Exhibit 4.7
MIH LIMITED
-and-
ABSA BANK LIMITED
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AMENDMENT AGREEMENT
in respect of the Amended and Restated Facilities Agreement
relating to a loan and guarantee facility of
US$115,000,000
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TABLE OF CONTENTS
1 Interpretation....................................................1
2 Conditions Precedent..............................................1
3 Representations and Warranties....................................1
4 Fees and Expenses and Stamp Duty..................................2
5 Amendments to Facilities Agreement................................2
6 Disposal of Shares in Open TV.....................................3
7 Incorporation of Terms of the Facilities Agreement................3
8 Designation of this Agreement as a Security Document..............3
9 Counterparts......................................................3
10 Contracts (Rights of Third Parties) Act 1999......................3
11 Law and Jurisdiction..............................................3
DATE: 22 July 2002
PARTIES:
(1) MIH Limited ("MIH"), a company incorporated in the British Virgin
Islands, registered number I.B.C. No.: 47572; and
(2) ABSA Bank Limited (the "BANK") acting through its London Branch at
00 Xxxx Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
OPERATIVE PROVISIONS:
1 INTERPRETATION
1.1 In this agreement, unless the context otherwise requires:
"EFFECTIVE TIME" has the meaning given in clause 2 of this
agreement;
"FACILITIES AGREEMENT" means the amended and restated facilities
agreement relating to a loan and guarantee facility of
US$115,000,000 between the parties to this agreement as such has
been amended by side-letters from the Bank to MIH prior to the date
of this agreement;
"LIBERTY" has the meaning given in Schedule 2 to this agreement;
"LIBERTY SHARE CHARGE" has the meaning given in Schedule 2 to this
agreement;
TERMS DEFINED and EXPRESSIONS USED in the Facilities Agreement have
the same meaning in this agreement unless otherwise stated or the
context does not permit;
a reference to a "CLAUSE" or a "SCHEDULE" is a reference to a clause
or a schedule of this agreement;
a reference to THIS OR ANY OTHER AGREEMENT OR DOCUMENT is a
reference to the same as from time to time amended, novated or
supplemented, before or after the date of this agreement.
2 CONDITIONS PRECEDENT
The amendments, confirmations and consents set out in Clause 5.1 and
6 are conditional upon and shall not be effective until such time
(the "EFFECTIVE TIME") as the Bank has confirmed to MIH that it has
received each of the items mentioned in Schedule 1, each in form and
substance satisfactory to it, provided that the Bank may waive on
such terms as it thinks fit any of the foregoing in whole or in
part.
3 REPRESENTATIONS AND WARRANTIES
3.1 MIH makes the representations and warranties in Clauses 3.2 to 3.6
for the benefit of the Bank as of the date of this agreement.
3.2 It has the power to make and carry out the terms of this agreement
and has taken all necessary corporate action to authorise the
execution, delivery and performance of this agreement.
3.3 This agreement constitutes the legally binding obligations of it
enforceable in accordance with its terms.
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3.4 The making and performance of this agreement does not and will not:
3.4.1 violate any provision of:
(a) any law or regulation or any order or decree of
any governmental authority or agency or of any
court in any respect;
(b) the laws and documents incorporating and
constituting it in any respect; or
(c) any mortgage, contract or other undertaking to
which it is a party or which is binding upon it
or any of its assets in any material respect;
3.4.2 result in the creation or imposition of any security
interest, lien, charge or other encumbrance on any of its
assets pursuant to the provisions of any such mortgage,
contract or other undertaking.
3.5 It has received or obtained every consent of, licence from or
exemption by any governmental or administrative body or authority
required to authorise or required in connection with the
performance, validity or enforceability of this agreement and the
same are valid and subsisting.
3.6 The representations and warranties contained in Clauses 15.2 to 15.9
of the Facilities Agreement are true and correct as at the date of
this agreement with reference to the facts and circumstances
existing at the time of this agreement.
4 FEES AND EXPENSES AND STAMP DUTY
4.1 MIH shall promptly following the demand of the Bank pay to the Bank
all reasonable costs and expenses and registration charges
(including legal fees and value added tax) incurred or to be
incurred by the Bank in the negotiation, preparation, printing and
execution of this agreement and the satisfaction of the conditions
precedent under Clause 2.
4.2 MIH shall promptly following the demand of the Bank pay and
indemnify the Bank in respect of any stamp duties, registration and
like taxes or charges (if any) which may be payable or determined to
be payable in connection with the making, performance or enforcement
of this agreement.
5 AMENDMENTS TO FACILITIES AGREEMENT
5.1 The amendments to the Facilities Agreement set out in Schedule 2
hereto shall take effect from the Effective Time.
5.2 The entry into of this agreement and the amendments effected
pursuant to Clause 5.1 shall not prejudice any of the rights or
remedies (including in respect of Demand Events) which may have
arisen in favour of the Bank with respect to each or any of the
Obligors prior to the entry into of this agreement or the time that
the amendments effected pursuant to Clause 5.1 become effective
pursuant to Clause 2 (as the case may be) and such rights and
remedies shall be deemed to be continuing and unwaived if they would
have been continuing and unwaived but for the execution, delivery
and performance of this agreement or effecting of such amendments
(as the case may be).
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6 DISPOSAL OF SHARES IN OPEN TV
With effect from the Effective Time only, the Bank consents to the
sale by OTV Holdings of all the right, title and interest of OTV
Holdings in and to its shares in the capital of Open TV.
7 INCORPORATION OF TERMS OF THE FACILITIES AGREEMENT
The terms and conditions of the Facilities Agreement are hereby
incorporated mutatis mutandis to the fullest extent not inconsistent
with this agreement and as if any reference to the Facilities
Agreement included a several reference to this agreement and to the
Facilities Agreement as amended or as to be amended by this
agreement. This agreement is supplemental to the Facilities
Agreement and shall be read as one with it. Save as otherwise
specified in this agreement, the Facilities Agreement and the other
Security Documents shall remain in full force and effect in
accordance with their respective terms save that references to the
Facilities Agreement shall be taken to be references to the
Facilities Agreement as amended or to be amended by this agreement
with effect from the Effective Time.
8 DESIGNATION OF THIS AGREEMENT AS A SECURITY DOCUMENT
This agreement is a Security Document.
9 COUNTERPARTS
This agreement may be executed in any number of counterparts, and
this has the same effect as if the signatories on the counterparts
were on a single copy of this agreement.
10 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
Unless the right of enforcement is expressly granted to a third
party, it is not intended that a third party should have the right
to enforce a provision of this agreement pursuant to the Contracts
(Rights of Third Parties) Xxx 0000. The parties hereto may rescind
or vary this agreement without the consent of a third party to whom
an express right to enforce any of its terms has been provided.
11 LAW AND JURISDICTION
11.1 This agreement shall be governed by and construed in accordance with
English law.
11.2 MIH agrees for the benefit of the Bank that the courts of England
shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any disputes, which may arise out of or in
connection with this agreement and, for such purposes, irrevocably
submits to the jurisdiction of such courts.
11.3 MIH irrevocably waives any objection which it might now or hereafter
have to the courts referred to in Clause 11.2 being nominated as the
forum to hear and determine any suit, action or proceeding, and to
settle any disputes, which may arise out of or in connection with
this agreement and agrees not to claim that any such court is not a
convenient or appropriate forum.
11.4 The submission to the jurisdiction of the courts referred to in
Clause 11.2 shall not (and shall not be construed so as to) limit
the right of the Bank to take proceedings
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against MIH or any party to any Security Document in any other court
of competent jurisdiction nor shall the taking of proceedings in any
one or more jurisdictions preclude the taking of proceedings in any
other jurisdiction, whether concurrently or not.
11.5 MIH agrees that the process by which any suit, action or proceeding
against it in England is begun may be served on it by being
delivered to Xxxxxx, Xxxxxx & Xxxxxxxxx at 0 Xxxxxxx Xxxxxxx,
Xxxxxx, XX0X 0XX.
IN WITNESS whereof the parties hereto have caused this agreement to be duly
executed on the date first above written
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SCHEDULE 1
CONDITIONS PRECEDENT DOCUMENTS
1 The Deposit Charge and the Liberty Share Charge duly executed and
delivered by the parties thereto together with (to the extent
necessary) duly executed transfer forms of the relevant shares in
favour of the Bank (or its nominee) and the corresponding share
certificates and such other documents and information as the Bank
may in its discretion require to enable the relevant charge to be
perfected.
2 Written confirmation (and/or other evidence satisfactory to the
Bank) from each of the Obligors that has entered into a Security
Document prior to the date of this agreement that each of the
amendments referred to in this agreement is binding on it and that
its obligations, and the security created by it, contained in each
such Security Document are not discharged, impaired or otherwise
affected by any of them and remain in full force and effect
notwithstanding the entry into of this agreement.
3 In relation to OTV Holdings and MIH:
(i) certified true and up-to-date copies of the constitutional
documents of it together with certificates addressed to
the Bank from a duly authorised officer of it setting out
the names and signatures of the persons authorised to
execute on behalf of it this agreement and/or the Liberty
Share Charge and/or the confirmations referred to in
paragraph 2 above and confirming such other matters as the
Bank may require;
(ii) certified true copies of board resolutions or other
necessary corporate action required to authorise the
execution, delivery and performance by it of this
agreement and/or the Liberty Share Charge and/or the
confirmations referred to in paragraph 2 above and
authorising appropriate persons to execute and deliver the
same on their respective behalves;
(iii) evidence satisfactory to the Bank that all necessary
approvals have been given or obtained by each party to
this agreement and/or the Liberty Share Charge and/or the
confirmations referred to in paragraph 2 above to give
effect to the transactions contemplated hereby or thereby.
3 A copy, certified true by a director or the secretary of MIH, of the
corporate structure chart of MIH and its Subsidiaries.
4 Such evidence of the appointment of process agents in England and
the acceptance of such appointments as the Bank may require in
respect of the Security Documents and the Liberty Share Charge and
this agreement.
5 All legal and other matters in relation to this agreement and the
Liberty Share Charge and the Security Documents and the transactions
contemplated by this agreement and the Liberty Share Charge and
Security Documents shall be in form and substance satisfactory to
the Bank.
6 Opinions from British Virgin Islands and United States of America
legal advisers in relation to this agreement and the Liberty Share
Charge, together with such opinions from legal advisers in such
other jurisdictions as the Bank in its sole and absolute discretion
may require.
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SCHEDULE 2
AMENDMENTS TO FACILITIES AGREEMENT
With effect from the Effective Time, the Facilities Agreement shall be amended
as follows:
(i) the following words shall be deleted from the definition of "MIH
Group" in Clause 1.1 of the Facilities Agreement:
"Open TV and its Subsidiaries and";
(ii) the definition of "Open TV Share Charge" shall be deleted from
Clause 1.1 of the Facilities Agreement;
(iii) the following definitions shall be incorporated into Clause 1.1 of
the Facilities Agreement:
" "DEPOSIT CHARGE" means a deposit charge by the Borrower in
favour of the Bank in a form acceptable to the Bank over
all right, title and interest of the Borrower in and to a
cash deposit deposited by the Borrower with the Bank,
securing all liabilities of the Obligors to the Bank from
time to time;
"LIBERTY" means Liberty Media Corporation, a Delaware
corporation;
"LIBERTY SHARE CHARGE" means a pledge or charge by OTV
Holdings in favour of the Bank in a form acceptable to the
Bank over all the rights, title and interest of OTV
Holdings in and to its shares in the capital of Liberty,
securing all liabilities of the Obligors to the Bank from
time to time;
"SECOND AMENDMENT AGREEMENT" means an amendment agreement
dated 22 July 2002 between MIH and the Bank; ";
(iv) the following words shall be incorporated into the definition of
"Security Documents" in Clause 1.1 of the Facilities Agreement in
place of the words "Open TV Share Charge":
"Liberty Share Charge, the Second Amendment Agreement, the
Deposit Charge";
(v) the words "Liberty Share Charge and the Deposit Charge" shall be
incorporated into Clauses 15.3, 15.4, 15.5, 15.6, 16.1 and 17.2.6 of
the Facilities Agreement in place of the words "Open TV Share
Charge";
(vi) the words "Open TV and its Subsidiaries and" shall be deleted from
Clause 17.2 of the Facilities Agreement;
(vii) the words contained in Clause 19.2(b) of the Facilities Agreement
shall be deleted in their entirety and replaced with the following
words:
"the aggregate amount of one-third of the UBC Market
Valuation and one-half of the Liberty Market Valuation and
the Cash Collateral shall at all times exceed the
aggregate for the time being of all outstanding Advances
and the Borrower's maximum actual and potential liability
to the Bank in respect of any Guarantee issued pursuant to
this agreement.";
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(viii) the following definition of "Cash Collateral" shall be incorporated
into Clause 19.3 of the Facilities Agreement:
" "CASH COLLATERAL" means cash deposited by MIH with the
Bank into a specific account or accounts at the Bank over
which a pledge or charge under the Deposit Charge has been
granted in favour of the Bank;";
(ix) the words "(including, for these purposes, Open TV and its
Subsidiaries)" shall be deleted from the definition of "Consolidated
Financial Indebtedness" in Clause 19.3 of the Facilities Agreement;
(x) the definitions of "Open TV Market Valuation" and "UBC Market
Valuation" shall be deleted from Clause 19.3 of the Facilities
Agreement and replaced with the following definitions of "Liberty
Market Valuation" and "UBC Market Valuation":
" "LIBERTY MARKET VALUATION" means at any time the market
value of those shares in Liberty subject to a pledge or
charge under the Liberty Share Charge in favour of the
Bank and which are quoted on the New York Stock Exchange
(or if not actually quoted on the New York Stock Exchange
the Bank is satisfied in its discretion that those shares
are fully exchangeable for shares which are quoted on the
New York Stock Exchange) based on the mid-market price for
shares in Liberty quoted on the New York Stock Exchange at
close of business on the relevant day (or, if such date is
not a Business Day, the preceding such Business Day) as
determined by the Bank; and
"UBC MARKET VALUATION" means at any time the lesser of
$75,000,000 and the then market value of those shares in
UBC subject to a pledge or charge under the UBC Share
Charge in favour of the Bank and which are quoted on the
Stock Exchange of Thailand based on the mid-market price
for shares in UBC on the Stock Exchange of Thailand at
close of business on the relevant date all as determined
by the Bank.";
(xi) Clauses 19.4 and 19.5 of the Facilities Agreement shall be deleted
in their entirety and replaced with the following two Clauses 19.4
and 19.5:
"19.4 The financial covenant referred to in Clause
19.2(a) shall be tested semi-annually each 31
March and 30 September in each year commencing
on 31 March 2000 and the financial covenant
referred to in Clause 19.2(b) shall be tested at
any time, by reference as appropriate to the
audited consolidated annual accounts or
unaudited consolidated semi-annual accounts of
the MIH Group and to market capitalisations
determined by the Bank in accordance with the
definitions of "Consolidated Market Value" or
"Liberty Market Valuation" or "UBC Market
Valuation". Any calculation shall be made by the
Bank and such calculation shall be conclusive
and binding on the Borrower except in the case
of manifest error.
19.5 If the accounting principles and practices in
the MIH Group's audited consolidated or
unconsolidated annual accounts or unaudited
consolidated or unconsolidated semi-annual
accounts change after the date of this agreement
or the shares in the Borrower are no longer
quoted on NASDAQ or the shares in UBC subject to
a pledge or charge under the UBC Share Charge
are
7
no longer quoted on the Stock Exchange of
Thailand or the shares in Liberty subject to a
pledge or charge under the Liberty Share Charge
are no longer quoted on the New York Stock
Exchange or if they were never quoted on the New
York Stock Exchange the Bank is of the view that
those shares in Liberty are no longer fully
exchangeable for shares which are quoted on the
New York Stock Exchange or the accounting
reference date of any MIH Group Company changes
or any other change in law or accounting
principles occurs after the date of this
agreement, the Borrower shall notify the Bank
(or the Bank shall notify the Borrower as the
case may be) of such change and shall, if the
Bank requests, consider in good faith changes to
the financial covenants set out in this Clause
19 to reflect such change provided that if there
is no agreement as to the proposed changes then
in the case of the shares in the Borrower no
longer being quoted on NASDAQ or the shares in
UBC subject to a pledge or charge under the UBC
Share Charge no longer being quoted on the Stock
Exchange of Thailand or the shares in Liberty
subject to a pledge or charge under the Liberty
Share Charge no longer being quoted on the New
York Stock Exchange or if they were never quoted
on the New York Stock Exchange the Bank is of
the view that those shares in Liberty are no
longer fully exchangeable for shares which are
quoted on the New York Stock Exchange the
changes specified by the Bank to reflect such
changes shall prevail and take effect in
accordance with their terms and in all other
cases the Borrower shall in addition to
delivering accounts reflecting such change in
accordance with this agreement deliver accounts
prepared on the basis that such change had not
been made in accordance with this agreement and
the financial covenants set out in this Clause
19 shall continue to be tested on the basis of
the accounts prepared on the basis that such
change had not been made.".
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SIGNATORIES
MIH
MIH LIMITED
By: /s/ Xxxxx Xxxxx
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THE BANK
ABSA BANK LIMITED
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxx
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