial Proceedings; Waiver of Jury Trial. Any
judicial proceeding brought against the Borrower with respect to any Loan
Document Related Claim may be brought in any court of competent jurisdiction
in the City of New York, and, by execution and delivery of this Agreement, the
Borrower (a) accepts, generally and unconditionally, the nonexclusive
jurisdiction of such courts and any related appellate court and irrevocably
agrees to be bound by any judgment rendered thereby in connection with any
Loan Document Related Claim and (b) to the extent permitted under Applicable
Law, irrevocably waives any objection it may now or hereafter have as to the
venue of any such proceeding brought in such a court or that such a court is
an inconvenient forum. The Borrower hereby waives personal service of process
and consents that service of process upon it may be made by certified or
registered mail, return receipt requested, at its address specified or
determined in accordance with the provisions of Section 9.01(b)(i), and
service so made shall be deemed completed on the third Business Day after such
service is deposited in the mail. Nothing herein shall affect the right of
any Agent or Bank or any other Indemnified Person to serve process in any
other manner permitted by law or shall limit the right of any Agent or Bank or
any other Indemnified Person to bring proceedings against the Borrower in the
courts of any other jurisdiction. To the extent permitted in accordance with
Applicable Law (including Applicable Law relating to jurisdiction and venue),
any judicial proceeding by the Borrower against the Administrative Agent or
any Bank involving any Loan Document Related Claim shall be brought only in a
court located in the City and State of New York. THE BORROWER, THE AGENTS AND
EACH BANK HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY
LOAN DOCUMENT RELATED CLAIM.
Section 9.13. Severability of Provisions. Any provision of the
Borrower Loan Documents that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions thereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 9.14. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures hereto and thereto were upon the same instrument.
Section 9.15. Survival of Obligations. Except as otherwise
expressly provided therein, the obligations of the Borrower under Sections
1.11, 7.02, 7.03, 7.04 and 9.02, and the obligations of the Banks under
Sections 8.05 and 9.06, shall survive the Repayment Date and the termination
of the Security Interest.
Section 9.16. Entire Agreement. This Agreement, the Notes and
the other Loan Documents embody the entire agreement among the Borrower, the
Agents and the Banks relating to the subject matter hereof and supersede all
prior agreements, representations and understandings, if any, relating to the
subject matter hereof.
Section 9.17. Successors and Assigns. All of the provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
ARTICLE 10
INTERPRETATION
Section 10.01. Definitional Provisions. (a) Defined Terms. For
the purposes of this Agreement:
"Accumulated Funding Deficiency" has the meaning ascribed to such
term in Section 302 of ERISA.
"Administrative Agent" means The Bank of New York, as
Administrative Agent for the Banks under the Loan Documents, and any successor
Administrative Agent appointed pursuant to Section 8.07.
"Administrative Agent's Office" means the address of the
Administrative Agent specified in or determined in accordance with the
provisions of Section 9.01(b)(ii).
"Affiliate" means, with respect to a Person, any other Person
that, directly or indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with, such first Person; unless
otherwise specified, "Affiliate" means an Affiliate of the Borrower. As used
in this definition, "control" (including, with correlative meanings,
"controlled by" and "under common control with") means possession, directly or
indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by Contract or otherwise). Notwithstanding the
foregoing, no individual shall be deemed to be an Affiliate of a Person solely
by reason of such individual being an officer or director of such Person.
"Agent" means the Administrative Agent or any of the Managing
Agents.
"Agreement" means this Agreement, including all Schedules, Annexes
and Exhibits hereto.
"Agreement Date" means the date set forth as such on the last
signature page hereof, which date is the date that executed copies of this
Agreement were delivered by all parties hereto and, accordingly, this
Agreement became effective.
"Applicable Law" means, anything in Section 9.11 to the contrary
notwithstanding, (i) all applicable common law and principles of equity and
(ii) all applicable provisions of all (A) constitutions, statutes, rules,
regulations and orders of governmental bodies, (B) Governmental Approvals and
(C) orders, decisions, judgments and decrees of all courts (whether at law or
in equity or admiralty) and arbitrators.
"Bank" means (i) any Person listed on the signature pages hereof
following the Administrative Agent and (ii) any Person that has been assigned
any or all of the rights or obligations of a Bank pursuant to Section 9.10(a).
"Bank Tax" means (i) any Tax based on or measured by net income,
any franchise Tax and any doing business Tax imposed upon any Bank or any
Agent by any jurisdiction (or any political subdivision thereof) in which such
Bank, such Agent or any Lending Office is organized, located or doing business
and (ii) solely for the purposes of Section 1.12, any other Tax imposed by a
jurisdiction other than the United States or a political subdivision thereof
that would not have been imposed but for a present or former connection
between such Bank, such Agent or any Lending Office and such jurisdiction.
"Base Rate" means, for any day, a rate per annum equal to the
Prime Rate in effect on such day.
"Base Rate Loan" means any Loan the interest on which is, or is to
be, as the context may require, computed on the basis of the Base Rate.
"Benefit Plan" means, with respect to any Person at any time, any
employee pension benefit plan (including a Multiemployer Benefit Plan) which
is covered by Title IV of ERISA or subject to the minimum funding standards
under Section 4.12 of the Code, the funding requirements of which (under
Section 302 of ERISA or Section 412 of the Code) are, or at any time within
five years preceding the time in question were, in whole or in part, the
responsibility of such Person.
"Borrower" means QVC Programming Holdings, Inc., a Delaware
corporation.
"Borrower Loan Documents" means the Loan Documents to which the
Borrower is a party.
"Business Day" means any day other than a Saturday, Sunday or
other day on which banks in New York City are authorized to close.
"Capital Security" means, with respect to any Person, (i) any
share of capital stock of such Person or (ii) any security convertible into,
or any option, warrant or other right to acquire, any share of capital stock
of such Person.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all property in which a Lien is created
pursuant to the Loan Documents.
"Comcast" means Comcast Corporation, a Pennsylvania corporation.
"Commitment" means, with respect to any Bank, (i) the amount set
forth opposite such Bank's name under the heading "Commitment" on Annex A or,
in the case of a Bank that becomes a Bank pursuant to an assignment, the
amount of the assignor's Commitment assigned to such Bank, in either case, as
the same may be reduced from time to time pursuant to Section 1.07 or
increased or reduced from time to time pursuant to assignments in accordance
with Section 9.10(a) or (ii) as the context may require, the obligation of
such Bank to make Loans in an aggregate unpaid principal amount not exceeding
such amount.
"Commitment Termination Date" means the earliest of (a) the 180th
day after the Tender Offer Funding Date, (b) the Merger Date and (c) the date
of termination of the Merger Agreement or other abandonment of the Merger by
the Borrower.
"Common Stock" means the common stock of QVC, par value $.01 per
share.
"Contract" means (i) any agreement (whether executory or
non-executory and whether a Person entitled to rights thereunder is so
entitled directly or as a third-party beneficiary), including an indenture,
lease or license, (ii) any deed or other instrument of conveyance, (iii) any
certificate of incorporation or charter and (iv) any by-law.
"Debt" means any Liability that constitutes "debt" or "Debt" under
Section 101(11) of the Bankruptcy Code or under the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any analogous
Applicable Law.
"Default" means any condition or event that constitutes an Event
of Default or that with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Depositary" means The Bank of New York, as Depositary, as such
term is defined in the Offer to Purchase.
"Diller Letter" means the Letter Agreement dated August 4, 1994
among Comcast, Barry Diller and Arrow Investments, L.P.
"Dollars" and the sign "$" mean lawful money of the United States
of America.
"Domestic Lending Office" means, with respect to any Bank, (i) the
branch or office of such Bank set forth below such Bank's name under the
heading "Domestic Lending Office" on Annex A or, in the case of a Bank that
becomes a Bank pursuant to an assignment, as otherwise specified by such Bank
to the Borrower and the Administrative Agent or (ii) such other branch or
office of such Bank designated by such Bank from time to time as the branch or
office at which its Base Rate Loans are to be made or maintained.
"Environmental Laws" means any and all Federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses,
agreements or other governmental restrictions relating to the environment
or to emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or
wastes into the environment, including ambient air, surface water, ground
water or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or waste.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means, with respect to any Person, any other
Person, including a Subsidiary or other Affiliate of such first Person, that
is a member of any group of organizations within the meaning of Section
414(b), (c), (m) or (o) of the Code of which such first Person is a member;
notwithstanding the foregoing, QVC and its Subsidiaries shall not be ERISA
Affiliates of the Borrower for any purpose hereunder.
"Eurodollar Business Day" means any Business Day on which dealings
in Dollar deposits are carried on in the London interbank market and on which
commercial banks are open for domestic and international business (including
dealings in Dollar deposits) in London, England.
"Eurodollar Lending Office" means, with respect to any Bank, (i)
the branch or office of such Bank set forth below such Bank's name under the
heading "Eurodollar Lending Office" on Annex A or, in the case of a Bank that
becomes a Bank pursuant to an assignment, as otherwise specified by such Bank
to the Borrower and the Administrative Agent or (ii) such other branch or
office of such Bank designated by such Bank from time to time as the branch or
office at which its Eurodollar Rate Loans are to be made or maintained.
"Eurodollar Rate" means, for any Interest Period, the rate per
annum determined by the Administrative Agent to be the rate (rounded upward,
if necessary, to the next higher 1/100 of 1%) at which The Bank of New York
offered or would have offered to place with first-class banks in the London
interbank market deposits in Dollars in amounts comparable to the Eurodollar
Rate Loan of The Bank of New York to which such Interest Period applies, for a
period equal to such Interest Period, at 11:00 a.m. (London time) on the
second Eurodollar Business Day before the first day of such Interest Period.
"Eurodollar Rate Loan" means any Loan the interest on which is, or
is to be, as the context may require, computed on the basis of the Eurodollar
Rate.
"Event of Default" means any of the events specified in Section
6.01.
"Existing Benefit Plan" means any Benefit Plan listed on Schedule
3.13.
"Fair Saleable Value" has the meaning ascribed to such term in
Section 3.11.
"Federal Funds Rate" means, for any day, the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York or, if such rate is not so published
for any day that is a Business Day, the average of quotations for such day on
such transactions received by The Bank of New York from three Federal funds
brokers of recognized standing selected by such bank.
"Generally Accepted Accounting Principles" means generally
accepted accounting principles from time to time in effect.
"Governmental Approval" means any authorization, consent,
approval, license or exemption of, registration or filing with, or report or
notice to, any governmental unit.
"Guaranty" means, with respect to any Person, any contractual
obligation, contingent or otherwise, of such Person (i) to pay any
Indebtedness or other obligation of any other Person or to otherwise protect
the holder of any such Indebtedness or other obligation against loss (whether
such obligation arises by agreement to pay, to keep well, to purchase assets,
goods, securities or services or otherwise) or (ii) incurred in connection
with the issuance by a third Person of a Guaranty of any Indebtedness or other
obligation of any other Person (whether such obligation arises by agreement to
reimburse or indemnify such third Person or otherwise by Contract); provided,
however, that the term "Guaranty" shall not include an endorsement for
collection or deposit in the ordinary course of business. The word
"Guarantee" when used as a verb has the correlative meaning.
"Guaranty Agreement" means the Guaranty Agreement (if any), dated
as of the date hereof, between Comcast and the Administrative Agent.
"Hazardous Material" means any oil, hazardous waste, hazardous
material or hazardous substance listed, defined or otherwise identified as
hazardous in the Resource Conservation and Recovery Act, 42 U.S.C. Section
6921 et seq., the Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq., or any other Federal or state
Environmental Law.
"Indebtedness" means, with respect to any Person (in each case,
whether such obligation is with full or limited recourse), without
duplication, (i) any obligation of such Person for borrowed money, (ii) any
obligation of such Person evidenced by a bond, debenture, note or other
similar instrument, (iii) any obligation of such Person to pay the deferred
purchase price of property or services, except a trade account payable that
arises in the ordinary course of business but only if and so long as the same
is payable on customary trade terms, (iv) any obligation of such Person as
lessee under a capital lease, (v) any Mandatorily Redeemable Securities of
such Person owned by any Person other than such Person or a Wholly Owned
Subsidiary of such Person (the amount of such Mandatorily Redeemable
Securities to be determined for this purpose as the higher of the liquidation
preference of and the amount payable upon redemption of such Mandatorily
Redeemable Securities), (vi) any obligation of such Person to purchase
securities or other property that arises out of or in connection with the sale
of the same or substantially similar securities or property, (vii) any
contractual obligation, contingent or otherwise, of such Person to reimburse
any other Person in respect of amounts paid under a letter of credit or
performance or other bond issued by such other Person, (viii) any Indebtedness
of others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) a Lien on any asset
of such Person and (ix) any Indebtedness of others Guaranteed by such Person.
"Indemnified Person" means, at any time, any Person that is, or at
such time was, the Administrative Agent, any other Agent, a Bank, an Affiliate
of the Administrative Agent, any other Agent or a Bank or a director, officer,
employee or agent of any such Person.
"Information" means written data, certificates, reports,
statements (excluding financial statements), documents and other written
information.
"Intellectual Property" means (i) (A) patents and patent rights,
(B) trademarks, trademark rights, trade names, trade name rights, corporate
names, business names, trade styles, service marks, logos and general
intangibles of like nature and (C) copyrights, in each case whether
registered, unregistered or under pending registration and, in the case of any
such that are registered or under pending registration, whether registered or
under pending registration under the laws of the United States or any other
country, (ii) reissues, continuations, continuations-in-part and extensions of
any Intellectual Property referred to in clause (i) above and (iii) rights
relating to any Intellectual Property referred to in clause (i) or (ii) above,
including rights under applications (whether pending under the laws of the
United States or any other country) or licenses relating thereto.
"Interest Payment Date" means (i) the date that is 90 days after
the Tender Offer Funding Date and (ii) the Commitment Termination Date.
"Interest Period" means a period commencing, in the case of the
first Interest Period applicable to a Eurodollar Rate Loan, on the day of the
making of, or conversion into, such Loan, and, in the case of each subsequent,
successive Interest Period applicable thereto, on the last day of the next
preceding Interest Period, and ending, depending on the Type of Loan, on the
same day in the first, second or third calendar month thereafter, as elected
by the Borrower in the applicable notice of borrowing under Section 1.02 or
notice of conversion or continuation under Section 1.03(c), except that (i)
any Interest Period that would otherwise end on a day that is not a Eurodollar
Business Day shall be extended to the next succeeding Eurodollar Business Day,
unless such Eurodollar Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Eurodollar Business
Day and (ii) any Interest Period that begins on the last Eurodollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month in which such Interest Period ends)
shall end on the last Eurodollar Business Day of a calendar month.
"Joint Bidding Agreement" means the letter agreement dated August
4, 1994 among Comcast, Liberty and TCI.
"Joint Ownership and Management Agreements" means all
shareholders', management or similar agreements between Comcast or any of its
Affiliates and Liberty or any of its Affiliates with respect to QVC, including
but not limited to the Shareholders Agreement.
"Lending Office" means, with respect to any Bank, the Domestic
Lending Office or the Eurodollar Lending Office of such Bank.
"Liability" means, with respect to any Person, any indebtedness,
liability or obligation of or binding upon such Person or any of its assets.
"Liberty" means Liberty Media Corporation, a Delaware corporation.
"Lien" means, with respect to any property or asset (or any income
or profits therefrom) of any Person (in each case whether the same is
consensual or nonconsensual or arises by Contract, operation of law, legal
process or otherwise), (i) any mortgage, lien, pledge, attachment, levy or
other security interest of any kind thereupon or in respect thereof or (ii) any
other arrangement under which the same is transferred, sequestered or
otherwise identified with the intention of subjecting the same to, or making
the same available for, the payment or performance of any Liability in
priority to the payment of the ordinary, unsecured creditors of such Person.
For the purposes of this Agreement, a Person shall be deemed to own subject to
a Lien any asset that it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
"Loan" means any amount advanced by a Bank pursuant to Section
1.01(a).
"Loan Document Related Claim" means any claim (whether civil,
criminal or administrative and whether sounding in tort, contract or
otherwise) arising out of, related to, or connected with, the Loan Documents,
whether such claim arises or is asserted before or after the Agreement Date or
before or after the Repayment Date.
"Loan Document Representation and Warranty" means any
"Representation and Warranty" as defined in any Loan Document and any other
representation or warranty made or deemed made pursuant to the terms of any
Loan Document.
"Loan Documents" means (i) this Agreement, the Notes, the Pledge
Agreement and the Guaranty Agreement (if any) and (ii) all other agreements,
documents and instruments arising out of (A) any agreement, document or
instrument referred to in clause (i) above, (B) any other agreement, document
or instrument referred to in this clause (ii) or (C) any of the transactions
pursuant to any agreement, document or instrument referred to in clause (i)
above or in this clause (ii).
"Loan Parties" means the Borrower and, if Comcast shall have
executed and delivered the Guaranty Agreement, Comcast.
"Managing Agents" means The Bank of New York Company, Inc.,
Barclays Bank PLC, Chemical Bank, NationsBank, N.A. (Carolinas) and The
Toronto-Dominion Bank, as Managing Agents for the Banks under the Loan
Documents.
"Mandatorily Redeemable Securities" means, with respect to any
Person, any Capital Securities of such Person to the extent that they are (i)
redeemable, payable or required to be purchased or otherwise retired or
extinguished, or convertible into any Indebtedness or other Liability of such
Person, (A) at a fixed or determinable date, whether by operation of a sinking
fund or otherwise, (B) at the option of any Person other than such Person or
(C) upon the occurrence of a condition not solely within the control of such
Person, such as a redemption required to be made out of future earnings or
(ii) convertible into Mandatorily Redeemable Securities at the option of any
Person other than such Person.
"Material Loan Documents" means this Agreement, the Notes, the
Pledge Agreement and the Guaranty Agreement (if any).
"Materially Adverse Effect" means, (i) with respect to any Person,
any materially adverse effect on such Person's business, assets, Liabilities,
financial condition or results of operations, (ii) with respect to a group of
Persons "taken as a whole," except for changes affecting the cable television
industry generally, any materially adverse effect on such Persons' business,
assets, Liabilities, financial condition or results of operations taken as a
whole on, where appropriate, a consolidated basis in accordance with Generally
Accepted Accounting Principles, (iii) with respect to any Loan Document, any
material adverse effect on the binding nature, validity or enforceability
thereof as an obligation of any Loan Party that is a party thereto and (iv)
with respect to any Collateral, or any category of Collateral, pledged by the
Borrower, a materially adverse effect on the validity, perfection, priority or
enforceability of the Security Interest therein.
"Maximum Amount of the Loans" means an amount equal to the sum
of (i) fifty percent of the current market value, as determined by the
Managing Agents in accordance with Regulation U, of all shares of Common
Stock that are either accepted by the Borrower for purchase pursuant to the
Tender Offer or owned beneficially by the Borrower on the Tender Offer
Funding Date and (ii) the good faith loan value, as determined by the
Managing Agents in accordance with Regulation U, of all shares of Preferred
Stock that are either accepted by the Borrower for purchase pursuant to the
Tender Offer or owned beneficially by the Borrower on the Tender Offer
Funding Date, which good faith loan value shall be fifty percent of the
purchase price for Preferred Stock pursuant to the Offer to Purchase.
"Maximum Permissible Rate" means, with respect to interest payable
on any amount, the rate of interest on such amount that, if exceeded, could,
under Applicable Law, result in (i) civil or criminal penalties being imposed
on the payee or (ii) the payee's being unable to enforce payment of (or, if
collected, to retain) all or any part of such amount or the interest payable
thereon.
"Merger" means the merger of the Borrower with and into QVC
pursuant to the Merger Agreement.
"Merger Agreement" means the Agreement and Plan of Merger dated as
of August 4, 1994 among the Borrower, Comcast, Liberty and QVC, as amended by
the First Amendment thereto dated as of February 3, 1995, together with all
other instruments and agreements related thereto.
"Merger Date" means the date, if any, on which the Merger is
consummated.
"Multiemployer Benefit Plan" means any Benefit Plan that is a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"Note" means any promissory note in the form of Exhibit A.
"Offer to Purchase" means the Borrower's Offer to Purchase all
outstanding shares of Common Stock and Preferred Stock dated August 11, 1994.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Lien" means (i) the Security Interest; (ii) any right
of set-off arising under law and not under Contract, any Lien securing a tax,
assessment or other governmental charge or levy or the claim of a materialman,
mechanic, carrier, warehouseman or landlord for labor, materials, supplies or
rentals incurred in the ordinary course of business, but only if payment
thereof shall not at the time be required to be made in accordance with
Section 4.01(e) and foreclosure, distraint, sale or other similar proceedings
shall not have been commenced and remained unstayed or undismissed for more
than 30 days; (iii) any Lien consisting of a deposit or pledge made in the
ordinary course of business in connection with, or to secure payment of,
obligations under workers' compensation, unemployment insurance or similar
legislation; (iv) any Lien (other than a Lien on the Collateral) arising
pursuant to an order of attachment, distraint or similar legal process arising
in connection with legal proceedings, but only if and so long as, in the case
of any such Lien arising in connection with a judgment, no Event of Default
set forth in Section 6.01(f) shall exist and, in each other case, the
execution or other enforcement thereof is not unstayed for more than 20 days;
(v) any Lien existing on any property or asset at the time such property or
asset is acquired by the Borrower, but only if and so long as (w) such Lien
was not created in contemplation of such property or asset being acquired, (x)
such Lien is and will remain confined to the property or asset subject to it
at the time such property or asset is acquired and to fixed improvements
thereafter erected on such property or asset and (y) such Lien secures only
the obligation secured thereby at the time such property or asset is acquired;
(vi) with respect to the Pledged Securities, the Company Repurchase Rights
referred to in Section 1 of the Joint Bidding Agreement; or (vii) any Lien
constituting a renewal, extension or replacement of a Lien constituting a
Permitted Lien by virtue of clause (v) above, but only if (A) at the time such
Lien is granted and after giving effect thereto, no Default would exist, (B)
such Lien is limited to all or a part of the property or asset that was
subject to the Lien so renewed, extended or replaced and to fixed improvements
thereafter erected on such property or asset, (C) the principal amount of the
obligations secured by such Lien does not exceed the principal amount of the
obligations secured by the Lien so renewed, extended or replaced and (D) the
obligations secured by such Lien bear interest at a rate per annum not
exceeding the rate borne by the obligations secured by the Lien so renewed,
extended or replaced except for any increase that is commercially reasonable
at the time of such increase.
"Person" means any individual, sole proprietorship, corporation,
partnership, trust, unincorporated organization, mutual company, joint stock
company, estate, union, employee organization, government or any agency or
political subdivision thereof or, for the purpose of the definition of "ERISA
Affiliate," any trade or business.
"Pledge Agreement" means the Pledge Agreement dated as of the date
hereof between the Borrower and the Secured Party.
"Pledged Securities" has the meaning ascribed to such term in the
Pledge Agreement.
"Post-Default Rate" means the rate otherwise applicable under
Section 1.03(a) plus 2% or, if there is no such rate, the Base Rate plus 2%.
"Preferred Stock" means the Series B Preferred Stock, par value
$.10 per share, and the Series C Preferred Stock, par value $.10 per share, of
QVC.
"Prime Rate" means the prime commercial lending rate of The Bank
of New York, as publicly announced to be in effect from time to time. The
Prime Rate shall be adjusted automatically, without notice, on the effective
date of any change in such prime commercial lending rate. The Prime Rate is
not necessarily the lowest rate of interest of The Bank of New York.
"Pro Rata Share" means, with respect to any Bank, a fraction
(expressed as a percentage), the numerator of which shall be the amount of
such Bank's Commitment and the denominator of which shall be the amount of the
Total Commitment.
"Prohibited Transaction" means any transaction that is prohibited
under Section 4975 of the Code or Section 406 of ERISA and not exempt under
Section 4975 of the Code or Section 408 of ERISA.
"QVC" means QVC, Inc., a Delaware corporation.
"QVC Subordinated Indebtedness" means the Indebtedness under the
Credit Agreement, dated as of February 9, 1995 between QVC and the Borrower,
which Indebtedness is subordinated to the obligations under this Agreement,
together with all amounts payable by the Borrower in connection therewith.
"Regulations D, G, T, U and X" means Regulations D, G, T, U and X,
respectively, of the Board of Governors of the Federal Reserve System.
"Regulatory Change" means any Applicable Law, interpretation,
directive, request or guideline (whether or not having the force of law),
or any change therein or in the administration or enforcement thereof, that
becomes effective or is implemented or first required or expected to be
complied with after the Agreement Date (including any Applicable Law that
shall have become such as the result of any act or omission of the Borrower
or any of its Affiliates, without regard to when such Applicable Law shall
have been enacted or implemented), whether the same is (i) the result of an
enactment by a government or any agency or political subdivision thereof, a
determination of a court or regulatory authority or otherwise or (ii)
enacted, adopted, issued or proposed before or after the Agreement Date,
including any such that imposes, increases or modifies any Tax, reserve
requirement, insurance charge, special deposit requirement, assessment or
capital adequacy requirement, but excluding any such that imposes,
increases or modifies any Bank Tax.
"Repayment Date" means the later of (i) the termination of the
Commitments in their entirety (whether as a result of the occurrence of the
Commitment Termination Date, the reduction thereof to zero pursuant to Section
1.07 or the termination thereof pursuant to Section 6.02) and (ii) the payment
in full of the Loans and all other amounts payable or accrued hereunder.
"Reportable Event" means, with respect to any Benefit Plan of any
Person, (i) the occurrence of any of the events set forth in Section 4043(b)
(other than a Reportable Event as to which the provision of 30 days' notice to
the PBGC is waived under applicable regulations), 4062(e) or 4063(a) of ERISA
or the regulations thereunder with respect to such Benefit Plan, (ii) any
event requiring such Person or any of its ERISA Affiliates to provide security
to such Benefit Plan under Section 401(a)(29) of the Code or (iii) any failure
to make a payment required by Section 412(m) of the Code with respect to such
Benefit Plan.
"Representation and Warranty" means any written representation or
warranty made pursuant to or under (i) Section 2.02, Article 3, Section 5.02
or any other provision of this Agreement or (ii) any amendment to, or waiver
of rights under, this Agreement, WHETHER OR NOT, IN THE CASE OF ANY
REPRESENTATION OR WARRANTY REFERRED TO IN CLAUSE (i) OR (ii) ABOVE (EXCEPT, IN
EACH CASE, TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED), THE INFORMATION THAT
IS THE SUBJECT MATTER THEREOF IS WITHIN THE KNOWLEDGE OF THE BORROWER.
"Required Banks" means, at any time, Banks having at least 51% of
the Loans outstanding or, if there are no Loans outstanding, at least 51% of
the Total Commitment.
"Reserve" means the difference of (i) (A) if the aggregate number
of shares of Common Stock or Preferred Stock of any class accepted by the
Borrower for purchase in the Tender Offer, together with the aggregate number
of shares of Common Stock or Preferred Stock of such class contributed to the
Borrower by Comcast, Liberty and their respective Affiliates is at least 90%
of the outstanding shares of Common Stock and each class of Preferred Stock,
$18,000,000 or (B) if the aggregate number of shares of Common Stock or
Preferred Stock of any class accepted by the Borrower for purchase in the
Tender Offer, together with the aggregate number of shares of Common Stock or
Preferred Stock of such class contributed to the Borrower by Comcast, Liberty
and their respective Affiliates is less than 90% of the outstanding shares of
Common Stock or any class of Preferred Stock, $25,000,000 minus (ii) the
maximum amount, if any, guaranteed by Comcast in the Guaranty Agreement, if
any.
"Responsible Officer" means, with respect to any Loan Party, the
Chairman of the Board, the Vice-Chairman of the Board, the President, any
Senior Vice President or the Chief Financial Officer of such Loan Party.
"Restricted Payment" means (i) any dividend or other distribution
on account of any Capital Securities of the Borrower (other than dividends
payable solely in such Capital Securities other than Mandatorily Redeemable
Securities and other than dividends and other distributions payable to the
Borrower), (ii) any payment on account of the principal of or premium, if any,
on any Indebtedness convertible into Capital Securities of the Borrower (other
than any such payment to the Borrower) or (iii) any payment on account of any
purchase, redemption, retirement, exchange or conversion of any Capital
Securities of the Borrower (other than any such payment to the Borrower). For
the purposes of this definition, a "payment" shall include the transfer of any
asset or the issuance of any Indebtedness or other obligation (the amount of
any such payment to be the fair market value of such asset or the amount of
such obligation, respectively) but shall not include the issuance of any
Capital Securities other than Mandatorily Redeemable Securities.
"Secured Party" has the meaning ascribed to such term in the
Pledge Agreement.
"Security Interest" means the Liens created, or purported to be
created, by the Loan Documents.
"Shareholders Agreement" means (i) at all time prior to the
effectiveness of the Stockholders Agreement, the Joint Bidding Agreement and
(ii) at all times thereafter, the Stockholders Agreement.
"Stockholders Agreement" means the Stockholders Agreement, dated
as of February 9, 1995 among Comcast, Comcast QVC, Inc., the Borrower,
Liberty, QVC Investments, Inc. and Liberty QVC, Inc.
"Subsidiary" means, with respect to any Person, any other Person
(i) securities of which having ordinary voting power to elect a majority of
the board of directors (or other persons having similar functions) of such
Person or (ii) other ownership interests of which ordinarily constituting a
majority voting interest are at the time, directly or indirectly, owned or
controlled by such first Person, or by one or more of its Subsidiaries, or by
such first Person and one or more of its Subsidiaries; unless otherwise
specified, "Subsidiary" means a Subsidiary of the Borrower; notwithstanding
the foregoing, QVC and its Subsidiaries shall not be Subsidiaries of the
Borrower for any purposes hereof.
"Tax" means any Federal, State or foreign tax, assessment or other
governmental charge or levy (including any withholding tax) upon a Person or
upon its assets, revenues, income or profits.
"TCI" means Tele-Communications, Inc., a Delaware corporation.
"Tender Offer" means the Borrower's offer to purchase all
outstanding shares of Common Stock and Preferred Stock made pursuant to the
Offer to Purchase.
"Tender Offer Documents" means (i) the Offer to Purchase, (ii) the
related letters of transmittal, (iii) all documents filed by or on behalf of
the Borrower or QVC or their respective Affiliates with the Securities and
Exchange Commission in connection with the Tender Offer and (iv) all
amendments, modifications or supplements to any of the foregoing.
"Tender Offer Funding" means the making of the initial Loans
pursuant to Section 1.01 hereof.
"Tender Offer Funding Date" means the date on which the purchase
of Common Stock and Preferred Stock pursuant to the Tender Offer is
consummated by the Borrower and the Tender Offer Funding occurs, which date
shall be a Business Day occurring no later than April 30, 1995.
"Termination Event" means, with respect to any Benefit Plan,
(i) any Reportable Event with respect to such Benefit Plan, (ii) the
termination of such Benefit Plan, or the filing of a notice of intent to
terminate such Benefit Plan, or the treatment of any amendment to such
Benefit Plan as a termination, in each case under Section 4041(c) of ERISA,
(iii) the institution of proceedings to terminate such Benefit Plan under
Section 4042 of ERISA or (iv) the appointment of a trustee to administer
such Benefit Plan under Section 4042 of ERISA.
"Total Commitment" means the aggregate amount of the Commitments
as the same may be reduced from time to time pursuant to Section 1.07.
"Type" means, with respect to Loans, any of the following, each of
which shall be deemed to be a different "Type" of Loan: Base Rate Loans,
Eurodollar Rate Loans having a one-month Interest Period, Eurodollar Rate
Loans having a two-month Interest Period and Eurodollar Rate Loans having a
three-month Interest Period. Any Eurodollar Rate Loan having an Interest
Period with a duration that differs from the duration specified for a Type of
Eurodollar Rate Loan listed above solely as a result of the operation of
clauses (i) and (ii) of the definition of "Interest Period" shall be deemed to
be a Loan of such Type notwithstanding such difference in duration of Interest
Periods.
"Uniform Commercial Code" shall mean the Uniform Commercial Code
as in effect from time to time in the State of New York.
"United States person" has the meaning ascribed to such term in
Section 1.12(a).
"Wholly Owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person all of the Capital Securities and all other
ownership interests and rights to acquire ownership interests of which (except
directors' qualifying shares) are, directly or indirectly, owned or controlled
by such Person or one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more of such Subsidiaries; unless otherwise specified,
"Wholly Owned Subsidiary" means a Wholly Owned Subsidiary of the Borrower.
(b) Other Definitional Provisions. (i) Except as otherwise
specified herein, all references herein (A) to any Person shall be deemed to
include such Person's successors and assigns, (B) to any Applicable Law
defined or referred to herein shall be deemed references to such Applicable
Law or any successor Applicable Law as the same may have been or may be
amended or supplemented from time to time and (C) to any Loan Document or
Contract defined or referred to herein shall be deemed references to such Loan
Document or Contract (and, in the case of any Note or any other instrument,
any instrument issued in substitution therefor) as the terms thereof may have
been or may be amended, supplemented, waived or otherwise modified from time
to time.
(ii) When used in this Agreement, the words "herein,"
"hereof" and "hereunder" and words of similar import shall refer to this
Agreement as a whole and not to any provision of this Agreement, and the words
"Article," "Section," "Annex," "Schedule" and "Exhibit" shall refer to
Articles and Sections of, and Annexes, Schedules and Exhibits to, this
Agreement unless otherwise specified.
(iii) Whenever the context so requires, the singular number
includes the plural and vice versa.
(iv) Any item or list of items set forth following the word
"including," "include" or "includes" is set forth only for the purpose of
indicating that, regardless of whatever other items are in the category in
which such item or items are "included," such item or items are in such
category, and shall not be construed as indicating that the items in the
category in which such item or items are "included" are limited to such items
or to items similar to such items.
(v) Each authorization in favor of the Administrative Agent,
the Banks, the Borrower or any other Person granted by or pursuant to this
Agreement shall be deemed to be irrevocable and coupled with an interest.
(vi) Except as otherwise specified herein, all references
herein to the Administrative Agent, any Bank or any Loan Party shall be deemed
to refer to such Person acting in such capacity however designated in the
Loan Documents, so that (A) a reference to rights or duties of the
Administrative Agent under the Loan Documents shall be deemed to include the
rights or duties of such Person as the Secured Party under the Pledge
Agreement and as a party under the Guaranty Agreement, if any, (B) a reference
to costs incurred by a Bank in connection with the Loan Documents shall be
deemed to include costs incurred by such Person as a beneficiary of the
Security Interest under the Pledge Agreement and as a beneficiary under the
Guaranty Agreement, if any, and (C) a reference to the obligations of the Loan
Parties (other than the Borrower), if any, under the Loan Documents shall be
deemed to include the obligations of such Persons as parties under the
Guaranty Agreement, if any.
(vii) Except as otherwise specified therein, all terms defined
in this Agreement shall have the meanings herein ascribed to them when used in
the Notes or any certificate, opinion or other document delivered pursuant
hereto or thereto.
Section 10.02. Accounting Matters. Unless otherwise specified
herein, all accounting determinations hereunder and all computations utilized
by the Borrower in complying with the covenants contained herein shall be
made, all accounting terms used herein shall be interpreted, and all financial
statements required to be delivered hereunder shall be prepared, in accordance
with Generally Accepted Accounting Principles.
Section 10.03. Representations and Warranties. All
Representations and Warranties shall be deemed made (a) in the case of any
Representation and Warranty contained in this Agreement at the time of its
initial execution and delivery, at and as of the Agreement Date, (b) in the
case of any Representation and Warranty contained in this Agreement or any
other document at the time any Loan is made, at and as of such time and (c) in
the case of any particular Representation and Warranty, wherever contained, at
such other time or times as such Representation and Warranty is made or deemed
made in accordance with the provisions of this Agreement or the document
pursuant to, under or in connection with which such Representation and
Warranty is made or deemed made.
Section 10.04. Captions. Captions to Articles, Sections and
subsections of, and Annexes, Schedules and Exhibits to, this Agreement are
included for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose or in any way affect the meaning or
construction of any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized officers all as of the Agreement Date.
QVC PROGRAMMING HOLDINGS, INC.
By:
-----------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Administrative Agent
By:
-----------------------------------
Name:
Title:
THE BANK OF NEW YORK COMPANY, INC.
as Managing Agent and Bank
By:
-----------------------------------
Name:
Title:
BARCLAYS BANK PLC,
as Managing Agent and Bank
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
CHEMICAL BANK,
as Managing Agent and Bank
By:
-----------------------------------
Name:
Title:
NATIONSBANK, N.A. (CAROLINAS)
as Managing Agent and Bank
By:
-----------------------------------
Name:
Title:
THE TORONTO-DOMINION BANK,
as Managing Agent and Bank
By:
-----------------------------------
Name:
Title:
Agreement Date: _______ __, 1995
ANNEX A
Banks, Lending Offices
and Notice Addresses Commitment
- ---------------------- -----------
THE BANK OF NEW YORK COMPANY, INC. $272,000,000.00
Domestic Lending Office:
One Wall Street
New York, New York 10286
Eurodollar Lending Office:
One Wall Street
New York, New York 10286
Notice Address:
The Bank of New York
One Wall Street
New York, New York 10286
Telecopier No.: (212) 635-8593 or 8595
Telephone No.: (212) 635-8843
Attention: James A. Whitaker
BARCLAYS BANK PLC $219,500,000.00
Domestic Lending Office:
75 Wall Street
New York, NY 10265
Eurodollar Lending Office:
Bay Street, Nassau, Bahamas
c/o Barclays Bank PLC
75 Wall Street
New York, NY 10265
Notice Address for Credit Issues:
BZW Division
388 Market Street, Suite 1700
San Francisco, CA 94111-5317
Telecopier No.: (415) 765-4703
Telephone No.: (415) 765-4760
Attention: Michael Ballard
Notice Address for Borrowing and Other Issues:
222 Broadway, 12th Floor
New York, NY 10038
Telecopier No.: (212) 412-5002/4090
Telephone No.: (212) 412-4014
Attention: Sandra Coye
CHEMICAL BANK $219,500,000.00
Domestic Lending Office:
270 Park Avenue
New York, NY 10017
Eurodollar Lending Office:
270 Park Avenue
New York, NY 10017
Notice Address:
270 Park Avenue
New York, NY 10017
Telecopier No.: (212) 270-3942
Telephone No.: (212) 270-2511
Attention: Ganesh Persaud
NATIONSBANK, N.A. (CAROLINAS) $219,500,000.00
Domestic Lending Office:
1 Independence Center
Charlotte, NC 28255
Eurodollar Lending Office:
1 Independence Center
Charlotte, NC 28255
Notice Address:
1 Independence Center
Charlotte, NC 28255
Telecopier No.: (704) 386-8694
Telephone No.: (704) 388-1111
Attention: Jacquetta Talford
THE TORONTO-DOMINION BANK $219,500,000.00
Domestic Lending Office:
31 West 52nd Street
New York, NY 10019-6101
Eurodollar Lending Office:
31 West 52nd Street
New York, NY 10019-6101
Notice Address:
31 West 52nd Street
New York, NY 10019-6101
Telecopier No.: (212) 262-1928/1923
Telephone No.: (212) 468-0713
Attention: Michael Bandzierz
Schedule 1.02
-------------
FORM OF NOTICE OF BORROWING
[Name and address
of Administrative Agent in accordance with
Section 9.01(b)(ii)]
Date:
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of _________
__, 1995, among QVC Programming Holdings, Inc., the banks listed on the
signature pages thereof, The Bank of New York Company, Inc., Barclays Bank
PLC, Chemical Bank, NationsBank, N.A. (Carolinas) and The Toronto-Dominion
Bank, as Managing Agents, and The Bank of New York, as Administrative Agent
(the "Credit Agreement"). Terms defined in the Credit Agreement that are not
otherwise defined herein are used herein with the meanings therein ascribed to
them. The undersigned hereby gives notice pursuant to Section 1.02 of the
Credit Agreement of its request to have the following Loans made to it on
[insert requested date of borrowing]:
Type of Loan(1) Amount
--------------- ------
_________________________________ ______________
_________________________________ ______________
_________________________________ ______________
[Please disburse the proceeds of the Loans by [insert requested
method of disbursement]].(2)
The undersigned represents and warrants that (a) the borrowing
requested hereby complies with the requirements of Section 1.02 of the Credit
Agreement and (b) [except to the extent set forth on Annex A hereto,](3) (i)
each Loan Document Representation and Warranty is true and correct in all
material respects at and as of the date hereof and (except to the extent the
undersigned gives notice to the Banks to the contrary prior to 5:00 p.m. (New
York time) on the Business Day before the requested date for the making of the
Loans) will be true and correct at and as of the time the Loans are made, in
each case both with and without giving effect to the Loans and the application
of the proceeds thereof, and (ii) no Default (other than a Default that has
been waived by the Required Banks) has occurred and is continuing as of the
date hereof or would result from the making of the Loans or from the
application of the proceeds thereof if the Loans were made on the date hereof,
and (except to the extent the undersigned gives notice to the Banks to the
contrary prior to 5:00 p.m. (New York time) on the Business Day before the
requested date for the making of the Loans) no Default will have occurred and
be continuing at the time the Loans are to be made or would result from the
making of the Loans or from the application of the proceeds thereof.
QVC PROGRAMMING HOLDINGS, INC.
By:
-----------------------------------
Name:
Title:
- --------------
1. Specify the duration of the Interest Period in the case of Eurodollar
Rate Loans (e.g., one-month Eurodollar Rate).
2. Include and complete this sentence if the proceeds of the requested
Loans are to be disbursed in a manner other than by credit to an account
of the Borrower at the Administrative Agent's Office.
3. If the representation and warranty in either clause (b)(i) or (b)(ii)
would be incorrect, include the material in brackets and set forth the
reasons such representation and warranty would be incorrect on an
attachment labeled Annex A.
Schedule 1.03(c)(iv)
--------------------
FORM OF NOTICE OF CONVERSION OR CONTINUATION
[Name and address
of Administrative Agent in accordance with
Section 9.01(b)(ii)]
Date:
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of
___________, 1995, among QVC Programming Holdings, Inc., the banks listed on
the signature pages thereof, The Bank of New York Company, Inc., Barclays Bank
PLC, Chemical Bank, NationsBank, N.A. (Carolinas) and The Toronto-Dominion
Bank, as Managing Agents, and The Bank of New York, as Administrative Agent
(the "Credit Agreement"). Terms defined in the Credit Agreement that are not
otherwise defined herein are used herein with the meanings therein ascribed to
them. The undersigned hereby gives notice pursuant to Section 1.03(c)(iv) of
the Credit Agreement of its desire to convert or continue the Loans specified
below into or as Loans of the Types and in the amounts specified below on
[insert date of conversion or continuation]:
<TABLE>
<CAPTION>
Loans to be Converted or
Converted or Continued Continued Loans
---------------------- ---------------
<S> <C> <C> <C> <C> <C>
Last Day of Date of
Type Current Conversion or Type
of Loan(1) Interest Period Amount Continuation of Loan(1) Amount
---------- --------------- ------- ------------- ---------- ------
_________ _______________ ________ ____________ __________ _______
_________ _______________ ________ ____________ __________ _______
_________ _______________ ________ ____________ __________ _______
</TABLE>
QVC PROGRAMMING HOLDINGS, INC.
By:
-----------------------------------
Name:
Title:
- ---------------
1. Specify the duration of the Interest Period in the case of Eurodollar
Rate Loans (e.g., one-month Eurodollar Rate).
Schedule 1.05
-------------
FORM OF NOTICE OF PREPAYMENT
[Name and address
of Administrative Agent in accordance with
Section 9.01(b)(ii)]
Date:
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of ________,
1995, among QVC Programming Holdings, Inc., the banks listed on the signature
pages thereof, The Bank of New York Company, Inc., Barclays Bank PLC, Chemical
Bank, NationsBank, N.A. (Carolinas) and The Toronto-Dominion Bank, as Managing
Agents, and The Bank of New York, as Administrative Agent (the "Credit
Agreement"). Terms defined in the Credit Agreement that are not otherwise
defined herein are used herein with the meanings therein ascribed to them.
The undersigned hereby gives notice pursuant to Section 1.05 of the Credit
Agreement that it will prepay the Loans specified below on [insert date of
prepayment]:
Last Day of
Current
Type of Loan(1) Interest Period Amount
--------------- --------------- ------
________________ _______________ _________
________________ _______________ _________
________________ _______________ _________
QVC PROGRAMMING HOLDINGS, INC.
By:
_______________________________
Name:
Title:
_________________
1. Specify the duration of the Interest Period in the case of Eurodollar
Rate Loans (e.g., one-month Eurodollar Rate).
Schedule 2.01(a)(i)
-------------------
FORM OF CERTIFICATE AS TO RESOLUTIONS, ETC.
[NAME OF LOAN PARTY]
I, ________________, [Secretary/Assistant Secretary/ Responsible
Officer] of [NAME OF LOAN PARTY], a __________ corporation (the "Company"),
hereby certify, pursuant to Section 2.01(a)(i) of the Credit Agreement (the
"Credit Agreement"), dated as of ________, 1995, among QVC Programming
Holdings, Inc., the banks listed on the signature pages thereof, The Bank of
New York Company, Inc., Barclays Bank PLC, Chemical Bank, NationsBank, N.A.
(Carolinas) and The Toronto-Dominion Bank, as Managing Agents, and The Bank of
New York, as Administrative Agent, that (capitalized terms used herein but not
otherwise defined herein shall have the meanings given to them in the Credit
Agreement):
1. The below named persons have been duly elected (or
appointed) and have duly qualified as, and on this day are, officers of the
Company holding the respective offices below set opposite their names, and
the signatures below set opposite their names are their genuine signatures:
Name Office Signature
____ ______ _________
[ ] [ ] __________________
[ ] [ ] __________________
[ ] [ ] __________________
[ ] [ ] __________________
2. Attached as Annex A is a true and correct copy of
resolutions duly adopted by the Board of Directors of the Company. Such
resolutions have not been amended, modified or revoked and are in full force
and effect on the date hereof.
3. [List the Loan Documents to which the Company is a party],
in each case as executed and delivered on behalf of the Company, are
consistent with the terms thereof approved by the Board of Directors of the
Company, except for such changes as have been approved by the officer or
officers of the Company executing such documents.
4. There has been no amendment to the certificate of
incorporation of the Company since __________.
5. Attached as Annex B is a true and correct copy of the
by-laws of the Company as in effect on ________, 1994 and at all subsequent
times to and including the date hereof.
IN WITNESS WHEREOF, I have signed this certificate this __ day of
_____, 1995.
By: ____________________________
Name:
Title:
I, __________, __________ of the Company, hereby certify that
__________ has been duly elected or appointed and has been duly qualified as,
and on this day is, [Secretary/Assistant Secretary/Responsible Officer] of the
Company, and the signature in paragraph 1 above is such individual's genuine
signature.
IN WITNESS WHEREOF, I have signed this certificate this __ day of ___,
1995.
By: ____________________________
Name:
Title:
Schedule 2.01(a)(iv)-1
______________________
FORM OF OPINION OF COUNSEL
FOR THE BORROWER
Schedule 2.01(a)(iv)-2
______________________
FORM OF OPINION OF COUNSEL
FOR EACH LOAN PARTY OTHER THAN BORROWER
Schedule 2.01(a)(v)
___________________
FORM OF OPINION OF SPECIAL
COUNSEL FOR THE ADMINISTRATIVE AGENT
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
_______ __, 1995
To the Administrative Agent and each Bank party
to the Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as counsel to the Managing Agents in connection with the
negotiation, execution and delivery of the Credit Agreement, dated as of
______ __, 1995, among QVC Programming Holdings, Inc., Inc., the banks listed
on the signature pages thereof, The Bank of New York Company, Inc., Barclays
Bank PLC, Chemical Bank, NationsBank, N.A. (Carolinas) and The
Toronto-Dominion Bank, as Managing Agents, and The Bank of New York, as
Administrative Agent (the "Credit Agreement"). Terms defined in the Credit
Agreement that are not otherwise defined herein are used herein with the
meanings therein ascribed to them.
For the purposes of rendering the opinions contained in this letter,
we have examined executed counterparts of the Credit Agreement, the Notes
delivered on the date hereof, the Pledge Agreement and the Guaranty Agreement
(collectively, the "Loan Documents").
For the purposes of this opinion, we have assumed (i) the authenticity
of all such documents submitted to us as originals, (ii) the due
authorization, execution and delivery by the Administrative Agent and the
Banks of the Loan Documents to which they are parties, (iii) that each of the
Loan Parties has the corporate power, and has taken all necessary corporate
action to authorize it, to execute, deliver and perform each of the Loan
Documents to which it is a party, (iv) that the Loan Documents have been duly
executed and delivered by each of the Loan Parties and (v) that the execution,
delivery and performance in accordance with their respective terms by each of
the Loan Parties of the Loan Documents to which it is a party do not and will
not (A) require any Governmental Approval or any other consent or approval,
other than Governmental Approvals and other consents or approvals that have
been obtained, are final and not subject to review or collateral attack and
are in full force and effect, or (B) violate or conflict with, result in a
breach of, or constitute a default under (1) any Contract to which any of the
Loan Parties is a party or by which it or its properties may be bound or (2)
any Applicable Law referred to in clause (ii)(B) or (C) of the definition
thereof contained in the Credit Agreement.
Based upon the foregoing, and subject to the qualifications and
limitations set forth herein, we are of the opinion that the Loan Documents
are legal, valid and binding obligations of the Loan Parties party thereto,
enforceable against such Loan Parties in accordance with their respective
terms.
Our opinion above is subject to the following qualifications and
limitations:
(a) Our opinion is subject to the effect of applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance and other laws affecting the
enforcement of creditors' rights generally and to the effect of general
equitable principles (whether considered in a proceeding in equity or at law).
Such principles applied by a court might include a requirement that a creditor
act with reasonableness and good faith. Furthermore, a court may refuse to
enforce a covenant where a court deems such covenant to be violative of
applicable public policy.
(b) Our opinions are limited to the law of the State of New York and
the Federal law of the United States. Without limiting the generality of the
foregoing, we express no opinion as to the effect of the law of any
jurisdiction other than the State of New York wherein any Bank may be located
or wherein enforcement of the Loan Documents may be sought that limits the
rates of interest legally chargeable or collectable.
(c) Certain remedial provisions of the Pledge Agreement may be
unenforceable in whole or in part, but the inclusion of such provisions does
not affect the validity of the Pledge Agreement, and the Pledge Agreement
taken as a whole contains adequate provisions for enforcing the obligations of
the Loan Parties pursuant thereto and for the practical realization of the
benefits created thereby. In addition, certain remedial provisions of the
Pledge Agreement may be subject to procedural requirements not set forth
therein.
(d) Our opinion (to the extent it relates to the Pledge Agreement)
is also subject to the limitation that we express no opinion with respect to:
(i) the perfection or priority of the Security Interest;
(ii) each Loan Party's rights in or title to or legal or
beneficial ownership of any of the Collateral; and
(iii) the validity or enforceability of the Security Interest
except to the extent that the creation thereof is governed by Article 8 or 9
of the Uniform Commercial Code as in effect on the date hereof in the State of
New York.
This opinion is intended for the sole benefit of the Administrative
Agent and the Banks and no other Person shall be entitled to rely hereon for
any purpose.
Very truly yours,
Schedule 3.02
_____________
CAPITALIZATION AND SUBSIDIARIES
Person to No. of Percentage
Authorized Whom Capital Shares Owned by
Capital Securities are Issued to Such
Entity Securities Issued Such Person
Person
- ------ ---------- -------------- --------- ---------
Borrower
QVC 100,000 Comcast QVC, 57,446.6 57.45 %
Programming shares of Inc. (DE) shares of
Holdings, Inc. common ($.01 Common
(DE) par value)
Liberty QVC, 41,840.0 41.84 %
Inc. shares of
Common
QVC Investments, 713.4 00.71 %
Inc. shares of
Common
Schedule 3.03
_____________
REQUIRED CONSENTS AND GOVERNMENTAL APPROVALS
SCHEDULE 3.03
REQUIRED CONSENTS & GOVERNMENTAL APPROVALS
Notification and Report Forms filed on August 9, 1994, with the
Antitrust Division of the Department of Justice and the Federal Trade
Commission (not required to be provided under Section 2.01(a)(vi)).
Tender Offer Statement on Schedule 14D-1 filed with the Securities
and Exchange Commission on August 11, 1994, and supplements thereto.
Transaction Statement on Schedule 13E-3 filed with the Securities and
Exchange Commission on August 11, 1994, and supplements and exhibits
thereto.
Solicitation/Recommendation Statement on Schedule 14D-9 filed by QVC,
Inc. with the Securities and Exchange Commission on August 11, 1994,
and supplements and exhibits thereto.
Offer to Purchase dated August 11, 1994, filed with the Securities
and Exchange Commission and supplements and exhibits thereto.
Notice of Offer to Purchase the Securities of QVC, Inc. pursuant to
Section 8(a) of The Pennsylvania Takeover Disclosure Law filed by QVC
Programming Holdings, Inc. with the Pennsylvania Securities
Commission on August 12, 1994.
Federal Communications Commission authorization, dated October 25,
1994, to QVC to continue holding the license to operate a business
radio station.
Federal Communications Commission approval, dated November 4, 1994,
for the transfer of control of licenses to operate three satellite
earth stations from QVC, Inc. to QVC Programming Holdings, Inc.
Notice to the Federal Trade Commission filed by Comcast Corporation
and Tele-Communications, Inc. on January 19, 1995, of the intention
to consummate the offer to purchase the stock of QVC, Inc. at any
time after 5:00 p.m. on Monday, February 6, 1995.
Responses of Comcast Corporation to requests for additional
information and documentary material issued by the Federal Trade
Commission (not required to be provided under Section 2.01(a)(vi)).
Responses of QVC, Inc. to requests for additional information and
documentary material issued by the Federal Trade Commission (not
required to be provided under Section 2.01(a)(vi)).
Responses of Tele-Communications, Inc. to requests for additional
information and documentary material issued by the Federal Trade
Commission (not required to be provided under Section 2.01(a)(vi)).
Memorandum dated January 23, 1995, for the Federal Trade Commission
regarding the Proposed Joint Acquisition between Tele-Communications,
Inc. and Ralph J. Roberts c/o Comcast Corporation of QVC Programming
Holdings, Inc., filed by Tele-Communications, Inc. and Comcast
Corporation (not required to be provided under Section 2.01(a)(vi)).
Certificate of Ownership and Merger or Certificate of Merger of QVC
Programming Holdings, Inc. with and into QVC, Inc. to be filed by QVC
Programming Holdings, Inc. with the Office of the Secretary of State
of the State of Delaware.
Schedule 3.04
_____________
MATERIAL LITIGATION
None
Schedule 3.13
_____________
EXISTING BENEFIT PLANS
None
EXHIBIT A
_________
FORM OF NOTE
QVC PROGRAMMING HOLDINGS, INC.
____________ , 1995
FOR VALUE RECEIVED, QVC Programming Holdings, Inc., a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of
____________ (the "Bank") the principal amount of ____________ Dollars
($____________) or, if less, the principal amount of the Loans of the Bank
outstanding, on the dates and in the amounts specified in Section 1.04 of
the Credit Agreement referred to below, and to pay interest on such
principal amount on the dates and at the rates specified in Section 1.03 of
such Credit Agreement. All payments due the Bank hereunder shall be made
to the Bank at the place, in the type of money and funds and in the manner
specified in Section 1.10 of such Credit Agreement.
Each holder hereof is authorized to endorse on the grid attached
hereto, or on a continuation thereof, each Loan of the Bank and each payment,
prepayment or conversion with respect thereto.
Presentment, demand, protest, notice of dishonor and notice of
intent to accelerate are hereby waived by the undersigned.
This Note evidences Loans made under, and is entitled to the
benefits of, the Credit Agreement, dated as of _____ __, 1995, among the
Borrower, the banks listed on the signature pages thereof, The Bank of New
York Company, Inc., Barclays Bank PLC, Chemical Bank, NationsBank, N.A.
(Carolinas) and The Toronto-Dominion Bank, as Managing Agents, and The Bank of
New York, as Administrative Agent, as the same may be amended from time to
time. Reference is made to such Credit Agreement, as so amended, for
provisions relating to the prepayment and the acceleration of the maturity of,
and for the respective meanings assigned to the capitalized terms used and not
otherwise defined in, this Note. This Note is also entitled to the benefits
of the Pledge Agreement.
This Note shall be construed in accordance with and governed by
the law of the State of New York (without giving effect to its choice of law
principles).
QVC PROGRAMMING HOLDINGS, INC.
By:
________________________________
Name:
Title:
GRID
NOTE
_______________________________________________________________________
Amount of
Principal Paid, Unpaid
Amount of Prepaid or Principal Amount Notation
Date Loan Converted of Note Made By
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