FIRST AMENDMENT AND WAIVER TO
FACILITY B LOAN AGREEMENT
THIS FIRST AMENDMENT AND WAIVER TO FACILITY B LOAN AGREEMENT (this
"Amendment"), dated as of the 25th day of February, 2000 (the "Amendment Date"),
by and among TV GUIDE, INC. (f/k/a United Video Satellite Group, Inc.), a
Delaware corporation (the "Borrower"), the LENDERS (as defined in the Loan
Agreement defined below) signatory hereto and BANK OF AMERICA, N.A. (f/k/a Bank
of America National Trust and Savings Association), as administrative agent (the
"Administrative Agent") for the Lenders (as defined in the Loan Agreement
defined below);
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to that certain Facility B Loan Agreement for $300,000,000 364-Day
Credit Facility dated as of March 1, 1999 (as hereinafter and herewith amended
from time to time, the "Loan Agreement");
WHEREAS, the Borrower has informed the Lenders and the Administrative
Agent that it intends to consummate a merger with Gemstar International Group
Limited ("Gemstar") or a wholly-owned subsidiary of Gemstar ("Gemstar Merger");
WHEREAS, the Borrower has requested that the Required Lenders, and the
Required Lenders have agreed to, on the terms and subject to the conditions set
forth herein, amend and waive compliance with certain provisions of the Loan
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree that all capitalized terms used herein shall have the
meanings ascribed thereto in the Loan Agreement as amended hereby and further
agree as follows:
1. Amendments to Loan Agreement.
(a) Amendments to Article 1.
(i) Article 1 of the Loan Agreement,
Definitions, is hereby amended by deleting the definitions of "Change of
Control" and "Facility B Conversion Date" in their entirety and substituting in
lieu thereof the following:
"'Change of Control' shall mean any change in the ownership of
the Borrower that results in the Parent owning, directly or
indirectly, in the aggregate less than a majority of all
voting rights (after giving effect to any member's agreement
or voting trust agreements) and economic rights with respect
to the Capital Stock of the Borrower (including, without
limitation, warrants, options, conversion rights,
voting rights and calls or claims of any character with
respect thereto, to the extent exercisable prior to
repayment in full of the Obligations).
'Facility B Conversion Date' shall mean February 24, 2001."
(ii) Article 1 of the Loan Agreement,
Definitions, is hereby further amended by adding the following new definition of
"Parent" thereto in appropriate alphabetical order:
"'Parent' shall mean, Gemstar International Group Limited, a
Delaware corporation."
(b) Amendments to Article 5. Section 5.4 of the Loan
Agreement, General Covenants, is hereby amended by deleting the existing section
in its entirety and substituting in lieu thereof the following text:
"Section 5.4 Accounting Methods and Financial Records. The
Borrower will, and will cause each of its Restricted
Subsidiaries on a consolidated and consolidating basis to,
maintain a system of accounting established and administered
in accordance with GAAP, and will keep adequate records and
books of account in which complete entries will be made in
accordance with GAAP and reflecting all transactions required
to be reflected by GAAP and keep accurate and complete records
of their respective properties and assets. The Borrower and
its Restricted Subsidiaries will maintain a fiscal year ending
on March 31 unless otherwise agreed by all of the Arrangers."
(c) Amendments to Article 6.
(i) Amendment to Section 6.1. Section 6.1 of
the Loan Agreement, Quarterly Financial Statements and Information, is hereby
amended by deleting it in its entirety and by substituting the following in lieu
thereof:
"Section 6.1 Quarterly Financial Statements and Information.
Within forty-five (45) days after the last day of each of the
first three (3) quarters in each fiscal year, the unaudited
consolidated and consolidating balance sheet of the Borrower
and its Subsidiaries as of the end of such quarter, and the
related unaudited consolidated and consolidating statement of
operations and related unaudited consolidated statement of
cash flows of the Borrower and its Subsidiaries for the
elapsed portion of the year ended with the last day of such
quarter, certified by an Authorized Signatory of the Borrower
to have been prepared in accordance with GAAP and, in his or
her opinion, present fairly the financial position of the
Borrower and its Subsidiaries, as of the end of such period
and the results of operations for such period, and for the
elapsed portion of the year ended with the last day of such
period, subject only to normal year-end adjustments;
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provided that, the information provided pursuant to this
section shall include a management analysis of the Borrower
and its Subsidiaries."
(ii) Amendment to Section 6.2. Section 6.2 of
the Loan Agreement, Annual Financial Statements and Information; Certificate of
No Default, is hereby amended by deleting the existing section in its entirety
and substituting in lieu thereof:
"Section 6.2 Annual Financial Statements and Information;
Certificate of No Default. Within ninety (90) days after the
end of each fiscal year the audited consolidated balance sheet
of the Borrower and its Subsidiaries and the related audited
consolidated statements of operations and related audited
consolidated statements of cash flows of the Borrower and its
Subsidiaries for such fiscal year and set forth in comparative
form such figures as of the end of and for the previous fiscal
year, all in reasonable detail (which shall include a
management analysis of the Borrower and its Subsidiaries), and
in each case prepared in accordance with GAAP throughout the
periods involved and shall be certified by independent
certified public accountants of recognized national standing
which certification shall (a) be accompanied by the opinion of
such accountants without reservation or exception as to the
scope of their audit, (b) state that the examination by such
accountants in connection with the financial statements has
been made in accordance with generally accepted auditing
standards, (c) include the opinion of such accountants that
such financial statements have been prepared in accordance
with GAAP, except as otherwise specified in such opinion, and
(d) stating that, in making the examination necessary for
their audit of the financial statements of the Borrower for
such year, nothing came to their attention of a financial or
accounting nature that caused them to believe that the
Borrower was not in compliance with the terms, covenants,
provisions or conditions of this Agreement, or that there
shall have occurred any condition or event which would
constitute a Default or, if so, specifying all such instances
of non-compliance and the nature and status thereof."
2. Waiver. The Gemstar Merger is prohibited by Section 7.5(b) of the
Loan Agreement and the Borrower has requested that the Required Lenders waive
compliance therewith in connection with the Gemstar Merger. Furthermore, in
connection with the Gemstar Merger, the holders of the Borrower's 8 1/8% Senior
Subordinated Notes (the "Subordinated Notes") will have the right to require the
Borrower to repurchase such Subordinated Notes ("Subordinated Note Redemption")
and the Borrower has requested that the Required Lenders waive compliance with
Section 7.14 of the Loan Agreement in order to permit the Borrower to redeem
such Subordinated Notes. The Required Lenders hereby waive compliance with
Sections 7.5(b) and 7.14 of the Loan Agreement in connection with the Gemstar
Merger and the Subordinated Note Redemption, respectively. The Required Lenders
hereby further agree that, for the purposes of calculating Fixed Charges under
the Loan Agreement, the amounts paid in connection with the Subordinated Note
Redemption shall be deemed not to be scheduled principal payments of
Indebtedness for Money Borrowed.
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3. Representations and Warranties. The Borrower hereby
represents and warrants to and in favor of the Administrative Agent and the
Lenders as follows:
(a) Each representation and warranty as set forth in Article 4
of the Loan Agreement, as amended hereby, is hereby restated and affirmed as
true and correct in all material respects as of the date hereof, except to the
extent previously fulfilled in accordance with the terms of the Loan Agreement,
as amended hereby, and to the extent relating specifically to the Agreement
Date, or is otherwise inapplicable;
(b) The Borrower has the corporate power and authority (i) to
enter into the Amendment and (ii) to do all acts and things as are required or
contemplated hereunder to be done, observed and performed by it;
(c) This Amendment has been duly authorized, validly executed
and delivered by one or more Authorized Signatories of the Borrower, and each of
this Amendment and the Loan Agreement as amended hereby constitutes the legal,
valid and binding obligations of the Borrower, enforceable against the Borrower
in accordance with its terms, subject, as to enforcement of remedies, to the
following qualifications: (i) an order of specific performance and an injunction
are discretionary remedies and, in particular, may not be available where
damages are considered an adequate remedy at law and (ii) enforcement may be
limited by bankruptcy, insolvency, liquidation, reorganization, reconstruction
and other similar laws affecting enforcement of creditors' rights generally
(insofar as any such law relates to the bankruptcy, insolvency or similar event
of the Borrower); and
(d) The execution and delivery of this Amendment and
performance by the Borrower under the Loan Agreement, as amended hereby, does
not and will not require the consent or approval of any regulatory authority or
governmental authority or agency having jurisdiction over the Borrower which has
not already been obtained, nor be in contravention of or in conflict with the
Certificate of Incorporation or By-Laws of the Borrower, or any provision of any
statute, judgment, order, indenture, instrument, agreement, or undertaking, to
which the Borrower is party or by which the Borrower's assets or properties are
bound.
4. Amendment Fee. On the Amendment Date hereof, the Borrower shall pay
to the Administrative Agent on behalf of each Lender executing this Amendment an
amendment fee in the amount of 0.05% of such Lender's portion of the Facility B
Commitment (the "Amendment Fee"). The Amendment Fee shall be fully earned when
due and non-refundable when paid.
5. No Other Amendment or Waiver. Except for the amendments set forth
above, the text of the Loan Agreement and all other Loan Documents shall remain
unchanged and in full force and effect. No waiver by the Administrative Agent or
the Lenders under the Loan Agreement or any other Loan Document is granted or
intended except as expressly set forth herein, and the Administrative Agent and
the Lenders expressly reserve the right to require strict compliance in all
other respects (whether or not in connection with any Requests for Advance or
Requests for Issuance of Letters of Credit). Except as set forth herein, the
amendments agreed to herein shall not constitute a modification of the Loan
Agreement or any of the other Loan
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Documents, or a course of dealing with the Administrative Agent and the Lenders
at variance with the Loan Agreement or any of the other Loan Documents, such as
to require further notice by the Administrative Agent, the Lenders or the
Required Lenders to require strict compliance with the terms of the Loan
Agreement and the other Loan Documents in the future.
6. Loan Documents. This document shall be deemed to be a Loan
Document for all purposes under the Loan Agreement and the other Loan Documents.
7. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
8. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of New York.
9. Severability. Any provision of this Amendment which is
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof in that jurisdiction or affecting the validity or enforceability of such
provision in any other jurisdiction.
10. Effective Date. The amendment of the definition of "Facility B
Conversion Date" in Section 1 shall be effective upon the execution and delivery
hereof by the Required Lenders. Section 1(b) hereof shall, subject to the
execution and delivery hereof by the Arrangers, be effective on the "Effective
Date" (as defined in that certain Agreement and Plan of Merger between the
Borrower and Gemstar) of the Gemstar Merger (the "Effective Date").
Notwithstanding any other section hereof and subject to the execution and
delivery hereof by the Required Lenders, Sections 1 and 2 of this Amendment
shall be effective on the Effective Date.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWER: TV GUIDE, INC. (f/k/a United Video Satellite Group,
Inc.), a Delaware corporation
By: /s/Xxxxx X. Xxxxx
------------------------
Title:
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ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A. (f/k/a Bank of America National
Trust and Savings Association), as Administrative Agent
for itself and the Lenders
By: /s/Xxxxxx Xxxxxxx
------------------
Title:
LENDER: BANK OF AMERICA, N.A. (f/k/a Bank of America National
Trust and Savings Association), as a Lender
By: /s/Xxxxxxx Xxxxxx
------------------------
Title:
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TORONTO DOMINION (TEXAS), INC., as a Lender
By: /s/Xxx X. Xxxxxx
------------------------
Its:
8
THE BANK OF NEW YORK COMPANY, INC., as a Lender
By: /s/Xxxxx X. Xxxxxxxx
------------------------
Its:
9
CREDIT LYONNAIS NEW YORK BRANCH, as a Lender
By: /s/Xxxx X. Judge
--------------------
Its:
00
XXXXX XXXXXXXXXXX XXXXXXXX, XXX XXXX BRANCH, as a Lender
By:
--------------------
Its:
By:
--------------------
Its:
11
BANK OF HAWAII, as a Lender
By: /s/Xxxx Xxx
--------------------
Its:
00
XXX XXXX XX XXXX XXXXXX, as a Lender
By: /s/Xxxxxxx X. Xxxxxxxxxx, Xx.
--------------------------------
Its:
13
BANK OF OKLAHOMA, N.A., as a Lender
By: /s/Xxxxx Xxxxxx
--------------------
Its:
14
BANKBOSTON, N.A., as a Lender
By: /s/Xxxxx X. Xxxxxxxx
--------------------------
Its:
15
BANQUE NATIONALE DE PARIS, as a Lender
By:
--------------------
Its:
By:
--------------------
Its:
16
BARCLAYS BANK, PLC, as a Lender
By: /s/X.X. Xxxxxxxxxx
------------------------
Its:
By: /s/Xxxxxx Xxxx
--------------------
Its:
17
CITIBANK, N.A., as a Lender
By: /s/Xxxxxx Xxxxx
--------------------
Its:
18
CREDIT INDUSTRIEL ET COMMERCIAL (f/k/a Compagnie
Financiere de CIC et de l'Union Europeenne), as a Lender
By: /s/Xxxxx X'Xxxxx
--------------------
Its:
By: /s/Xxxxxxx Xxxx
--------------------
Its:
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THE DAI-ICHI KANGYO BANK, LTD., as a Lender
By: //Xxxxxx Xxxxxxx//
Its:
20
ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG, as a
Lender
By: /s/Arcinee Hovanessia
---------------------------
Its:
By: /s/Xxxx X. Xxxxxxx
------------------------
Its:
21
FIRST UNION NATIONAL BANK, as a Lender
By:
--------------------
Its:
22
FLEET NATIONAL BANK, as a Lender
By: /s/Xxxxx X. Xxxxxxxx
--------------------------
Its:
23
KBC BANK, N.V., as a Lender
By: /s/Xxxxxx Xxxxxxxx
--------------------
Its:
By: /s/Xxxxxxx Xxxxxx
--------------------
Its:
24
LLOYDS TSB BANK, PLC, as a Lender
By: /s/Xxx Xxxxxxx
--------------------
Its:
By: /s/Xxxxx Xxxxxx
--------------------
Its:
25
LOCAL OKLAHOMA BANK, N.A.
(f/k/a LOCAL FEDERAL BANK, FSB)
as a Lender
By: /s/Xxxxxxxxx X. Blue
--------------------------
Its:
26
MELLON BANK, N.A., as a Lender
By: /s/Xxxxx X. Xxxx
----------------------
Its:
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