SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 26, 1995
ANDREWS GROUP INCORPORATED
(Exact name of registrant as specified in charter)
DELAWARE 0-9008 95-2683875
(State or other jurisdiction (Commission (IRS employer
of incorporation) File Number) identification no.)
3200 WINDY HILL ROAD, SUITE 1100-WEST, MARIETTA, GA 30067
(Address of principal executive offices) (Zip Code)
(404) 955-0045
(Registrant's telephone number, including area code)
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On March 15, 1995, pursuant to (i) an Agreement and
Plan of Merger, dated as of March 8, 1995 (the "Merger
Agreement"), by and among SkyBox International Inc., a Delaware
corporation ("SkyBox"), Marvel Entertainment Group, Inc., a
Delaware corporation ("Marvel") and an indirect subsidiary of
Andrews Group Incorporated, a Delaware corporation and an
indirect subsidiary of Mafco Holdings Inc., and Marvel
Acquisition Corp., a Delaware corporation and an indirect wholly
owned subsidiary of Marvel ("Marvel Acquisition") and (ii) the
Assignment (as defined below), Fleer Acquisition Corp., a
Delaware corporation and an indirect wholly owned subsidiary of
Marvel (the "Purchaser"), commenced a tender offer for all
outstanding shares of common stock, par value $.01 per share (the
"Shares"), of SkyBox, at a price of $16.00 per Share, net to the
Seller in cash (the "Offer"). The price of $16.00 per Share was
arrived at pursuant to arms' length negotiations between Marvel
and SkyBox. Marvel Acquisition's right, title and interest in,
as well as its obligations and duties under, the Merger Agreement
were assigned and transferred by Marvel Acquisition and assumed
by the Purchaser pursuant to an Assignment, dated as of March 14,
1995 (the "Assignment"), between Marvel Acquisition and the
Purchaser.
The Offer expired at 5:00 P.M., New York City time, on
April 25, 1995. In the Offer, the Purchaser purchased 8,216,887
Shares (which amount does not include 2,420 Shares tendered
subject to guarantees of delivery (the "Guaranteed Shares")),
which constituted approximately 98.7% of the outstanding Shares.
The aggregate purchase price for the Shares (excluding the
Guaranteed Shares) pursuant to the Offer was $131,470,192. After
consummation of the Offer, the Purchaser merged (the "Merger")
with and into SkyBox, with SkyBox being the surviving corporation
and thereby becoming an indirect wholly owned subsidiary of
Marvel. The Merger became effective on May 1, 1995. Upon the
consummation of the Merger, Marvel (i) paid an additional
$13,228,042 to SkyBox as consideration for the cancellation of
certain options to purchase and rights to receive shares of
common stock of SkyBox and (ii) paid approximately $6,000,000 to
SkyBox, which amount was used by SkyBox to repay all outstanding
indebtedness under the Loan and Security Agreement dated January
18, 1995, between Congress Financial Corporation (Southern) and
SkyBox, approximately $4,000,000 of which was borrowed by SkyBox
to redeem its outstanding preferred stock prior to the expiration
of the Offer.
Prior to the consummation of the Offer, Marvel, Fleer
Corp., a Delaware corporation and a direct wholly owned
subsidiary of Marvel ("Fleer"), Chemical Bank, as Administrative
Agent, and the financial institutions parties thereto entered
into a Credit and Guarantee Agreement, dated as of April 24, 1995
(the "Credit Agreement"), which provides for a $350,000,000
unsecured term loan facility (the "Bank Facility").
On April 26, 1995, Fleer borrowed $350,000,000 under
the Credit Agreement primarily to finance the acquisition of
SkyBox, to refinance the prepayment of the term loan portion of
the indebtedness under the Existing Credit Agreement (as
defined below) and for general corporate purposes.
The loans under the Bank Facility, which matures on
February 28, 2002, are repayable in six semi-annual installments
commencing on August 31, 1999. Under certain circumstances,
mandatory prepayments will be required to be made out of the net
proceeds from certain asset sales, incurrences of additional
indebtedness or issuances of equity securities by Marvel or its
subsidiaries.
Loans under the Bank Facility bear interest, at
Fleer's option, at (i) the Alternate Base Rate (as defined in the
Credit Agreement and approximately 9% per annum as of May 2,
1995) plus the Applicable Margin (as defined below) or (ii) the
Eurodollar Rate (as defined in the Credit Agreement and
approximately 6-1/16% to 6-3/8% as of May 2, 1995, depending on
the length of the relevant interest period) plus the Applicable
Margin. Until the first anniversary of the closing under the
Credit Agreement (i) the Applicable Margin for Alternate Base
Rate loans will not be less than 1% per annum and thereafter will
range from a minimum of 0.125% to a maximum of 1.50%, depending
on Marvel's Leverage Ratio (as defined in the Credit Agreement)
and (ii) the Applicable Margin for Eurodollar Rate loans will not
be less than 2.0% per annum and thereafter will range from a
minimum of 1.125% to a maximum of 2.50%, depending on Marvel's
Leverage Ratio. Interest on Alternate Base Rate Loans will be
paid quarterly in arrears and interest on Eurodollar Rate Loans
will be payable at the end of the applicable interest period,
except that if the interest period is six months, interest will
be payable ninety days after the commencement of the interest
period and at the end of the interest period. Overdue amounts
representing principal under the Credit Agreement will bear
interest at a rate equal to the applicable interest rate plus 2%.
Any other overdue amounts will bear interest at the Alternate
Base Rate plus 3-1/2%.
The obligations of Fleer under the Credit Agreement are
not secured, but Marvel and the Purchaser have guaranteed Fleer's
obligations thereunder.
The Credit Agreement includes various restrictive
covenants and financial covenants incorporated by reference to
the Amended and Restated Credit and Guarantee Agreement dated as
of August 30, 1994, by and among Marvel, Fleer, Chemical Bank, as
Administrative Agent, and the financial institutions parties
thereto (as amended, the "Existing Credit Agreement"), as amended
by the First Amendment, dated as of November 22, 1994 (the "First
Amendment") and the Second Amendment, dated as of April 24, 1995
(the "Second Amendment"). Such restrictive covenants prohibit
Marvel and its subsidiaries from, among other things, incurring
additional indebtedness and making dividend, redemption and
certain other payments on its capital stock, with certain limited
exceptions to all of the above prohibitions. The Credit
Agreement also contains certain customary events of default for
an unsecured term loan facility of this type.
In connection with the Credit Agreement, the Company
also entered into the Second Amendment to the Existing Credit
Agreement which, among other things, permitted Marvel to incur
the indebtedness under the Bank Facility. Pursuant to the Second
Amendment, the Applicable Margin under the Existing Credit
Agreement for the Alternate Base Rate loans will range from a
minimum of 0% to 1% and for the Eurodollar Rate loans will range
from a minimum of 0.625% to 2%, in each case depending on
Marvel's Leverage Ratio (as defined in the Existing Credit
Agreement).
The foregoing description of the terms and provisions
of the Credit Agreement is qualified in its entirety by reference
to the text of the Credit Agreement (a copy of which is filed as
Exhibit 10.3 hereto) and the Existing Credit Agreement (a copy of
which is filed as Exhibit 10.2 hereto), as amended by the First
Amendment (a copy of which is filed as Exhibit 10.4 hereto) and
the Second Amendment (a copy of which is filed as Exhibit 10.5
hereto).
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS.
(a) Financial Statements of Businesses Acquired.
The following financial statements of SkyBox are set
forth in Annex A to the Form 8-K of Marvel filed May 11, 1995
and incorporated herein by reference.
SkyBox International Inc.:
Report of Independent Accountants
Balance Sheets as of December 31, 1994 and 1993
Statements of Operations for the years ended
December 31, 1994, 1993 and 1992
Statements of Stockholders' Equity (Deficit) for the years
ended December 31, 1994, 1993 and 1992
Statements of Cash Flows for the years ended
December 31, 1994, 1993 and 1992
Notes to the Financial Statements
(b) Pro Forma Financial Information. Marvel has
determined that it is impracticable to provide the required pro
forma financial information required to be reported in this
Current Report on Form 8-K. Marvel will file the required pro
forma financial information under cover of an amendment to this
Form 8-K as soon as practicable but in no event later than July
10, 1995.
(c) Exhibits.
2.1 Agreement and Plan of Merger, dated as of March 8,
1995, by and among SkyBox International Inc.,
Marvel and Marvel Acquisition Corp. Incorporated
by reference to Exhibit (c)(1) to Marvel's Tender
Offer Statement on Schedule 14D-1 dated March 15,
1995 (as subsequently amended, the "Schedule 14D-
1").
10.1 Assignment, dated as of March 14, 1995, by and
between Fleer Acquisition Corp. and Marvel
Acquisition Corp. Incorporated by reference to
Exhibit (c)(5) to the Schedule 14D-1.
10.2 Amended and Restated Credit and Guarantee
Agreement dated as of August 30, 1994, by and
among Marvel, Fleer Corp., Chemical Bank, as
Administrative Agent, and the financial
institutions parties thereto. Incorporated by
reference to Exhibit 10.49 to Marvel's Current
Report on Form 8-K, dated September 15, 1994.
10.3 Credit and Guarantee Agreement, dated as of April
24, 1995, by and among Marvel, Fleer Corp.,
Chemical Bank, as Administrative Agent, and the
financial institutions parties thereto.
Incorporated by reference to Exhibit (b)(3) to the
Final Amendment to Schedule 14D-1.
10.4 First Amendment, dated as of November 22, 1994, to
the Amended and Restated Credit and Guarantee
Agreement by and among Marvel, Fleer Corp.,
Chemical Bank, as Administrative Agent, and the
financial institutions parties thereto.
10.5 Second Amendment, dated as of April 24, 1995, to
the Amended and Restated Credit and Guarantee
Agreement by and among Marvel, Fleer Corp.,
Chemical Bank, as Administrative Agent, and the
financial institutions parties thereto.
20.1 Offer to Purchase of Fleer Acquisition Corp. dated
March 15, 1995. Incorporated by reference to
Exhibit (a)(1) to the Schedule 14D-1.
99.1 Annex A to Current Report on Form 8-K of Marvel
Entertainment Group, Inc., filed on May 11, 1995
and incorporated herein by reference.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
Date: May 11, 1995
ANDREWS GROUP INCORPORATED
(Registrant)
By: /s/ Laurence Winoker
Name: Laurence Winoker
Title: Vice
President
and
Controller
(Principal Accounting Officer)
EXHIBIT INDEX
Exhibit Page No.
2.1 Agreement and Plan of Merger, dated as
of March 8, 1995, by and among SkyBox
International Inc., Marvel and Marvel
Acquisition Corp. Incorporated by
reference to Exhibit (c)(1) to Marvel's
Tender Offer Statement on Schedule 14D-1
dated March 15, 1995 (as subsequently
amended, (the "Schedule 14D-1")).
10.1 Assignment, dated as of March 14, 1995,
by and between Fleer Acquisition Corp.
and Marvel Acquisition Corp.
Incorporated by reference to Exhibit
(c)(5) to the Schedule 14D-1.
10.2 Amended and Restated Credit and
Guarantee Agreement dated as of August
30, 1994, by and among Marvel, Fleer
Corp., Chemical Bank, as Administrative
Agent, and the financial institutions
parties thereto. Incorporated by
reference to Exhibit 10.49 to Marvel's
Current Report on Form 8-K, dated
September 15, 1994.
10.3 Credit and Guarantee Agreement, dated as
of April 24, 1995, by and among Marvel,
Fleer Corp., Chemical Bank, as
Administrative Agent, and the financial
institutions parties thereto.
Incorporated by reference to Exhibit
(b)(3) to the Final Amendment to
Schedule 14D-1.
10.4 First Amendment, dated as of November 22,
1994, to the Amended and Restated Credit and
Guarantee Agreement by and among Marvel,
Fleer Corp., Chemical Bank, as Administrative
Agent, and the financial institutions parties
thereto.
10.5 Second Amendment, dated as of April 24, 1995,
to the Amended and Restated Credit and
Guarantee Agreement by and among Marvel,
Fleer Corp., Chemical Bank, as Administrative
Agent, and the financial institutions parties
thereto.
20.1 Offer to Purchase of Fleer Acquisition
Corp. dated March 15, 1995.
Incorporated by reference to Exhibit
(a)(1) to the Schedule 14D-1.
99.1 Annex A to Current Report on Form 8-K of Marvel
Entertainment Group, Inc., filed on May 11, 1995
and incorporated herein by reference.
FIRST AMENDMENT
FIRST AMENDMENT, dated as of November 22, 1994 (this
"Amendment"), to the Amended and Restated Credit and Guarantee
Agreement, dated as of August 30, 1994 (as amended, supplemented
or otherwise modified, the "Credit Agreement"), among Marvel
Entertainment Group, Inc. (the "Company"), Fleer Corp. ("Fleer"),
the financial institutions parties thereto (the "Banks"), the co-
agents parties thereto and Chemical Bank, as administrative agent
(in such capacity, the "Administrative Agent") for the Banks.
W I T N E S S E T H:
WHEREAS, the Company, Fleer, the Banks and the
Administrative Agent are parties to the Credit Agreement;
WHEREAS, the Company and Fleer have requested that the
Administrative Agent and the Banks amend subsections 1.1 and 8.2
of the Credit Agreement as more fully set forth herein;
WHEREAS, the Administrative Agent and the Banks are
willing to amend such provisions of the Credit Agreement only
upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and
mutual agreements contained herein, and for other good and
valuable consideration, the sufficiency of which is hereby
acknowledged, the Company, Fleer, the Banks and the
Administrative Agent hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein,
terms defined in the Credit Agreement shall have such meanings
when used herein.
2. Amendment of Subsection 1.1. Subsection 1.1 of
the Credit Agreement hereby is amended by deleting in its
entirety clause (a) of the definition of the term "Aggregate
Purchase Price" contained therein and by substituting therefor
the following:
"(a) the sum of the purchase prices paid by the Company and
its Subsidiaries for such purchases since the Closing Date
(including, without limitation, the aggregate principal
amount of all Indebtedness incurred by the Company and its
Subsidiaries since the Closing Date in connection with such
purchases, other than any such Indebtedness contemplated by
clause (b) of this definition),".
3. Amendment of Subsection 8.2. Subsection 8.2 of
the Credit Agreement hereby is amended by:
(a) deleting the period at the end of clause (l) thereof and by
substituting therefor a semi-colon followed by the word
"and"; and
(b) inserting therein as a new clause (m) the following:
"(m) Indebtedness of the Company and its
Subsidiaries contemplated by the definition of the term
"Aggregate Purchase Price" which is incurred in
connection with purchases by the Company and its
Subsidiaries of capital stock or assets of any Person,
which purchases are permitted by subsection 8.8(e)."
4. Representations and Warranties. Each of the
Company and Fleer hereby confirms, reaffirms and restates the
representations and warranties made by it in Section 5 of the
Credit Agreement, provided that each reference to the Credit
Agreement therein shall be deemed to be a reference to the Credit
Agreement after giving effect to this Amendment. The Company
represents and warrants that no Default or Event of Default has
occurred and is continuing.
5. Continuing Effect of Credit Agreement. This
Amendment shall not constitute a waiver, amendment or
modification of any other provision of the Credit Agreement not
expressly referred to herein and shall not be construed as a
waiver or consent to any further or future action on the part of
the Company or Fleer that would require a waiver or consent of
the Banks or the Administrative Agent. Except as expressly
amended or modified herein, the provisions of the Credit
Agreement are and shall remain in full force and effect.
6. Counterparts. This Amendment may be executed by
one or more of the parties hereto on any number of separate
counterparts and all such counterparts shall be deemed to be one
and the same instrument. Each party hereto confirms that any
facsimile copy of such party's executed counterpart of this
Amendment (or its signature page thereof) shall be deemed to be
an executed original thereof.
7. Effectiveness. This Amendment shall be effective
upon receipt by the Administrative Agent of counterparts hereof,
duly executed and delivered by the Company, Fleer and the
Majority Banks.
8. Consent of the Company. The Company, as guarantor
under the Credit Agreement, hereby (a) consents to the
transactions contemplated hereby and (b) acknowledges and agrees
that the guarantees contained in Section 9 of the Credit
Agreement are, and shall remain, in full force and effect after
giving effect to this Amendment.
9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
MARVEL ENTERTAINMENT GROUP,
INC.
By:
Title:
FLEER CORP.
By:
Title:
CHEMICAL BANK, as
Administrative Agent
and as a Bank
By:
Title:
THE BANK OF NEW YORK
By:
Title:
THE CHASE MANHATTAN BANK, N.A.
By:
Title:
4
CIBC, INC.
By:
Title:
CORESTATES BANK, N.A.
By:
Title:
CREDIT LYONNAIS, New York Branch
By:
Title:
CREDIT LYONNAIS, Cayman Island
Branch
By:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, Los Angeles Branch
By:
Title:
NATIONSBANK OF NORTH CAROLINA, N.A.
By:
Title:
THE TORONTO-DOMINION BANK
By:
Title:
5
BANK OF HAWAII
By:
Title:
THE FIRST NATIONAL BANK OF BOSTON
By:
Title:
CITIBANK, N.A.
By:
Title:
BANK OF AMERICA ILLINOIS
By:
Title:
IBJ SCHRODER BANK & TRUST COMPANY
By:
Title:
ISTITUTO BANCARIO SAN PAOLO DI
TORINO, S.p.A., New York Branch
By:
Title:
THE NIPPON CREDIT BANK, LTD.
By:
Title:
RESTRUCTURED OBLIGATIONS BACKED BY
SENIOR ASSETS B.V.
6
By:
Title:
THE SUMITOMO BANK, LIMITED, New
York Branch
By:
Title:
UNION BANK
By:
Title:
THE FUJI BANK, LTD., New York
Branch
By:
Title:
SECOND AMENDMENT
SECOND AMENDMENT, dated as of April 24, 1995 (this
"Amendment"), to the Amended and Restated Credit and Guarantee
Agreement, dated as of August 30, 1994 (as amended, supplemented
or otherwise modified, the "Credit Agreement"), among Marvel
Entertainment Group, Inc. (the "Company"), Fleer Corp. ("Fleer"),
the financial institutions parties thereto (the "Banks"), the co-
agents named therein and Chemical Bank, as administrative agent
(in such capacity, the "Administrative Agent") for the Banks.
W I T N E S S E T H:
WHEREAS, the Company, Fleer, the Banks and the
Administrative Agent are parties to the Credit Agreement;
WHEREAS, the Company and Fleer have requested that the
Credit Agreement be amended as provided herein; and
WHEREAS, the Administrative Agent and the Banks are
willing to so amend the Credit Agreement, subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and
mutual agreements contained herein, and for other good and
valuable consideration, the sufficiency of which is hereby
acknowledged, the Company, Fleer, the Required Banks and the
Administrative Agent hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein,
terms defined in the Credit Agreement shall have such meanings
when used herein.
2. Amendment of Subsection 1.1. Subsection 1.1 of
the Credit Agreement is hereby amended by (a) deleting the
defined terms "Annualized Consolidated Interest Expense",
"Annualized Consolidated Operating Cash Flow", "Applicable
Margin", "Capital Expenditures", "Cash Flow Recapture Amount",
"Consolidated Operating Cash Flow", "Cross Default", "Excess Cash
Flow", "Net Proceeds Event", "Senior Unsecured Notes",
"Subsidiary" and "Total Debt" in their entirety and (b) adding
the following new defined terms in correct alphabetical order:
"`AcquisitionCo' shall mean Fleer Acquisition Corp., a
Delaware corporation and a wholly owned Subsidiary of Fleer;
`Acquisition Facility' shall mean the Credit and
Guarantee Agreement, dated as of April 24, 1995, among the
Company, Fleer, the financial institutions parties thereto,
the co-agents named therein and Chemical Bank, as
administrative agent, as the same may be amended,
supplemented, restated or otherwise modified from time to
time;
`Annualized Consolidated Interest Expense' shall mean
Consolidated Interest Expense for any period of four
consecutive fiscal quarters; provided that, in calculating
Annualized Consolidated Interest Expense, Toy Biz and its
Subsidiaries shall be deemed wholly owned Subsidiaries of
the Company, except that only the Equity Percentage of the
Annualized Consolidated Interest Expense of Toy Biz and its
Subsidiaries shall be included in the calculation of
Annualized Consolidated Interest Expense of the Company and
its Subsidiaries;
`Annualized Consolidated Operating Cash Flow' shall
mean Consolidated Operating Cash Flow for any period of four
consecutive fiscal quarters; provided that in calculating
Annualized Consolidated Operating Cash Flow for purposes of
calculating the Leverage Ratio, SkyBox and its Subsidiaries,
Panini and its Subsidiaries and any other Person that is
acquired by the Company, Fleer, Toy Biz or any of their
Subsidiaries after the Second Amendment Effective Date and
such Person's Subsidiaries shall be deemed consolidated
Subsidiaries of the Company on a pro forma basis for the
entire period for which such calculation is made if at any
time during such period SkyBox and its Subsidiaries, Panini
and its Subsidiaries and any such other Person and its
Subsidiaries, as the case may be, are consolidated
Subsidiaries of the Company; and provided, further, that, in
calculating Annualized Consolidated Operating Cash Flow, Toy
Biz and its Subsidiaries shall be deemed to be wholly owned
Subsidiaries of the Company, except that only the Equity
Percentage of the Annualized Consolidated Operating Cash
Flow of Toy Biz and its Subsidiaries shall be included in
the calculation of the Annualized Consolidated Operating
Cash Flow of the Company and its Subsidiaries;
`Applicable Margin' shall mean for the period
commencing with the Closing Date and each subsequent
Adjustment Date, as the case may be, and ending on the day
immediately preceding the next succeeding Adjustment Date,
the rate per annum for the relevant type of Loan set forth
opposite such period:
Period Alternate Eurodollar
Base Rate Loan
Loan
Leverage Ratio is greater 1% 2%
than or equal to 4.5 to
1.0
Leverage Ratio is less 3/4 of 1-3/4%
than 4.5 to 1.0, but 1%
greater than or equal to
4.0 to 1.0
Leverage Ratio is less 1/2 of 1-1/2%
than 4.0 to 1.0 but 1%
greater than or equal to
3.5 to 1.0
Leverage Ratio is less 1/4 of 1-1/4%
than 3.5 to 1.0 but 1%
greater than or equal to
3.0 to 1.0
Leverage Ratio is less 0% 1%
than 3.0 to 1.0 but
greater than or equal to
2.5 to 1.0
Leverage Ratio is less 0% 7/8 of
than 2.5 to 1.0 but 1%
greater than or equal to
2.0 to 1.0
Leverage Ratio is less 0% 3/4 of
than 2.0 to 1.0 but 1%
greater than or equal to
1.5 to 1.0
Leverage Ratio is less 0% 5/8 of
than 1.5 to 1.0 1%
; provided, however, that in the event that the financial
statements required to be delivered pursuant to subsection
7.1(a) through (d), as applicable, are not delivered when
due, then during the period from the date upon which such
financial statements were required to be delivered until two
Business Days following the date upon which they actually
are delivered, the Leverage Ratio shall be deemed for
purposes of this definition to be greater than 4.5 to 1.0;
`Capital Expenditures' for any period, shall mean all
amounts that would, in accordance with GAAP, be set forth as
`capital expenditures' on the consolidated statement of cash
flows of the Company and its consolidated Subsidiaries for
such period; provided that Capital Expenditures shall not
include Capital Expenditures of Adespan in an aggregate
amount from the Closing Date up to Italian Lire
35,000,000,000 to the extent that such Capital Expenditures
are financed with the proceeds of Indebtedness the lenders
of which have no recourse to the Company and its
Subsidiaries or any assets thereof, other than the property,
plant and equipment of Adespan which is being financed with
such Indebtedness;
`Cash Flow Recapture Amount' shall mean with respect to
each fiscal year of the Company, (a) if the Leverage Ratio
as of the last day of such fiscal year shall be greater than
2.0 to 1.0, 50% of Excess Cash Flow for such fiscal year,
and (b) if the Leverage Ratio as of the last day of such
fiscal year shall be equal to or less than 2.0 to 1.0, 25%
of Excess Cash Flow for such fiscal year;
`Consolidated Operating Cash Flow' for any fiscal
period of the Company shall mean the Consolidated Net Income
or Consolidated Net Loss, as the case may be, for such
fiscal period, (a) after restoring thereto amounts deducted
for (i) extraordinary losses, (ii) depreciation and
amortization (including write-offs or write-downs of
amortizable and depreciable items), (iii) Consolidated
Interest Expense and (iv) taxes accrued with respect to such
fiscal period and (b) after deducting therefrom (i)
extraordinary gains (which extraordinary items of gain shall
include, whether or not so includable in accordance with
GAAP, any item of gain resulting from the sale, lease or
other disposition of any principal property of the Company
or any of its Subsidiaries or the stock of any Subsidiary of
the Company) and (ii) the portion of net income of the
Company and its Subsidiaries allocable to interests in
unconsolidated Persons to the extent that cash dividends or
distributions in respect of such portion of net income have
not actually been received by the Company or any of its
Subsidiaries; provided that, in calculating Consolidated
Operating Cash Flow for all purposes, only amounts derived
from continuing operations, and not from any assets which
are held for disposition, of the Company and its
Subsidiaries shall be included in the calculation of
Consolidated Operating Cash Flow; and provided, further,
that in calculating Consolidated Operating Cash Flow for
purposes of calculating Excess Cash Flow, Toy Biz shall be
deemed an unconsolidated Person for purposes of clause
(b)(ii) of this definition;
`Cross Default' of any Person shall mean (a) default in
the payment of any amount when due (whether at maturity or
by acceleration) on any of its Indebtedness (other than any
such default in respect of the Loans or the Notes) or in the
payment of any matured Contingent Obligation in respect of
any Indebtedness of any other Person (except for any such
payments on account of any such Indebtedness and Contingent
Obligations in an aggregate principal amount at any one time
outstanding of up to $5,000,000) or (b) default (other than
any default arising solely out of the Company's, or any of
its Subsidiaries', violation of any covenant in any way
restricting the Company's, or any Subsidiary's, right or
ability to sell, pledge or otherwise dispose of Unrestricted
Margin Stock) in the observance or performance of any other
agreement or condition relating to any such Indebtedness
(except for any such Indebtedness and Contingent Obligations
in an aggregate principal amount at any one time outstanding
of up to $5,000,000) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of
which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to
cause, with the giving of notice if required, such
Indebtedness (except for any such Indebtedness in an
aggregate principal amount at any one time outstanding of up
to $5,000,000) to become due or to be required to be
redeemed or repurchased prior to its stated maturity;
`Excess Cash Flow' for any fiscal year shall mean with
respect to the Company and its Subsidiaries, Consolidated
Operating Cash Flow for such fiscal year minus the sum of
(a) Consolidated Interest Expense, (b) the principal amount
of the Term Loans, the Local Loan, and the `Loans' (as
defined in the Acquisition Facility) paid during such fiscal
year, the amount of any payments scheduled to be made during
such period of principal of any other Indebtedness permitted
under subsection 8.2 made during such fiscal year and, to
the extent such payment was accompanied by a reduction of
the Revolving Credit Commitments in at least a like amount
(or, in the case of the 1994 and 1995 fiscal years, any
Revolver Reduction Amount as of December 31 of such year),
the principal amount of the Revolving Credit Loans paid
during such fiscal year, (c) taxes paid in cash or (without
duplication) accrued with respect to such fiscal year, (d)
amounts paid in cash during such period in respect of
investments permitted by subsection 8.8(e) and Capital
Expenditures permitted hereunder to the extent such
investments and Capital Expenditures are not financed with
the proceeds of Indebtedness (other than Indebtedness
hereunder), (e) any net increase (or plus any net decrease)
in the Working Capital of the Company and its Subsidiaries
during such fiscal year and (f) extraordinary losses;
`Margin Stock' shall have the meaning assigned to such
term in Regulation U (including, so long as the same
constitute Margin Stock under Regulation U, common stock of
Skybox);
`Net Proceeds' shall mean, with respect to any Net
Proceeds Event, (a) the gross cash consideration, and all
cash proceeds (as and when received) of non-cash
consideration (including, without limitation, any such cash
proceeds in the nature of principal and interest payments on
account of promissory notes or similar obligations),
received by the Company and its Subsidiaries in connection
with such Net Proceeds Event, minus (b) the sum, without
duplication, of:
(i) for all Net Proceeds Events contemplated by
clause (b) or (c) of the definition of such term, any
taxes which are paid or actually payable to any
federal, state, local or foreign taxing authority by
the Company and its Subsidiaries and are directly
attributable to the receipt of such Net Proceeds;
(ii) the amount of fees and commissions
(including reasonable investment banking fees), legal,
accounting, consulting, survey, title and recording tax
expenses and other costs and expenses directly incident
to such Net Proceeds Event which are paid or payable by
the Company and its Subsidiaries, other than fees and
commissions (including, without limitation, consulting
and financial services fees) paid or payable to
Affiliates and Subsidiaries of the Company (or officers
or employees of the Company or any of its Affiliates or
Subsidiaries); and
(iii) for all Net Proceeds Events contemplated by
clause (c) of the definition of such term, the amount
of liabilities (other than intercompany liabilities or
liabilities owing to any Affiliate or Subsidiary of the
Company and other than any liabilities owing under
subsection 3.2 of the Acquisition Facility), if any,
which are required to be repaid by the Company or any
of its Subsidiaries at the time or as a result of such
Net Proceeds Event out of the proceeds thereof;
`Net Proceeds Event' shall mean (a) the incurrence by
the Company or any of its Subsidiaries of any Indebtedness
(other than Indebtedness permitted pursuant to subsection
8.2, except for the incurrence of Indebtedness permitted by
subsection 8.2(h) which will constitute a Net Proceeds Event
for purposes hereof), (b) the issuance of any equity
securities by the Company or any of its Subsidiaries to any
Person other than the Company or any of its Subsidiaries
(other than equity securities issued pursuant to any
employee stock option plan) and (c) any Asset Sale by the
Company or any of its Subsidiaries (other than Asset Sales
permitted pursuant to subsection 8.6 as in effect as of the
Second Amendment Effective Date, except for Asset Sales
pursuant to subsection 8.6(e) which will constitute Net
Proceeds Events for purposes hereof);
`New Loan' shall mean the `Loans' as such term is
defined in the Acquisition Facility;
`Regulation U' shall mean Regulation U of the Board of
Governors of the Federal Reserve System;
`Restricted Margin Stock' shall mean Margin Stock owned
by the Company or any of its Subsidiaries which represents
not more than 25% of the aggregate value (determined in
accordance with Regulation U), on a consolidated basis, of
the sum of (a) the property and assets of the Company and
its Subsidiaries (other than any Margin Stock) plus (b) such
Margin Stock;
`Second Amendment Effective Date' shall mean the date
on which the Second Amendment, dated as of April 24, 1995,
to this Agreement becomes effective;
`Shares' shall mean the issued and outstanding shares
of common stock of SkyBox;
`SkyBox' shall mean SkyBox International, Inc., a
Delaware corporation;
`SkyBox Merger' shall mean the merger of AcquisitionCo
and SkyBox in accordance with the Agreement and Plan of
Merger, dated as of March 8, 1995, among the Company, Fleer,
AcquisitionCo and SkyBox;
`Subsidiary' of any Person shall mean a corporation or
other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or
other ownership interests having such power only by reason
of the happening of a contingency) to elect a majority of
the directors of such corporation, or other Persons
performing similar functions for such entity, are owned,
directly or indirectly, by such Person; unless otherwise
qualified, all references to a `Subsidiary' or to
`Subsidiaries' in this Agreement shall refer to a Subsidiary
or Subsidiaries of the Company and all references to a
`wholly owned Subsidiary' in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Company of which the
Company directly or indirectly owns all of the capital stock
(other than directors' qualifying shares); provided that,
except to the extent specifically provided for herein, Toy
Biz shall not be a Subsidiary of the Company or Fleer for
any purpose hereunder including, without limitation, for
purposes of all definitions in this subsection 1.1;
`Tender Offer' shall mean the tender offer by
AcquisitionCo for all of the Shares at a price of $16 per
share;
`Tendered Shares' shall mean the Shares which have been
purchased by AcquisitionCo pursuant to the Tender Offer;
`Total Debt' at any time, shall mean the sum (without
duplication) of (a) the aggregate principal amount of all
outstanding Indebtedness of the Company and its Subsidiaries
and (b) all outstanding Contingent Obligations of the
Company and its Subsidiaries in respect of Indebtedness of
Persons other than the Company or any of its Subsidiaries;
provided that, in calculating Total Debt, Toy Biz and its
Subsidiaries shall be deemed to be Subsidiaries of the
Company, except that only the Equity Percentage of (i) the
Indebtedness of Toy Biz and its Subsidiaries and (ii)
Contingent Obligations of Toy Biz and its Subsidiaries shall
be included in the calculation of Total Debt;
`Unrestricted Margin Stock' shall mean any Margin Stock
which is not Restricted Margin Stock;"
3. Amendment of Subsection 3.4. Subsection 3.4 of the
Credit Agreement is hereby amended by deleting the reference "and
(c)" contained therein and substituting in lieu thereof the
phrase ", (c) to provide financing for obligations relating to
the purchase of the Tendered Shares and the SkyBox Merger (to the
extent the Revolving Credit Loans have been prepaid with the
proceeds of the Acquisition Facility) and (d)".
4. Amendment of Subsection 4.3. Paragraphs (d)
through (h) of subsection 4.3 of the Credit Agreement are hereby
amended by deleting them in their entirety and substituting in
lieu thereof the following:
"(d) Fleer shall promptly (and, in any event, within
one Business Day following receipt thereof by the Company or
any of its Subsidiaries) repay the New Loans and the Local
Loan, and reduce the Revolving Credit Commitments, by the
amount equal to the Net Proceeds received by the Company and
its Subsidiaries from each Net Proceeds Event (other than
the portion of the Net Proceeds from the sale or issuance of
Adespan capital stock pursuant to subsection 8.6(e)), with
such repayment of the New Loans and the Local Loan, and such
reduction of the Revolving Credit Commitments, being made in
accordance with the provisions of subsection 4.3(h).
(e) Fleer shall promptly (and in any event within one
Business Day following receipt thereof by the Company or any
of its Subsidiaries) apply the Net Proceeds from the sale or
issuance of Adespan capital stock as follows:
(i) to the extent that the amount of such Net
Proceeds received by the Company and its Subsidiaries
since the Closing Date is greater than or equal to
Italian Lire 35,000,000,000 (or the equivalent amount
thereof) (provided that such amount shall be reduced by
an amount equal to the Indebtedness permitted pursuant
to subsection 8.2(k) which is incurred by the Company
and its Subsidiaries), apply such excess Net Proceeds
to prepay the New Loans and the Local Loan in
accordance with the provisions of subsection 4.3(h);
and
(ii) to the extent that the amount of such Net
Proceeds received by the Company and its Subsidiaries
since the Closing Date is less than Italian Lire
35,000,000,000 (or the equivalent amount thereof)
(provided that such amount shall be reduced by an
amount equal to the Indebtedness permitted pursuant to
subsection 8.2(k) which is incurred by the Company and
its Subsidiaries) and such amount is not immediately
being utilized to finance Capital Expenditures of
Adespan which are not prohibited by the terms of this
Agreement, apply such amount of Net Proceeds (A) until
used to finance such Capital Expenditures of Adespan,
to cash collateralize the Payment Obligations and the
"Payment Obligations" under the Acquisition Facility
upon the terms and subject to conditions reasonably
satisfactory to the Administrative Agent , (B) until
used to finance such Capital Expenditures of Adespan,
to temporarily prepay the Revolving Credit Loans or
(C) to prepay the New Loans, the Local Loan and the
Revolving Credit Loans in accordance with the
provisions of subsection 4.3(h); provided that, to the
extent that amounts applied to repay Revolving Credit
Loans or used to cash collateralize the Payment
Obligations and the "Payment Obligations" under the
Acquisition Facility pursuant to this subsection
4.3(e)(ii) are not used to finance Capital Expenditures
of Adespan within one year following the date of
receipt, Fleer shall apply the amount equal to such
unused amount to prepay the New Loans and the Local
Loan in accordance with the provisions of subsection
4.3(h).
(f) Fleer shall prepay the New Loans and the Local
Loan, and reduce the Revolving Credit Commitments, within
one Business Day following delivery of the certificate
referenced in subsection 7.2(a) by the amount equal to the
lesser of (i) the Cash Flow Recapture Amount for the fiscal
year covered by such certificate and (ii) the amount equal
to the sum of the aggregate outstanding principal amount of
the New Loans and the Local Loan and amount of the Aggregate
Revolving Credit Commitment, with such repayment of New
Loans and the Local Loan, and reduction of the Revolving
Credit Commitments, being made in accordance with the
provisions of subsection 4.3(h); provided, however, if from
the Second Amendment Effective Date Fleer shall have prepaid
an aggregate of $100,000,000 in principal amount of the New
Loans pursuant to this subsection 4.3(f), then Fleer shall
have no obligation to prepay the New Loans and the Local
Loan, nor to reduce the Revolving Credit Commitments,
pursuant to this subsection 4.3(f).
(g) If, as a result of the making of any payment
required to be made pursuant to this subsection 4.3, Fleer
would incur costs pursuant to subsection 4.9, it may deposit
the amount of such payment with the Administrative Agent,
for the benefit of the Banks, in a cash collateral account,
until the end of the applicable Interest Period at which
time such payment shall be made. Fleer hereby grants to the
Administrative Agent, for the benefit of the Banks, a
security interest in all amounts from time to time on
deposit in such cash collateral account and expressly waives
all rights (which rights Fleer hereby acknowledges and
agrees are vested exclusively in the Administrative Agent)
to exercise dominion or control over any such amounts.
(h) Prepayments made pursuant to this subsection 4.3
(other than any prepayment required in connection with a
reduction of the Aggregate Revolving Credit Commitment
pursuant to subsection 4.3(a)) shall be applied:
first, to the prepayment of the New Loans and (if Fleer
so elects) the Local Loan, with such prepayment being
applied to the then remaining installments of principal
thereof in the inverse order of their scheduled maturities;
provided, however, that if Fleer elects to apply a portion
of such prepayment to the Local Loan, the portion so applied
shall not exceed the amount equal to the percentage of the
aggregate amount of such prepayment which the Local Loan
then constitutes of the sum of the New Loans and the Local
Loan;
second, to the prepayment of the Local Loans, with such
prepayment being applied to the then remaining installments
of principal thereof in inverse order of their scheduled
maturities; and
third, to reduce permanently the Revolving Credit
Commitments.
Unless Fleer otherwise elects, the application of
prepayments referred to in the preceding sentence shall be
made first to Alternate Base Rate Loans and second to
Eurodollar Loans.
(i) Fleer shall prepay the Term Loans in full with
proceeds of the New Loans on the date Fleer receives such
proceeds."
5. Amendment of Subsection 5.8. Subsection 5.8 of
the Credit Agreement is hereby amended by deleting the last
sentence contained herein as substituting in lieu thereof the
following sentence:
"The obligations of the Company and each of its Subsidiaries
and each Commonly Controlled Entity for post retirement
benefits to be provided to their current and former
employees under Plans which are welfare benefits plans (as
defined in Section 3(l) of ERISA) are not reasonably likely
to have a Material Adverse Effect, when aggregated with
their obligations with respect to the Unfunded Pension
Amount and the Potential Withdrawal Liability."
6. Amendment of Subsection 8.1(a) and (b). Subsection
8.1(a) and (b) of the Credit Agreement is hereby amended by
deleting each such paragraph in its entirety and substituting in
lieu thereof the following:
"(a) Leverage. Permit the Leverage Ratio as of the
last day of any fiscal quarter to occur during a period set
forth below to exceed the ratio set forth below opposite
such period:
Period Ratio
04/01/95 - 12/31/95 5.00 to 1.00
01/01/96 - 06/30/96 4.50 to 1.00
07/01/96 - 12/31/96 4.00 to 1.00
01/01/97 - thereafter 3.50 to 1.00
(b) Interest Coverage. Permit the Interest Coverage
Ratio as of the last day of any fiscal quarter to occur
during a period set forth below to be less than the ratio
set forth below opposite such period:
Period Ratio
04/01/95 - 12/31/95 2.50 to 1.00
01/01/96 - 06/30/96 2.75 to 1.00
07/01/96 - 12/31/96 3.00 to 1.00
01/01/97 - 12/31/97 3.50 to 1.00
01/01/98 - thereafter 4.00 to 1.00"
7. Amendment of Subsection 8.2. Subsection 8.2 of the
Credit Agreement is hereby amended by (a) deleting the reference
"and (ii)" contained in the third line of paragraph (e) thereof
and substituting in lieu thereof the reference ", (ii)", (b)
adding the phrase "and (iii) obligations in connection with its
licensing agreements" immediately following the word "Trademarks"
contained in the fifth line of paragraph (e) thereof, (c)
deleting the amount "$2,000,000" contained in the last line of
paragraph (e) thereof and substituting in lieu thereof the amount
"$5,000,000", (d) deleting the phrase "(other than the Senior
Unsecured Notes)" contained in paragraph (h) thereof, (e)
deleting the phrase "the Senior Unsecured Notes and" contained in
paragraph (i) thereof, (f) deleting the amount "Italian Lire
24,000,000,000" contained in clause (i) of paragraph (k) thereof
and substituting in lieu thereof the amount "Italian Lire
35,000,000,000", (g) adding the phrase "and provided, further,
that such Indebtedness shall not be included in the calculation
of compliance with subsection 8.1" at the end of the proviso
contained in paragraph (k) thereof, (h) deleting the word "and"
at the end of paragraphs (k) and (l) thereof, (i) deleting the
period at the end of paragraph (m) thereof and substituting in
lieu thereof the phrase "; and" and (j) adding the following new
paragraph to the end thereof:
"(n) Indebtedness not to exceed $350,000,000 under the
Acquisition Facility of which (i) $200,000,000 shall be
available upon the Second Amendment Effective Date for
general corporate purposes of the Company and its
Subsidiaries and (ii) the remaining $150,000,000 shall be
available on the date of acceptance of the Tendered Shares
pursuant to the Tender Offer; provided that in the case of
this clause (ii) (A) not less than a majority of the issued
and outstanding Shares (on a fully diluted basis) shall have
been validly tendered pursuant to the Tender Offer and
accepted for payment by AcquisitionCo and (B) the price to
be paid for Shares tendered pursuant to the Tender Offer
shall not be more than $16 per Share."
8. Amendment of Subsection 8.3. Subsection 8.3 of the
Credit Agreement is hereby amended by (a) deleting the word "and"
at the end of paragraph (q) thereof, (b) deleting the period at
the end of paragraph (r) thereof and substituting in lieu thereof
the phrase "; and" and (c) adding the following new paragraph to
the end thereof:
"(s) Liens on Unrestricted Margin Stock.
9. Amendment of Subsection 8.4. Subsection 8.4 of the
Credit Agreement is hereby amended by (a) deleting the word "and"
at the end of paragraph (h) thereof, (b) deleting the period at
the end of paragraph (g) thereof and substituting in lieu thereof
a semicolon and (c) adding the following new paragraphs at the
end thereof:
"(h) the guarantee of the Company contained in the
Acquisition Facility; and
(i) the AcquisitionCo Guarantee (as defined in the
Acquisition Facility) and any other guarantees provided by
Subsidiaries of the Company pursuant to subsection 6.3 of
the Acquisition Facility."
10. Amendment of Subsection 8.5. Subsection 8.5 of
the Credit Agreement is hereby amended by (a) deleting the word
"and" at the end of paragraph (c) thereof, (b) deleting the
period at the end of paragraph (d) thereof and substituting in
lieu thereof a semicolon and (c) adding the following new
paragraphs at the end thereof:
"(e) the SkyBox Merger may be consummated;
(f) the Company and its Subsidiaries may sell or
otherwise dispose of Unrestricted Margin Stock; and
(g) the Company and its Subsidiaries may sell,
transfer or otherwise dispose of the confections business of
the Company."
11. Amendment of Subsection 8.6. Subsection 8.6 of
the Credit Agreement is hereby amended by (a) deleting the word
"and" at the end of paragraph (e) thereof, (b) deleting the
period at the end of paragraph (f) thereof and substituting in
lieu thereof a semicolon and (c) adding the following new
paragraphs to the end thereof:
"(g) the sale and other disposition of Unrestricted
Margin Stock; and
(h) the sale, transfer or other disposition to any
Person of all or any part of the confections business of the
Company."
12. Amendment of Subsection 8.8. Subsection 8.8 of
the Credit Agreement is hereby amended by (a) deleting the period
at the end of paragraph (e) thereof and inserting in lieu thereof
the reference "; and" and (b) adding the following new paragraph
at the end thereof:
"(f) AcquisitionCo may purchase the Tendered Shares
and the SkyBox Merger may be consummated."
13. Amendment of Subsection 8.13. Subsection 8.13 of
the Credit Agreement is hereby amended by deleting the amount
"Italian Lire 24,000,000,000" contained therein and substituting
in lieu thereof the amount "Italian Lire 35,000,000,000".
14. Amendment of Subsection 9.3. Subsection 9.3 of
the Credit Agreement is hereby amended by deleting it in its
entirety and substituting in lieu thereof the following new
subsection:
"9.3 No Subrogation. Notwithstanding any payment or
payments made by the Company hereunder, or any set-off or
application of funds of the Company by the Administrative
Agent or any Bank, the Company shall not be entitled to be
subrogated to any of the rights of the Administrative Agent
or any Bank against Fleer or against any collateral security
or guarantee or right of offset held by the Administrative
Agent or any Bank for the payment of the Fleer Obligations,
nor shall the Company seek or be entitled to seek any
contribution or reimbursement from Fleer in respect of
payments made by the Company hereunder, until the Payment
Obligations owing to the Administrative Agent and the Banks
by Fleer have been Fully Satisfied. If any amount shall be
paid to the Company on account of such subrogation rights at
any time when all of the Payment Obligations shall not have
been Fully Satisfied, such amount shall be held by the
Company in trust for the Administrative Agent and the Banks,
segregated from other funds of the Company, and shall,
forthwith upon receipt by the Company, be turned over to the
Administrative Agent in the exact form received by the
Company (duly indorsed by the Company to the Administrative
Agent, if required), to be applied against the Fleer
Obligations, whether matured or unmatured, in such order as
the Administrative Agent may determine."
15. Agreement Relating to Local Loan. Each of the
Company, the Local Lender, Panini S.p.A. (successor by merger to
Marvel Comics Italia, S.r.l.) and the Majority Participants (as
defined in the Participation Agreement, dated as of August 30,
1994 (the "Participation Agreement"), among Istituto Bancario San
Paolo di Torino, S.p.A., New York Limited Branch, the financial
institutions party thereto and Chemical Bank, as Administrative
Agent) hereby agree that, for the purpose of clarification, the
reference in subsection 3.2(b) of the Term Loan and Guarantee
Agreement, dated as of August 30, 1994, among Panini S.p.A.
(successor by merger to Marvel Comics Italia, S.r.l.), the
Company and Istituto Bancario San Paolo di Torino, S.p.A. to
"subsection 4.3 of the US Credit Agreement and the provisions of
Section 4.3" refer, in each case, to subsection 4.3 of the Credit
Agreement as the same may be modified from time to time,
including, without limitation, by this Amendment.
16. Representations and Warranties. Each of the
Company and Fleer hereby confirms, reaffirms and restates the
representations and warranties made by it in Section 5 of the
Credit Agreement, provided that each reference to the Credit
Agreement therein shall be deemed to be a reference to the Credit
Agreement after giving effect to this Amendment. The Company
represents and warrants that no Default or Event of Default has
occurred and is continuing.
17. Continuing Effect of Credit Agreement. This
Amendment shall not constitute a waiver, amendment or
modification of any other provision of the Credit Agreement not
expressly referred to herein and shall not be construed as a
waiver or consent to any further or future action on the part of
the Company or Fleer that would require a waiver or consent of
the Banks or the Administrative Agent. Except as expressly
amended or modified herein, the provisions of the Credit
Agreement are and shall remain in full force and effect.
18. Counterparts. This Amendment may be executed by
one or more of the parties hereto on any number of separate
counterparts and all such counterparts shall be deemed to be one
and the same instrument. Each party hereto confirms that any
facsimile copy of such party's executed counterpart of this
Amendment (or its signature page thereof) shall be deemed to be
an executed original thereof.
19. Effectiveness. This Amendment shall be effective
upon receipt by the Administrative Agent of:
(a) counterparts hereof, duly executed and delivered by the
Company, Fleer, the Required Banks and the Majority
Participants;
(b) audited consolidated financial statements of (i) the
Company for the fiscal year ended December 31, 1994 and
(ii) SkyBox for the fiscal years ended December 31,
1993 and 1994;
(c) preliminary unaudited consolidated pro forma balance
sheet of the Company and its Subsidiaries as at March
31, 1995 after giving effect to the Acquisition as at
such date; and
(d) an amendment fee, for the account of each Bank which
executed and delivered this Amendment prior to April
26, 1995, in the amount equal to 1/8 of 1% of the sum
of its Aggregate Commitment and Participating Interest
(as defined in the Participation Agreement).
20. Consent of the Company. The Company, as guarantor
under the Credit Agreement, hereby (a) consents to the
transactions contemplated hereby and (b) acknowledges and agrees
that the guarantees contained in Section 9 of the Credit
Agreement (and all collateral security therefor) are, and shall
remain, in full force and effect after giving effect to this
Amendment.
21. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
MARVEL ENTERTAINMENT GROUP, INC.
By:
Title:
FLEER CORP.
By:
Title:
CHEMICAL BANK, as Administrative
Agent and as a Bank
By:
Title:
THE BANK OF NEW YORK
By:
Title:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By:
Title:
16
CIBC, INC.
By:
Title:
CORESTATES BANK
By:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
Title:
CREDIT LYONNAIS CAYMAN
ISLAND BRANCH
By:
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES AGENCY
By:
Title:
NATIONSBANK, N.A. (CAROLINAS)
By:
Title:
THE TORONTO-DOMINION BANK
By:
Title:
17
BANK OF HAWAII
By:
Title:
THE FIRST NATIONAL BANK OF BOSTON
By:
Title:
CITIBANK, N.A.
By:
Title:
BANK OF AMERICA ILLINOIS
By:
Title:
IBJ SCHRODER BANK & TRUST
COMPANY
By:
Title:
ISTITUTO BANCARIO SAN PAOLO DI
TORINO, S.p.A., NEW YORK
LIMITED BRANCH
By:
Title:
THE NIPPON CREDIT BANK, LTD.
By:
Title:
RESTRUCTURED OBLIGATIONS BACKED
BY SENIOR ASSETS B.V.
By: ABN Trust Company (Nederland)
B.V., its Managing
Director
By:
Title:
By:
Title:
THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH
By:
Title:
UNION BANK
By:
Title:
THE FUJI BANK, LTD. - NEW YORK
BRANCH
By:
Title:
FIRST HAWAIIAN BANK
By:
Title:
FLEET BANK
By:
Title:
