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EXHIBIT 10.17
ON COMMAND CORPORATION
AMENDMENT ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇ (this "Amendment"), dated as of March 27, 2001, to the
Credit Agreement, dated as of July 18, 2000, by and among ON COMMAND
CORPORATION, a Delaware corporation (the "Borrower"), the Lenders party thereto,
TORONTO DOMINION (TEXAS), INC. and FLEET NATIONAL BANK, as the Documentation
Agents, BANK OF AMERICA, N.A., as the Syndication Agent, THE BANK OF NEW YORK
COMPANY, INC., as the Swingline Lender, and THE BANK OF NEW YORK, as the Issuing
Bank and as the Administrative Agent for the Lenders thereunder (the "Credit
Agreement").
RECITALS
I. Except as otherwise provided herein, capitalized terms used herein
that are not defined herein shall have the meanings set forth in the Credit
Agreement.
II. The parties hereto wish to amend and restate the Credit Agreement
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, and pursuant to
Section 9.8 of the Credit Agreement, the parties hereto hereby agree as follows:
1. The Credit Agreement is hereby amended and restated in its entirety
so as to read as presently set forth therein with the following exceptions:
2. Section 1.1 of the Credit Agreement is amended to add the following
defined terms in the appropriate alphabetical order:
"Ascent Indenture" shall mean the Indenture, dated as of
December 22, 1997, between Ascent Entertainment Group, Inc. and The
Bank of New York, as Trustee, as the same may be amended, supplemented
or otherwise modified from time to time.
"Change in Control" shall mean the occurrence of any of the
following:
(a) the failure of Liberty Media Corporation, at all times, to
own, directly or indirectly, at least 25% of the issued and outstanding
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Capital Stock of the Borrower and (ii) at least 25% of the issued and
outstanding Voting Securities of the Borrower, or
(b) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning
of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof),
other than Liberty Media Corporation or its Subsidiaries, of shares
representing more than the percentage owned, directly or indirectly, at
such time by Liberty Media Corporation or Affiliates of Liberty Media
Corporation) of the issued and outstanding Capital Stock or Voting
Securities of the Borrower.
"Collateral" shall have the meaning assigned to such term in
the Security Agreement.
"Foreign CFC Subsidiary" shall mean a Subsidiary of the
Borrower which is a "controlled foreign corporation" within the meaning
of Section 957 of the Code.
"Leverage Ratio Reduction Event" shall have the meaning
assigned to such term in Section 6.9.
"MagiNet Settlement Agreement" shall mean the Settlement
Agreement and Release, dated as of March 1, 2001, among On Command
Video Corporation, the Borrower, MagiNet Corporation, MagiNet
International Inc. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
"Security Agreement" shall mean the Security Agreement,
substantially in the form of Exhibit D, by and among the Borrower, the
Restricted Subsidiaries of the Borrower and the Administrative Agent,
as the same may be amended, supplemented, modified, substituted,
increased, replaced or extended from time to time.
"Voting Securities" shall mean any class of Capital Stock of
the Borrower or any Subsidiary of the Borrower, as applicable, pursuant
to which the holders thereof have the general voting power under
ordinary circumstances to vote for the election of directors
(irrespective of whether or not at the time any other class will have
or might have voting power by reason of the occurrence of any
contingency).
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3. Section 1.1 of the Credit Agreement is amended to amend and restate
the defined term "Applicable Margin" in its entirety, effective for the period
from and after April 1, 2000, to read as follows:
"Applicable Margin" shall mean, for any day, with respect to
any Eurodollar Loan or any ABR Loan, the percentage set forth below
under the caption "Eurodollar Margin" or "ABR Margin", as the case may
be, based upon the Leverage Ratio, then in effect for purposes hereof:
Leverage Ratio Eurodollar Margin ABR Margin
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Category 1
Greater than or equal to 4.00 to 1.00 2.250% 1.250%
Category 2
Greater than or equal to 3.50 to 1.00 but 2.000% 1.000%
less than 4.00 to 1.00
Category 3
Greater than or equal to 3.00 to 1.00 but 1.950% 0.950%
less than 3.50 to 1.00
Category 4
Greater than or equal to 2.50 to 1.00 but 1.750% 0.750%
less than 3.00 to 1.00
Category 5
Greater than or equal to 2.00 to 1.00 but 1.550% 0.550%
less than 2.50 to 1.00
Category 6
Greater than or equal to 1.00 to 1.00 but 1.325% 0.325%
less than 2.00 to 1.00
Category 7
Less than 1.00 to 1.00 1.100% 0.100%.
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Except as set forth below, the Leverage Ratio utilized for purposes of
determining the Applicable Margin shall be that in effect as of the
last day of the most recent fiscal quarter of the Borrower in respect
of which financial statements have been delivered pursuant to this
Agreement. The Applicable Margin from time to time in effect shall be
based on the Leverage Ratio from time to time in effect, and each
change in the Applicable Margin resulting from a change in (or the
initial establishment of) the Leverage Ratio shall be effective with
respect to all Loans, the Revolving Loan Commitment and Letters of
Credit outstanding on and after the date of delivery to the
Administrative Agent of the financial statements and certificates
required by Section 5.4(a) or (b) indicating such change to and
including the date immediately preceding the next date of delivery of
such financial statements and certificates indicating another such
change. Notwithstanding the foregoing, (i) at all times during the
period commencing on April 1, 2001 and ending on September 30, 2001,
the Leverage Ratio shall be deemed to be no higher than in Category 2
above (accordingly, Categories 3-7 shall not be available during such
period) and (ii) at all times during which the Borrower has failed to
deliver the financial statements and certificates required by Section
5.4(a) or (b) and at all times after the occurrence and during the
continuance of an Event of Default, the Leverage Ratio shall, in each
case, be deemed to be in Category 1 above.
4. Section 1.1 of the Credit Agreement is amended by amending the
defined term "EBITDA" (i) to delete the word "and" immediately preceding clause
(f) thereof and (ii) to amend and restate clause (f) in its entirety and to add
new clauses (g) and (h) thereof to read as follows:
(f) expenses incurred during the fiscal years ending December 31, 2000
and December 31, 2001 in connection with the relocation of the
Borrower's executive offices to the Denver, Colorado metropolitan area
in a maximum aggregate amount of $16,100,000, (g) legal expenses
incurred on or prior to December 31, 2000 with respect to the MagiNet
settlement in an aggregate amount not exceeding $1,500,000, and (h)
legal expenses
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incurred during the fiscal year ending December 31, 2001 with respect
to the MagiNet settlement in an aggregate amount not exceeding
$500,000.
5. Section 1.1 of the Credit Agreement is amended by amending the
defined term "Loan Documents" to add the following immediately after the words
"the Guarantee Agreement,": "the Security Agreement,".
6. Section 1.1 of the Credit Agreement is amended by amending the
defined term "Revolving Loan Commitment" to reduce the amount $350,000,000 set
forth therein to $320,000,000.
7. Section 1.1 of the Credit Agreement is amended by amending the
defined term "Unrestricted Subsidiaries" to replace "25%" contained in clause
(b)(ii) thereof with "10%".
8. Section 2.6(b) of the Credit Agreement is amended and restated in
its entirety, effective for the period from and after April 1, 2001, to read as
follows:
(b) Subject to Section 9.9, on the last day of March, June,
September and December of each year on and until the date on which the
Revolving Loan Commitment shall be terminated as provided herein, the
Borrower shall pay, in arrears, to the Administrative Agent, for the
account of the Lenders, facility fees (the "Facility Fees") on the
average daily amount of the Revolving Loan Commitment at a per annum
rate (the "facility fee rate") based on the Leverage Ratio for the most
recently completed full fiscal quarter as set forth below:
Leverage Ratio Facility Fee Rate
-------------- -----------------
Category 1
Greater than or equal to 4.00 to 1.00 0.500%
Category 2
Greater than or equal to 3.50 to 1.00 but 0.500%
less than 4.00 to 1.00
Category 3
Greater than or equal to 3.00 to 1.00 but 0.300%
less than 3.50 to 1.00
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Leverage Ratio Facility Fee Rate
Category 4
Greater than or equal to 2.50 to 1.00 but 0.250%
less than 3.00 to 1.00
Category 5
Greater than or equal to 2.00 to 1.00 but 0.200%
less than 2.50 to 1.00
Category 6
Greater than or equal to 1.00 to 1.00 but 0.175%
less than 2.00 to 1.00
Category 7
Less than 1.00 to 1.00 0.150%
Except as set forth below, the Leverage Ratio utilized for purposes of
determining the facility fee rate shall be that in effect as of the
last day of the most recent fiscal quarter of the Borrower in respect
of which financial statements have been delivered pursuant to this
Agreement. The facility fee rate from time to time in effect shall be
based on the Leverage Ratio from time to time in effect, and each
change in the facility fee rate resulting from a change in (or the
initial establishment of) the Leverage Ratio shall be effective with
respect to the facility fee rate outstanding on and after the date of
delivery to the Administrative Agent of the financial statements and
certificates required by Section 5.4(a) or (b) indicating such change
to and including the date immediately preceding the next date of
delivery of such financial statements and certificates indicating
another such change. Notwithstanding the foregoing, (i) at all times
during the period commencing on April 1, 2001 and ending on September
30, 2001, the Leverage Ratio shall be deemed to be no higher than in
Category 2 above (accordingly, Categories 3-7 shall not be available
during such period) and (ii) at all times during which the Borrower has
failed to deliver the financial statements and certificates required by
Section 5.4(a) or (b) and at all times after the occurrence and during
the continuance of an Event of Default, the Leverage Ratio shall, in
each case, be deemed to be
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in Category 1 above. Subject to Section 9.9 and Applicable Law, all
Facility Fees shall be computed on the basis of the actual number of
days elapsed in a year of 365 or 366 days, as applicable.
9. Section 2.10 of the Credit Agreement is amended to re-letter
subsection (e) as subsection (f) and to add a new subsection (e) to read as
follows:
(e) Revolving Loan Commitment Reductions Due to Canadian
Indebtedness. The Revolving Loan Commitment shall be automatically and
permanently reduced by an amount equal to the dollar equivalent of the
principal amount of Indebtedness incurred, created or assumed (or if
such Indebtedness is in the nature of a revolving credit, line of
credit, delayed draw down or similar facility, the aggregate principal
amount of the commitment to extend such Indebtedness, whether or not
drawn) under Section 6.1(e), such reduction to be effective upon the
incurrence, creation or assumption of (or the effective date of such
commitment to extend) such Indebtedness.
10. Section 2.22 of the Credit Agreement is amended to delete the
phrase: "the date that is one year after the Closing Date" appearing in the
first sentence thereof and to replace it with the following: "January 18, 2005".
11. Section 5.11 of the Credit Agreement is amended to (i) replace
"100%" with "75%""no less than 75%, in the case of each domestic Subsidiary, and
51%, in the case of each foreign Subsidiary," in Section 5.11(a) and (ii) amend
and restate Section 5.11(b) in its entirety Section 5.11(b) and add a new
Section 5.11(c) to read as follows:
(b) If any Subsidiary of the Borrower is formed or acquired
after the Closing Date, notify the Administrative Agent and the Lenders
in writing thereof within ten Business Days after the date on which
such Subsidiary is formed or acquired and cause such Subsidiary (other
than a Foreign CFC Subsidiary) to execute and deliver the Guarantee
Agreement (or otherwise become a party thereto in the manner provided
therein) within ten Business Days after the date on which such
Subsidiary is formed or acquired.
Section 5.11 of the Credit Agreement is amended to add a new
subsection (c) at the end thereof to read as follows:(c) If any
Restricted Subsidiary of the Borrower is formed or acquired after March
27, 2001, notify the Administrative Agent and the Lenders in writing
thereof within ten Business Days after the date on which such
Restricted Subsidiary is formed or acquired and (i) cause such
Restricted Subsidiary (other than a Foreign CFC Subsidiary) to (a)
execute and
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deliver the Security Agreement (or otherwise become a party thereto in
the manner provided therein) within ten Business Days after the date on
which such Restricted Subsidiary is formed or acquired and (b) promptly
take such actions to create and perfect Liens on such Restricted
Subsidiary's assets constituting Collateral to secure the Obligations
as the Administrative Agent shall reasonably request and (ii) if any
equity securities issued by such Restricted Subsidiary are owned or
held by or on behalf of the Borrower or any other Restricted
Subsidiary, the Borrower will cause such equity securities (in the case
of a Foreign CFC Subsidiary, the Maximum Percentage (as defined in the
Security Agreement) of such equity securities) to be pledged pursuant
to the Security Agreement within ten Business Days after the date on
which such Restricted Subsidiary is formed or acquired.
12. The Required Lenders hereby waive any Default or Event of Default
that may have arisen under Section 5.11 of the Credit Agreement prior to the
effectiveness of this Amendment as a result of the failure of the Borrower to
(i) own 100% of the ordinary voting power of Hotel Digital Network, Inc. or any
foreign Subsidiary or (ii) notify the Administrative Agent and the Lenders of
the acquisition of Hotel Digital Network, Inc. and cause Hotel Digital Network,
Inc. to execute and deliver the Guarantee, in each case within the time period
required by Section 5.11(b).
13. Section 6.1 of the Credit Agreement is amended and restated in its
entirety to read as follows:
SECTION 6.1. Indebtedness of the Borrower and the Restricted
Subsidiaries. The Borrower will not, and will not cause or permit any
of the Restricted Subsidiaries to, issue any Preferred Stock, or to
issue, incur, create, assume or permit to exist any Indebtedness,
except:
(a) so long as there exists no Default or Event of Default
immediately prior to and after giving effect to the incurrence of any
such Indebtedness or the issuance of any such Preferred Stock, the
Borrower may incur, create, assume or permit to exist unsecured
Indebtedness or issue Preferred Stock;
(b) Indebtedness of the Borrower or any Restricted Subsidiary
for borrowed money, and Preferred Stock issued by the Borrower or any
Restricted Subsidiary, in each case existing on the date hereof and set
forth in Schedule 6.1, but not any extensions, renewals or replacements
of such Indebtedness, and Indebtedness under the Existing Credit
Documents (provided that such Indebtedness is fully repaid on or before
the Closing Date);
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(c) Indebtedness of any Restricted Subsidiary owed to the
Borrower or to a Wholly-Owned Subsidiary of the Borrower that is also a
Restricted Subsidiary, provided that such Indebtedness does not
otherwise violate any provision of this Agreement or any other Loan
Document;
(d) so long as there exists no Default or Event of Default
immediately prior to and after giving effect to its incurrence,
Indebtedness of the Borrower and its Restricted Subsidiaries incurred
to finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition
thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof, provided that (A) such Indebtedness is incurred prior to or
within 120 days after such acquisition or the completion of such
construction or improvement, (B) the aggregate principal amount of
Indebtedness permitted by this Section 6.1(d) shall not, without
duplication, exceed $50,000,000 outstanding at any one time; and
(e) so long as there exists no Default or Event of Default
immediately prior to and after giving effect to its incurrence,
Indebtedness of On Command Canada, Inc. which Indebtedness may be
guarantied by the Borrower and the Guarantors, up to an aggregate
maximum amount outstanding at any one time for all such Indebtedness of
the Canadian equivalent of $20,000,000.
14. Section 6.2 of the Credit Agreement is amended to amend and restate
subsections (h) and (i) thereof in their entirety and add the following new
subsections (j) and (k) at the end thereof to read as follows:
(h) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Restricted Subsidiary, provided that
(i) such Lien secures Indebtedness permitted by Section 6.1(d), (ii)
such Liens and the Indebtedness secured thereby are incurred prior to
or within 120 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby
does not exceed the cost of acquiring, constructing or improving such
fixed or capital assets and (iv) such security interests shall not
apply to any other property or assets of the Borrower or any Restricted
Subsidiary;
(i) Liens on the Capital Stock of any Unrestricted Subsidiary,
provided that the Indebtedness or other obligations or liabilities
secured
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thereby shall be without recourse to the Borrower or any Restricted
Subsidiary, or any of its assets or property (other than such Capital
Stock), except as would otherwise be permitted under this Section;
(j) Liens granted pursuant to the Security Agreement; and
(k) Liens granted to the holders of the Indebtedness described
in Section 6.1(e), which Liens (if on all or a portion of the
Collateral) may be pari passu with (but not prior to) the Liens on such
Collateral granted to the Administrative Agent pursuant to the Security
Agreement, provided that the Administrative Agent and the holders of
such Indebtedness (or their representative) have executed and delivered
an intercreditor agreement in all respects satisfactory to the
Administrative Agent.
15. Section 6.5(b) of the Credit Agreement is amended to delete the
words "and (iv)" and to insert the following in their place:
(iv) the Borrower may transfer On Command Hong Kong Ltd., On Command
Australia Pty. Ltd., OCV Singapore PTE Ltd. (including the Korean
branch) and On Command (Thailand) Ltd. to MagiNet Corporation or one or
more of its Subsidiaries pursuant to and in accordance with the terms
of the MagiNet Settlement Agreement, and (v).
16. Section 6.6 of the Credit Agreement is amended to (i) substitute
the date "January 1, 2004" for the date "January 1, 2003" in clauses (c) and (d)
thereof, (ii) delete the word "and" immediately before clause (d), and (iii) to
add a new clause (e) at the end of Section 6.6 to read as follows:
and (e) if at the time thereof and immediately after giving effect
thereto no Event of Default shall have occurred and be continuing, the
Borrower may redeem its Cumulative Redeemable Preferred Stock, Series
B, issued pursuant to the Certificate of Designations adopted March 5,
2001 for an aggregate consideration of up to $15,000,000. For the
purpose of determining compliance with this Section 6.6, in the event
that a Restricted Payment meets the criteria of more than one of the
clauses set forth above, the Borrower, in its discretion, may classify
such Restricted Payment or any portion thereof under a specific clause
and only be required to include such amount in such clause.
17. Section 6.8 of the Credit Agreement is amended to amend and restate
clause (c) thereof to read as follows:
(c) the payment of dividends and distributions by any Subsidiary of the
Borrower.
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18. Section 6.9 of the Credit Agreement is amended and restated in its
entirety to read as follows:
19. SECTION 6.9 Leverage Ratio. The Borrower will not permit the
Leverage Ratio as of the last day of any fiscal quarter ending during any period
set forth below to be more than the ratio set forth below for such period:
Quarter Ending Ratio
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January 1, 2001 through March 30, 2002 4.25 to 1.00
March 31, 2002 through December 31, 2002 4.00 to 1.00
January 1, 2003 through December 31, 2003 3.50 to 1.00
Thereafter 3.00 to 1.00
provided that if at any time the Capital Expenditures made or obligated
to be made by the Borrower and the Restricted Subsidiaries in respect
of either fiscal year 2001 or 2002 shall exceed $125,000,000 plus 100%
of the net cash proceeds received by the Borrower from its issuance of
Capital Stock during such fiscal year (a "Leverage Ratio Reduction
Event"), the required Leverage Ratio for the applicable period set
forth above during which such Leverage Ratio Reduction Event shall have
occurred (and thereafter for each applicable period set forth above
during which the required Leverage Ratio is greater than 3.50:1.00)
shall automatically be reduced to 3.50:1.00, such reduction to be
effective upon the occurrence of such Leverage Ratio Reduction Event.
Notwithstanding anything to the contrary in any Loan Document, in the
event that the Borrower shall complete, directly or through a
Restricted Subsidiary, a permitted acquisition or disposition
hereunder, or any Subsidiary is designated as an Unrestricted
Subsidiary hereunder, the Leverage Ratio shall be determined
thereafter, to the extent necessary, by computing such ratio on a pro
forma basis as if (i) in the case of such acquisition or disposition,
such acquisition or disposition, as the case may be, had been completed
on the first day of the period of four consecutive fiscal quarters
ending on the relevant dates indicated above occurring after the date
of such acquisition or disposition, as the case may be, and (ii) in the
case of such designation, the relevant Subsidiary had been disposed of
on the first day of the period of four consecutive fiscal quarters
ending on
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the relevant dates indicated above occurring after the date of such
designation.
20. Section 6.12 of the Credit Agreement is amended and restated in its
entirety to read as follows:
SECTION 6.12. Capital Expenditures. The Borrower will not
permit Capital Expenditures made or obligated to be made by the
Borrower and the Restricted Subsidiaries to exceed:
(i) $124,000,000 in respect of the fiscal year 2000,
(ii) $125,000,000 ($158,000,000 in the event a Leverage Ratio
Reduction Event shall have occurred) in respect of the fiscal year 2001
plus 100% of the net cash proceeds received by the Borrower from its
issuance of Capital Stock during such fiscal year,
(iii) $125,000,000 ($163,000,000 in the event a Leverage Ratio
Reduction Event shall have occurred) in respect of the fiscal year 2002
plus 100% of the net cash proceeds received by the Borrower from its
issuance of Capital Stock during such fiscal year, and
(iv) $125,000,000 ($150,000,000 in the event a Leverage Ratio
Reduction Event shall have occurred) in respect of the fiscal year 2003
plus 100% of the net cash proceeds received by the Borrower from its
issuance of Capital Stock during such fiscal year;
provided that the Borrower shall not permit Capital Expenditures made
or obligated to be made by the Borrower and the Restricted Subsidiaries
in respect of fiscal year 2001, 2002, or 2003 to exceed $125,000,000
plus 100% of the net cash proceeds received by the Borrower from its
issuance of Capital Stock during such fiscal year if, immediately
before or after giving effect thereto, the Leverage Ratio shall be
greater than 3.50:1.00.
Notwithstanding the foregoing, Capital Expenditures of the Borrower and
the Restricted Subsidiaries may exceed the applicable amounts set forth
above to the extent the excess is financed with the net cash proceeds
of Capital Stock issued by the Borrower and provided that no Default or
Event of Default shall exist immediately before or after giving effect
thereto.
21. Article VII of the Credit Agreement is amended to delete the word
"or" appearing at the end of subsection (j) thereof and to add the following new
subsections (l), (m) and (n) at the end thereof to read as follows:
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(l) any Lien purported to be created under the Security
Agreement shall cease to be, or shall be asserted by any Obligor not to
be, a valid and perfected Lien on any Collateral, with the priority
required by the Security Agreement (except (i) as a result of the sale
or other disposition of the applicable Collateral in a transaction
permitted under this Agreement or (ii) as a result of the
Administrative Agent's failure to maintain possession of any stock
certificates delivered to it under the Security Agreement) or any
foreclosure, distraint, sale or similar proceedings have been commenced
with respect to any Collateral;
(m) (i) the occurrence of a Default or Event of Default under
and as defined in the Ascent Indenture or in any agreement or indenture
refinancing or replacing the Ascent Indenture or (ii) if for any reason
the Indebtedness evidenced by the Ascent Indenture has not, prior to
September 15, 2004, either (x) been repaid in full or (y) refinanced in
full pursuant to an agreement or indenture providing for a maturity
date later than October 18, 2005 and no required amortization, sinking
fund, redemption, purchase or other principal payments (other than as a
result of change of control) prior to such date; or
(n) a Change in Control shall have occurred;
22. Article VII of the Credit Agreement is amended by amending clause
(i) of subsection (k) thereof to add the following immediately after the words
"the Guarantee Agreement": ", the Security Agreement,".
23. Section 9.1(a) of the Credit Agreement is amended and restated in
its entirety to read as follows:
(a) if to the Borrower, to it at:
On Command Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇;
With a copy to:
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▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇ and;
24. Section 9.8(b) of the Credit Agreement is amended to delete the
word "or" immediately before clause (vi) thereof and to add the following
immediately after the phrase "or limit its liability in respect of such
Guarantee":
or (vii) release any Collateral from the Lien of the Security Agreement
(except as expressly provided in the Security Agreement or in
connection with a transaction permitted pursuant to Section 6.5(b)).
25. The Credit Agreement is amended to add a new Exhibit D in the form
attached hereto.
26. The Borrower hereby agrees to deliver to the Administrative Agent
on or before April 30, 2001 (i) a revised Schedule 3.8 to the Credit Agreement
reflecting each Subsidiary of the Borrower and the owner and ownership interest
of such owner in such Subsidiary and (ii) all instruments and certificates
representing shares of equity interests owned by or on behalf of the Borrower or
any Restricted Subsidiary in any foreign Subsidiary constituting Collateral
together with endorsements, instruments of transfer and stock powers, endorsed
in blank, with respect to such instruments and certificates. Failure to deliver
such documents on or before April 30, 2001 shall constitute an Event of Default.
27. Paragraphs 1-26 of this Amendment shall not become effective until:
(a) the Total Exposure shall not exceed the Revolving Loan
Commitment as reduced pursuant to this Amendment;
(b) the Administrative Agent shall have received counterparts
of this Amendment duly executed by the Borrower, the Guarantors, the
Administrative Agent and the Required Lenders;
(c) the Administrative Agent shall have received counterparts
of the Security Agreement duly executed by the Borrower, the Restricted
Subsidiaries (other than Foreign CFC Subsidiaries) of the Borrower and
the Administrative Agent, together with (i) such Uniform Commercial
Code and other Lien search reports with respect to the Borrower and the
domestic Restricted Subsidiaries as the Administrative Agent shall
require,
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such reports to reflect no Liens (other than Liens permitted under
Section 6.2 of the Credit Agreement, as amended by this Amendment) and
to be in all respects satisfactory to the Administrative Agent, (ii)
all instruments and certificates representing shares of equity
interests owned by or on behalf of the Borrower or any Restricted
Subsidiary in any domestic Subsidiary constituting Collateral, (iii)
endorsements, instruments of transfer and stock powers, endorsed in
blank, with respect to such instruments and certificates and (iv) all
other documents, including Uniform Commercial Code financing
statements, required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded to create or
perfect the Liens intended to be created under the Security Agreement;
(d) the Administrative Agent shall have received a Supplement
to the Guarantee Agreement duly executed by Hotel Digital Network, Inc.
and the Administrative Agent, together with such other documents and
certificates as the Administrative Agent shall reasonably require in
connection therewith;
(e) the Administrative Agent shall have received a
certificate, dated the date hereof, of the Secretary or an Assistant
Secretary of each Obligor (i) attaching a true and complete copy of the
resolutions of its Board of Directors or other authorizing documents
and of all documents evidencing all necessary corporate or other action
(in form and substance reasonably satisfactory to the Administrative
Agent) taken by it to authorize the execution, delivery and performance
of this Amendment and the Security Agreement and the transactions
contemplated hereby and thereby and (ii) setting forth the incumbency
and specimen signature of each officer of each Obligor executing this
Amendment, the Security Agreement and the other documents executed in
connection herewith or therewith;
(f) The Administrative Agent shall have received (i) a
certificate, dated the date hereof, of the Secretary or Assistant
Secretary of Hotel Digital Network, Inc. (A) attaching a true and
complete copy of its certificate or articles of incorporation, by-laws
or other analogous organizational documents, including all amendments
thereto, as in effect on the date hereof, (B) attaching a true and
complete copy of the resolutions of its Board of Directors or other
authorizing documents and of all documents evidencing all necessary
corporate or other action (in form and substance reasonably
satisfactory to the Administrative Agent) taken by it to authorize the
execution, delivery and performance of the Supplement to the Guarantee
Agreement and the transactions
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contemplated thereby, (C) attaching a certificate as to its good
standing as of a recent date from the Secretary of State of the state
of its organization, and (D) setting forth the incumbency and specimen
signature of each of its officers executing the Supplement to the
Guarantee Agreement and the other documents executed in connection
therewith;
(g) the Administrative Agent shall have received a favorable
opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.C. addressed to the Administrative
Agent and the Lenders in form and substance satisfactory to the
Administrative Agent. It is understood that such opinion is being
delivered to the Administrative Agent and the Lenders upon the
direction of the Borrower and the other Obligors and that the
Administrative Agent and the Lenders may and will rely upon such
opinion;
(h) the Administrative Agent shall have received for the
account of the Lenders, payment of the accrued Facility Fees on the
amount of the reduction of the Revolving Loan Commitment made pursuant
to this Amendment;
(i) the Administrative Agent shall have received for the
account of each Lender executing and delivering (without condition)
this Amendment to the Administrative Agent before 5:00 p.m. (New York
City time) on March 27, 2001, an amendment fee equal to 0.250% of such
Lender's Revolving Loan Commitment on such date after giving effect to
this Amendment; and
(j) the Administrative Agent shall have received payment, or
confirmation of payment, of all legal fees and expenses of counsel to
the Administrative Agent in connection with the Credit Agreement and
this Amendment to the extent an invoice has been presented to the
Borrower.
28. In all other respects the Credit Agreement and other Loan Documents
shall remain in full force and effect.
29. In order to induce the Administrative Agent and the Required
Lenders to execute and deliver this Amendment, the Borrower and the other
Obligors each (a) certifies that, immediately before and after giving effect to
this Amendment, all representations and warranties contained in the Loan
Documents to which it is a party shall be true and correct in all respects with
the same effect as though such representations and warranties had been made on
the date hereof, except as the context otherwise requires or as otherwise
permitted by the Loan Documents or this Amendment, (b) certifies that,
immediately before and after giving effect to this Amendment, no Default or
Event of Default shall exist under the Loan Documents, as amended, and (c)
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agrees to pay all of the reasonable fees and disbursements of counsel to the
Administrative Agent incurred in connection with the preparation, negotiation
and closing of this Amendment.
30. Each of the Borrower and the other Obligors (a) reaffirms and
admits the validity, enforceability and continuing effect of all Loan Documents
to which it is a party, and its obligations thereunder, and (b) agrees and
admits that as of the date hereof it has no valid defenses to or offsets against
any of its obligations to the Administrative Agent or any Lender under any Loan
Document to which it is a party.
31. This Amendment may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an
original but all of which when taken together shall constitute a single
contract. Delivery of an executed signature page to this Amendment by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Amendment.
32. This Amendment shall be governed by, and construed and interpreted
in accordance with, the laws of the State of New York.
33. The parties have caused this Amendment to be duly executed as of
the date first written above.
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ON COMMAND CORPORATION
AMENDMENT NO. 1 TO CREDIT AGREEMENT
ON COMMAND CORPORATION
By:
Name:
Title:
19
ON COMMAND CORPORATION
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AGREED AND CONSENTED:
ON COMMAND VIDEO CORPORATION
ON COMMAND DEVELOPMENT CORPORATION
SPECTRADYNE INTERNATIONAL, INC.
SPECTRAVISION, INC.
HOTEL DIGITAL NETWORK, INC.
By:
Name:
Title:
20
ON COMMAND CORPORATION
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THE BANK OF NEW YORK,
as Issuing Bank and as Administrative Agent
By:
Name:
Title:
THE BANK OF NEW YORK COMPANY, INC.,
as Lender and as Swingline Lender
By:
Name:
Title:
21
ON COMMAND CORPORATION
AMENDMENT NO. 1 TO CREDIT AGREEMENT
BANK OF AMERICA, N.A.
By:
Name:
Title:
22
ON COMMAND CORPORATION
AMENDMENT NO. 1 TO CREDIT AGREEMENT
FLEET NATIONAL BANK
By:
Name:
Title:
23
ON COMMAND CORPORATION
AMENDMENT NO. 1 TO CREDIT AGREEMENT
TORONTO DOMINION (TEXAS), INC.
By:
Name:
Title:
24
ON COMMAND CORPORATION
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
Name:
Title:
25
ON COMMAND CORPORATION
AMENDMENT NO. 1 TO CREDIT AGREEMENT
U.S. BANK NATIONAL ASSOCIATION
By:
Name:
Title:
26
ON COMMAND CORPORATION
AMENDMENT NO. 1 TO CREDIT AGREEMENT
BNP PARIBAS
By:
Name:
Title:
By:
Name:
Title:
27
ON COMMAND CORPORATION
AMENDMENT NO. 1 TO CREDIT AGREEMENT
CREDIT LYONNAIS NEW YORK BRANCH
By:
Name:
Title:
28
ON COMMAND CORPORATION
AMENDMENT ▇▇. ▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By:
Name:
Title: