As filed with the Securities and Exchange Commission on February 10, 1995
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
------------------------
AMENDMENT NO. 18
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. 19 to the Schedule 13D filed
by Tele-Communications, Inc. and Amendment No. 40 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 2. Identity and Background
(a) - (d) The information set forth under "Introduction",
"Special Factors -- Background of the Transaction", "Interests of Certain
Persons in the Transaction" and "The Tender Offer -- 7. Certain Information
Concerning the Purchaser and the Parent Purchasers" in the Offer to Purchase
and "Introduction" and "Certain Information Concerning the Purchaser and the
Parent Purchasers" in the Supplement is hereby amended and supplemented to
include the information set forth in Item 10 of this Amendment.
Item 3. Past Contacts, Transactions or Negotiations with the Subject
Company.
(a) and (b) The information set forth under "Introduction",
"Special Factors -- Background of the Transaction", "Interests of Certain
Persons in the Transaction" and "The Tender Offer -- 7. Certain Information
Concerning the Purchaser and the Parent Purchasers" in the Offer to Purchase
and "Introduction" and "Certain Information Concerning the Purchaser and the
Parent Purchasers" in the Supplement is hereby amended and supplemented to
include the information set forth in Item 10 of this Amendment.
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 the 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.
The Credit Agreement, dated as of February 9, 1995, between
the Purchaser and the Company relating to the Company Loan is attached hereto
as Exhibit (b)(4).
Item 6. Interest in Securities of the Subject Company
(a) and (b) The information set forth under "Introduction",
"Special Factors -- Background of the Transaction", "Interests of Certain
Persons in the Transaction" and "The Tender Offer -- 7. Certain Information
Concerning the Purchaser and the Parent Purchasers" in the Offer to Purchase
and "Introduction" and "Certain Information Concerning the Purchaser and the
Parent Purchasers" in the Supplement are hereby amended and supplemented to
include the information set forth in Item 10 of this Amendment.
Item 7. Contracts, Arrangements, Understandings or Relationships With
Respect to the Subject Company's Securities.
The information set forth under "Introduction", "Special Factors
- -- Background of the Transaction", "Interests of Certain Persons in the
Transaction" and "The Tender Offer -- 7. Certain Information Concerning the
Purchaser and the Parent Purchasers" in the Offer to Purchase and
"Introduction" and "Certain Information Concerning the Purchaser and the Parent
Purchasers" in the Supplement are hereby amended and supplemented to include
the information set forth in Item 10 of this Amendment.
Item 10. Additional Information.
(c) and (f) The information set forth under "Introduction", "The
Tender Offer -- 1. Terms of the Tender Offer", "-- 2. Acceptance for Payment
and Payment", "-- 3. Procedure for Tendering Shares", "-- 4. Withdrawal
Rights", "-- 10. Certain Conditions of the Offer" and "-- 11. Certain Legal
Matters; Regulatory Approvals" in the Offer to Purchase is hereby amended and
supplemented to include the following information:
On February 10, 1995, Comcast and TCI issued a press release in
which they announced that the Offer expired, as scheduled, at 12:00 Midnight,
New York City Time, on Thursday, February 9, 1995. The Purchaser accepted for
purchase all Shares validly tendered and not withdrawn prior to expiration of
the Offer.
As of the expiration of the Offer, approximately 33,674,219 shares
of Common Stock, 468 shares of Series B Preferred Stock and 31,639 shares of
Series C Preferred Stock had been tendered pursuant to the Offer and not
withdrawn. Together with the Shares owned by the Purchaser, such Shares
represent approximately 98.7% of the outstanding Common Stock, approximately
100% of the outstanding Series B Preferred Stock, and approximately 99.8% of
the outstanding Series C Preferred Stock. (Percentages are based upon
information supplied by the Company with respect to the number of outstanding
Shares of each class and series.) Payment for Shares validly tendered is
expected to be made by The Bank of New York, acting as depositary for the
Offer, 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.
Simultaneously with the acceptance of tendered Shares for payment,
Comcast and Liberty contributed cash, Shares and warrants to purchase shares
of Common Stock to the Purchaser in exchange for ownership interests in the
Purchaser of approximately 57.4% for Comcast and 42.6% for Liberty.
Prior to the expiration of the Offer and the acceptance of
tendered Shares for payment, QVC Programming Holdings executed definitive
documentation for the Tender Offer Facility and the Company Loan.
A copy of the press release of Comcast and TCI relating to the
foregoing is attached hereto as Exhibit (a)(31), and is hereby incorporated by
reference, and the foregoing description is qualified in its entirety by
reference to such Exhibit.
Item 11. Material to be Filed as Exhibits.
(a)(31) -- Text of Press Release issued by Comcast and TCI on
February 10, 1995.
(b)(4) -- Credit Agreement, dated as of February 9, 1995, between
the Purchaser and the Company.
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 10, 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
---------- ----------- -------------
31.a Text of Press Release 6
issued by Comcast and
TCI on February 10,
1995.
4.b Credit Agreement, dated 9
as of February 9, 1995,
between the Purchaser
and the Company.
Exhibit (a)(31)
FOR IMMEDIATE RELEASE
COMCAST AND TCI
TENDER OFFER FOR
QVC COMPLETED
____________________________________
Philadelphia, PA, and Englewood, CO -- February 10, 1995: Comcast Corporation
("Comcast") and Tele-Communications, Inc. ("TCI") announced today that the
tender offer for stock of QVC, Inc. ("QVC") expired, as scheduled, at 12:00
Midnight, New York City Time, on Thursday, February 9, 1995. QVC Programming
Holdings, Inc., an acquisition vehicle to be jointly owned by Comcast and
Liberty Media Corporation, a wholly-owned subsidiary of TCI, accepted for
purchase all shares validly tendered and not withdrawn prior to expiration of
the tender offer.
"The acquisition of QVC is an exciting opportunity for Comcast," said
Brian L. Roberts, President of Comcast Corporation. "As a founding investor
in the company, we have watched QVC develop into the premier franchise in
electronic retailing. We look forward to working with our partner, TCI, and
QVC's talented employees to achieve continued success."
As of the expiration of the tender offer, approximately 33,674,219
shares of QVC Common Stock, 468 shares of QVC Series B Preferred Stock and
31,639 shares of QVC Series C Preferred Stock had been tendered pursuant to
the offer and not withdrawn. Together with the shares owned by QVC
Programming Holdings, such shares represent approximately 98.7% of the
outstanding Common Stock, approximately 100% of the outstanding Series B
Preferred Stock, and approximately 99.8% of the outstanding Series C Preferred
Stock. Payment for shares validly tendered is expected to be made by The Bank
of New York, acting as depositary for the tender offer, promptly following
receipt of certificates for shares (or confirmation of book-entry transfer)
and other required documents.
Simultaneously with the acceptance of tendered shares for payment,
Comcast and Liberty contributed cash, shares of QVC stock and warrants to QVC
Programming Holdings in exchange for ownership interests in QVC Programming
Holdings of approximately 57.4% for Comcast and 42.6% for Liberty.
Prior to the expiration of the tender offer and the acceptance of
tendered shares for payment, QVC Programming Holdings completed documentation
of the financing required to consummate the tender offer.
Comcast Corporation is principally engaged in the development,
management and operation of cable communications networks. Including the
recently completed acquisition of Maclean Hunter's United States cable
properties, Comcast's consolidated and prorated affiliated operations will
serve approximately 3.4 million cable subscribers. Comcast provides cellular
telephone services in the Northeast United States to markets encompassing a
population in excess of 7.4 million. Comcast also has investments in cable
programming, telecommunications systems, and international cable and telephony
franchises.
Comcast's Class A and Class A Special Common Stock are traded on the
Nasdaq Stock Market under the symbols CMCSA and CMCSK, respectively.
Liberty is a wholly-owned subsidiary of Tele-Communications, Inc., which
holds interests in several national cable programming networks. TCI is the
United States' largest cable television operator, serving 11.7 million
customers in 48 states, Puerto Rico and the District of Columbia.
Tele-Communications, Inc. is traded in the Nasdaq National Market with
Class A and Class B Common Stock and Class B Preferred Stock trading
separately under the symbols of TCOMA, TCOMB and TCOMP, respectively.
#####
FOR FURTHER INFORMATION CONTACT:
Comcast Corporation
- -------------------
William E. Dordelman Kathleen B. Jacoby
Assistant Treasurer Director of Investor Relations
(215) 981-7550 (215) 981-7392
Tele-Communications, Inc.
- -------------------------
Steve Smith Vivian Carr
Investor Relations Liberty Media
(303) 267-5048 (303) 721-5406
Lela Cocoros
TCI Media Relations
(303) 267-5273
CREDIT AGREEMENT
dated as of
February 9, 1995
between
QVC Programming Holdings, Inc.
and
QVC, Inc.
TABLE OF CONTENTS(*)
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.................................................1
ARTICLE II
THE CREDITS
SECTION 2.01 Commitment to Lend..........................................5
2.02 Method of Borrowing.........................................6
2.03 Note........................................................6
2.04 Maturity of Loans...........................................6
2.05 Interest Rate...............................................6
2.06 Termination of Commitment...................................7
2.07 Optional Prepayments........................................7
2.08 General Provisions as to Payments...........................7
2.09 Computation of Interest and Fees............................7
ARTICLE III
CONDITIONS
(*)The Table of Contents is not a part of this Agreement.
SECTION 3.01 Conditions to Initial Loans.................................7
3.02 Conditions to Each Loan.....................................9
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Corporate Existence and Power..............................10
4.02 Corporate and Governmental Authorization;
No Contravention.........................................10
4.03 Binding Effect.............................................11
4.04 Regulatory Restrictions on Borrowing.......................11
4.05 Senior Credit Agreement Representations....................11
ARTICLE V
COVENANTS
SECTION 5.01 Payment of Obligations.....................................11
5.02 Compliance with Laws.......................................11
5.03 Use of Proceeds............................................11
5.04 Limitation of Restricted Payments..........................11
5.05 Limitation on Indebtedness.................................12
5.06 Limitation on Mergers and Consolidations...................12
5.07 Limitation on Subsidiaries.................................12
5.08 Affiliate Transactions.....................................12
5.09 Changes in Business........................................12
5.10 Senior Credit Agreement Covenants..........................12
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default..........................................13
ARTICLE VII
SUBORDINATION
SECTION 7.01 Subordination..............................................14
7.02 Distribution, etc..........................................16
7.03 Continuing Subordination, etc..............................17
7.04 Waiver of Notice...........................................18
7.05 Subrogation................................................18
7.06 Certain Agreements.........................................18
7.07 Obligation of Borrower.....................................19
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Notices....................................................19
8.02 No Waivers.................................................19
8.03 Expenses; Documentary Taxes; Indemnification...............19
8.04 Amendments and Waivers.....................................20
8.05 Successors and Assigns.....................................20
8.06 Governing Law; Submission to Jurisdiction..................20
8.07 Counterparts; Integration..................................21
8.08 Waiver of Jury Trial.......................................21
Schedule 3.01(k) - Form of Certificate as to Resolutions, etc.
Exhibit A - Note
CREDIT AGREEMENT
AGREEMENT dated as of February 9, 1995 between QVC PROGRAMMING
HOLDINGS, INC., a Delaware corporation, and QVC, INC., a Delaware corporation.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used
herein, have the following meanings:
"Administrative Agent" has the meaning set forth in the Senior
Credit Agreement.
"Borrower" means QVC Programming Holdings, Inc., a Delaware
corporation, and its successors and assigns.
"Business Day" means any day except a Saturday, Sunday or other
day on which banks in New York City are authorized by law to close.
"Comcast" means Comcast Corporation, a Delaware corporation.
"Commitment" means (a) (x) the sum of (i) $60,000,000 and (ii)
the lesser of (A) $266,000,000 and (B) the aggregate amount received by the
Lender as the exercise price of Options exercised, or for which notice of
exercise is given, after February 3, 1995 but at or prior to, or in
conjunction with, the expiration of the Tender Offer less (y) the product of
(i) $46.00 multiplied by (ii) the number of outstanding shares of Common
Stock, on a fully diluted basis, without duplication, that were neither
beneficially owned by the Borrower at the time of the making of the initial
Loan hereunder nor accepted for purchase by the Borrower in the Tender Offer
or (b) as the context may require, the obligation of the Lender to make Loans
in an aggregate unpaid principal amount not exceeding such amount.
"Commitment Termination Date" means the earliest of (a) the day
that is ten Business Days after the date on which the initial Loan is made
hereunder, (b) the Merger Date and (c) the date of the termination of the
Merger Agreement or other abandonment of the Merger by the Borrower.
"Common Stock" means the common stock, par value $.01 per
share, of the Lender.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Event of Default" has the meaning set forth in Section 6.01.
"Guarantee" 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.
"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 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, (vi) 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, (vii) 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 (viii) any Indebtedness of others Guaranteed by such Person.
"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.
"Lender" means QVC, Inc., a Delaware corporation, and its
successors and assigns.
"Liberty" means Liberty Media Corporation, a Delaware
corporation.
"Loan" means a loan made by the Lender pursuant to Section 2.02.
"Merger" means the merger of the Borrower with and into the
Lender 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 the Lender, as
the same has been or may be amended from time to time.
"Note" means the promissory note of the Borrower, substantially
in the form of Exhibit A hereto, evidencing the obligation of the Borrower to
repay the Loans.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Option" means any option, warrant or other right to acquire
from the Lender any Common Stock, other than any such option, warrant or other
right held by Comcast, Liberty or any of their respective Subsidiaries or
affiliates.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"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
the Lender.
"Prime Rate" means the rate of interest publicly announced by
The Bank of New York in New York City from time to time as its Prime Rate.
"Responsible Officer" means (i) with respect to the Borrower,
the Chairman of the Board, the Vice-Chairman of the Board, the President, any
Senior Vice President or the Chief Financial Officer thereof and (ii) with
respect to the Lender, the Chairman of the Board, the Vice-Chairman of the
Board, the President, any Executive Vice President, the Treasurer or the
Secretary thereof.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's capital stock (except dividends
payable solely in shares of its capital stock), (ii) payments of principal of
or premium on Indebtedness of the Borrower convertible into capital stock of
the Borrower, or (iii) any payment on account of the purchase, redemption,
retirement or acquisition of (a) any shares of the Borrower's capital stock or
(b) any option, warrant or other right to acquire shares of the Borrower's
capital stock.
"Senior Credit Agreement" means the $1,150,000,000 Credit
Agreement dated as of February 9, 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.
"Senior Lenders" means the Banks under the Senior Credit
Agreement.
"Senior Obligations" means, collectively, all rights to payment
of principal, premium, interest (including interest accruing after the
commencement of any proceeding under any Federal or state bankruptcy,
insolvency, receivership or similar law, regardless of whether a claim
therefor is allowable as a claim in such proceeding under applicable law),
fees, expenses and other sums payable, however denominated, of the
Administrative Agent, the Managing Agents (as defined in the Senior Credit
Agreement) and the Banks under the Senior Credit Agreement, the Senior Notes
and the Pledge Agreement (as defined in the Senior Credit Agreement), and any
extensions, renewals, refinancings or refundings of the Senior Credit
Agreement or the Senior Notes and any and all other past, present or future
liabilities of the Borrower to the Administrative Agent, the Managing Agents
or the Banks under the Loan Documents (as defined in the Senior Credit
Agreement); provided, however, that in no event shall the aggregate principal
amount of the Senior Obligations exceed $1,200,000,000.
"Senior Notes" means the "Notes" as defined in the Senior
Credit Agreement.
"Subordinated Obligations" means, collectively, all rights to
payment of principal, interest (including interest accruing after the
commencement of any proceeding under any Federal or state bankruptcy,
insolvency, receivership or similar law, regardless of whether a claim
therefor is allowable as a claim in such proceeding under applicable law),
fees, expenses and other sums payable, however denominated, of the Lender
under this Agreement and the Note, and any and all other past, present or
future liabilities of the Borrower to the Lender under this Agreement and the
Note.
"Subsidiary" means, as to any Person, any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons
performing similar functions are at the time directly or indirectly owned by
such Person.
"Tender Offer" means the Borrower's offer to purchase all
outstanding shares of Common Stock and Preferred Stock made pursuant to the
Borrower's Offer to Purchase dated August 11, 1994.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitment to Lend. On or prior to the earlier
of (a) the date prior to the Commitment Termination Date and (b) the date that
the Borrower shall have paid for all shares of Common Stock and Preferred Stock
accepted for purchase in the Tender Offer, upon the terms and conditions set
forth in this Agreement, the Lender agrees to lend to the Borrower from time
to time amounts not to exceed in the aggregate the amount of the Commitment.
The Commitment is not revolving in nature, and amounts repaid or prepaid may
not be reborrowed.
SECTION 2.02. Method of Borrowing. The Borrower shall give
the Lender notice (a "Notice of Borrowing") by not later than 10:00 A.M. (New
York City time) on the date upon which any Loan is requested to be made,
specifying the date requested for the making of such Loan (which shall be a
Business Day) and the amount of such Loan. Unless the Lender determines that
any applicable condition specified in Article III hereof has not been
satisfied, the Lender will make funds in the amount of such Loan available to
the Borrower on the date, at the time (which shall not be earlier than 10:00
a.m. on any day or less than two hours after the time at which the Notice of
Borrowing with respect to such Loan shall have been given by the Borrower to
the Lender) and to the account specified in such Notice of Borrowing.
SECTION 2.03. Note. (a) The Loans shall be evidenced by a
single Note payable to the order of the Lender in an amount equal to the
aggregate unpaid principal amount of the Loans.
(b) The Lender shall record the date and amount of each Loan
and the date and amount of each payment of principal made by the Borrower with
respect thereto, and prior to any transfer of the Note shall endorse on the
schedule forming a part thereof appropriate notations to evidence the
foregoing information with respect to the Loans; provided that the failure of
the Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Note. The Lender is hereby
irrevocably authorized by the Borrower so to endorse the Note and to attach to
and make a part of the Note a continuation of any such schedule as and when
required.
SECTION 2.04. Maturity of Loans. Each Loan shall mature, and
the principal amount thereof shall be due and payable, on April 9, 1995.
SECTION 2.05. Interest Rate. Each Loan shall bear interest on
the outstanding principal amount thereof, for each day from the date such Loan
is made until it becomes due, at a rate per annum equal to the sum of 2% plus
the Prime Rate for such day. Such interest shall be payable on April 9, 1995.
Any overdue principal of or interest on any Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 2%
plus the otherwise applicable rate for such day.
SECTION 2.06. Termination of Commitment. The Commitment shall
terminate on the Commitment Termination Date.
SECTION 2.07. Optional Prepayments. The Borrower may, upon at
least one Business Day's notice to the Lender, prepay the Loans in whole at
any time, or from time to time in part, by paying the principal amount to be
prepaid together with accrued interest thereon to the date of prepayment.
SECTION 2.08. General Provisions as to Payments. The Borrower
shall make each payment of principal of and interest on the Loan not later
than 1:00 P.M. (New York City time) on the date such payment is due, and shall
make each payment of principal of, and interest on, the Loans in Federal or
other funds immediately available in New York City, to an account specified by
the Lender in writing. Whenever any payment of interest on the Loan hereunder
shall be due on a day which is not a Business Day, the date for payment
thereof shall be extended to the next succeeding Business Day. If the date
for any payment of principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
SECTION 2.09. Computation of Interest and Fees. Interest
shall be computed on the basis of a year of 365 days (or 366 days in a leap
year) and paid for the actual number of days elapsed (including the first day
but excluding the last day).
ARTICLE III
CONDITIONS
SECTION 3.01. Conditions to Initial Loan. The obligation of
the Lender to make the initial Loan hereunder is subject to the satisfaction
of the following conditions:
(a) receipt by the Lender of a counterpart hereof duly
executed by the Borrower;
(b) receipt by the Lender of a duly executed Note complying
with the provisions of Section 2.03;
(c) the fact that the Tender Offer shall have expired not
later than 12:00 midnight at the end of February 9, 1995;
(d) the fact that the Borrower (i) shall have borrowed no less
than $1,100,000,000 under the Senior Credit Agreement and (ii) used
not less than $1,100,000 of the proceeds of such loans borrowed under
the Senior Credit Agreement to purchase Common Stock and Preferred
Stock pursuant to the Tender Offer;
(e) all conditions to the Tender Offer shall have been
satisfied (unless waived by the Borrower with the consent of the
Senior Lenders);
(f) receipt by the Lender of evidence reasonably satisfactory
to it that the Borrower shall have received capital contributions
from Liberty, Comcast and their respective affiliates of the Common
Stock and Preferred Stock aggregating, on a fully diluted basis,
17,476,061 shares of Common Stock and warrants for the purchase of
1,700,000 shares of Common Stock (the "Contributed Warrants");
(g) receipt by the Lender of evidence reasonably satisfactory
to it that there shall have been tendered to, and accepted by, the
Borrower 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 contributed to the
Borrower pursuant to the Merger Agreement 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 of the Lender in accordance with applicable
law;
(h) there shall not exist any judgment, order, injunction or
other restraint prohibiting the purchase of shares of Common Stock or
Preferred Stock by the Borrower pursuant to the Tender Offer or the
consummation of the Merger;
(i) receipt by the Borrower of cash capital contributions from
Comcast, Liberty and any of their respective affiliates in an
aggregate amount not less than $273,556,000 (plus $29,000,000 to be
used to exercise the Contributed Warrants (the "Warrant Exercise
Amount")), all of which amounts (other than the Warrant Exercise
Amount) shall have been used to purchase Common Stock and Preferred
Stock pursuant to the Tender Offer;
(j) all Contributed Warrants shall have been exercised and the
Lender shall have received the Warrant Exercise Amount in respect
thereof;
(k) receipt by the Lender of a certificate of the Secretary or
an Assistant Secretary of the Borrower, dated the requested date for
the making of the initial Loan, substantially in the form of Schedule
3.01(k) hereto, to which shall be attached copies of the resolutions
and by-laws referred to in such certificate;
(l) receipt by the Lender of copies of the certificate of
incorporation of the Borrower certified, as of a recent date, by the
Secretary of State or other appropriate official of the jurisdiction
of the Borrower's incorporation;
(m) receipt by the Lender of a good standing certificate with
respect to the Borrower, issued as of a recent date, by the Secretary
of State or other appropriate official of the jurisdiction of the
Borrower's incorporation, together with a telegram from such
official, updating the information in such certificate; and
(n) receipt by the Lender of a legal opinion of Davis Polk &
Wardwell, special counsel to the Borrower, as to existence of the
Borrower, the due authorization by the Borrower of this Agreement and
the Note, the validity, binding effect and enforceability of the
Agreement and the Note and such other customary matters as the Lender
shall reasonably request;
(o) receipt by the Lender of a certificate of a Responsible
Officer of the Borrower, dated the requested date for the making of
the loan, with respect to the conditions set forth in Sections
3.01(d), (e), (h) and (i) and 3.02(c) and (d).
SECTION 3.02. Conditions to Each Loan. The obligation of the
Lender to make any Loan hereunder (including the initial Loan) is subject to
the satisfaction of the following conditions:
(a) receipt by the Lender of a Notice of Borrowing as
required by Section 2.02;
(b) the fact that immediately after such Loan is made, (i) the
aggregate principal amount of the Loans made will not exceed the
Commitment and (ii) the sum of the aggregate principal amount of the
Loans made and the aggregate amount deposited by the Borrower in the
"Rabbi" trust established pursuant to Section 6.10(b) of the Merger
Agreement will not exceed $326,000,000;
(c) the fact that prior to and after giving effect to the
requested Loan no Default hereunder or under the Senior Credit
Agreement shall have occurred and be continuing; and
(d) the fact that the representations and warranties of the
Borrower contained in this Agreement shall be true and correct on and
as of the date of such Loan;
provided that the Lender shall have no obligation to make any Loan on or after
the Commitment Termination Date. The making of any Loan hereunder shall be
deemed to be a representation and warranty by the Borrower on the date thereof
as to the facts specified in clauses (b), (c) and (d) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Borrower is
a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of
this Agreement and the Note are within its power and have been duly authorized
by all necessary corporate action and require no action or approval by or in
respect of, or filing with, any governmental body, agency or official, other
than actions, filings and approvals that have been made or obtained and are in
full force and effect, and do not contravene or constitute a default under its
certificate of incorporation or bylaws or any provision of applicable law or
regulation (including Regulations G, U and X of the Board of Governors of the
Federal Reserve System) or any agreement, judgment, injunction, order, decree
or other instrument binding upon the Borrower.
SECTION 4.03. Binding Effect. This Agreement constitutes a
valid and binding agreement of the Borrower, and the Note, when executed and
delivered in accordance with this Agreement, will constitute a valid and
binding obligation of the Borrower, in each case enforceable against the
Borrower in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization and other similar laws affecting creditors' rights
generally and to equitable principles of general applicability.
SECTION 4.04. Regulatory Restrictions on Borrowing. The
Borrower is not an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 4.05. Senior Credit Agreement Representations. Each
of the representations and warranties of the Borrower contained in Sections
3.02, 3.04, 3.05, 3.06, 3.08 and 3.11 of the Senior Credit Agreement is true
and correct and is hereby incorporated herein.
ARTICLE V
COVENANTS
SECTION 5.01. Payment of Obligations. The Borrower will pay
and discharge at or before maturity, all of its material obligations and
liabilities, except where the same may be contested in good faith by
appropriate proceedings.
SECTION 5.02. Compliance with Laws. The Borrower will comply
in all material respects with all applicable laws, ordinances, rules,
regulations, and requirements of governmental authorities except where the
necessity of compliance therewith is contested in good faith by appropriate
proceedings.
SECTION 5.03. Use of Proceeds. The Borrower will use the
proceeds of the Loans solely to finance the purchase of Common Stock and
Preferred Stock pursuant to the Tender Offer.
SECTION 5.04. Limitation of Restricted Payments. The
Borrower shall not make or declare any Restricted Payment other than a
Restricted Payment made pursuant to or in connection with, or contemplated by,
the Tender Offer or the Merger Agreement.
SECTION 5.05. Limitation on Indebtedness. The Borrower
will not incur, create, assume or suffer to exist any Indebtedness other than
Indebtedness hereunder and the Senior Obligations.
SECTION 5.06. Limitation on Mergers and Consolidations.
The Borrower will not merge or consolidate with any Person, except pursuant to
the Tender Offer and the Merger Agreement.
SECTION 5.07. Limitation on Subsidiaries. The Borrower
will not have any Subsidiaries other than the Lender and its Subsidiaries.
SECTION 5.08. Affiliate Transactions. Except pursuant to and
in accordance with the Merger Agreement or the Joint Management and Operations
Agreements (as defined in the Senior Credit Agreement), the Borrower shall not
make any loan, advance, guaranty or capital contribution to, or for the
benefit of, or sell, lease, transfer or dispose of any of its properties or
assets to, or for the benefit of, or purchase or lease any property or assets
from or otherwise enter into any transaction with an affiliate of the Borrower
(other than the Lender or any of its Subsidiaries) (each, an "Affiliate
Transaction") unless such Affiliate Transactions are entered into in good
faith and on terms that are no less favorable to the Borrower than those that
could have been obtained in comparable transactions by the Borrower on an
arm's length basis from an unrelated Person.
SECTION 5.09. Changes in Business. The Borrower shall not
alter the character of its business or engage in any business other than the
purchase and ownership of the Common Stock and Preferred Stock of Lender, the
payment of interest, fees and expenses with respect thereto and the
consummation of the Merger.
SECTION 5.10. Senior Credit Agreement Covenants. The Borrower
shall observe and perform each of the covenants and agreements set forth in
(a) Section 4.01 of the Senior Credit Agreement and (b) Sections 4.03, 4.10,
4.11 and 4.12 of the Senior Credit Agreement and each is hereby incorporated
herein.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of
any Loan or shall fail to pay within three Business Days of the date
when due any interest or any other amount payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.03 through 5.10, inclusive, or Section
5.11(b);
(c) the Borrower shall fail to observe or perform any covenant
contained in this Agreement (other than those covered by clauses (a)
and (b) above) for 30 days after notice thereof has been given by the
Lender to the Borrower;
(d) any representation, warranty, certification or statement
made by the Borrower in this Agreement or in any certificate,
financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect in any material respect
when made (or deemed made);
(e) any event or condition shall occur which results in the
acceleration of the maturity of any Indebtedness of the Borrower in
an aggregate principal amount in excess of $50,000,000 or any holder
of any such Indebtedness shall accelerate the maturity thereof upon
the happening of any such event or condition;
(f) the Borrower shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment
for the benefit of creditors, or shall fail generally to pay its
debts as they become due, or shall take any corporate action to
authorize any of the foregoing;
(g) an involuntary case or other proceeding shall be commenced
against the Borrower seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property,
and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower under the federal
bankruptcy laws as now or hereafter in effect; or
(h) judgments or orders for the payment of money in excess of
$50,000,000 shall be rendered against the Borrower and such judgments
or orders shall continue unsatisfied and unstayed for a period of 10
days;
then, and in every such event, the Lender may (i) by notice to the Borrower
terminate the Commitment and it shall thereupon terminate, and (ii) by notice
to the Borrower declare the Loans (together with accrued interest thereon) to
be, and the Loans shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; provided that in the case of any of the Events
of Default specified in clause (f) or (g) above, without any notice to the
Borrower or any other act by the Lender, the Commitment shall thereupon
terminate and the Loans (together with accrued interest thereon) shall become
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE VII
SUBORDINATION
The Lender agrees for the benefit of the Administrative Agent,
the Managing Agents (as defined in the Senior Credit Agreement) and the Senior
Lenders as follows:
SECTION 7.01. Subordination. The Lender hereby agrees that,
except as and to the extent hereinafter provided, the Subordinated Obligations
are and shall be subordinate and subject in right of payment to the prior
payment in full of all of the Senior Obligations, whether or not such Senior
Obligations have been voided, disallowed or subordinated pursuant to Section
548 of the United States Bankruptcy Code or any applicable state fraudulent
conveyance laws, whether asserted directly or under Section 544 of the United
States Bankruptcy Code. Without limiting the foregoing, the Lender also
hereby agrees that unless (a) there shall exist a default in the payment of
all or any part of the principal of the Subordinated Obligations and such
default shall not have been cured or waived, (b) there shall not exist any
default in the payment of any amount in respect of any Senior Obligation other
than any such default which shall have been cured or waived and (c) the Lender
shall have given the Administrative Agent not less than ten Business Days'
prior notice by telecopy in the manner set forth in Section 9.01 of the Senior
Credit Agreement of the exercise by the Lender of any Remedy (as defined
below), (i) it will not ask, demand, sue for, take or receive from the
Borrower (other than directing the Borrower to make payment directly to the
holders of the Senior Obligations for the purpose of causing the Senior
Obligations to be paid), by set-off or in any other manner, payment of the
whole or any part of the Subordinated Obligations, or any security therefor,
(ii) it will not take any action to collect, demand payment of or accelerate
all or any portion of the Subordinated Obligations (provided that the Lender
may accelerate the Subordinated Obligations if the principal amount of all
outstanding Senior Obligations shall have been previously accelerated and may
file appropriate proofs of claim in respect of the Subordinated Obligations in
any bankruptcy or insolvency proceeding of the Borrower), foreclose or
otherwise realize upon any security therefor or exercise any of its other
rights or remedies against the Borrower that it may have in respect of the
Subordinated Obligations and (iii) it will not institute against the Borrower
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law (each such payment or action a "Remedy"), in each
case unless and until all of the Senior Obligations shall have been fully,
finally and indefeasibly paid in cash, whether or not such Senior Obligations
have been voided, disallowed or subordinated pursuant to Section 548 of the
United States Bankruptcy Code or any applicable state fraudulent conveyance
laws, whether asserted directly or under Section 544 of the United States
Bankruptcy Code. The Lender hereby irrevocably directs the Borrower to make
such prior payment.
SECTION 7.02. Distribution, etc. In furtherance of, and to
make effective, the subordination provided for herein, the Lender further
agrees as follows:
(a) In the event of any distribution, division or
application, partial or complete, voluntary or involuntary, by
operation of law or otherwise, of all or any part of the assets of
the Borrower or the proceeds thereof, to creditors of the Borrower,
or upon any indebtedness of the Borrower, by reason of (1) the
liquidation, dissolution or other winding up, partial or complete, of
the Borrower or the Borrower's business, (2) any receivership,
insolvency or bankruptcy proceeding, or assignment for the benefit of
creditors or (3) any proceeding by or against the Borrower for any
relief under any bankruptcy or insolvency law or laws relating to the
relief of debtors, readjustment of indebtedness, arrangements,
reorganizations, compositions or extension, then and in any such
event, any payment or distribution of any kind or character, whether
in cash, securities or other property which but for this Article VII
would be payable or deliverable upon or with respect to any or all of
the Subordinated Obligations, shall instead be paid or delivered
directly to the Administrative Agent for application to the Senior
Obligations, whether then due or not due, until the Senior
Obligations shall have first been fully, finally and indefeasibly
paid in cash and satisfied.
(b) If any payment, distribution or security or proceeds of
any security are received by the Lender upon or in respect of the
Subordinated Obligations in contravention of the provisions hereof,
the Lender will forthwith deliver the same to the Administrative Agent
in precisely the form received (except for the endorsement or
assignment of the Lender where necessary), for application to the
Senior Obligations, whether then due or not due, and, until so
delivered, the same shall be held in trust by the Lender as property
of the Administrative Agent. In the event of the failure of the
Lender to make any such endorsement or assignment, the Administrative
Agent, or any of its officers or employees, are hereby irrevocably
authorized to make the same.
(c) The Lender agrees that it will not transfer, assign,
pledge or encumber the Subordinated Obligations or any part thereof
or any instrument evidencing the same unless the respective
instrument of assignment specifically provides that the assignee take
such Subordinated Obligations subject to the provisions of this
Article VII and such assignee executes and delivers to the
Administrative Agent an instrument in form and substance reasonably
satisfactory to the Administrative Agent pursuant to which such
assignee agrees to be bound by the provisions of this Article VII.
From and after the occurrence of any Default of which the Lender has
or should reasonably be expected to have knowledge, and for so long
as the same shall be continuing, the Lender agrees that it will not
exchange, forgive, waive or cancel the Subordinated Obligations or
any part thereof or reduce the principal amount of the Subordinated
Obligations in whole or in part.
(d) Without limiting the effect or any of the other
provisions hereof, during the continuance of any Default (as defined
in the Senior Credit Agreement) or Event of Default (as defined in
the Senior Credit Agreement) with respect to any Senior Obligation or
any default in the payment of any Senior Obligations, no payment of
principal or interest (or any other amount) shall be made on or with
respect to the Subordinated Obligations or any renewals or extension
thereof.
SECTION 7.03. Continuing Subordination, etc. The
subordination effected by this Article VII is a continuing subordination, and
the Lender hereby agrees that at any time and from time to time, without
notice to it:
(a) the time for the Borrower's performance of or compliance
with any of its agreements contained in the Senior Credit Agreement
may be extended or such performance or compliance may be waived by the
applicable Senior Lenders;
(b) any of the acts mentioned in the Senior Credit Agreement
may be done;
(c) the Senior Credit Agreement may be amended for the
purpose of adding any provisions thereto or increasing the amount of,
or changing the terms of, the Senior Obligations or changing in any
manner the rights of the Administrative Agent, any of the Senior
Lenders or the Borrower thereunder;
(d) payment of any of the Senior Obligations or any portion
thereof may be extended; and
(e) the maturity of any of the Senior Obligations may be
accelerated, and any collateral security therefor may be exchanged,
sold, surrendered, released or otherwise dealt with, in accordance
with the terms of the Senior Credit Agreement or any other present or
future agreement between the Borrower and the applicable Senior
Lenders;
all without impairing or affecting the obligations of the Lender hereunder.
SECTION 7.04. Waiver of Notice. The Lender hereby
unconditionally waives notice of the incurring of the Senior Obligations or
any part thereof and reliance by any Senior Lender upon the subordination of
the Subordinated Obligations to the Senior Obligations.
SECTION 7.05. Subrogation. Subject to the prior indefeasible
payment in full in cash of the Senior Obligations, the Lender shall be
subrogated to the rights of the Administrative Agent and the Senior Lenders to
receive payments or distributions in cash, property or securities of the
Borrower applicable to the Senior Obligations until all amounts owing on the
Senior Obligations shall be paid in full in cash, and as between and among the
Borrower, its creditors other than the Administrative Agent and the Senior
Lenders, and the Lender, no such payment or distribution made to the
Administrative Agent or the Senior Lenders by virtue of this Agreement which
otherwise would have been made to the Subordinated Lenders shall be deemed to
be a payment by the Borrower on account of the Senior Obligations, it being
understood that the provisions of this Article VII are intended solely for the
purpose of defining the relative rights of the Lender, the Administrative Agent
and the Senior Lenders.
SECTION 7.06. Certain Agreements. The Lender agrees that:
(a) all holders of Senior Obligations, in determining to
acquire and retain Senior Obligations, have relied upon the
subordination of the Subordinated Obligations to the Senior
Obligations as provided herein; and
(b) at no time prior to the indefeasible payment in full in
cash of the Senior Obligations shall the Subordinated Obligations be
secured by any Lien on property of the Borrower or any Subsidiary of
the Borrower, except for Liens obtained through the exercise of a
Remedy.
SECTION 7.07. Obligation of Borrower Unconditional. Nothing
contained in this Article VII is intended to or shall impair, as between the
Borrower, its creditors other than the Administrative Agent and Senior
Lenders, and the Lender, the obligation of the Borrower, which is absolute and
unconditional, to pay to the Lender the principal of and interest on the Note
as and when the same shall become due and payable, by lapse of time,
acceleration or otherwise, in accordance with their terms, or is intended to
or shall affect the relative rights of the Lender and other creditors of the
Borrower other than the Administrative Agent and Senior Lenders, nor shall
anything herein prevent the Lender from taking all appropriate actions to
preserve its rights under the Note not inconsistent with the rights of the
Administrative Agent and Senior Lenders under this Article VII.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission or similar writing) and shall be given to such party at its
address or facsimile number set forth on the signature pages hereof or at such
other address or facsimile number as such party may hereafter specify for the
purpose by notice to the other party. Each such notice, request or other
communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (ii) if given by any other means, when delivered at
the address specified in or pursuant to this Section; provided that notices to
the Lender under Article II shall not be effective until received.
SECTION 8.02. No Waivers. No failure or delay by the Lender
in exercising any right, power or privilege hereunder or under the Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein and therein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 8.03. Expenses; Documentary Taxes; Indemnification.
(a) The Borrower shall pay all out-of-pocket expenses of the Lender,
including fees and disbursements of any special counsel for the Lender, in
connection with the negotiation, preparation, execution and delivery of this
Agreement and the Note, any waiver or consent thereunder, any amendment
thereof, any failure by the Borrower to pay in full when due the principal of
the Loans, together with accrued interest thereon to the date of payment, and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom or for the protection, preservation, exercise or enforcement of any
of the rights of the Lender hereunder. The Borrower shall indemnify the
Lender against any transfer taxes, documentary taxes, assessments or charges
made by any governmental authority by reason of the execution and delivery of
this Agreement and the Note.
(b) The Borrower agrees to indemnify the Lender and hold the
Lender harmless from and against any and all liabilities, losses, damages,
costs and expenses of any kind, including, without limitation, the reasonable
fees and disbursements of counsel, which may be incurred by the Lender in
connection with any investigative, administrative or judicial proceeding
(whether or not the Lender shall be designated a party thereto) relating to or
arising out of this Agreement or the Note or any actual or proposed use of
proceeds of the Loans hereunder; provided that the Lender shall not have the
right to be indemnified hereunder for its own gross negligence or willful
misconduct as determined by a court of competent jurisdiction.
SECTION 8.04. Amendments and Waivers. Any provision of this
Agreement or the Note may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Borrower and the Lender, and, in
the case of an amendment or waiver of Article VII hereof or this Section, the
Administrative Agent.
SECTION 8.05. Successors and Assigns. The provisions of this
Agreement shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of such parties, the
Senior Lenders and the other holders from time to time of Senior Obligations
and, in each case, their respective successors and assigns, except that
neither party hereto may assign or otherwise transfer any of its rights or
obligations under this Agreement without the prior written consent of the
other and of the Administrative Agent.
SECTION 8.06. Governing Law; Submission to Jurisdiction. THIS
AGREEMENT AND THE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. THE BORROWER AND THE LENDER HEREBY SUBMIT
TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW
YORK CITY FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE BORROWER AND THE
LENDER EACH IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 8.07. Counterparts; Integration. 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 thereto and hereto were upon the same
instrument. This Agreement and the Note constitute the entire agreement and
understanding among the parties hereto and supersede any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof.
SECTION 8.08. Waiver of Jury Trial. THE BORROWER AND THE
LENDER EACH HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
QVC PROGRAMMING HOLDINGS, INC.
By:___________________________
Name:
Title:
1105 Market Street
Suite 1219
Wilmington, Delaware 19801
Telephone: (302) 427-8991
Facsimile: (302) 427-7664
Attention: Howard Grabelle
with a copy to:
Comcast Corporation
1500 Market Street
Philadelphia, PA 19102-4735
Telephone: (215) 981-7503
Facsimile: (215) 981-7744
Attention: John R. Alchin, Senior
Vice President and
Treasurer
and
Tele-Communications, Inc.
5619 DTC Parkway
Englewood, CO 80011
Telephone: (303) 267-5500
Facsimile: (303) 488-3216
Attention: Jerry Sokol
QVC, INC.
By:___________________________
Name:
Title:
1365 Enterprise Drive
West Chester, PA 19380
Telephone: (610) 701-8938
Facsimile: (610) 701-1380
Attention: William F. Costello,
Executive Vice President
of Finance, Chief
Financial Officer
Schedule 3.01(k)
FORM OF CERTIFICATE AS TO RESOLUTIONS, ETC.
QVC PROGRAMMING HOLDINGS, INC.
I, ____________, [Secretary/Assistant Secretary/Responsible
Officer] of QVC PROGRAMMING HOLDINGS, INC., a Delaware corporation (the
"Company"), hereby certify, pursuant to Section 3.01(k) of the Credit Agreement
(the "Credit Agreement") dated as of February 9, 1995, among the Company and
QVC, Inc. (capitalized terms used herein but not otherwise defined herein
shall have the meanings given to them in the Credit Agreement), that:
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 below,
and the signatures set opposite their names below 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. The Credit Agreement and the Note, 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:
EXHIBIT A
NOTE
New York, New York
February __, 1995
For value received, QVC PROGRAMMING HOLDINGS, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of QVC, INC. (the
"Lender") the unpaid principal amount of the Loans made by the Lender to the
Borrower pursuant to the Credit Agreement referred to below on the maturity
date provided in the Credit Agreement. The Borrower promises to pay interest
on the unpaid principal amount of the Loan on the dates and at the rate or
rates provided for in the Credit Agreement. All such payments of principal
and interest shall be made in lawful money of the United States in Federal or
other immediately available funds to the account specified by the Lender in
writing.
All Loans and all repayments of the principal thereof shall be
recorded by the Lender and, prior to any transfer hereof, appropriate
notations to evidence the foregoing information shall be endorsed by the
Lender on the schedule attached hereto, or on a continuation of such schedule
attached to and made a part hereof; provided that the failure of the Lender to
make any such recordation or endorsement shall not affect the obligations of
the Borrower hereunder or under the Credit Agreement.
This note is the Note referred to in the Credit Agreement dated
as of February 9, 1995 between the Borrower and the Lender (as the same may be
amended from time to time, the "Loan Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings.
QVC PROGRAMMING HOLDINGS, INC.
By:___________________________
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
__________________________________________________________________
Amount of
Amount Principal Notation
Date of Loan Repaid Made By
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
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