<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 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) January 31, 1994
SPELLING ENTERTAINMENT GROUP INC.
(Exact name of registrant as specified in its charter)
Florida
(State or other jurisdiction of incorporation)
1-6739 59-0862100
(Commission (IRS Employer
File Number) Identification No.)
200 South Andrews Avenue
Fort Lauderdale, FL 33301
(Address of principal executive offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (305) 832-3000
N.A.
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
<PAGE> 2
ITEM 5. OTHER EVENTS.
Effective January 31, 1994, Spelling Entertainment Group Inc. (the
"Registrant") and certain subsidiaries of the Registrant entered into a Credit
Agreement (the "Credit Agreement") with Blockbuster Entertainment Corporation
("Blockbuster") pursuant to which Blockbuster has agreed to advance to the
Registrant and/or certain subsidiaries of the Registrant an aggregate of
$175,000,000, consisting of revolving loans in an aggregate principal amount of
$75,000,000 (the "Revolving Loans") and a term loan in the amount of
$100,000,000 (the "Term Loan"). The Registrant and certain of its subsidiaries
also entered into a Pledge and Security Agreement dated as of January 31, 1994
(the "Security Agreement") with Blockbuster and a Copyright Mortgage and
Assignment; Power of Attorney (the "Assignment") and a Guaranty (the
"Guaranty"), each dated as of January 31, 1994 and each in favor of
Blockbuster. On December 22, 1993, the Registrant entered into a related
Guaranty (the "Spelling Guaranty") in favor of Bank of America National Trust
and Savings Association, as agent.
Under the Credit Agreement, Blockbuster is obligated to make Revolving
Loans to the Registrant for a term of 38 months. Outstanding amounts under the
Revolving Loans, if any, and under the Term Loan, if any, will become payable
on March 31, 1997.
As previously reported in its Current Report on Form 8-K dated
December 8, 1993, on December 8, 1993, the Registrant entered into an Agreement
and Plan of Merger (the "Merger Agreement") with Republic Pictures Corporation
("Republic") and DE Acquisition Corporation, a wholly-owned subsidiary of the
Registrant ("Merger Sub"), which provides for the merger of Merger Sub with and
into Republic (the "Merger"). The Merger Agreement provides, among other
things, that, at the effective time of the Merger, each share of common stock,
$0.01 par value per share, of Republic outstanding immediately prior to the
effective time of the Merger will be, without any action on the part of the
holder thereof, converted into the right to receive $13.00 in cash, without
interest (the "Cash Merger Consideration"). The proceeds of the Term Loan may
be used only to pay all or a portion of the Cash Merger Consideration. The
closing of the Merger is currently anticipated to occur in early 1994.
Pursuant to the Security Agreement and the Assignment, borrowings
under the Credit Agreement are secured by all of the assets (tangible and
intangible) of the Registrant and its subsidiaries. Pursuant to the Guaranty,
the Registrant and certain of the Registrant's subsidiaries have guaranteed the
amounts borrowed, if any, under the Credit Agreement.
Pursuant to the Spelling Guaranty, the Registrant has agreed to
guarantee the obligations of Blockbuster under Blockbuster's credit facility
(the "Blockbuster Credit Facility") up to the amount of the Registrant's
borrowings under the Credit Agreement outstanding at the time enforcement of
the Spelling Guaranty is sought.
The Credit Agreement includes customary provisions defining what
constitutes default by the Registrant and its subsidiaries, including failure to
pay any principal, interest or other amount due to Blockbuster as such becomes
due; failure to pay other indebtedness when due; judgments, attachments,
dissolution, receivership, insolvency and bankruptcy. A default shall also occur
under the Credit Agreement if (i) Blockbuster and its affiliates cease to
beneficially own and control a majority of the issued and outstanding voting
stock of the Registrant or (ii) Blockbuster fails to make any payment when due
in respect of or should otherwise be in breach or default of (in each case,
after giving effect to any applicable grace period) the Blockbuster Credit
Facility. In the latter case, Blockbuster may not declare unpaid borrowings
under the Credit Agreement to be immediately due and payable until such time, if
ever, that indebtedness under the Blockbuster Credit Facility has been
accelerated.
If, prior to March 31, 1997, the Blockbuster Credit Facility is
terminated, repaid or restructured (other than due to acceleration of
Blockbuster's obligations thereunder) so as to result in an increased cost of
funds to Blockbuster, then the Credit Agreement requires Blockbuster and the
Registrant and its subsidiaries to negotiate in good faith for up to 120 days
thereafter to reset the interest rates and fees applicable to the Revolving
Loans in order to take into account Blockbuster's increased cost of funds.
As of January 31, 1994, Blockbuster beneficially owned approximately
70.5% of the outstanding common stock, $0.10 par value per share, of the
Registrant. The Registrant believes that the terms of the Credit Agreement,
the Security Agreement, the Assignment, the
<PAGE> 3
Guaranty, and the Spelling Guaranty are as favorable to the Registrant as those
which could be obtained from an unaffiliated party.
The descriptions contained herein of the Credit Agreement, the
Security Agreement, the Assignment, the Guaranty and the Spelling Guaranty are
modified in their entirety by the terms of such agreements, copies of which are
attached hereto as Exhibits 99.1, 99.2, 99.3, 99.4 and 99.5, respectively, and
which are incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits.
The Exhibits to this Report are listed in the Exhibit Index set forth
elsewhere herein.
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
SPELLING ENTERTAINMENT GROUP INC.
By: /s/ Thomas P. Carson
-------------------------------
Thomas P. Carson
Senior Vice President, Treasurer and
Chief Financial Officer
Date: February 16, 1994
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SPELLING ENTERTAINMENT GROUP INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number and Sequential
Description of Exhibit Page Number
---------------------- -----------
<S> <C>
1. None
2. None
4. None
16. None
17. None
20. None
23. None
24. None
27. None
99.1 Credit Agreement dated as of January 31, 1994, by and among the
Registrant, certain subsidiaries of the Registrant and Blockbuster
Entertainment Corporation.
99.2 Pledge and Security Agreement dated as of January 31, 1994, by and
among the Registrant, certain subsidiaries of the Registrant and
Blockbuster Entertainment Corporation.
99.3 Copyright Mortgage and Assignment; Power of Attorney dated as of
January 31, 1994, by the Registrant and certain subsidiaries of
the Registrant in favor of Blockbuster Entertainment Corporation.
99.4 Guaranty dated as of January 31, 1994, by the Registrant and certain
subsidiaries of the Registrant in favor of Blockbuster Entertainment
Corporation.
99.5 Guaranty dated as of December 22, 1993 by the Registrant in favor of
Bank of America National Trust and Savings Association, as agent.
</TABLE>
<PAGE> 1
EXHIBIT 99.1
Credit Agreement dated as of January 31, 1994, by and among
the Registrant, certain subsidiaries of the Registrant and
Blockbuster Entertainment Corporation.
<PAGE> 2
EXHIBIT 99.1
SPELLING ENTERTAINMENT GROUP INC.
AND ITS SUBSIDIARIES, AS BORROWERS
CREDIT AGREEMENT
DATED AS OF JANUARY 31, 1994
BLOCKBUSTER ENTERTAINMENT CORPORATION, AS LENDER
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
1. Definitions; Certain Rules of Construction . . . . . . . . . . . . . . . . 1
2. The Credits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.1 Revolving Credit . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.1.1 Revolving Loan . . . . . . . . . . . . . . . . . . . . . 8
2.1.2 Borrowing Requests . . . . . . . . . . . . . . . . . . . 9
2.1.3 Revolving Note . . . . . . . . . . . . . . . . . . . . . 9
2.2 Term Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.2.1 Term Loan . . . . . . . . . . . . . . . . . . . . . . . . 10
2.2.2 Term Note . . . . . . . . . . . . . . . . . . . . . . . . 10
2.3 Application of Proceeds . . . . . . . . . . . . . . . . . . . . . 10
2.3.1 Revolving Loan . . . . . . . . . . . . . . . . . . . . . 10
2.3.2 Term Loan . . . . . . . . . . . . . . . . . . . . . . . . 10
2.3.3 Specifically Prohibited Applications . . . . . . . . . . 10
3. Interest; Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.1 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.1.1 Revolving Loan . . . . . . . . . . . . . . . . . . . . . 10
3.1.2 Term Loan . . . . . . . . . . . . . . . . . . . . . . . . 11
3.1.3 Interest on Overdue Amounts . . . . . . . . . . . . . . . 11
3.1.4 Limitation by Applicable Law . . . . . . . . . . . . . . 11
3.2 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.2.1 Commitment Fees . . . . . . . . . . . . . . . . . . . . . 11
3.2.2 Facility Fee . . . . . . . . . . . . . . . . . . . . . . 11
3.2.3 Annual Administrative Fee . . . . . . . . . . . . . . . . 12
3.3 Computations of Interest and Fees . . . . . . . . . . . . . . . . 12
4. Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.1 Payment at Maturity . . . . . . . . . . . . . . . . . . . . . . . 12
4.2 Contingent Required Prepayments . . . . . . . . . . . . . . . . . 12
4.3 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . 12
4.4 Reborrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.5 Payment with Accrued Interest . . . . . . . . . . . . . . . . . . 13
4.6 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.7 Payment on Non-Banking Days . . . . . . . . . . . . . . . . . . . 13
5. Conditions to Extending Credit . . . . . . . . . . . . . . . . . . . . . . 13
5.1 Conditions on Initial Closing Date . . . . . . . . . . . . . . . . 13
5.1.1 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.1.2 Guaranty . . . . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
(i)
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<TABLE>
<S> <C> <C>
5.1.3 Payment of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.1.4 Termination of Prior Credit Agreement . . . . . . . . . . . . . . . . . 13
5.1.5 Perfection of Security . . . . . . . . . . . . . . . . . . . . . . . . 14
5.1.6 Board Resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.2 Conditions to the Term Loan . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.3 Conditions to Each Extension of Credit . . . . . . . . . . . . . . . . . . . . . 14
5.3.1 Proper Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.3.2 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.3.3 Representations and Warranties . . . . . . . . . . . . . . . . . . . . 14
6. Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.1 Non-Borrower Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.2 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.1 Borrower's Representations and Warranties . . . . . . . . . . . . . . . . . . . 15
7.1.1 Organization, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.1.2 No Legal Obstacle to Agreements . . . . . . . . . . . . . . . . . . . . 15
7.1.3 Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.1.4 Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.1.5 No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . 17
7.1.6 Material Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.2 Lender's Representations and Warranties . . . . . . . . . . . . . . . . . . . . 17
7.2.1 Organization, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.2.2 Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8. Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.2 Certain Actions Following an Event of Default . . . . . . . . . . . . . . . . . 20
8.2.1 No Obligation to Extend Credit . . . . . . . . . . . . . . . . . . . . 20
8.2.2 Specific Performance; Exercise of
Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.2.3 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.2.4 Enforcement of Payment; Setoff . . . . . . . . . . . . . . . . . . . . 21
8.2.5 Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.3 Annulment of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.4 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
</TABLE>
(ii)
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
9. Expenses; Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.1 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.2 General Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
10. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
12. Course of Dealing; Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . 24
13. Venue; Service of Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
14. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
15. Negotiations Regarding Possible Extension of Final Revolving Loan Maturity Date . . . 25
</TABLE>
(iii)
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SPELLING ENTERTAINMENT GROUP INC.
EXHIBITS
Exhibit 2.1.3 - Revolving Note
Exhibit 2.2.2 - Term Note
SCHEDULES
Schedule 7.1.6 - Material Subsidiaries
(iv)
<PAGE> 7
SPELLING ENTERTAINMENT GROUP INC.
CREDIT AGREEMENT
This Agreement, dated as of January 31, 1994 is among Spelling
Entertainment Group Inc., a Florida corporation, its subsidiaries that are from
time to time party hereto and Blockbuster Entertainment Corporation, a Delaware
corporation ("Lender"). The parties agree as follows:
1. Definitions; Certain Rules of Construction. Except as otherwise
explicitly specified to the contrary, (a) the capitalized term "Section" refers
to sections of this Agreement, (b) the capitalized term "Exhibit" refers to
exhibits to this Agreement, (c) references to a particular Section include all
subsections thereof, (d) the word "including" shall be construed as "including
without limitation", (e) accounting terms not otherwise defined herein shall
have the respective meanings provided under GAAP and (f) terms defined in the
UCC and not otherwise defined herein shall have the respective meanings
provided under the UCC. Certain capitalized terms are used, in this Agreement
as specifically defined as follows:
1.1 "Affiliate" means, with respect to any Person (or other
specified Person), any other Person directly or indirectly controlling,
controlled by or under direct or indirect common control with, that Person, and
shall include (a) any officer or director or general partner of that Person and
(b) any Person of which that Person or any Affiliate (as defined in clause (a)
above) of that Person shall, directly or indirectly, beneficially own either
(i) at least 10% of the outstanding equity securities having the general power
to vote or (ii) at least 10% of all equity interests; provided, however, that
for purposes of the Credit Documents, none of Lender or its officers,
directors, shareholders, Affiliates and Subsidiaries (other than Company and
its Subsidiaries) shall be deemed Affiliates of the Company, the other
Borrowers or the Company's other Subsidiaries.
1.2 "Agreement" means this Credit Agreement, as amended,
supplemented or modified from time to time.
1.3 "Applicable Rate" means, at any date with respect to each
Revolving Loan hereunder, for each day of the applicable Interest Period for
such Revolving Loan, a rate per annum equal to the one month, two month or
three month LIBOR rate (as selected by the Borrowers pursuant to Section 2.1.2)
reported in the "Money Rates" section of the Wall Street Journal (Eastern
Edition) published on the second Banking Day prior to the first day of the
related Interest Period for such Revolving Loan plus 1%. In the event such
rate is not so reported, the Lender shall determine the applicable LIBOR rate
from any other reasonable source. Lender shall determine the applicable LIBOR
rate for
<PAGE> 8
each Revolving Loan and Interest Period and each such determination shall be
conclusive absent manifest error.
1.4 "Articles" means the articles of organization, certificate of
incorporation, trust indenture statute, constitution, joint venture agreement,
partnership agreement or other charter document of any Person other than an
individual, each as from time to time in effect.
1.5 "Banking Day" means any day other than Saturday, Sunday or a
day on which banks in Los Angeles, California and New York City, New York are
authorized or required by law or other governmental action to close.
1.6 "Bankruptcy Code" means Title 11 of the United States Code (or
any successor statute) and the rules and regulations thereunder, all as from
time to time in effect.
1.7 "Bankruptcy Default" means an Event of Default referred to in
Section 8.1.7.
1.8 "Blockbuster Credit Facility" means the Amended and Restated
Credit Agreement dated as of December 22, 1993 among Lender, certain
Subsidiaries of Lender, Bank of America National Trust and Savings Association
as Agent, BA Securities, Inc., as Arranger and the other financial institutions
party thereto, as from time to time in effect.
1.9 "Borrower" or "Borrowers" means the Company and each of the
Company's Subsidiaries indicated as Borrowers on the signature pages hereof (or
pursuant to a joinder hereto) on a joint and several basis.
1.10 "By-laws" means all written by-laws, rules, regulations and
all other documents relating to the management, governance or internal
regulation of any Person other than an individual, or interpretive of the
Articles of such Person, all as from time to time in effect.
1.11 "Cash Merger Consideration" has the meaning assigned to that
term in the Merger Agreement.
1.12 "Closing Date" means the Initial Closing Date and each
subsequent date on which any extension of credit is made pursuant to Section
2.1.1 or 2.2.1.
1.13 "Collateral" has the meaning assigned to that term in the
Pledge and Security Agreement or any other Security Document.
1.14 "Commitment" means Lender's obligations to extend the credits
contemplated by the Credit Documents.
2
<PAGE> 9
1.15 "Company" means Spelling Entertainment Group Inc., a Florida
corporation.
1.16 "Copyright Mortgages and Assignments" has the meaning assigned
to that term in the Pledge and Security Agreement.
1.17 "Credit Documents" means:
(a) this Agreement, the Notes, and the Guaranty, each as
from time to time in effect;
(b) all Security Documents, reports, notices, mortgages,
assignments, UCC financing statements or certificates delivered to the Lender
by the Company or any of its Subsidiaries or Affiliates in connection herewith
or therewith; and
(c) any other present or future agreement or instrument
from time to time entered into among the Company, any of its Subsidiaries or
(so long as the Company or its Subsidiary is also party thereto) any Affiliate
of any of them, on one hand, and the Lender, on the other hand, relating to,
amending or modifying this Agreement or any other Credit Document referred to
above or which is stated to be a Credit Document, each as from time to time in
effect.
1.18 "Credit Obligations" means all present and future liabilities,
obligations and Indebtedness of the Company, any of its Subsidiaries or any of
their respective Affiliates party to a Credit Document owing to Lender or any
other Indemnified Party under or in connection with this Agreement or any other
Credit Document, including obligations in respect of principal, interest,
commitment fees, and other fees, charges, indemnities and expenses from time to
time owing hereunder or under any other Credit Document (whether accruing
before or after a Bankruptcy Default).
1.19 "Credit Security" means all assets now or from time to time
hereafter subjected to a security interest, mortgage or charge (or intended or
required so to be subjected pursuant to this Agreement, the Security Documents
or any other Credit Document) to secure the payment or performance of any of
the Credit Obligations, including the Collateral described in the Security
Documents.
1.20 "Default" means any Event of Default and any event or
condition which with the passage of time or giving of notice, or both, would
become an Event of Default.
1.21 "Effective Time" has the meaning assigned to that term in the
Merger Agreement.
1.22 "Event of Default" is defined in Section 8.1.
3
<PAGE> 10
1.23 "Final Revolving Loan Maturity Date" means the earlier of (a)
March 31, 1997 or (b) the date which is one hundred twenty (120) days following
the date of any termination, repayment or restructuring of the Blockbuster
Credit Facility (other than due to an acceleration of Blockbuster's obligations
thereunder), unless a written agreement is entered into by Lender and Borrowers
in accordance with the provision of Section 15 prior to the end of such 120-day
period, in which case the Final Revolving Loan Maturity Date shall be March 31,
1997.
1.24 "Final Term Loan Maturity Date" means March 31, 1997.
1.25 "Financing Debt" means:
(a) Indebtedness in respect of borrowed money;
(b) Indebtedness in respect of notes, debentures or
similar instruments;
(c) Indebtedness in respect of capitalized leases;
(d) Indebtedness in respect of the deferred purchase
price of assets (other than normal trade accounts payable in the ordinary
course of business);
(e) Indebtedness in respect of mandatory redemption or
dividend rights on capital stock (or other equity); and
(f) Indebtedness in respect of unfunded pension
liabilities.
1.26 "GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
practices as may be in general use by significant segments of the U.S.
accounting profession, which are applicable to the circumstances as of the date
of determination.
1.27 "Guarantee" means, with respect to the Company (or other
specified Person):
(a) any guarantee by the Company of the payment or
performance of, or any contingent obligation by the Company in respect of, any
Indebtedness or other obligation of any other Person;
(b) any other arrangement whereby credit is extended to a
Person on the basis of any promise or undertaking of the Company (including any
"comfort letter" or "keep well agreement" written by the Company to a creditor
or prospective creditor of such Person) to (i) pay the Indebtedness of such
Person,
4
<PAGE> 11
(ii) purchase an obligation owed by such Person, (iii) pay for the purchase or
lease of assets or services regardless of the actual delivery thereof or (iv)
maintain the capital, working capital, solvency or general financial condition
of such Person, in each case whether or not such arrangement is disclosed in
the balance sheet of the Company or referred to in a footnote thereto;
(c) any liability of the Company as a general partner of
a partnership in respect of Indebtedness or other obligations of such
partnership;
(d) any liability of the Company as a joint venturer of a
joint venture in respect of Indebtedness or other obligations of such joint
venture; and
(e) reimbursement obligations with respect to letters of
credit, surety bonds and other financial guarantees; provided, however, that
the term "Guarantee" shall not include endorsements for collection or deposit
in the ordinary course of business. The amount of any Guarantee and the amount
of Indebtedness resulting from such Guarantee shall be the greater of (i) the
amount which should be carried on the balance sheet of the Guarantor in respect
of such Guarantee or (ii) the amount which should be carried on the balance
sheet of the obligor whose obligations were guaranteed in respect of such
obligations, in each case as determined in accordance with GAAP.
1.28 "Guarantor" means the Company, the Borrowers and each other
Subsidiary of Company from time to time indicated as a Guarantor on the
signature pages to the Guaranty (or pursuant to a joinder thereto).
1.29 "Guaranty" means the Guaranty of even date hereof among
Lender, Borrowers and the other Guarantors, as from time to time in effect.
1.30 "Indebtedness" means all obligations, contingent, or
otherwise, which in accordance with GAAP are required to be carried upon the
balance sheet of the Company (or other specified Person) as liabilities, but in
any event including;
(a) liabilities secured by any Lien existing on property
owned or acquired by the Company or any Subsidiary, whether or not the
liability secured thereby shall have been assumed;
(b) obligations under capitalized leases;
(c) mandatory redemption, repurchase or dividend,
obligations with respect to capital stock (or other evidence of beneficial
interest); and
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(d) all Guarantees and endorsements in respect of
Indebtedness of others.
1.31 "Indemnified Party" is defined in Section 9.2.
1.32 "Initial Closing Date" means January 31, 1994.
1.33 "Interest Period" means with respect to any Revolving Loan any
period, selected as provided in Section 2.1.2, of one, two or three months
commencing on any Banking Day and ending on the corresponding date in the
subsequent calendar month so selected or, if such subsequent calendar month has
no corresponding date, on the last date of such subsequent calendar month);
provided, however, that if any Interest Period so selected would otherwise
begin or end on a date which is not a Banking Day, such Interest Period shall
instead begin or end, as the case may be, on the immediately preceding or
succeeding Banking Day as determined by Lender.
1.34 "Lender" means Blockbuster Entertainment Corporation and its
successors and assignees.
1.35 "Loan or Loans" means one or more of the Revolving Loans or
the Term Loan or any combination thereof.
1.36 "Margin Stock" means "margin stock" within the meaning of
Regulations G, T, U or X (or any successor provisions) of the Board of
Governors of the Federal Reserve System, or any regulations, interpretations or
rulings thereunder, all as from time to time in effect.
1.37 "Material Adverse Change" means a material adverse change
since September 30, 1993 in the business, assets, financial condition, income
or prospects of the Company and its Subsidiaries (on a consolidated basis).
1.38 "Material Subsidiary" means a Subsidiary with assets having a
book value exceeding One Million Dollars ($1,000,000) (calculated after the
deduction of all assets constituting amounts payable from an Affiliate).
1.39 "Merger" means the merger of Merger Sub with and into Republic
pursuant to the terms and provisions of the Merger Agreement.
1.40 "Merger Agreement" means the Agreement and Plan of Merger
dated as of December 8, 1993 by and among Republic, Company and Merger Sub as
from time to time in effect.
1.41 "Merger Date" means the date that the Merger is consummated.
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1.42 "Merger Sub" means DE Acquisition Corp., a Delaware
corporation.
1.43 "Notes" means the Revolving Note and the Term Note.
1.44 "Notice of Borrowing" is defined in Section 2.1.2.
1.45 "Notice of Continuation" is defined in Section 2.1.2.
1.46 "Obligor" means the Company, each other Borrower, each other
Guarantor and each other Person guaranteeing or granting collateral to secure
any Credit Obligations.
1.47 "Payment Date" means (i) with respect to the Revolving Loan,
the last Banking Day of each March, June, September and December occurring
after the Initial Closing Date, and with (ii) respect to the Term Loan the last
Banking Day of each June and December occurring after the making of the Term
Loan.
1.48 "Person" means any present or future natural person or any
corporation, association, partnership, joint venture, company, business trust,
trust, organization, business or government or any governmental agency or
political subdivision thereof.
1.49 "Pledge and Security Agreement means the Pledge and Security
Agreement of even date hereof among Lender, Borrowers and the other Guarantors,
as from time to time in effect.
1.50 "Prior Credit Agreement" means the Credit Agreement dated as
of July 27, 1992, as in effect on the Initial Closing Date, among Spelling
Entertainment Inc., its Subsidiaries party thereto, The First National Bank of
Boston, as a lender and as agent for the other lenders thereunder, The Bank of
New York, as a lender and co-agent for the other lenders thereunder and
Chemical Bank.
1.51 "Product" has the meaning assigned to that term in the Pledge
and Security Agreement.
1.52 "Product Rights" has the meaning assigned to that term in the
Pledge and Security Agreement.
1.53 "Republic" means Republic Pictures Corporation, a Delaware
corporation.
1.54 "Revolving Loan" is defined in Section 2.1.1.
1.55 "Revolving Note" is defined in Section 2.1.3.
1.56 "Security Documents" means the Pledge and Security Agreement,
the Guaranty, the Copyright Mortgages and Assignments,
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and any other present or future agreements, instruments or documents from time
to time between any Borrower, any other Guarantor, any of their respective
Subsidiaries or Affiliates, or any other Person and Lender relating to the
guaranty of or pledge of a security interest or assignment to secure the
payment and performance of the Credit Obligations, as such agreements,
instruments or documents are from time to time in effect.
1.57 "Stated Amount of Revolving Credit" means, at any date, the
lesser of (a) Seventy Five Million Dollars ($75,000,000) or (b) such lesser
amount (in an integral multiple of $1,000,000) specified by irrevocable written
notice from the Borrowers to the Lender permanently reducing the Stated Amount
of Revolving Credit.
1.58 "Subsidiary" of any Person means any other Person of which
such Person or other specified Person shall at the time, directly or indirectly
through one or more of its Subsidiaries, (a) own at least 50% of the
outstanding capital stock (or other shares of beneficial interest) entitled to
vote generally, (b) hold at least 50% of the partnership, joint venture or
similar interests or (c) be a general partner or joint venturer; provided,
however, that the term Subsidiary shall not include any joint venture.
1.59 "Term Loan" is defined in Section 2.2.1
1.60 "Term Note" is defined in Section 2.2.2
1.61 "Trademark Mortgages and Assignments" has the meaning assigned
to that term in the Pledge and Security Agreement.
1.62 "UCC" means the Uniform Commercial Code as in effect in New
York on the date hereof.
1.63 "Unused Availability" means, at any date, the excess of the
Stated Amount of Revolving Credit over the Revolving Loan.
2. The Credits.
2.1 Revolving Credit.
2.1.1 Revolving Loan. Subject to all of the terms and
conditions of this Agreement and so long as no Default exists, the Lender will
make loans to the Borrowers, who shall borrow on a joint and several basis,
from time to time during the period on and after the Initial Closing Date and
prior to the Final Revolving Loan Maturity Date, in an aggregate principal
amount equal to the amount requested in accordance with Section 2.1.2, but not
to exceed at any time an aggregate amount equal to Stated Amount of Revolving
Credit then in effect. The aggregate principal amount of the loans made
pursuant to this Section 2.1.1 at any time outstanding is referred to as the
"Revolving Loan".
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2.1.2 Borrowing Requests. Revolving Loans will be made to
the Borrowers by the Lender under Section 2.1.1 on any Banking Day on or after
the Initial Closing Date and prior to the Final Revolving Loan Maturity Date.
Not later than noon (New York time) on the fourth Banking Day prior to the
requested Closing Date for any such loan, Company, for and on behalf of all the
Borrowers will give the Lender notice (either written notice, or telephonic
notice promptly confirmed in writing) of their request (a "Notice of
Borrowing") specifying (a) the amount of the requested loan (not less than
$1,000,000 and in integral multiples of $500,000), (b) the requested Closing
Date therefor, and (c) the requested Interest Period; provided that (i)
Interest Periods shall be selected so that there shall be no more than five (5)
Interest Periods outstanding at any time; (ii) no Interest Period with respect
to any Revolving Loan shall expire later than the Final Revolving Loan Maturity
Date; (iii) in the case of immediately successive Interest Periods applicable
to a Revolving Loan continued pursuant to a Notice of Continuation, (or in the
absence of a Notice of Continuation, as provided for in this Section 2.1.2)
each successive Interest Period shall commence on the day on which the next
preceding Interest Period expires; and (iv) in the event Borrowers fail to
specify an Interest Period for any Revolving Loan in the applicable Notice of
Borrowing or Notice of Continuation Borrowers shall be deemed to have selected
an Interest Period of one month. On or before noon New York time on the fourth
Banking Day prior to the expiration of any Interest Period, the Borrowers shall
deliver written notice (a "Notice of Continuation") to Lender which shall
specify (i) the amount of the Revolving Loan to be continued, and (ii) the
requested Interest Period. In lieu of delivering the above-described Notice of
Continuation, Borrowers may give Lender telephonic notice by the required time
of any proposed continuation under this Section 2.1.2; provided that such
notice shall be promptly confirmed in writing by delivery of a Notice of
Continuation to Lender on or before the proposed continuation date. If
Borrowers shall fail to give Lender a Notice of Continuation as provided above,
Borrowers shall be deemed to have given Lender a Notice of Continuation
selecting an Interest Period of one month for the then outstanding principal
amount of the Revolving Loan with respect to which the Interest Period is
expiring. Each such Revolving Loan will be made by depositing the amount
thereof to an account maintained by the Borrowers at a financial institution
located in New York City, New York.
2.1.3 Revolving Note. The Revolving Loan shall be
evidenced by a promissory note in substantially the form of Exhibit 2.1.3 (the
"Revolving Note") payable by the Borrowers (on a joint and several basis) to
the order of the Lender.
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2.2 Term Credit.
2.2.1 Term Loan. Subject to all the terms and conditions
hereof and so long as no Default exists, Lender will lend to Borrowers as a
term loan concurrently with the occurrence of the Effective Time the sum of One
Hundred Million Dollars ($100,000,000). If Borrowers desire that Lender make
the Term Loan, they shall deliver to Lender a written notice no later than noon
(New York time) at least four (4) Banking Days in advance of the proposed
Merger Date specifying the proposed Merger Date (which shall be a Banking Day).
The aggregate principal amount of the loan made pursuant to this Section 2.2.1
at any time outstanding is referred to as the "Term Loan".
2.2.2 Term Note. The Term Loan shall be made by depositing
the amount of such loan either to an account maintained by Borrowers at a
financial institution located in New York City, New York or such other account
at a financial institution located in New York City, New York as Borrowers may
direct in written instructions given to Lender, against delivery to Lender of a
promissory note in substantially the form of Exhibit 2.2.2 (the "Term Note")
payable by the Borrowers (on a joint and several basis) to the order of the
Lender.
2.3 Application of Proceeds.
2.3.1 Revolving Loan. The Borrowers will apply the
proceeds of the Revolving Loan to pay the Indebtedness under the Prior
Agreement, for working capital and for other lawful corporate purposes of the
Company and its Subsidiaries.
2.3.2 Term Loan. The Borrowers will apply the proceeds of
the Term Loan only to pay all or a portion of the Cash Merger Consideration in
connection with the Merger and may not use the proceeds of the Term Loan for
any other purpose.
2.3.3 Specifically Prohibited Applications. The Borrowers
will not, directly or indirectly, apply any part of the proceeds of any
extension of credit made pursuant to the Credit Documents to purchase or to
carry Margin Stock or to any transaction prohibited by any laws or regulations
applicable to the Borrowers.
3. Interest; Fees.
3.1 Interest.
3.1.1 Revolving Loan. Each Revolving Loan shall accrue and
bear daily interest at a rate per annum which shall at all times equal the
Applicable Rate applicable to such Revolving Loan. Prior to any stated or
accelerated maturity of the Revolving Loan, the Borrowers will, on each Payment
Date applicable to the Revolving Loan, pay the accrued and unpaid
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interest on the Revolving Loan. On any stated or accelerated maturity of the
Revolving Loan, the Borrowers will pay all accrued and unpaid interest on the
Revolving Loan.
3.1.2 Term Loan. The Term Loan shall accrue and bear daily
interest at the rate of 6-5/8% per annum. Prior to any stated or accelerated
maturity of the Term Loan, the Borrowers will, on each Payment Date applicable
to the Term Loan, pay the accrued and unpaid interest on the Term Loan. On any
stated or accelerated maturity of the Term Loan, the Borrowers will pay all
accrued and unpaid interest on the Term Loan.
3.1.3 Interest on Overdue Amounts. The Borrowers will on
demand pay daily interest (including post-petition interest in any proceeding
under applicable bankruptcy laws) on any overdue installments of principal and,
to the extent not prohibited by applicable law, on any overdue installments of
interest and fees owed under any Credit Document at a rate per annum which
equals the sum of 2% plus the highest Applicable Rate then in effect.
3.1.4 Limitation by Applicable Law. Anything in this
Agreement or the Notes to the contrary notwithstanding, the interest rates on
the Loans shall in no event be in excess of the maximum permitted by applicable
law.
3.2 Fees.
3.2.1 Commitment Fees. In consideration of the Lender's
commitments to make the extensions of credit provided for in Section 2.1, while
such commitments are outstanding, the Borrowers (jointly and severally) will
pay to the Lender, on each Payment Date applicable to the Revolving Loan, a
commitment fee equal to daily interest at the rate of .175% per annum on the
amount by which (a) the daily Stated Amount of Revolving Credit during the
three-month period or portion thereof ending on such date exceeded (b) the
daily Revolving Loans outstanding during such period or portion thereof;
provided, however, that the commitment fee due on the last Banking Day of
March, 1994 shall be for the period beginning on the Initial Closing Date and
ending on such last Banking Date.
3.2.2 Facility Fee. Borrowers (jointly and severally)
agree to pay to Lender, payable annually in advance on the Initial Closing Date
and each annual anniversary thereafter, a facility fee equal to Three Hundred
Fifty Thousand Dollars ($350,000) per annum (i.e., .20% of $175,000,000). If
Borrowers permanently and irrevocably terminate Lender's obligations to make
the Revolving Loans and Term Loans hereunder and Borrowers repay all Credit
Obligations hereunder and under the other Credit Documents, then Lender agrees
to repay to Borrowers a portion of the annual facility fee paid to Lender
pursuant to this Section 3.2.2 with respect to the applicable one year period,
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pro-rated on the basis of a 360-day year for the actual number of days
remaining in the year.
3.2.3 Annual Administrative Fee. Borrowers (jointly and
severally) agree to pay Lender an annual administrative fee equal to $15,000 on
the Initial Closing Date and on each anniversary thereafter prior to the Final
Revolving Loan Maturity Date.
3.3 Computations of Interest and Fees. For purposes of this
Agreement, interest and fees (and any amount expressed as interest or such
fees) shall be computed on a daily basis and on the basis of a 360-day year for
the actual number of days elapsed. In computing interest on any Loan, the date
of the making of such Loan or the first day of an Interest Period applicable to
such Loan shall be included, and the date of payment of such Loan shall be
excluded; provided that if a Loan is repaid on the same day on which it is
made, one day's interest shall be paid on that Loan.
4. Payment.
4.1 Payment at Maturity. On the stated or any accelerated
maturity of the Notes, the Borrowers will pay to the Lender for credit to the
applicable Note an amount equal to the principal evidenced by the applicable
Note then due, together with all accrued and unpaid interest thereon and all
other Credit Obligations in respect thereof then outstanding.
4.2 Contingent Required Prepayments. If at any time the aggregate
of the Revolving Loans outstanding exceeds the Stated Amount of Revolving
Credit then in effect, the Borrowers will promptly pay the amount of such
excess to Lender.
4.3 Voluntary Prepayments. In addition to the prepayments
required by Section 4.2, the Borrowers may from time to time prepay all or any
portion of the Revolving Loan, without premium. The Borrower making such a
prepayment shall give the Lender at least four (4) Banking Days' prior notice
of its intention to prepay, specifying the date of payment, the total principal
amount of the Revolving Loan to be paid on such date and the amount of interest
to be paid with such prepayment. The Borrowers may from time to time prepay
all or any portion of the Term Loan (in a minimum amount of $1,000,000 and in
integral multiples of $500,000), without premium. The Borrowers making such a
prepayment shall give Lender at least thirty (30) Banking Days' prior notice of
their intention to prepay, specifying the date of payment, the total principal
amount of the Term Loan to be paid on such date and the amount of interest to
be paid with such prepayment.
4.4 Reborrowing. The amounts of the Revolving Loan repaid or
prepaid pursuant to Section 4.3 may be reborrowed from
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time to time prior to the Final Revolving Loan Maturity Date in accordance with
Section 2.1. Amounts of the Term Loan repaid or prepaid pursuant to Section
4.3 may not be reborrowed.
4.5 Payment with Accrued Interest. Upon all prepayments of the
Loans, the Borrower making the prepayment shall pay to the Lender the principal
amount to be prepaid together with unpaid interest in respect thereof accrued
to the date of prepayment. Notice of prepayment having been given in
accordance with Section 4.3 and whether or not notice is given of prepayments
pursuant to Section 4.2, the amount specified to be prepaid shall become due
and payable on the date specified for prepayment.
4.6 Payments. The Borrowers shall make each payment of principal,
interest and fees hereunder and under the Notes, without defense, setoff or
counterclaim, not later than 12 noon, New York time, on the day when due in
lawful money of the United States of America to the Lender at an account of the
Lender designated from time to time in immediately available funds.
4.7 Payment on Non-Banking Days. Whenever any payment to be made
hereunder or under the Notes shall be stated to be due on a day that is not a
Banking Day, such payment may be made on the next succeeding Banking Day, and
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension.
5. Conditions to Extending Credit.
5.1 Conditions on Initial Closing Date. The obligations of Lender
to make any Loan pursuant to Section 2 shall be subject to the satisfaction, on
or before the Initial Closing Date, of the following conditions, in addition to
the conditions set forth in Section 5.3:
5.1.1 Notes. The Borrowers shall have executed the Notes
and delivered them to the Lender.
5.1.2 Guaranty. Each of the Borrowers and the other
Guarantors shall have entered into a Guaranty in form and substance
satisfactory to Lender pursuant to which each Guarantor shall jointly and
severally guaranty payment of all Credit Obligations and pursuant to which they
shall agree to make contributions among themselves with respect to payments
made in accordance with their respective guarantees of the Credit obligations.
5.1.3 Payment of Fees. The Company shall have paid to the
Lender a closing fee in the amount of $200,000.
5.1.4 Termination of Prior Credit Agreement. The Prior
Credit Agreement shall have been terminated, all the security interests
relating thereto shall no longer be effective and
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provisions satisfactory to the Lender for the release of record and the
reassignment of financing statements, instruments and documents which were
executed in order to perfect such security interests shall have been made.
5.1.5 Perfection of Security. Each Obligor shall have duly
authorized, executed, acknowledged, delivered, filed, registered and recorded
such security agreements, notices, financing statements, Security Documents,
and other instruments as the Lender may have requested in order to perfect the
security interests and encumbrances purported or required pursuant to the
Credit Documents to be created in the Credit Security.
5.1.6 Board Resolutions. Lender shall have received a copy
of the resolutions of the Board of Directors of the Company and the resolutions
of an independent, disinterested committee of the Board of Directors of the
Company, each in form and substance satisfactory to Lender approving and
authorizing the execution, delivery and performance of the Credit Documents and
the transactions contemplated thereunder, each certified as of the Initial
Closing Date by the secretary or an assistant secretary of the Company.
5.2 Conditions to the Term Loan. The obligations of Lender to
make the Term Loan pursuant to Section 2.2 shall be subject to the concurrent
consummation of the Merger and the satisfaction of the conditions in Sections
5.1 and 5.3.
5.3 Conditions to Each Extension of Credit. The obligations of
Lender to make any Loan pursuant to Section 2 shall be subject to the
satisfaction, on or before the Closing Date for such Loan, of the following
conditions:
5.3.1 Proper Proceedings. This Agreement, each other
Credit Document and the transactions contemplated hereby and thereby shall have
been authorized by all necessary proceedings of each Obligor and any of their
respective Affiliates party thereto. All necessary consents, approvals and
authorizations of any governmental or administrative agency or any other Person
of any of the transactions contemplated hereby or by any other Credit Document
shall have been obtained and shall be in full force and effect. Lender shall
have received copies of all documents that Lender may have reasonably requested
in connection with the foregoing.
5.3.2 No Default. No Default shall have occurred and be
continuing, or would result from such borrowing.
5.3.3 Representations and Warranties. All representations
and warranties contained in this Agreement and the other Credit Documents shall
be true and correct in all material respects on the date of such Loan to the
same extent as though made on and as of that date.
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6. Covenants.
6.1 Non-Borrower Subsidiaries. Each of the Borrowers covenants
that, until all of the Credit Obligations shall have been paid in full and
until Lender's commitments to extend credit under this Agreement and any other
Credit Document shall have been irrevocably terminated, it and its respective
present and future Subsidiaries (including, without limitation, Republic and
Republic's Subsidiaries following consummation of the Merger) will cause any
present and future Material Subsidiary (including, without limitation, Republic
and Republic's Material Subsidiaries following consummation of the Merger) to
become a Borrower hereunder (other than a Material Subsidiary organized under
the laws of a jurisdiction outside of the United States which is prohibited
under applicable foreign law from guaranteeing the Credit Obligations) by
executing a joinder to this Agreement, the Security Documents and such other
documents as the Lender may reasonably request.
6.2 Disposition of Assets. Neither the Company nor any of its
Subsidiaries will sell, lease, license, convey or otherwise dispose of, in one
transaction or a series of transactions, all or a substantial part of its
business or assets whether now owned or hereafter acquired; provided, however,
that Company and its Subsidiaries may sell, distribute or otherwise exploit
Product and Product Rights in the ordinary course of business.
7. Representations and Warranties.
7.1 Borrower's Representations and Warranties. In order to induce
the Lender to extend credit to the Borrowers hereunder, each of the Borrowers
jointly and severally represents and warrants that:
7.1.1 Organization, Etc. Each Borrower is a duly organized
and validly existing corporation, in good standing under the laws of the state
of its incorporation, with all power and authority, corporate or otherwise,
necessary to (a) enter into and perform this Agreement and each other Credit
Document to which it is party, (b) guarantee the Credit Obligations, (c) grant
the Lender the security interests in the Credit Security owned by it to secure
the Credit Obligations and (d) own its properties and carry on the business now
conducted or proposed to be conducted by it. Each Borrower has taken all
corporate action required to execute, deliver and perform this Agreement and
each other Credit Document to which it is party.
7.1.2 No Legal Obstacle to Agreements. Neither the
execution and delivery of this Agreement or any other Credit Document, nor the
making of any borrowings hereunder, nor the guaranteeing of the Credit
Obligations, nor the securing of the Credit Obligations with the Credit
Security, nor the fulfillment
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of the terms hereof or of any other Credit Document, has constituted or
resulted in or will constitute or result in:
(a) any breach or termination of the
provisions of any agreement, instrument, deed or lease to which the
Company or any of its Subsidiaries is a party or by which it is bound;
(b) the violation of any law, statute,
judgment, decree or governmental order, rule or regulation applicable
to the Company or any of its Subsidiaries;
(c) the creation under any agreement,
instrument, deed or lease of any Lien (other than Liens on the Credit
Security which secure the Credit Obligations) upon any of the assets
of the Company or any of its Subsidiaries; or
(d) any redemption, retirement or other
repurchase obligation of the Company or any of its Subsidiaries under
any Articles, By-law, agreement, instrument, deed or lease.
Other than filings to perfect the security interests in the Credit Security, no
approval, authorization or other action by, or declaration to or filing with,
any governmental or administrative authority or any other Person is required to
be obtained or made by the Company or any Subsidiary in connection with the
execution, delivery and performance of this Agreement, the Notes or any other
Credit Document, or the making of any borrowing hereunder.
7.1.3 Defaults. Neither the Company nor any of its
Subsidiaries is in default under any provision of its Articles or By-laws or of
this Agreement or any other Credit Document. Neither the Company nor any of
its Subsidiaries is in default under any provision of any agreement,
instrument, deed or lease to which it is party or by which it or its property
is bound, or has violated any law, judgment, decree or governmental order, rule
or regulation, in each case, so as to result, or pose a material risk of
resulting, in any Material Adverse Change.
7.1.4 Validity. Each of the Credit Documents has been duly
executed and delivered by each Obligor and is the legally valid and binding
obligation of each Obligor, enforceable against each Obliger in accordance with
its respective terms; except in each case as such enforceability may be limited
by bankruptcy, insolvency, reorganization, liquidation, moratorium or other
similar laws of general application and equitable principles relating to or
affecting creditors' rights.
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7.1.5 No Material Adverse Change. No event or change has
occurred that represents, either in any case or in the aggregate, a Material
Adverse Change.
7.1.6 Material Subsidiaries. Attached hereto as Schedule
7.1.6 is a true and complete list of all Persons who are Material Subsidiaries
of Spelling Entertainment Inc.
7.2 Lender's Representations and Warranties. In order to induce
the Borrowers to enter into this Agreement and the other Credit Documents,
Lender represents and warrants that:
7.2.1 Organization, Etc. Lender is a duly organized and
validly existing corporation, in good standing under the laws of the state of
its incorporation, with all power and authority, corporate or otherwise,
necessary to enter into and perform this Agreement and each other Credit
Document to which it is party. Lender has taken all corporate action required
to execute, deliver and perform this Agreement and each other Credit Document
to which it is party.
7.2.2 Validity. Each of the Credit Documents to which
Lender is a party has been duly executed and delivered by Lender and is the
legally valid and binding obligation of Lender, enforceable against Lender in
accordance with its respective terms; except in each case as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium or other similar laws of general application and
equitable principles relating to or affecting creditors' rights.
8. Defaults.
8.1 Events of Default. The following events are referred to as
"Events of Default":
8.1.1 Any Borrower shall fail to make any payment in
respect of: (a) interest on any of the Credit Obligations owed by it as the
same shall become due and payable, and such failure shall continue for a period
of five consecutive days, or (b) any fee on, or any expense or indemnity in
respect of, any of the Credit Obligations as the same shall become due and
payable and such failure shall continue for a period of five consecutive days
after notice thereof by the Lender to the Company, or (c) principal of any of
the Credit Obligations owed by it as the same shall become due, whether at
maturity or by acceleration or otherwise.
8.1.2 The Company or any of its Subsidiaries or any of
their respective Affiliates party to any Credit Document shall fail to perform
or observe any other covenant, agreement or provision to be performed or
observed by it under this Agreement or any other Credit Document, and such
failure shall not be cured within 30 days after notice thereof by Lender to the
Company.
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8.1.3 Any material representation or material warranty of
or with respect to the Company, any of its Subsidiaries or any of their
respective Affiliates party to any Credit Document made to Lender in, pursuant
to or in connection with this Agreement or any other Credit Document shall be
materially false on the date as of which it was made.
8.1.4 (a) The Company or any of its Subsidiaries
shall fail to make any payment when due (after giving effect to any
applicable grace periods) in respect of any Financing Debt (other than
the Credit Obligations) outstanding in an aggregate amount of
principal and accrued and unpaid interest exceeding $1,000,000;
(b) The Company or any of its Subsidiarie shall
fail to perform or observe the terms of any agreement relating to such
Financing Debt, and such failure or condition shall continue, without
having been duly cured, waived or consented to, beyond the period of
grace, if any, specified in such agreement, and such failure or
condition shall permit the acceleration of such Financing Debt in an
aggregate amount of principal and accrued and unpaid interest
exceeding $1,000,000;
(c) any such Financing Debt of the Company or
any of its Subsidiaries in an aggregate amount of principal and
accrued and unpaid interest exceeding $1,000,000 shall be accelerated
or become due or payable prior to its stated maturity for any reason
whatsoever (other than voluntary prepayments thereof);
(d) any lien on any property of the Company or
any of its Subsidiaries securing any such Financing Debt in an
aggregate amount of principal and accrued and unpaid interest
exceeding $1,000,000 shall be enforced by foreclosure or similar
action; or
(e) any holder of any such Financing Debt in
an aggregate amount of principal and accrued and unpaid interest
exceeding $1,000,000 shall exercise any right of rescission with
respect to the issuance thereof.
8.1.5 Any Credit Document shall cease, for any reason
(other than the scheduled termination thereof in accordance with its terms), to
be in full force and effect; or the Company, any of its Subsidiaries or any of
their respective Affiliates party thereto shall so assert in a judicial or
similar proceeding; or the security interests created by this Agreement and the
other Credit Documents shall cease to be enforceable and of the same effect and
priority purported to be created hereby, except solely as a result of failure
by the Lender to file continuation statements with respect to financing
statements or
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<PAGE> 25
to take other similar administrative steps within its sole control.
8.1.6 A final judgment:
(a) which, with other outstanding final
judgments against the Company and any of its Subsidiaries, exceeds an
aggregate of $3,000,000 shall be rendered against the Company or any
of its Subsidiaries or Affiliates party to any Credit Document, or
(b) which grants injunctive relief that
results in, or poses a material risk of resulting in, a Material
Adverse Change shall be rendered,
and if, within 60 days after entry thereof, such judgment shall not have been
discharged or execution thereof stayed pending appeal, or if, within 60 days
after the expiration of any such stay, such judgment shall not have been
discharged.
8.1.7 The Company, any of its Material Subsidiaries or any
of their respective Affiliates obligated with respect to any Credit Obligation
shall:
(a) commence a voluntary case under the
Bankruptcy Code or authorize, by appropriate proceedings of its board
of directors or other governing body, the commencement of such a
voluntary case;
(b) have filed against it a petition
commencing an involuntary case under the Bankruptcy Code which shall
not have been dismissed within 60 days after the date on which such
petition is filed; or file an answer or other pleading within such
60-day period admitting or failing to deny the material allegations of
such a petition or seeking, consenting to or acquiescing in the relief
therein provided;
(c) have entered against it an order for
relief in any involuntary case commenced under the Bankruptcy Code;
(d) seek relief as a debtor under any
applicable law, other than the Bankruptcy Code, of any jurisdiction
relating to the liquidation or reorganization of debtors, or to the
modification or alteration of the rights of creditors, or consent to
or acquiesce in such relief;
(e) have entered against it an order by a
court of competent jurisdiction (i) finding it to be bankrupt or
insolvent, (ii) ordering or approving its liquidation, reorganization
or any modification or alteration of the rights of its creditors or
(iii) assuming custody of, or
19
<PAGE> 26
appointing a receiver or other custodian for, all or a substantial
portion of its property; or
(f) make an assignment for the benefit of, or
enter into a composition with, its creditors, or appoint, or consent
to the appointment of, or suffer to exist a receiver or other
custodian for, all or a substantial portion of its property.
8.1.8 Lender and its Affiliates shall cease to beneficially
own and control a majority of the issued and outstanding shares of capital
stock of Company entitled (without regard to the occurrence of any contingency)
to vote for the election of members of the board of directors of Company.
8.1.9 Lender shall fail to make any payment when due in
respect of or should otherwise be in breach or default of (in each case, after
giving effect to any applicable grace period) the Blockbuster Credit Facility.
8.2 Certain Actions Following an Event of Default. If any one or
more Events of Default shall occur and be continuing, then in each and every
such case:
8.2.1 No Obligation to Extend Credit. Lender may terminate
the obligations of Lender to make any further extensions of credit under the
Credit Documents by furnishing notice thereof to the Borrowers; provided,
however, that the obligations of Lender to make any further extensions of
credit under the Credit Documents shall automatically terminate without notice
to the Borrowers upon the occurrence of a Bankruptcy Default.
8.2.2 Specific Performance; Exercise of Rights. Lender may
proceed to protect and enforce Lender's rights by suit in equity, action at law
and/or other appropriate proceeding, either for specific performance of any
covenant or condition contained in this Agreement or any other Credit Document
or in any instrument or assignment delivered to the Lender pursuant to this
Agreement or any other Credit Document, or in aid of the exercise of any power
granted in this Agreement or any other Credit Document or any such instrument
or assignment.
8.2.3 Acceleration. Lender may, by notice in writing to
the Borrowers, declare all or any part of the unpaid balance of the Credit
Obligations then outstanding to be immediately due and payable, and thereupon
such unpaid balance or part thereof shall become so due and payable without
presentation, protest or further demand or notice of any kind, all of which are
hereby expressly waived; provided, however, that if a Bankruptcy Default shall
have occurred, the unpaid balance of the Credit Obligations shall automatically
become immediately due and payable; provided, however, that if an Event of
Default described
20
<PAGE> 27
in Section 8.1.9 has occurred and is continuing but at the applicable time of
determination the Indebtedness incurred under the Blockbuster Credit Facility
has not been accelerated, then Lender may not by reason of such Event of
Default, declare all or any part of the unpaid balance of the Credit
Obligations then outstanding to be immediately due and payable until such time,
if ever, that the Indebtedness under the Blockbuster Credit Facility is
accelerated.
8.2.4 Enforcement of Payment; Setoff. Lender may proceed
to enforce payment of the Credit Obligations in such manner as it may elect and
to realize upon any and all rights in the Credit Security. Lender may offset
and apply toward the payment of the Credit Obligations (and/or toward the
curing of any Event of Default) any Indebtedness from Lender to the respective
Obligors, regardless of the adequacy of any security for the Credit
Obligations. Lender shall have no duty to determine the adequacy of any such
security in connection with any such offset.
8.2.5 Cumulative Remedies. To the extent not prohibited by
applicable law which cannot be waived, all of the Lender's rights hereunder and
under each other Credit Document shall be cumulative.
8.3 Annulment of Defaults. Any Default or Event of Default shall
be deemed to exist and to be continuing for any purpose of this Agreement until
such Default or Event of Default has been completely cured in every respect or
the Lender shall have waived such Default or Event of Default in writing or
entered into an amendment to this Agreement which by its express terms cures
such Default or Event of Default. No such action by the Lender shall extend to
or affect any subsequent Default or Event of Default or impair any rights of
the Lender upon the occurrence thereof. The making of any extension of credit
during the existence of any Default or Event of Default shall not constitute a
waiver thereof.
8.4 Waivers. Each of the Borrowers waives to the extent not
prohibited by the provisions of applicable law that cannot be waived:
(a) all presentments, demands for performance,
notices of nonperformance (except to the extent required by the
provisions of this Agreement or any other Credit Document), protests,
notices of protest and notices of dishonor;
(b) any requirement of diligence or promptness
in the part of Lender in the enforcement of its rights under this
Agreement, the Notes or any other Credit Document;
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<PAGE> 28
(c) any and all notices of every kind and
description which may be required to be given by any statute or rule
of law.
9. Expenses; Indemnity.
9.1 Expenses. Whether or not the transactions contemplated hereby
shall be consummated (unless such transactions are not consummated solely by
reason of the gross negligence or willful misconduct of Lender), the Borrowers
will pay:
(a) all reasonable expenses of Lender
(including the reasonable fees, expenses and disbursements of counsel
to Lender including allocated costs of internal counsel) in connection
with the preparation, negotiation, execution, delivery and
administration of this Agreement, each other Credit Document, the
transactions contemplated hereby and thereby and operations hereunder
and thereunder;
(b) all recording and filing fees and transfer
and documentary stamp and similar taxes at any time payable in respect
of this Agreement, any other Credit Document, any Credit Security or
the incurrence of the Credit Obligations; and
(c) to the extent not prohibited by applicable
law that cannot be waived, all other reasonable expenses incurred by
Lender or the holder of any Credit Obligation in connection with the
enforcement of any rights hereunder or under any other Credit
Document, including costs of collection and reasonable attorneys' fees
(including a reasonable allowance for the hourly cost of attorneys
employed by Lender on a salaried basis) and expenses.
9.2 General Indemnity. The Borrowers will, jointly and severally,
indemnify Lender and hold Lender harmless from any liability, loss or damage
resulting from the violation by the Borrowers of Section 2.3. The Borrowers
will also, jointly and severally, indemnify Lender, each of the Lender's
directors, officers, employees, attorneys, and Affiliates and each Person, if
any, who controls Lender (Lender and each of such directors, officers,
employees and Affiliates and control Persons is referred to as an "Indemnified
Party") and hold each of them harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs, expenses and disbursements of any kind or nature
whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel (including allocated costs of internal counsel) for
such Indemnified Party in connection with any investigative, administrative or
judicial proceeding commenced or threatened, whether or not such Indemnified
Party shall be designated a party thereto), that may be imposed on, incurred
by, or asserted against that Indemnified Party, in any
22
<PAGE> 29
manner relating to or arising out of this Agreement or the other Credit
Documents, Lender's agreement to make the Loans as provided herein, or the use
or intended use of the proceeds of any of the Loans hereunder (the "Indemnified
Liabilities"); provided that Borrowers shall have no obligation to an
Indemnified Party hereunder with respect to Indemnified Liabilities arising
from (i) the gross negligence or willful misconduct of that Indemnified Party
or (ii) an investigative proceeding related primarily to the activities of
Lender. To the extent that the undertaking to indemnify, pay and hold harmless
set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, and Borrower shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law,
to the payment and satisfaction of all Indemnified Liabilities incurred by the
Indemnified Parties or any of them. The indemnities contained in this
subsection shall survive the termination of the other provisions of this
Agreement, shall constitute separate and independent obligations of each
Borrower from its other obligations under this Agreement and shall give rise to
separate and independent causes of action against each Borrower.
10. Successors and Assigns. Any reference in this Agreement to any of the
parties hereto shall be deemed to include the successors and assigns of such
party, including without limitation any assignee or transferee of any of the
Loans, and all covenants and agreements by or on behalf of the Borrowers or
Lender that are contained in this Agreement shall bind and inure to the benefit
of their respective successors and assigns; provided, however, that the Company
and its Subsidiaries may not assign their rights or obligations under this
Agreement.
11. Notices. Except as otherwise specified in this Agreement, any notice
required to be given pursuant to this Agreement shall be given in writing. Any
notice, demand or other communication in connection with this Agreement shall
be deemed to be given if given in writing (including telex, telecopy or similar
teletransmission) addressed as provided below (or to the addressee at such
other address as the addressee shall have specified by notice actually received
by the addressor), and if either (a) actually delivered in fully legible form
to such address (evidenced in the case of a telex by receipt of the correct
answer back) or (b) in the case of a letter, five days shall have elapsed after
the same shall have been deposited in the United States mails, with first-class
postage prepaid and registered or certified.
If to the Company or any of its Subsidiaries, to it in care of the
Company at its address set forth on the signature page hereof, to the attention
of the chief financial officer.
If to Lender, to it at its address set forth on the signature page of
this Agreement, to the attention of the chief
23
<PAGE> 30
financial officer with a copy to the assistant treasurer and director of cash
management.
12. Course of Dealing; Amendments and Waivers. No course of dealing
between Lender, on one hand, and the Company or any of its Subsidiaries or
their respective Affiliates, on the other hand, shall operate as a waiver of
any of Lender's rights under this Agreement or any other Credit Document or
with respect to the Credit Obligations. Each of the Company and its
Subsidiaries acknowledges that if the Lender, without being required to do so
by this Agreement or any other Credit Document, gives any notice or information
to, or obtains any consent from, any of the Company and its Subsidiaries or any
of their respective Affiliates, Lender shall not by implication have amended,
waived or modified any provision of this Agreement or any other Credit
Document, or created any duty to give any such notice or information or to
obtain any such consent on any future occasion. No delay or omission on the
part of Lender in exercising any right under this Agreement or any other Credit
Document or with respect to the Credit Obligations shall operate as a waiver of
such right or any other right hereunder or thereunder. A waiver on any one
occasion shall not be construed as a bar to or waiver of any right or remedy on
any future occasion. No waiver, consent or amendment with respect to this
Agreement or any other Credit Document shall be binding unless it is in writing
and signed by Lender.
13. Venue; Service of Process. Each of the Borrowers:
(a) Irrevocably submits to the nonexclusive
jurisdiction of the state and federal courts located in the States of
New York, Florida and California for the purpose of any suit, action
or other proceeding arising out of or based upon this Agreement or any
other Credit Document or the subject matter hereof or thereof.
(b) Waives to the extent not prohibited by
applicable law, and agrees not to assert, by way of motion, as a
defense or otherwise, in any such proceeding brought in any of the
above-named courts, any claim that it is not subject personally to the
jurisdiction of such court, that its property is exempt or immune from
attachment or execution, that such proceeding is brought in an
inconvenient forum, that the venue of such proceeding is improper, or
that this Agreement or any other Credit Document, or the subject
matter hereof or thereof, may not be enforced in or by such court.
Each of the Borrowers and the Lender consents to service of process in any such
proceeding in any manner permitted by applicable state or federal law and
agrees that service of process by registered or certified mail, return receipt
24
<PAGE> 31
requested, at its address specified in or pursuant to Section 11 is reasonably
calculated to give actual notice.
14. General. All covenants, agreements, representations and warranties
made in this Agreement or any other Credit Document or in certificates
delivered pursuant hereto or thereto shall be deemed to have been relied on by
Lender, notwithstanding any investigation made by Lender on its behalf, and
shall survive the execution and delivery to the Lender hereof and thereof. The
invalidity or unenforceability of any other provision hereof shall not affect
the validity or enforceability of any other provision hereof. The headings in
this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof. This Agreement and the other Credit
Documents constitute the entire understanding of the parties with respect to
the subject matter hereof and thereof and supersede all prior and current
understandings and agreements, whether written or oral. Section 9 shall
survive the termination of this Agreement. This Agreement may be executed in
any number of counterparts which together shall constitute one instrument.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS (OTHER THAN THE CONFLICT OF LAWS RULES) OF THE STATE OF NEW YORK.
15. Negotiations Regarding Possible Extension of Final Revolving Loan
Maturity Date. If prior to March 31, 1997, the Blockbuster Credit Facility is
terminated, repaid or restructured (other than due to an acceleration of
Blockbuster's obligations thereunder) so as to result in an increased cost of
funds to Lender, then for a period of one hundred twenty (120) days thereafter
Lender and Borrowers will negotiate in good faith to reset the interest rates
and fees applicable to the Revolving Loans hereunder in order to take into
account Lender's increased cost of funds.
(Remainder of page intentionally left blank)
25
<PAGE> 32
Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
BORROWERS
SPELLING ENTERTAINMENT GROUP INC.
By:_________________________________
Title:
One Blockbuster Plaza
200 South Andrews Avenue
Fort Lauderdale, Florida 33301
SPELLING ENTERTAINMENT INC.
By:_________________________________
Title:
5700 Wilshire Boulevard
Los Angeles, California 90036
AARON SPELLING PRODUCTIONS, INC.
LAUREL ENTERTAINMENT, INC.
SPELLING FILMS INTERNATIONAL, INC.
SPELLING TELEVISION INC.
TORAND PRODUCTIONS INC.
WORLDVISION ENTERPRISES, INC.
HAMILTON PROJECTS, INC.
LAUREL TV, INC.
LAUREL-KING, INC.
LAUREL EFX, INC.
LAUREL PICTURES INC.
By:_________________________________
As an authorized officer of each
each of the foregoing corporations
5700 Wilshire Boulevard
Los Angeles, California 90036
S-1
<PAGE> 33
LENDER
BLOCKBUSTER ENTERTAINMENT CORPORATION
By:____________________________
Title:
One Blockbuster Plaza
200 South Andrews Avenue
Fort Lauderdale, Florida 33301
S-2
<PAGE> 34
EXHIBIT 2.1.3
REVOLVING NOTE
$75,000,000 as of January 31, 1994
FOR VALUE RECEIVED, each of the undersigned, Spelling Entertainment
Group Inc., a Florida corporation (the "Company"), and certain of its
subsidiaries listed on the signature page hereof (together with the Company,
the "Borrowers"), jointly and severally, hereby promises to pay Blockbuster
Entertainment Corporation (the "Lender") or order, on the Final Revolving Loan
Maturity Date (as defined in the Credit Agreement referred to below), the
aggregate unpaid principal amount of the loans made by the Lender to the
Borrowers pursuant to the Credit Agreement. The Borrowers jointly and
severally promise to pay daily interest, computed as provided in such Credit
Agreement, on the aggregate principal amount of such loans from time to time
unpaid at the per annum rate applicable to such unpaid principal amount as
provided in such Credit Agreement and to pay interest on overdue principal and,
to the extent not prohibited by applicable law, on overdue installments of
interest and fees at the rate specified in such Credit Agreement, all such
interest being payable at the times specified in such Credit Agreement, except
that all accrued interest shall be paid at the stated or accelerated maturity
hereof or upon the prepayment in full hereof.
Payments hereunder shall be made to Lender at such account of Lender
as is specified by Lender in writing from time to time.
This Revolving Note evidences borrowings under, and is entitled to the
benefits and security of, and is subject to the provisions of, the Credit
Agreement dated as of January 31, 1994, as from time to time in effect (the
"Credit Agreement"), among the Borrowers and Lender and the Security Documents
(as defined in the Credit Agreement). The principal of this Revolving Note is
prepayable in the amounts and under the circumstances set forth in the Credit
Agreement, and may be prepaid in whole or from time to time in part, all as set
forth in the Credit Agreement. Terms defined in the Credit Agreement and not
otherwise defined herein are used herein with the meanings so defined.
In case an Event of Default shall occur and be continuing, the entire
principal of this Revolving Note may become or be declared due and payable in
the manner and with the effect provided in the Credit Agreement.
Exhibit 2.1.3
1
<PAGE> 35
THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS (OTHER THAN THE CONFLICT OF LAWS RULES) OF THE STATE OF NEW YORK.
The parties hereto, including the Borrowers and all guarantors and
endorsers, hereby waive presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance
and enforcement of this Revolving Note, except as specifically otherwise
provided in the Credit Agreement, and assent to extensions of time of payment,
or forbearance or other indulgence without notice.
SPELLING ENTERTAINMENT GROUP INC.
By:_______________________________
Title:
SPELLING ENTERTAINMENT INC.
By:_______________________________
Title:
AARON SPELLING PRODUCTIONS, INC.
LAUREL ENTERTAINMENT, INC.
SPELLING FILMS INTERNATIONAL, INC.
SPELLING TELEVISION INC.
TORAND PRODUCTIONS INC.
WORLDVISION ENTERPRISES, INC.
HAMILTON PROJECTS, INC.
LAUREL TV, INC.
LAUREL-KING, INC.
LAUREL EFX, INC.
LAUREL PICTURES INC.
By:_______________________________
As an authorized officer of
each of the foregoing
corporations
Exhibit 2.1.3
2
<PAGE> 36
EXHIBIT 2.2.2
TERM NOTE
$100,000,000 as of January 31, 1994
FOR VALUE RECEIVED, each of the undersigned, Spelling Entertainment
Group Inc., a Florida corporation (the "Company"), and certain of its
subsidiaries listed on the signature page hereof (together with the Company,
the "Borrowers"), jointly and severally, hereby promises to pay Blockbuster
Entertainment Corporation (the "Lender") or order, on the Final Term Loan
Maturity Date (as defined in the Credit Agreement referred to below), the
aggregate unpaid principal amount of the Term Loan made by the Lender to the
Borrowers pursuant to the Credit Agreement. The Borrowers jointly and
severally promise to pay daily interest, computed as provided in such Credit
Agreement, on the aggregate principal amount of such loans from time to time
unpaid at the per annum rate applicable to such unpaid principal amount as
provided in such Credit Agreement and to pay interest on overdue principal and,
to the extent not prohibited by applicable law, on overdue installments of
interest and fees at the rate specified in such Credit Agreement, all such
interest being payable at the times specified in such Credit Agreement, except
that all accrued interest shall be paid at the stated or accelerated maturity
hereof or upon the prepayment in full hereof.
Payments hereunder shall be made to Lender at such account of Lender
as is specified by Lender in writing from time to time.
This Term Note evidences borrowings under, and is entitled to the
benefits and security of, and is subject to the provisions of, the Credit
Agreement dated as of January 31, 1994, as from time to time in effect (the
"Credit Agreement"), among the Borrowers and Lender and the Security Documents
(as defined in the Credit Agreement). The principal of this Term Note is
prepayable in the amounts and under the circumstances set forth in the Credit
Agreement, and may be prepaid in whole or from time to time in part, all as set
forth in the Credit Agreement. Terms defined in the Credit Agreement and not
otherwise defined herein are used herein with the meanings so defined.
In case an Event of Default shall occur and be continuing, the entire
principal of this Term Note may become or be declared due and payable in the
manner and with the effect provided in the Credit Agreement.
Exhibit 2.2.2
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<PAGE> 37
THIS TERM NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS (OTHER THAN THE CONFLICT OF LAWS RULES) OF THE STATE OF NEW YORK.
The parties hereto, including the Borrowers and all guarantors and
endorsers, hereby waive presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance
and enforcement of this Term Note, except as specifically otherwise provided in
the Credit Agreement, and assent to extensions of time of payment, or
forbearance or other indulgence without notice.
SPELLING ENTERTAINMENT GROUP INC.
By:_______________________________
Title:
SPELLING ENTERTAINMENT INC.
By:_______________________________
Title:
AARON SPELLING PRODUCTIONS, INC.
LAUREL ENTERTAINMENT, INC.
SPELLING FILMS INTERNATIONAL, INC.
SPELLING TELEVISION INC.
TORAND PRODUCTIONS INC.
WORLDVISION ENTERPRISES, INC.
HAMILTON PROJECTS, INC.
LAUREL TV, INC.
LAUREL-KING, INC.
LAUREL EFX, INC.
LAUREL PICTURES INC.
By:_______________________________
As an authorized officer of
each of the foregoing
corporations
Exhibit 2.2.2
2
<PAGE> 38
SCHEDULE 7.1.6
MATERIAL SUBSIDIARIES OF SPELLING ENTERTAINMENT INC.
Aaron Spelling Productions, Inc.
Laurel Entertainment, Inc.
Spelling Films International, Inc.
Spelling Television Inc.
Torand Productions Inc.
Worldvision Entertainment, Inc.
Hamilton Projects, Inc.
Laurel TV, Inc.
Laurel-King, Inc.
Laurel EFX, Inc.
Laurel Pictures Inc.
Schedule 7.1.6
3
<PAGE> 1
EXHIBIT 99.2
Pledge and Security Agreement dated as of January 31, 1994, by
and among the Registrant, certain subsidiaries of the
Registrant and Blockbuster Entertainment Corporation.
<PAGE> 2
EXHIBIT 99.2
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (the "AGREEMENT"), dated as
of January 31, 1994, made among SPELLING ENTERTAINMENT GROUP INC. ("SEGI"),
SPELLING ENTERTAINMENT INC., AARON SPELLING PRODUCTIONS, INC. ("ASP"), SPELLING
FILMS INTERNATIONAL, INC., ("SFI"), SPELLING TELEVISION INC. ("STI"), TORAND
PRODUCTIONS INC. ("TPI"), WORLDVISION ENTERPRISES, INC. ("WORLDVISION") and
LAUREL ENTERTAINMENT, INC. ("LAUREL"), HAMILTON PROJECTS, INC. ("HAMILTON"),
LAUREL TV, INC. ("LTV"), LAUREL-KING, INC. ("LKI"), LAUREL EFX, INC. ("LEI"),
LAUREL PICTURES INC. ("LPI"), the other present and future subsidiaries of SEGI
that are from time to time party hereto (the "OTHER SUBSIDIARIES") (SEGI, SEI,
ASP, SFI, STI, TPI, Worldvision, Laurel, Hamilton, LTV, LKI, LEI and LPI and
any other present and future subsidiary of SEGI which becomes a borrower under
the Credit Agreement (as hereinafter defined) are sometimes individually
referred to herein as a "GRANTOR" and collectively as "GRANTORS") and
BLOCKBUSTER ENTERTAINMENT CORPORATION, a Delaware corporation ("LENDER").
PRELIMINARY STATEMENTS:
(1) Lender has entered into a Credit Agreement dated as
of January 31, 1994 (said Agreement, as it may hereafter be amended,
supplemented or otherwise modified from time to time, including, without
limitation, by the joinder of additional present or future subsidiaries of SEGI
as borrowers thereunder, being the "CREDIT AGREEMENT," the terms defined
therein and not otherwise defined herein being used herein as therein defined)
with the Grantors thereunder pursuant to which Lender has made certain
commitments, subject to the terms and conditions set forth in the Credit
Agreement, to extend certain credit facilities to the Grantors.
(2) Grantors have executed and delivered a Guaranty dated
as of even date herewith (said Guaranty, as it may hereafter be amended,
supplemented or modified from time to time, including, without limitation, by
the joinder of additional present or future subsidiaries of SEGI as guarantors
thereunder, being the "GUARANTY") in favor of Lender, pursuant to which, inter
alia, the Grantors have guaranteed the Guaranteed Obligations (as that term is
defined in the Guaranty).
(3) The Credit Agreement requires Grantors to enter into
this Agreement prior to the making of the initial Loans thereunder and the
Grantors shall have granted the security interests and undertaken the
obligations contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce Lender
to make Loans under the Credit Agreement, and for other good and valuable
consideration, the receipt and
1
<PAGE> 3
adequacy of which are hereby acknowledged, each Grantor hereby agrees with
Lender as follows:
SECTION 1. ASSIGNMENT AND PLEDGE. Each Grantor hereby
mortgages, pledges, assigns and grants to Lender a continuing security interest
in all of such Grantor's right, title and interest in and to (but none of its
obligations or liabilities with respect to) all of its personal property
including, without limitation, the items and type of present and future
property of such Grantor described in Sections 1(A) through 1(O) (subject,
however, to Section 1(P)), whether now or hereafter existing or in which any
Grantor now has or hereafter acquires an interest and wherever the same may be
located including, without limitation, the following (the "COLLATERAL"):
(A) Rights to Payment of Money. All rights to receive
the payment of money, including accounts (as defined in the UCC), receivables,
rights to receive the payment of money under contracts, franchises, licenses,
permits, subscriptions or other agreements (whether or not earned by
performance), and rights to receive payments from any other source;
(B) Chattel Paper. All writings which evidence both a
monetary obligation and a security interest in or lease of specific goods; when
a transaction is evidenced both by a security agreement or a lease and by an
instrument (as described in Section 1(F) below) or series of such instruments,
the group of writings taken together constitutes chattel paper;
(C) Documents. All documents of title, including any
bill of lading, dock warrant, dock receipt, laboratory pledgeholder agreement,
laboratory access agreement, warehouse receipt or order for the delivery of
inventory, and also any other document or receipt which in the regular course
of business or financing is treated as adequately evidencing that the Person in
possession of it is entitled to receive, hold and dispose of the document and
the goods it covers;
(D) Tangible Personal Property. All goods, machinery,
electrical and electronic components, equipment, computers, computer equipment,
furniture, office machinery, appliances, implements and all other tangible
personal property of every kind and description and used or anticipated to be
used in its businesses wherever located, and all goods of like kind or type
hereafter acquired in substitution or replacement thereof and all additions and
accessions thereto;
(E) General Intangibles. All other personal property
(including things in action) which is not elsewhere described in this Section
1. General intangibles includes, without limitation, all United States and
foreign inventions, processes, formulae, computer software, designs, trade
secrets, rights in proprietary information, licenses, patents, patent rights,
patent
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applications, copyrights, copyright rights, copyright applications, trademarks,
trademark rights, trademark applications, and all related goodwill, service
marks, service mark rights, service mark applications, and all related
goodwill, trade names, trade name rights, business names, and other like
business property rights, including to the extent such security interest and
the related assignment are permitted by law, all permits, licenses and
entitlements necessary for operation of equipment, and all applications to
acquire any such rights or on file or for which application may at any time be
made in the future, contracts, franchises, licenses, permits, subscriptions and
other agreements and all rights thereunder, rights granted by others which
permit the Grantor to sell or market items of personal property, documents,
good will, judgments, causes in action and claims, whether or not inchoate, and
all other general intangibles (as defined in the UCC) and intangible property
and all rights thereunder;
(F) Instruments. All drafts, checks, certificates of
deposit, notes, bills of exchange and other writings which evidence a right to
the payment of money and are not themselves security agreements or leases and
are of a type which is in the ordinary course of business transferred by
delivery with any necessary endorsement or assignment;
(G) Inventory. All inventory in all of its forms
(including, but not limited to, (1) all goods held by Grantor for sale or lease
or to be furnished under contracts of service or so leased or furnished, (2)
all raw materials, work in process, finished goods, and materials used or
consumed in the manufacture, packing, shipping, advertising, selling, leasing,
furnishing or production of such inventory or otherwise used or consumed in
Grantor's business, (3) all goods in which Grantor has an interest in mass or a
joint or other interest or right of any kind, and (4) all goods which are
returned to or repossessed by Grantor and all accessions thereto and products
thereof (all such inventory, accessions and products being the "INVENTORY");
(H) Fixtures. All plant fixtures, business fixtures and
other fixtures and storage and office facilities, and all accessions thereto
and products thereof;
(I) Pledged Securities. Except as provided for in
Section 1(P)(4) below, the shares of stock of any present or future Subsidiary
of such Grantor or any other Person and similar evidences of other securities
or investments in any present or future Subsidiary of such Grantor or any other
Person which is a corporation, and all partnership, joint venture or similar
interests in any present or future Subsidiary of such Grantor or any other
Person which is a partnership or joint venture, and all Indebtedness from time
to time owing to such Grantor by any present or future Subsidiary of such
Grantor or any other Person (collectively, the "PLEDGED SECURITIES"),
certificates
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representing such Pledged Securities or other evidences of ownership of such
Pledged Securities, including, without limitation, investments and
Indebtedness, and all cash, securities, dividends and other property at any
time and from time to time received, receivable or otherwise distributed in
respect of or in exchange or substitution for any or all of said Pledged
Securities.
(J) Film Collateral. All of the following to the extent
not included in any other subsection of this Section 1: without limiting the
generality of subsections 1(A) through I, the Collateral shall include all of
the right, title and interest of any kind or nature whatsoever of any Grantor
in and to (but none of Grantor's obligations or liabilities with respect to)
all items of Product (as used herein the term "PRODUCT" means any feature or
non-feature motion picture, whether produced for theatrical, non-theatrical or
television release or for release in any other medium, and any film, videotape,
cassette, cartridge, disk or on or by any other means, method, process or
device whether now known or hereafter developed, which any Grantor or any
Subsidiary of any Grantor has produced or is to produce or with respect to
which any Grantor or any Subsidiary of any Grantor has or acquires or is to
acquire all or part of the theatrical, videotape, cassette, disc, television or
other distribution rights)) and Product Rights (as used herein the term
"PRODUCT RIGHTS" means (a) any rights, whether arising under written contracts
or otherwise, to sell, produce, distribute, subdistribute, exhibit, lease,
sublease, license, sublicense or otherwise exploit Product, including rights
under so-called "pick up" arrangements and other contracts and agreements
relating to the acquisition of Product or any interest therein in any market,
including the theatrical, non-theatrical, stage, television (including
broadcast, cable and pay television) and home markets, whether by film,
videotape, cassette cartridge, disc or by any other means, method, process or
device now known or hereafter developed, (b) any rights to sell trailer and
advertising accessories relating to Product, (c) any sequel, series, serial,
re-issue or re-make rights relating to Product, and (d) any rights to exploit
any element or component of Product or any ancillary rights relating to
Product, including merchandising and character rights, stage rights, sound
track recording rights and music publishing rights relating to any music
embodied in or written for Product, including the right to grant; licenses to
print, perform or mechanically reproduce such music) and all goods, tangible
property and intangible property related to such items of Product and Product
Rights, whether now owned or in existence or hereafter made, acquired or
created (collectively, the "FILM COLLATERAL"), including, without limitation,
the following:
(1) All rights of every kind and nature (including,
without limitation, copyrights) in and to any literary, trademark,
service mark, literary property right, personal
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right, musical, dramatic or other literary material of any kind or
nature upon which, in whole or in part, any item of Product or Product
Rights is or may be based, or from which it is or may be adapted or
inspired or which may be or has been used or included in any item of
Product or Product Rights including, without limitation, all scripts,
scenarios, screenplays, bibles, stories, treatments, novels, outlines,
books, titles, concepts, manuscripts or other properties or materials
of any kind or nature in whatever state of completion and all drafts,
versions and variations thereof (collectively, the "LITERARY
PROPERTY");
(2) All tangible personal property and physical
properties of every kind or nature of or relating to any item of
Product or Product Rights and all versions thereof, including, without
limitation, all physical properties relating to the development,
production, completion, delivery, exhibition, distribution or other
exploitation of any item of Product or Product Rights, and all
versions thereof or any part thereof, including, without limitation,
the Literary Property, exposed film, developed film, positives,
negatives, prints, answer prints, special effects, preprint materials
(including interpositives, negatives, videotapes, duplicate negatives,
internegatives, color reversals, intermediates, lavenders, fine grain
master prints and matrices, video masters and all other forms of
preprint elements which may be necessary or useful to produce prints
or other copies or additional preprint elements, whether now known or
hereafter devised), sound tracks, recordings, audio and video tapes
and discs of all types and gauges, cutouts, trims, all contracts,
credit lists, music licenses, all promotional materials relating to
any item of Product or Product Rights, including, without limitation,
transparencies, posters, press books, publicity kits, still
photographs and promotional trailers and any and all other physical
properties of every kind and nature relating to any item of Product in
whatever state of completion, and all duplicates, drafts, versions,
variations and copies of each thereof (hereinafter referred to
collectively as the "PHYSICAL PROPERTIES");
(3) All rights of every kind or nature in and to any and
all music and musical compositions created for, used in or to be used
in connection with any item of Product or Product Rights including,
without limitation, all copyrights therein and all rights to perform,
copy, record, rerecord, produce, publish, reproduce or synchronize any
or all of said music and musical compositions as well as all other
rights to exploit such music including record, sound track recording,
and music publishing rights;
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(4) All collateral, allied, ancillary, subsidiary,
publishing and merchandising rights of every kind and nature, without
limitation, derived from, appurtenant to or related to any item of
Product, Product Rights or the Literary Property, including, without
limitation, all production, exploitation, reissue, remake, sequel,
serial or series production rights by use of film, tape or any other
recording devices now known or hereafter devised, whether based upon,
derived from or inspired by any item of Product, Product Rights, the
Literary Property or any part thereof; all rights to use, exploit and
license others to use or exploit any and all novelization, publishing,
merchandising rights and commercial tie-ups arising out of or
connected with or inspired by any item of Product, Product Rights, the
Literary Property, the title or titles of any item of Product, or said
Literary Property, the characters appearing in the item of Product,
Product Rights or said Literary Property and/or the names or
characteristics of said characters, and including further, without
limitation, any and all commercial exploitation in connection with or
related to any item of Product, all remakes or sequels thereof, any
Product Rights and/or said Literary Property;
(5) All rights of every kind or nature, present and
future, in and to all agreements relating to the development,
production, completion, delivery and exploitation of any item of
Product, including, without limitation, all agreements for personal
services, including the services of writers, directors, cast,
producers, special effects personnel, personnel, animators, cameramen
and other creative, artistic and technical staff and agreements for
the use of studio space, equipment, facilities, locations, animation
services, special effects services and laboratory contracts;
(6) All insurance and insurance policies heretofore or
hereafter placed upon any item of Product, Product Rights, the
Physical Properties or the insurable properties thereof and/or any
person or persons engaged in the development, production, completion,
delivery or exploitation of any item of Product or Product Rights and
the proceeds thereof;
(7) All copyrights, rights in copyrights, interests in
copyrights, applications for copyrights, and renewals and extensions
of copyrights, domestic and foreign, heretofore or hereafter obtained
upon any item of Product, Product Rights or the Literary Property or
any part thereof, and the right (but not the obligation) to make
publication thereof for copyright purposes, to register claims under
copyright, and the right (but not the obligation) to renew and extend
such copyrights, and the right (but not the obligation) to sue in the
name of any Grantor or any of its Subsidiaries or
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in the name of Lender for past, present and future infringements of
copyright;
(8) All rights to produce, acquire, release, sell,
distribute, subdistribute, lease, sublease, market, license,
sublicense, exhibit, broadcast, transmit, reproduce, publicize or
otherwise exploit any item of Product, Product Rights, the Literary
Property and any and all rights therein (including, without
limitation, the rights referred to in Section 1(J)(4) above) in
perpetuity, without limitation, in any manner and in any media
whatsoever throughout the universe, including, without limitation, by
projection, radio, all forms of television (including, without
limitation, free, pay-per-view, pay, toll, cable, sustaining
subscription, sponsored and direct satellite broadcast), in theaters,
non-theatrically, or cassettes, cartridges and discs and by any and
all other scientific, mechanical or electronic means, methods,
processes or devices now known or hereafter conceived, devised or
created;
(9) All rights of any Grantor or any of its Subsidiaries,
of any kind or nature, direct or indirect, to acquire, produce,
develop, reacquire, finance, release, sell, distribute, subdistribute,
lease, sublease, market, license, sublicense, exhibit, broadcast,
transmit, reproduce, publicize, or otherwise exploit any item of
Product, Product Rights or any other rights in any item of Product,
including, without limitation, pursuant to agreements entered into by
any Grantor or any of its Subsidiaries, which relate to the ownership,
production, distribution or financing of the item of Product,
including without limitation, (a) all rights of any Grantor or any of
its Subsidiaries to receive moneys due or to become due pursuant to
any such agreement, (b) all rights of any Grantor or any of its
Subsidiaries to receive proceeds of any insurance, indemnity, warranty
or guaranty with respect to any such agreement, (c) claims of any
Grantor or any of its Subsidiaries for damages arising out of or for
breach of or default under any such agreement and (d) all rights of
any Grantor or any of its Subsidiaries to terminate any such
agreement, to perform thereunder and to compel performance and
otherwise exercise any and all rights and remedies thereunder;
(10) Any and all tangible and intangible personal property
including without limitation general intangibles (as defined in the
UCC), not elsewhere included in this definition, constituting or
relating to any item of Product or Product Rights which may arise in
connection with the creation, production, completion, delivery,
financing, ownership, possession or exploitation of any item of
Product or Product Rights;
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(11) The pledgeholder, laboratory access, or film
warehousing agreements relating to any item of Product or Product
Rights and any and all documents, receipts or books and records,
including, without limitation, documents or receipts of any kind or
nature issued by any pledgeholder, warehouseman or bailee with respect
to any item of Product, Product Rights and any Physical Property
relating thereto;
(12) All contract rights and general intangibles (and all
proceeds and products thereof) relating to the grant or license by any
Grantor or any of its Subsidiaries to any Person of any right to
release, sell, distribute, subdistribute, lease, sublease, market,
license, sublicense, exhibit, broadcast, transmit, reproduce,
publicize, or otherwise exploit any item of Product or Product Rights
or any rights in any item of Product or Product Rights pursuant to any
agreements entered into by any Grantor or any of its Subsidiaries
which relate to the ownership, production, distribution or financing
of any item of Product or Product Rights including, without
limitation, (a) all rights of any Grantor or any of its Subsidiaries
to receive moneys due or to become due pursuant to any such agreement,
(b) all rights of any Grantor or any of its Subsidiaries to receive
proceeds of any insurance, indemnity, warranty or guaranty with
respect to any such agreement, (c) claims of any Grantor or any of its
Subsidiaries for damages arising out of or for breach of or default
under any such agreement and (d) the right of any Grantor or any of
its Subsidiaries to terminate any such agreement, to perform
thereunder and to compel performance and otherwise exercise any and
all rights and remedies thereunder (collectively, the "ASSIGNED
AGREEMENTS");
(13) All machines, electrical and electronic components,
equipment, fixtures, trailers, implements and other tangible personal
property of every kind and description now owned or hereafter acquired
by any Grantor or any of its Subsidiaries (including, without
limitation, all wardrobe, props, mikes, scenery, sound stages,
movable, permanent or vehicular dressing rooms, sets, lighting
equipment, cameras and other photographic, sound recording and editing
equipment, projectors, film developing equipment and machinery), and
all goods of like kind or type hereafter acquired by any Grantor or
any of its Subsidiaries in substitution or replacement thereof, and
all additions and accessions thereto relating to the production or
exploitation of items of Product and/or Product Rights; and
(14) The following personal property, whether now owned or
hereafter acquired: (a) the title or titles of any item of Product or
Product Rights and all rights of any Grantor or any of its
Subsidiaries to the exclusive use thereof including rights protected
pursuant to trademark, service
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mark, unfair competition and/or other laws, rules or principles of law
or equity and (b) all inventions, processes, formulae, licenses,
patents, patent rights, trademarks, trademark rights, service marks,
service mark rights, trade names, trade name rights, logos, indicia,
corporate and company names, business source or business identifiers
and renewals and extensions thereof, domestic and foreign, whether now
owned or hereafter acquired, and the accompanying goodwill and other
like business property rights relating to any item of Product or
Product Rights, and the right (but not the obligation) to register a
claim under trademark or patent and to renew and extend such
trademarks or patents and the right (but not the obligation) to sue in
the name of any Grantor or any of its Subsidiaries or in the name of
Lender for past, present or future infringement of trademark or
patents.
(K) Bank Accounts; Cash and Cash Equivalents.
(1) All deposit and other accounts and any
extension or renewal of such accounts and all certificates and
instruments, if any, from time to time representing or evidencing such
accounts opened in the name of any Grantor with any bank or other
financial institution (collectively, the "BANK ACCOUNTS");
(2) All monies on deposit in any Bank Account,
all account investments relating thereto from time to time and all
certificates and instruments, if any, from time to time representing
or evidencing the account investments;
(3) All notes, commercial paper, certificates of
deposit, bankers' acceptances and other instruments from time to time
delivered to or otherwise possessed by Grantor for or on behalf of any
Grantor in addition to or in substitution for any account investment;
and
(4) All interest, dividends, cash, instruments
and other property from time to time received, receivable or otherwise
distributed or distributable in respect of or in exchange for any or
all of the Collateral described in this Section 1(K).
(L) Books and Records. All books, records, ledger cards,
files, correspondence, computer programs, tapes, disks and related data
processing software that at any time evidence or contain information relating
to any of the Collateral or are otherwise necessary or helpful in the
collection thereof or realization thereupon;
(M) Other General Intangibles. To the extent not
included in any other paragraph of this Section 1, all other general
intangibles (including, without limitation, tax refunds,
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rights to payment or performance, choses in action and judgments taken on any
rights or claims included in the Collateral);
(N) All Other Property. All other property, assets and
items of value of every kind and nature, tangible or intangible, absolute or
contingent, legal or equitable;
(O) Proceeds and Products. All proceeds, products, rents
and profits of or from any and all of the foregoing Collateral and, to the
extent not otherwise included, all payments under insurance (whether or not
Lender is the loss payee thereof), or any indemnity, warranty or guaranty,
payable by reason of loss or damage to or otherwise with respect to any of the
foregoing Collateral. For purposes of this Agreement, the term "PROCEEDS"
includes whatever is receivable or received when Collateral or proceeds are
sold, exchanged, collected or otherwise disposed of, whether such disposition
is voluntary or involuntary;
(P) Excluded Property. Notwithstanding Sections 1(A)
through 1(O), the payment and performance of the Secured Obligations (as
hereinafter defined) shall not be secured by:
(1) any rights arising under, and any property,
tangible or intangible, acquired under, any agreement executed by any
Grantor to the extent that such agreement validly prohibits the
creation by any Grantor of a security interest in such rights or
property.
(2) any rights or property to the extent that any
valid and enforceable law or regulation applicable to such rights or
property prohibits the creation of a security interest therein.
(3) the items described in Section 1(Q) (but only
to the extent Lender has not specified that such items be included in
the Collateral pursuant thereto).
(4) capital stock of other companies in the
entertainment industry which are not Affiliates of any Grantor having
a cost to the Grantor not exceeding $25,000 in the aggregate.
(Q) Additional Collateral. As additional Collateral, each Grantor
covenants that it will mortgage, pledge and collaterally grant and assign to
the Lender and will create a security interest in favor of the Lender in, all
of its right, title and interest in and to (but none of its liabilities or
obligations with respect to) such of the following present or future items as
the Lender may from time to time specify by notice to SEGI, whether now owned
or hereafter acquired, and the proceeds and products thereof (except to the
extent consisting of rights or
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property of the types referred to in Section 1(P)), all of which shall
thereupon be included in the term "COLLATERAL":
(1) Real Property. All real property and immovable
property and fixtures, leasehold interests and easements wherever located,
together with any and all estates and interests of the Grantor therein,
including lands, buildings, stores, manufacturing facilities and other
structures erected on such property, fixed plant, fixed equipment and all
permits, rights, licenses, benefits and other interests of any kind or nature
whatsoever in respect of such real and immovable property.
(2) Motor Vehicles and Airplanes. All motor vehicles and
airplanes.
SECTION 2. SECURITY FOR OBLIGATIONS.
(A) With respect to each Grantor which is also a Borrower
(a "BORROWER/GRANTOR") the following shall apply:
(1) Primary Secured Obligations. This Agreement
secures, and the Collateral granted by such Borrower/Grantor is
collateral security for, the prompt payment and performance in full
when due, whether at stated maturity, by acceleration or otherwise
(including the payment of amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. Section 362(a) or the operation of any other
provision of law of any jurisdiction which would otherwise cause a
stay of the payment of such amounts), of all Credit Obligations of
such Borrower/Grantor now or hereafter existing under or in respect of
the Credit Agreement and the Notes, whether for principal, premium,
interest (including, without limitation, interest which, but for the
filing of a petition in bankruptcy with respect to such
Borrower/Grantor would accrue on such fees, expenses or otherwise) and
all obligations of such Borrower/Grantor now or hereafter existing
under this Agreement (all such obligations of such Borrower/Grantor
being such Borrower/Grantor's "PRIMARY SECURED OBLIGATIONS").
(2) Secondary Secured Obligations. This
Agreement secures, and the Collateral granted by such Borrower/Grantor
is collateral security for the prompt payment and performance in full
when due, whether at stated maturity, by acceleration or otherwise
(including the payment of amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. Section 362(a) or the operation of any other
provision of law of any jurisdiction which would otherwise cause a
stay of the payment of such amounts), of all obligations of such
Borrower/Grantor now or hereafter existing under or in respect of the
Guaranty, whether for
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principal, premium, interest (including, without limitation, interest
which, but for the filing of a petition in bankruptcy with respect to
any other Borrower, would accrue on such obligations), fees, expenses
or otherwise (all such obligations of such Borrower/Grantor being such
Borrower/Grantor's "SECONDARY SECURED OBLIGATIONS").
(B) With respect to each Grantor which is not a Borrower
(a "NON-BORROWER/GRANTOR"), the following shall apply: this Agreement secures,
and the Collateral granted by such Non-Borrower/Grantor is collateral security
for, the prompt payment and performance in full when due, whether at stated
maturity, by acceleration or otherwise (including the payment of amounts which
would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. 362(a) or the operation of any other
provision of law of any jurisdiction which would otherwise cause a stay of the
payment of such amounts), of (i) all Credit Obligations (as defined in the
Credit Agreement), including, without limitation, (a) all such Credit
Obligations now or hereafter existing under or in respect of the Credit
Agreement and the Notes, whether for principal, premium, interest (including,
without limitation, interest which, but for the filing of a petition in
bankruptcy with respect to any Borrower, would accrue on such Obligations),
fees, expenses or otherwise and (b) all such Credit Obligations, now or
hereafter existing under or in respect of the Guaranty and (ii) all obligations
of Grantors now or hereafter existing under this Agreement, the Credit
Agreement or any other Credit Document (all such obligations being the
"NON-BORROWER/GRANTOR OBLIGATIONS"; the Borrower/Grantor Primary Secured
Obligations, the Borrower/Grantor Secondary Secured Obligations and the
Non-Borrower/Grantor Obligations are collectively referred to herein as the
"SECURED OBLIGATIONS").
SECTION 3. REPRESENTATION AND WARRANTIES. Each Grantor
represents and warrants as follows:
(A) Each Grantor has full power, authority and legal
right to pledge all of the Collateral pledged pursuant to this Agreement.
(B) Each Grantor is, and at the time of delivery of any
Collateral required to be delivered to the Lender pursuant to Sections 5 or 12
of this Agreement will be, the legal and beneficial owner of the Collateral
pledged by such Grantor hereunder.
(C) The chief place of business and chief executive
office of each Grantor and the office where each Grantor keeps its records
concerning the Collateral described in Section 1(A) hereof is located at the
address specified for such Grantor on Schedule 3(c) hereto and the address of
each of the offices where each Grantor does business is set forth on Schedule
3(C) annexed
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hereto and no Grantor has changed its name since September 30, 1993.
(D) All of the Pledged Securities have been duly
authorized and validly issued and are fully paid and non-assessable.
(E) This Agreement creates a valid and perfected security
interest in the Collateral, securing the payment of the Obligations, and all
filings and other actions necessary or desirable to perfect and protect such
security interests have been duly taken or waived by Lender.
(F) No consent of any other party (including, without
limitation, stockholders or creditors of any Grantor or any Subsidiary of any
Grantor) and no consent, authorization, approval, or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required either (x) for the pledge by Grantors of the Collateral pursuant to
this Agreement or for the execution, delivery or performance of this Agreement
by Grantors or (y) for the exercise by the Lender of the voting or other rights
provided for in this Agreement or the remedies in respect of the Collateral
pursuant to this Agreement; except (a) as may be required in connection with
such disposition by laws affecting the offering and sale of securities
generally, (b) UCC-1 filings with the Secretary of State of the State of
California and the State of New York which filings have been made and (c)
filings with the United States Copyright Office.
(G) The Pledged Securities consisting of the stock of the
Subsidiaries of SEGI constitute one hundred percent (100%) of the issued and
outstanding shares of stock of the respective issuers thereof.
(H) All information set forth herein relating to the
Collateral is accurate and complete in all material respects.
(I) The pledge of the Collateral, if any, constituting
Margin Stock pursuant to this agreement does not violate Regulation U of the
Federal Reserve Board.
SECTION 4. DELIVERY OF CERTAIN COLLATERAL. All
certificates, or instruments, if any, representing or evidencing the Collateral
described in Sections 1(F) and (I) or the proceeds of such Collateral shall be
delivered to and held by or on behalf of Lender pursuant hereto and shall be in
suitable form for transfer by delivery, or shall be accompanied by duly
executed undated instruments of transfer or assignment in blank, all in form
and substance satisfactory to Lender. Lender shall have the right, at any time
in its discretion and without notice to any Grantor, to transfer to or to
register in the name of Lender or any of its nominees any or all of such
Collateral. In addition, Lender shall have the right at any time to exchange
certificates
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or instruments representing or evidencing such Collateral for certificates or
instruments of smaller or larger denominations. All additional certificates or
instruments, if any, representing or evidencing Collateral described in
Sections 1(F) and (I) acquired from time to time after the date hereof in any
manner shall be delivered to Lender promptly after each such acquisition, and
held by or on behalf of Lender in accordance with the provisions of this
Section 4.
SECTION 5. ASSIGNED AGREEMENTS, RECEIVABLES AND OTHER
COLLATERAL PLEDGED UNDER SECTION 1.
(A) Place of Perfection; Records. Each Grantor shall
keep its chief place of business and chief executive office and the office
where it keeps its records concerning the Collateral at the location therefor
specified in Section 3(C) or, upon 30 days' prior written notice to Lender, at
such other location in a jurisdiction where all action required by this
Agreement shall have been taken with respect to the Collateral. Each Grantor
will hold and preserve such records and will permit representatives of Lender
at any time during normal business hours after prior notice to inspect and make
abstracts from such records.
(B) Grantors Remain Liable Under Assigned Agreements.
Anything herein to the contrary notwithstanding, (1) each Grantor shall remain
liable under the Assigned Agreements to the extent set forth therein to perform
all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (2) the exercise by Lender of any of the
rights hereunder shall not release any Grantor from any of its duties or
obligations under the Assigned Agreements, and (3) Lender shall not have any
obligation or liability under the Assigned Agreements by reason of this
Agreement, nor shall Lender be obligated to perform any of the obligations or
duties of any Grantor thereunder or to take any action to collect or enforce
any claim for payment assigned hereunder.
SECTION 6. LOCATION OF FILM COLLATERAL; PLEDGEHOLDER
AGREEMENTS; COPYRIGHT OFFICE FILINGS.
(A) Each Grantor agrees, with respect to all Film
Collateral, to at all times maintain and to cause its Subsidiaries to maintain,
at a laboratory or other commercial storage facility at least one complete set
of all preprint material (including all necessary film, video and sound track
materials) necessary to make copies of the Product for exhibition and other
exploitation in the applicable media to which the Grantor owns or controls
exploitation rights. With respect to completed items of Product, the Grantors
hereby agree that at all times at least one complete copy of all preprint
materials required to make exhibition copies with respect to any such item of
Product shall be located in a jurisdiction where either (i)
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UCC-1 financing statements or similar evidence of the Lender's security
interest under applicable law have been filed against the Grantors, or
(ii) Lender has otherwise acquired a perfected security interest or analogous
rights in the Film Collateral under applicable foreign law.
(B) Each Grantor will, and will cause each of its
Subsidiaries to, act as pledgeholder for the Lender with the same effect as if
the Lender were a pledgee in possession of all Film Collateral which are now or
hereafter in the (actual or constructive) possession of any Grantor or any of
its Subsidiaries, subject to such access of such Grantors and other third
parties as shall be necessary to produce and exploit any item of Product.
(C) Copyright Filings. With respect to any item of
Product the copyright of which is owned by any Grantor or any of its
Subsidiaries, such Grantor (or such Subsidiary) shall execute and file an
application for copyright registration with the United States Copyright Office
(the "COPYRIGHT OFFICE"). With respect to any item of Product in which any
Grantor or any of its Subsidiaries has acquired any distribution, exploitation
or other rights, such Grantor (or such Subsidiary) acquiring any such rights
shall file an instrument of transfer for recordation with the Copyright Office.
Such instrument of transfer shall be duly authorized, executed and acknowledged
by the transferor of any such rights and in the event such item of Product has
not been registered for copyright, such Grantor (or such Subsidiary) shall
register or shall cause the transferor of such rights to register such item of
Product in the Copyright Office. Each such Grantor shall use and shall cause
its Subsidiaries to use best efforts to comply with all requirements of the
federal Copyright Act, the rules and regulations promulgated thereunder and any
other applicable laws or regulations, and shall take all steps necessary to
validly register the ownership of the copyright to such item of Product or to
record the instrument of transfer transferring distribution, exploitation or
other rights to such item of Product, as applicable, in the United States
Copyright Office. Concurrently with the filing of the copyright registration
application or the instrument of transfer, as applicable, such Grantor will
file, or, if ownership of such item of Product or distribution, exploitation or
other rights are held by its Subsidiary, such Grantor will cause such
Subsidiary to file with the Copyright Office, a Copyright Mortgage and
Assignment in form and substance satisfactory to Lender, duly executed,
notarized and in proper form for recordation in the Copyright Office. Except
as otherwise set forth in the Credit Agreement, each Grantor will submit and
cause each of its Subsidiaries to submit the above-referenced copyright filings
to the Copyright Office in accordance with the following:
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(1) With respect to each item of Product produced or
financed, and the copyright of which is owned (in whole or in part),
by such Grantor (or such Subsidiary) and which is intended for initial
general theatrical release, filing of the application for copyright
registration, the Copyright Mortgage and Assignment and any other
documents required to effect the valid registration/recordation of
same will be made not later than 60 days following the availability of
the answer print of such item of Product; provided, however, that
unless there shall have occurred an Event of Default, such copyright
filings may be delayed not later than the date 30 days after the
initial general theatrical release of such item of Product in the
United States of America;
(2) With respect to each item of Product produced or
financed by, and the copyright of which is owned (in whole or in part)
by, such Grantor (or such Subsidiary) and which is intended for
initial exhibition on television (e.g., a television motion picture,
mini-series, each episode of a series or otherwise), such filing of
the application for copyright registration, the Copyright Mortgage and
Assignment and any other documents required to effect the valid
registration/recordation of same will be made not later than thirty
(30) days following delivery of the individual item of Product (e.g.
each episode of a series, each television motion picture, etc.) to the
applicable network or other licensee licensing such item of Product.
(3) With respect to each other item of Product or Product
Rights which is acquired by such Grantor (or such Subsidiary) not
otherwise provided for in clause (1) or (2) above, filing of the
application for copyright registration, the instrument of transfer,
the Copyright Mortgage and Assignment and any other documents required
to effect the valid registration/ recordation of same shall be made as
soon as reasonably practicable under the circumstances but in no event
later than (i) 30 days following the execution of a written agreement
pursuant to which the Grantor or any of its Subsidiaries acquired
rights in such item of Product; provided, however, with respect to
each item of Product intended for initial exhibition on television
such filings will be made not later than thirty (30) days following
delivery to the Grantor or any of its Subsidiaries of such item of
Product.
Copies of all such applications for copyright registration,
instruments of transfer and Copyright Mortgage and Assignments and all other
documents filed with the Copyright Office pursuant to the provisions of this
Section 6(C) by any Grantor and/or any Subsidiary of any Grantor shall be sent
to Lender concurrently with the submission to the Copyright Office of the
applicable documents. Copies of all such documents when validly registered or
recorded, as applicable, in the Copyright
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Office shall be promptly sent to Lender when received by any Grantor or any
Subsidiary of any Grantor from the Copyright Office.
SECTION 7. PLEDGED SECURITIES.
(A) So long as no Event of Default or Potential Event of
Default shall have occurred and be continuing:
(1) Each Grantor shall be entitled to exercise
any and all voting and other consensual rights pertaining to the
Pledged Securities or any part thereof for any purpose not
inconsistent with the terms of this Agreement or the Credit Agreement.
(2) Each Grantor shall be entitled to receive and
retain any and all dividends and interest paid in respect of the
Pledged Securities.
(B) Upon the occurrence and during the continuance of an
Event of Default or a Default all rights of any Grantor to exercise the voting
and other consensual rights which it would otherwise be entitled to exercise
pursuant to Section 7(A)(1) and to receive the dividends and interest payments
which it would otherwise be authorized to receive and retain pursuant to
Section 7(A)(2) shall cease, and all such rights shall thereupon become vested
in Lender who shall thereupon have the sole right to exercise such voting and
other consensual rights and to receive and hold as Collateral such dividends
and interest payments.
SECTION 8. COVENANTS; FURTHER ASSURANCES.
(A) Each Grantor agrees that from time to time, at the
expense of such Grantor, such Grantor will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or desirable, or that Lender may reasonably request, in order to
perfect and protect the assignment and security interest granted or purported
to be granted hereby or to enable Lender to enforce its rights and remedies
hereunder with respect to any Collateral.
(B) Each Grantor will (1) if any Collateral shall be
evidenced by a promissory note or other instrument or chattel paper, deliver
and pledge to Lender hereunder all executed originals of such note, instrument
or chattel paper duly endorsed and accompanied by duly executed instruments of
transfer or assignment, all in form and substance reasonably satisfactory to
Lender; and (2) mark conspicuously each copy of an agreement, document,
instrument or other writing which constitutes chattel paper and, at the request
of Lender, each of its records pertaining to such Collateral, with a legend, in
form and substance satisfactory to Lender, indicating that such
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Collateral, as the case may be, has been assigned and is subject to the
security interest granted pursuant to this Agreement.
(C) Each Grantor will execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as Lender may reasonably request,
in order to perfect and preserve the assignment and security interest granted
or purported to be granted hereby. Each Grantor hereby authorizes Lender to
file one or more financing or continuation statements, and amendments thereto,
relative to all or any part of the Collateral without the signature of any
Grantor where permitted by law. A carbon, photographic or other reproduction
of this Agreement or any financing statement concerning the Collateral or any
part thereof shall be sufficient as a financing statement where permitted by
law.
(D) Each Grantor will comply with all laws, rules and
regulations relating to, and shall pay prior to delinquency all license fees,
registration fees, taxes and assessments, and all other charges, including
without limitation non- governmental levies or assessments, which may be levied
upon or assessed against, or which may become security interests, liens or
other encumbrances on, the ownership or possession, of any material part of the
Collateral, or which create or may create a lien upon any material part of the
Collateral; provided, however, that Grantors shall not be required to comply
with any such law, rule or regulation, or to pay any such tax, fee, assessment
or other charge, the validity of which is being contested by such Grantor in
good faith by appropriate proceedings promptly instituted and diligently
conducted.
(E) Each Grantor will at all times keep accurate records
with respect to the Collateral which are as complete and comprehensive as those
customarily maintained by others engaged in businesses of the type in which
Grantors engage, and agrees that Lender or its representatives shall have the
right, at any time during normal working hours or any other reasonable time and
from time to time, to call at its place or places of business or where the
Collateral or any part thereof may be held or located or its records pertaining
to the Collateral may be kept and to inspect the Collateral and/or examine or
cause to be examined such records and to make abstracts therefrom or copies
thereof. In addition, upon Lender's request, if Lender deems it necessary or
desirable to perfect or preserve Lender's security interest in the Collateral,
and at the cost and expense of each Grantor, Grantor will make or stamp on, or
otherwise affix to, each material item of Collateral and each of its individual
ledger sheets, cards and other records pertaining thereto, a legend or plaque
in form and content reasonably satisfactory to Lender indicating that such
Collateral is subject to a security interest in favor of Lender.
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(F) At such time or times as Lender may request, each
Grantor will, at its cost and expense, prepare a list, statement, schedule or
report in such form as shall be reasonably satisfactory to Lender, certified by
duly authorized officers of such Grantor, describing in such detail as Lender
shall require, the Collateral, and specifying the location of such Collateral,
each Grantor's records pertaining thereto and such other information as Lender
may reasonably request. No Grantor shall change the location of any Collateral
described on any list furnished pursuant to this subsection (H) or (except
insofar as the change of location is within the same county to another office
or plant of such Grantor or to a laboratory or other commercial storage
facility in the United States so long as such laboratory or facility has
executed and delivered to Lender a Pledgeholder Agreement) the location of such
Grantor's records pertaining to such Collateral, except upon ten (10) Business
Days' prior written notice to Lender of such change and of the new location of
such Collateral or the records pertaining thereto, and, in the case of change
in location of any Collateral, such Grantor shall duly perfect Lender's
security interest in any such item by preparing, executing and, if required by
Lender, filing a Uniform Commercial Code financing statement with respect
thereto in any new jurisdiction where such item has been removed and may remain
for three months or more and/or taking such other actions as may be required or
desirable to duly perfect Lender's security interest in any such items of
Collateral.
SECTION 9. REMEDIES UPON DEFAULT. If any Event of Default
shall have occurred and be continuing:
(A) (1) Lender may exercise in respect of the
Collateral, in addition to other rights and remedies, all the rights
and remedies of a secured party in default under the UCC in effect in
the State of New York at that time, and the Lender may also without
notice, except as specified below, sell the Collateral or any part
thereof in one or more parcels at public or private sale, at any
exchange, broker's board or at any of the Lender's offices or
elsewhere, for cash, on credit or for future delivery, and at such
price or prices and upon such other terms as the Lender may deem
commercially reasonable irrespective of the impact of any such sales
on the market price of the Collateral. Lender may be the purchaser of
any or all of the Collateral at any such sale and shall be entitled,
for the purpose of bidding and making settlement or payment of the
purchase price for all or any portion of the Collateral sold at any
such public sale, to use and apply any of the Secured Obligations as a
credit on account of the purchase price of any Collateral payable by
Lender at such sale. Each purchaser at any such sale shall hold the
property sold absolutely free from any claim or right on the part of
any Grantor and each Grantor hereby waives (to the extent
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permitted by law) all rights of redemption, stay and/or appraisal
which it now has or may at any time in the future have under any rule
of law or statute now existing or hereafter enacted. Each Grantor
agrees that, to the extent notice of sale shall be required by law, at
least ten days' notice of sale to the Grantor whose Collateral is to
be sold of the time and place of any public sale or the time after
which any private sale is to be made shall constitute reasonable
notification. Lender shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. Lender may
adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so
adjourned. Each Grantor hereby waives any claims against Lender
arising by reason of the fact that the price at which any Collateral
may have been sold at such a private sale was less than the price
which might have been obtained at a public sale, even if Lender
accepts the first offer received and does not offer such Collateral to
more than one offeree.
(2) Each Grantor recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933, as from time to
time amended (the "SECURITIES ACT"), and applicable state securities
laws, Lender may be compelled, with respect to any sale of all or any
part of the Collateral, to limit purchasers to those who will agree,
among other things, to acquire the Collateral for their own account,
for investment and not with a view to the distribution or resale
thereof. Each Grantor acknowledges that any such private sales may be
at prices and on terms less favorable to Lender than those obtainable
through a public sale without such restrictions (including, without
limitation, a public offering made pursuant to a registration
statement under the Securities Act), and notwithstanding such
circumstances agrees that any such private sale shall be deemed to
have been made in a commercially reasonable manner and that Lender
shall not have any obligation to engage in public sales and no
obligation to delay the sale of any Collateral for the period of time
necessary to permit the issuer thereof to register it for a form of
public sale requiring registration under the Securities Act or under
applicable state securities laws, even if the applicable Grantor would
agree to do so.
(B) If Lender determines to exercise its right to sell
any or all of the Collateral, upon written request, each Grantor shall and
shall cause each issuer of any Pledged Shares or other Pledged Securities to be
sold hereunder from time to time to furnish to Lender all such information as
Lender may request in order to determine the number of shares and other
instruments included in the Collateral which may be sold by Lender as exempt
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transactions under the Securities Act and the rules of the Securities and
Exchange Commission thereunder, as the same are from time to time in effect.
(C) Lender may exercise any and all rights and remedies
of each Grantor under or in connection with the agreements which otherwise
constitute Collateral hereunder, including, without limitation, any and all
rights of any Grantor to demand or otherwise require payment of any amount
under, or performance of any provision of, any such agreements.
(D) All payments received by any Lender under or in
connection with any other agreements which constitute Collateral shall be
received in trust for the benefit of Lender, shall be segregated from other
funds of such Grantor and shall be forthwith paid over to Lender in the same
form as so received (with any necessary endorsement).
SECTION 10. APPLICATION OF PROCEEDS. After and during the
continuance of any Event of Default, any cash held by Lender as Collateral and
all cash proceeds received by Lender (all such cash being "PROCEEDS") in
respect of any sale of, collection from, or other realization upon all or any
part of the Collateral pursuant to the exercise by Lender of its remedies as a
secured creditor as provided in Section 9 of this Agreement shall be applied
promptly from time to time by Lender:
First, to the payment of the costs and expenses of such sale,
collection or other realization, including reasonable compensation to
Lender and its agents and counsel, and all expenses, liabilities and
advances made or incurred by Lender in connection therewith;
Second, to the payment of the Secured Obligations (it being
agreed that with respect to any Proceeds derived from any Collateral
owned by a Borrower/Grantor, such proceeds shall first be applied to
such Borrower/Grantor's Primary Secured Obligations and after the
payment of such Borrower/Grantor's Primary Secured Obligations then to
such Borrower/Grantor's Secondary Secured Obligations); and
Third, only after payment in full of all Secured Obligations,
to the Grantors, or other successors or assigns, or to whomsoever may
be lawfully entitled to receive the same or as a court of competent
jurisdiction may direct, of any surplus then remaining from such
Proceeds.
SECTION 11. REGISTRATION RIGHTS WITH RESPECT TO PLEDGED
SHARES.
If Lender shall determine to exercise its right to sell all or
any of the Collateral pursuant to Section 9, each Grantor
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agrees that, upon request of Lender, each Grantor will, at its own expense:
(A) execute and deliver, and cause each issuer of the
Pledged Shares contemplated to be sold and the directors and officers thereof
to execute and deliver, all such instruments and documents, and do or cause to
be done all such other acts and things, as may be necessary or, in the opinion
of Lender, advisable to register such Pledged Shares under the provisions of
the Securities Act and to cause the registration statement relating thereto to
become effective and to remain effective for such period as prospectuses are
required by law to be furnished, and to make all amendments and supplements
thereto and to the related prospectus which, in the opinion of Lender, are
necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto;
(B) use its best efforts to qualify the Pledged Shares
under the state securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of the Pledged Shares, as requested by
Lender;
(C) cause each such issuer to make available to its
security holders, as soon as practicable, an earning statement which will
satisfy the provisions of Section 11(a) of the Securities Act; and
(D) do or cause to be done all such other acts and things
as may be necessary to make such sale of the Pledged Shares or any part thereof
valid and binding and in compliance with applicable law.
SECTION 12. SECURITY INTEREST ABSOLUTE. All rights of Lender
and the assignment and security interest hereunder, and all obligations of each
Grantor hereunder, shall be absolute and unconditional, irrespective of:
(A) any lack of validity, enforceability, genuineness or
regularity of the Credit Agreement, the Notes, the Guaranty, any agreements
constituting collateral, any other Credit Document or any other agreement or
instrument relating thereto;
(B) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from the Credit
Agreement, the Notes, the Guaranty, any agreements constituting collateral or
any other Credit Document;
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(C) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to departure
from any guaranty, for all or any of the Secured Obligations; or
(D) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, any Grantor, or a third
party grantor of a security interest.
SECTION 13. LENDER APPOINTED ATTORNEY-IN-FACT. Each Grantor
hereby irrevocably appoints Lender as such Grantor's attorney-in-fact, with
full authority in the place and stead of such Grantor and in the name of such
Grantor or otherwise, from and after the occurrence of any Event of Default and
so long as an Event of Default shall be continuing, from time to time in
Lender's discretion to take any action and to execute any instrument which
Lender may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, to accept and/or release Collateral
as provided in this Agreement, to ask, demand, collect, sue for, recover,
compound, receive and give acquittance and receipts for moneys due and to
become due under or in connection with the Collateral, to receive, endorse, and
collect any drafts or other instruments, documents, letters of credit and
chattel paper in connection therewith or representing any interest payment,
dividend or other distribution or payment in respect of the Collateral or any
part thereof and to give full discharge for the same, and to file any claims or
take any action or institute any proceedings which Lender may deem to be
necessary or desirable for the collection thereof or to enforce compliance with
the terms and conditions of any Collateral.
SECTION 14. LENDER MAY PERFORM. If any Grantor fails to
perform any agreement contained herein, Lender may itself perform, or cause
performance of, such agreement, and the reasonable expenses of Lender incurred
in connection therewith shall be payable by Grantors under Section 16.
SECTION 15. LENDER'S DUTIES. The powers conferred on Lender
hereunder are solely to protect its interest in the Collateral and shall not
impose any duty upon it to exercise any such powers. Except for the safe
custody of any Collateral in its possession and the accounting for moneys
actually received by it hereunder with respect to which Lender shall act with
reasonable care, Lender shall have no duty as to any Collateral or as to the
taking of any necessary steps to preserve rights against prior parties or any
other rights pertaining to any Collateral. Lender shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in
its possession if the Collateral is accorded treatment substantially equal to
that which Lender accords its own property, it being understood that Lender
shall not have any responsibility for ascertaining or taking action with
respect to calls, conversions,
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exchanges, maturities, tenders or other matters relative to any Collateral,
whether or not Lender has or is deemed to have knowledge of such matters.
SECTION 16. INDEMNITY AND EXPENSES.
(A) Each Grantor agrees to indemnify Lender from and
against any and all claims, losses and liabilities growing out of or resulting
from this Agreement (including, without limitation, enforcement of this
Agreement and any misstatements or omissions contained in any prospectus
prepared by such Grantor pursuant to Section 11; provided, however, that
Grantors shall have no obligation to provide indemnification under this Section
16 to a Person to the extent that such claims, losses or liabilities arise from
such Person's gross negligence or willful misconduct.
(B) Each Grantor will upon demand pay to Lender the
amount of any and all reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, which Lender may incur
in connection with (1) the administration of this Agreement, (2) the custody or
preservation of, or the collection from or other realization upon, any of the
Collateral, (3) the exercise or enforcement of any of the rights of Lender
hereunder or (4) the failure by any Grantor to perform or observe any of the
provisions hereof.
SECTION 17. AMENDMENTS; ETC. No amendment or waiver of any
provision of this Agreement nor consent to any departure by any Grantor
herefrom shall in any event be effective unless the same shall be in writing
and signed by Lender and, in the case of such an amendment, signed by Grantors,
and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 18. NOTICES. Unless otherwise specifically provided
herein, any notice or other communication herein required or permitted to be
given shall be in writing and may be personally served, telecopied, telexed or
sent by United States mail and shall be deemed to have been given when
delivered in person, receipt of telecopy or telex or four Business Days after
deposit in the United States mail, registered or certified return receipt
requested, with postage prepaid and properly addressed; provided that notices
to Lender shall not be effective until received. For the purposes hereof, the
addresses of the parties hereto (until notice of a change thereof is delivered
as provided in this Section 18) shall be as set forth below each party's name
on the signature pages of this Agreement.
SECTION 19. CONTINUING ASSIGNMENT AND SECURITY INTEREST;
TRANSFER OF NOTES. This Agreement shall create a continuing assignment of and
security interest in the Collateral and shall (A) remain in full force and
effect until indefeasible payment in full of the Secured Obligations, (B) be
binding upon
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each Grantor and its successors and assigns and (C) inure, together with the
rights and remedies of Lender hereunder, to the benefit of Lender and their
respective successors, transferees and assigns. Without limiting the
generality of the foregoing clause (C), Lender may assign or otherwise transfer
any Note held by it to any other person or entity, and such other person or
entity shall thereupon become vested with all the benefits in respect thereof
granted to Lender herein or otherwise. Upon the indefeasible payment in full
of the Secured Obligations and the termination of all of the Commitments, the
security interest granted hereby shall terminate, all rights to the Collateral
pledged or assigned by each Grantor shall revert to such Grantor. Upon any
such termination, Lender will, at Grantors' expense, execute and deliver to the
applicable Grantor such documents as such Grantor shall reasonably request to
evidence such termination.
SECTION 20. ASSIGNMENT. Lender may assign, endorse or
transfer any instrument evidencing all or any part of the Credit Obligations,
and the holder of such instrument shall be entitled to the benefits of this
Agreement. Grantors' rights, obligations or any interest therein under this
Agreement may not be assigned without the written consent of Lender.
SECTION 21. SEVERABILITY. In case any provision in or
obligation under this Agreement shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 22. GOVERNING LAW; TERMS. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
except to the extent that the validity or perfection of the security interest
hereunder, or remedies hereunder, are governed by the laws of a jurisdiction
other than the State of New York. Unless otherwise defined herein or in the
Credit Agreement, terms used in Article 9 of the UCC in effect in the State of
New York are used herein as therein defined.
SECTION 23. CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
All judicial proceedings brought against any Grantor, with respect to this
Agreement, the Guaranty or any other Credit Document may be brought in any
state or federal court of competent jurisdiction in the State of New York,
Florida or California and by execution and delivery of this Agreement each
Grantor accepts for itself and in connection with its properties, generally and
unconditionally, the nonexclusive jurisdiction of the aforesaid courts, without
any objection to the venue chosen by Lender based on forum non conveniens or
otherwise, and irrevocably agrees to be bound by any judgment rendered thereby
in connection with this Agreement, the Guaranty or any other Credit Document.
The Grantors designate and appoint Spelling
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Entertainment Group Inc., c/o Worldvision Enterprises, Inc., 660 Madison
Avenue, New York, New York 10021, and such other Persons as may hereafter be
selected by the Grantors, as Grantors' agent to receive on Grantors' behalf
service of all process in any such proceeding in any such court, such service
being hereby acknowledged by Grantors to be effective and binding service in
every respect. A copy of any such process so served shall be mailed by
registered mail to each Grantor at its address provided in the applicable
signature page hereto, except that unless otherwise provided by applicable law,
any failure to mail such copy shall not affect the validity of service of
process. If any agent appointed by any Grantor refuses to accept service, the
Grantors hereby agree that service upon it by mail shall constitute sufficient
notice. Nothing herein shall affect the right to serve process in any other
manner permitted by law or shall limit the right of Lender to bring proceedings
against any Grantor in the courts of any other jurisdiction.
SECTION 24. ADDITIONAL SUBSIDIARY GRANTORS. The initial
Grantors hereunder shall be the Borrowers and such other of the Subsidiaries of
SEGI as are signatories hereto on the date hereof. From time to time
subsequent to the date hereof, additional present or future Subsidiaries of
SEGI may become parties hereto, as additional Grantors, by executing a
counterpart of this Agreement. Upon delivery of any such counterpart to
Lender, notice of which is hereby waived by Grantors, each such additional
Grantor shall be as fully a party hereto as if such Grantor were an original
signatory hereof. Each Grantor expressly agrees that its obligations arising
hereunder shall not be affected or diminished by the addition or release of any
other Grantor hereunder, nor by any election of Lender not to cause any present
or future Subsidiary of SEGI to become an additional Grantor hereunder. This
Agreement shall be fully effective as to any Grantor that is or becomes a party
hereto regardless of whether any other Person becomes or fails to become or
ceases to be a Grantor hereunder. Each Guarantor shall from time to time cause
any present or future wholly owned Material Subsidiary, within 30 days after
any such Person becomes a Material Subsidiary, that is not a Grantor to join
this Agreement as a Grantor pursuant to a joinder agreement in form and
substance satisfactory to the Lender unless such Subsidiary is a Subsidiary
organized under the laws of a jurisdiction outside of the United States and
under applicable foreign law such Subsidiary is not permitted to guarantee the
Credit Obligations. Each Grantor will, promptly upon the request of Lender
from time to time, execute, acknowledge and deliver, and file and record, all
such instruments, and take all such action, as Lender deems necessary or
advisable to carry out the intent and purposes of this Section 24.
SECTION 25. COUNTERPARTS; EFFECTIVENESS. This Agreement and
any amendments, waivers, consents, or supplements may be executed in any number
of counterparts, and by different
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<PAGE> 28
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument. This Agreement shall become
effective upon the execution of a counterpart hereof by each of the parties
hereto and written or telephonic notification of such execution and
authorization of delivery thereof has been received by Lender.
(Remainder of page intentionally left blank)
27
<PAGE> 29
IN WITNESS WHEREOF, each Grantor has caused this Agreement to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
SPELLING ENTERTAINMENT GROUP INC.
By __________________________________
Title:
Address: One Blockbuster Plaza
200 South Andrews Avenue
Fort Lauderdale, Florida 33301
SPELLING ENTERTAINMENT INC.
By __________________________________
Title:
Address: 5700 Wilshire Boulevard
Los Angeles, California 90036
AARON SPELLING PRODUCTIONS, INC.
LAUREL ENTERTAINMENT, INC.
SPELLING FILMS INTERNATIONAL, INC.
SPELLING TELEVISION INC.
TORAND PRODUCTIONS INC.
WORLDVISION ENTERPRISES, INC.
HAMILTON PROJECTS, INC.
LAUREL TV, INC.
LAUREL-KING, INC.
LAUREL EFX, INC.
LAUREL PICTURES INC.
By __________________________________
As an authorized officer of each
of the foregoing corporations
Address: 5700 Wilshire Boulevard
Los Angeles, California 90036
S-1
<PAGE> 30
ACCEPTED AND AGREED TO:
BLOCKBUSTER ENTERTAINMENT CORPORATION,
AS LENDER
By: __________________________
Title: _______________________
S-2
<PAGE> 1
EXHIBIT 99.3
Copyright Mortgage and Assignment; Power of Attorney dated as
of January 31, 1994, by the Registrant and certain
subsidiaries of the Registrant in favor of Blockbuster
Entertainment Corporation.
<PAGE> 2
EXHIBIT 99.3
COPYRIGHT
MORTGAGE AND ASSIGNMENT;
POWER OF ATTORNEY
This COPYRIGHT MORTGAGE AND ASSIGNMENT; POWER OF ATTORNEY is
entered into as of January 31, 1994 by Spelling Entertainment Group Inc.
("SEGI"), Spelling Entertainment Inc. ("SEI"), Aaron Spelling Productions, Inc.
("ASP"), Spelling Films International, Inc. ("SFI"), Spelling Television, Inc.
("STI"), Torand Productions Inc. ("TPI"), Worldvision Enterprises, Inc.
("Worldvision"), Laurel Entertainment, Inc. ("Laurel"), Hamilton Projects, Inc.
("Hamilton"), Laurel TV, Inc. ("LTV"), Laurel-King, Inc. ("LKI"), Laurel EFX,
Inc. ("LEI"), Laurel Pictures Inc. ("LPI") and the other subsidiaries of SEGI
that are parties hereto (each a "GRANTOR" and collectively, "GRANTORS") in
favor of and for the benefit of Blockbuster Entertainment Corporation
("LENDER").
RECITALS
1. SEGI, SEI, ASP, SFI, STI, TPI, Worldvision, Laurel,
Hamilton, LTV, LKI, LEI and LPI (individually a "BORROWER" and collectively the
"BORROWERS") and Lender have entered into a Credit Agreement dated as of
January 31, 1994 (said Credit Agreement, as it may hereafter be amended,
supplemented or otherwise modified from time to time, being the "Credit
Agreement"; capitalized terms used herein without definition shall have the
meanings assigned those terms in the Credit Agreement);
2. Grantors have executed and delivered a Guaranty dated
as of January 31, 1994 (said Guaranty, as it may hereafter be amended,
supplemented or modified from time to time, being the "GUARANTY") in favor of
Lender, pursuant to which, inter alia, the Grantors have guaranteed the
Guaranteed Obligations (as that term is defined in the Guaranty).
3. Lender and Grantors have entered into a Pledge and
Security Agreement dated as of January 31, 1994 (said Pledge and Security
Agreement, as it may hereafter be amended, supplemented or modified from time
to time, being the "PLEDGE AND SECURITY AGREEMENT") pursuant to which, inter
alia, the Grantors have mortgaged, pledged, assigned and granted to Lender a
continuing security interest in all of the Grantors' rights, titles and
interests (but none of the Grantors' obligations or liabilities with respect
to) in and to the Collateral in order to secure the payment and performance of
the Secured Obligations (as the terms "Collateral" and "Secured Obligations"
are defined in the Pledge and Security Agreement).
1
<PAGE> 3
NOW, THEREFORE, KNOW ALL PEOPLE BY THESE PRESENTS that for
good and valuable consideration, receipt of which is hereby acknowledged, the
undersigned Grantors do hereby mortgage, assign, grant, convey and transfer for
security to Lender and Lender's successors and assigns, throughout the world,
in perpetuity, all of Grantors' rights, titles and interests of every kind and
nature, without limitation, (but none of Grantors' obligations or liabilities)
in and to (a) all of the copyrights, rights, titles and interests of every kind
and nature without limitation in and to copyrights and works protectable by
copyright, which are presently, or in the future may be, owned, created,
authored (as a work for hire or otherwise), acquired or used (whether pursuant
to a license or otherwise) by Grantors, in whole or in part, and all common law
and other rights and interests in copyrights throughout the world, including
all copyright licenses (the "COPYRIGHT RIGHTS") with respect thereto and all
registrations therefor, heretofore or hereafter granted or applied for, and all
renewals and extensions thereof, throughout the world, including all proceeds
thereof (such as, by way of example and not by limitation, license royalties
and proceeds of infringement suits), the right (but not the obligation) to
renew and extend such copyrights, registrations and Copyright Rights and to
register works protectable by copyright, including, without limitation: (i) all
of Grantors' rights, titles and interests, to the extent that they now have or
hereafter acquire the same, in and to the works listed on SCHEDULE 1 attached
hereto, as the same may be amended from time to time (the "WORKS"); (ii) all of
Grantors' rights, titles and interests, to the extent that they now have or
hereafter acquire the same, in and to all renewals and extensions of the
copyrights in and to the Works that may be secured under the law now or
hereafter in force and effect; and (iii) all of Grantors' rights, titles and
interests, to the extent that they have the same, to make and exploit
derivative works based on or adopted from the Works (the "DERIVATIVE WORKS");
and it being understood and agreed that the foregoing shall include, without
limitation, rights and interests pursuant to licensing or other contracts in
favor of Grantors pertaining to copyrights and works protectable by copyright
presently or in the future owned or used by third-parties; (b) all proceeds of
any and all of the foregoing (including, without limitation, license royalties
and proceeds of infringement suits) and, to the extent not otherwise included,
all payments under insurance (whether or not Lender is the loss payee thereof)
or any indemnity, warranty or guaranty payable by reason of loss or damage to
or otherwise with respect to the foregoing; and (c) to the extent not otherwise
included in the foregoing, all of the "COLLATERAL" described on Schedule 2
attached hereto and incorporated herein by this reference.
Grantors agree that if any person, firm or corporation shall
do or perform any acts which the Lender believes to constitute a copyright
infringement of the Works or any Derivative Work, or constitute a plagiarism,
or violate or
2
<PAGE> 4
infringe any rights of Grantors or the Lender therein or if any person, firm or
corporation shall do or perform any acts which the Lender believes to
constitute an unauthorized or unlawful distribution, exhibition, or use
thereof, then and in any such event, the Lender may and shall have the right
(but not the obligation) to take such steps and institute such suits or
proceedings as the Lender may deem advisable or necessary to prevent such acts
and conduct and to secure damages and other relief by reason thereof, and to
generally take such steps as may be advisable or necessary or proper for the
full protection of the rights of the parties. The Lender may take such steps
or institute such suits or proceedings in its own name or in the name of
Grantors, or any of them, or in the names of the parties jointly. Without
limiting the generality of the foregoing, the aforesaid conveyance and
assignment for security includes all prior choses-in-action, at law, in equity
and otherwise, the right to recover all damages and other sums, and the right
to other relief allowed or awarded at law, in equity, by statute or otherwise.
Effective upon occurrence, and during the continuance, of an
Event of Default (as defined in the Credit Agreement), the Grantors hereby
irrevocably constitute and appoint the Lender their lawful attorney-in-fact to
do all acts and things permitted or contemplated by the terms hereof and the
Credit Agreement, the Guaranty, the Pledge and Security Agreement and the other
Credit Documents and this Copyright Mortgage and Assignment is expressly made
subject to the terms and conditions contained in said documents which are
incorporated herein by reference as if set forth in full.
This Copyright Mortgage and Assignment shall be governed by
and construed in accordance with the internal laws of the State of New York and
the United States without regard to the conflicts or choice of law provisions
thereof.
Dated as of January 31, 1994
GRANTORS:
--------
SPELLING ENTERTAINMENT GROUP INC.
By
----------------------------------
Title:
SPELLING ENTERTAINMENT INC.
By
----------------------------------
Title:
3
<PAGE> 5
AARON SPELLING PRODUCTIONS, INC.
LAUREL ENTERTAINMENT, INC.
SPELLING FILMS INTERNATIONAL INC.
SPELLING TELEVISION INC.
TORAND PRODUCTIONS INC.
WORLDVISION ENTERPRISES, INC.
HAMILTON PROJECTS, INC.
LAUREL TV, INC.
LAUREL-KING, INC.
LAUREL EFX, INC.
LAUREL PICTURES INC.
By __________________________________
As an authorized officer of each
of the foregoing corporations
ACCEPTED AND AGREED TO:
BLOCKBUSTER ENTERTAINMENT CORPORATION,
AS LENDER
By: __________________________
Title: _______________________
4
<PAGE> 1
EXHIBIT 99.4
Guaranty dated as of January 31, 1994, by the Registrant and
certain subsidiaries of the Registrant in favor of Blockbuster
Entertainment Corporation.
<PAGE> 2
EXHIBIT 99.4
GUARANTY
This GUARANTY is entered into as of January 31, 1994 by
Spelling Entertainment Group Inc. ("SEGI"), Spelling Entertainment Inc.
("SEI"), Aaron Spelling Productions, Inc. ("ASP"), Spelling Films
International, Inc. ("SFI"), Spelling Television, Inc. ("STI"), Torand
Productions Inc. ("TPI"), Worldvision Enterprises, Inc. ("Worldvision"), Laurel
Entertainment, Inc. ("Laurel"), Hamilton Projects, Inc. ("Hamilton"), Laurel
TV, Inc. ("LTV"), Laurel-King, Inc. ("LKI"), Laurel EFX, Inc. ("LEI"), Laurel
Pictures Inc. ("LPI") and the other present or future subsidiaries of SEGI that
are from time to time party hereto (each a "GUARANTOR" and collectively,
"GUARANTORS") in favor of and for the benefit of Blockbuster Entertainment
Corporation ("LENDER").
RECITALS
A. SEGI, SEI, ASP, SFI, STI, TPI, Worldvision, Laurel,
Hamilton, LTV, LKI, LEI and LPI (individually a "BORROWER" and collectively the
"BORROWERS"; as used herein the terms "Borrower" and "Borrowers" shall also
include any present or future subsidiary(ies) of SEGI that hereinafter becomes
a Borrower under the Credit Agreement (as hereinafter defined) pursuant to the
terms thereof) and Lender have entered into a Credit Agreement dated as of
January 31, 1994 (said Credit Agreement, as it may hereafter be amended,
supplemented or otherwise modified from time to time including, without
limitation, by the joinder of additional present or future subsidiaries of SEGI
as borrowers thereunder, being the "Credit Agreement"; capitalized terms used
herein without definition shall have the meanings assigned those terms in the
Credit Agreement);
B. Lender is willing to extend credit facilities to
Borrowers on a joint and several basis as provided in the Credit Agreement,
upon the condition that Borrowers' Credit Indebtedness thereunder and under the
other Credit Documents be guaranteed by Guarantors, as set forth below.
C. A portion of the proceeds of the Loans may be
advanced to Guarantors and thus the Guarantied Obligations (as hereinafter
defined) are being incurred for and will inure to the benefit of Guarantors
(which benefits are hereby acknowledged).
D. It is a condition precedent to the making of the
initial Loans under the Credit Agreement that each Borrower's Credit
Obligations thereunder and under the other Credit Documents be guarantied by
Guarantors.
E. Guarantors are willing irrevocably and
unconditionally to guaranty such obligations of Borrowers.
1
<PAGE> 3
NOW, THEREFORE, based upon the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce Lender to enter into the Credit Agreement
and to make the Loans thereunder, Guarantors hereby agree as follows:
SECTION 1. DEFINITION.
1.1 CERTAIN DEFINED TERMS. As used in this Guaranty, the
following terms shall have the following meanings unless the context otherwise
requires:
"GUARANTIED OBLIGATIONS" has the meaning assigned to that term
in subsection 2.1.
"GUARANTY" means this Guaranty dated as of January 31, 1994,
as it may be amended, supplemented or otherwise modified from time to
time.
"PAYMENT IN FULL", "PAID IN FULL" or any similar term means
payment in full of the Guarantied Obligations including, without
limitation, all principal, interest, costs, fees and expenses
(including, without limitation, legal fees and expenses) of Lender as
required under the Credit Documents.
1.2 INTERPRETATION.
(a) References to "Sections" and "subsections" shall be
to Sections and subsections, respectively, of this Guaranty unless
otherwise specifically provided.
(b) In the event of any conflict or inconsistency between
the terms, conditions and provisions of this Guaranty and the terms,
conditions and provisions of the Credit Agreement, the terms,
conditions and provisions of this Guaranty shall prevail.
SECTION 2. THE GUARANTY
2.1 GUARANTY OF THE GUARANTIED OBLIGATIONS. Subject to the
provisions of subsection 2.2(a), Guarantors jointly and severally hereby
irrevocably and unconditionally guaranty, as primary obligors and not merely as
sureties, the due and punctual payment in full of all Guarantied Obligations
when the same shall become due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise (including amounts
that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)). The term
"GUARANTIED OBLIGATIONS" is used herein in its most comprehensive sense and
includes:
2
<PAGE> 4
(a) any and all Credit Obligations now or hereafter made,
incurred or created, whether absolute or contingent, liquidated or
unliquidated, whether due or not due, and however arising under or in
connection with the Credit Agreement and the other Credit Documents,
including those arising under successive borrowing transactions under
the Credit Agreement which shall either continue the Credit
Obligations or from time to time renew them after they have been
satisfied; and
(b) those expenses set forth in subsection 2.9 hereof.
2.2 LIMITATION ON AMOUNT GUARANTIED; CONTRIBUTION BY GUARANTORS.
(a) Anything contained in this Guaranty to the contrary
notwithstanding, the obligations of each Guarantor hereunder (other than the
obligations of SEGI hereunder) shall be limited to a maximum aggregate amount
equal to the largest amount that would not render its obligations hereunder
subject to avoidance as a fraudulent transfer or conveyance under Section 548
of Title 11 of the United States Code or any applicable provisions of
comparable state law (collectively, the "FRAUDULENT TRANSFER LAWS"), in each
case after giving effect to all other liabilities of such Guarantor, contingent
or otherwise, that are relevant under the Fraudulent Transfer Laws
(specifically excluding, however, any liabilities of such Guarantor (x) in
respect of intercompany indebtedness to Borrowers or other affiliates of
Borrowers to the extent that such indebtedness would be discharged in an amount
equal to the amount paid by such Guarantor hereunder and (y) under any guaranty
of Indebtedness which by its terms is subordinated to the Credit Obligations
and which guaranty contains a limitation as to maximum amount similar to that
set forth in this subsection 2.2(a), pursuant to which the liability of such
Guarantor hereunder is included in the liabilities taken into account in
determining such maximum amount) and after giving effect as assets to the value
(as determined under the applicable provisions of the Fraudulent Transfer Laws)
of any rights to subrogation, reimbursement or contribution of such Guarantor
pursuant to (i) applicable law or (ii) any agreement providing for an equitable
allocation among such Guarantor and other affiliates of Borrowers of
obligations arising under guaranties by such parties.
(b) Guarantors under this Guaranty together desire to
allocate among themselves (collectively, the "CONTRIBUTING GUARANTORS"), in a
fair and equitable manner, their obligations arising under this Guaranty.
Accordingly, in the event any payment or distribution is made on any date by
any Guarantor under this Guaranty (a "FUNDING GUARANTOR") that exceeds its Fair
Share (as defined below) as of such date, that Funding Guarantor shall be
entitled to a contribution from each of the other Contributing Guarantors in
the amount of such other Contributing
3
<PAGE> 5
Guarantor's Fair Share Shortfall (as defined below) as of such date, with the
result that all such contributions will cause each Contributing Guarantor's
Aggregate Payments (as defined below) to equal its Fair Share as of such date.
"FAIR SHARE" means, with respect to a Contributing Guarantor as of any date of
determination, an amount equal to (i) the ratio of (x) the Adjusted Maximum
Amount (as defined below) with respect to such Contributing Guarantor to (y)
the aggregate of the Adjusted Maximum Amounts with respect to all Contributing
Guarantors, multiplied by (ii) the aggregate amount paid or distributed on or
before such date by all Funding Guarantors under this Guaranty in respect of
the obligations guarantied. "FAIR SHARE SHORTFALL" means, with respect to a
Contributing Guarantor as of any date of determination, the excess, if any, of
the Fair Share of such Contributing Guarantor over the Aggregate Payments of
such Contributing Guarantor. "ADJUSTED MAXIMUM AMOUNT" means, with respect to
a Contributing Guarantor as of any date of determination, the maximum aggregate
amount of the obligations of such Contributing Guarantor under this Guaranty,
determined as of such date in accordance with subsection 2.2(a); provided that,
solely for purposes of calculating the "Adjusted Maximum Amount" with respect
to any Contributing Guarantor for purposes of this subsection 2.2(b), any
assets or liabilities of such Contributing Guarantor arising by virtue of any
rights to subrogation or reimbursement or any rights to or obligations of
contribution hereunder shall not be considered as assets or liabilities of such
Contributing Guarantor. "AGGREGATE PAYMENTS" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to (i)
the aggregate amount of all payments and distributions made on or before such
date by such Contributing Guarantor in respect of this Guaranty (including,
without limitation, in respect of this subsection 2.2(b) minus (ii) the
aggregate amount of all payments received on or before such date by such
Contributing Guarantor from the other Contributing Guarantors as contributions
under this subsection 2.2(b). The amounts payable as contributions hereunder
shall be determined as of the date on which the related payment or distribution
is made by the applicable Funding Guarantor. The allocation among Contributing
Guarantors of their obligations as set forth in this subsection 2.2(b) shall
not be construed in any way to limit the liability of any Contributing
Guarantor hereunder.
2.3 LIABILITY OF GUARANTORS ABSOLUTE. Each Guarantor agrees that
its obligations hereunder are irrevocable, absolute, independent and
unconditional and shall not be affected by any circumstance which constitutes a
legal or equitable discharge of a guarantor or surety other than indefeasible
payment in full of the Guarantied Obligations. In furtherance of the foregoing
and without limiting the generality thereof, each Guarantor agrees as follows:
4
<PAGE> 6
(a) This Guaranty is a guaranty of payment when due and
not of collectibility.
(b) Lender may enforce this Guaranty upon the occurrence
of an Event of Default under the Credit Agreement notwithstanding the
existence of any dispute between Lender and Borrowers with respect to
the existence of such Event of Default.
(c) The obligations of each Guarantor hereunder are
independent of the obligations of Borrowers under the Credit Documents
and the obligations of any other guarantor (including any other
Guarantor) of the obligations of Borrowers under the Credit Documents,
and a separate action or actions may be brought and prosecuted against
such Guarantor whether or not any action is brought against Borrowers,
or any of them, or any of such other guarantors and whether or not
Borrowers are joined in any such action or actions.
(d) Payment by any Guarantor of a portion, but not all,
of the Guarantied Obligations shall in no way limit, affect, modify or
abridge any Guarantor's liability for any portion of the Guarantied
Obligations which has not been paid. Without limiting the generality
of the foregoing, if Lender is awarded a judgment in any suit brought
to enforce any Guarantor's covenant to pay a portion of the Guarantied
Obligations, such judgment shall not be deemed to release such
Guarantor from its covenant to pay the portion of the Guarantied
Obligations that is not the subject of such suit, and such judgment
shall not, except to the extent satisfied by such Guarantor, limit,
affect, modify or abridge any other Guarantor's liability hereunder in
respect of the Guarantied Obligations.
(e) Lender, upon such terms as it deems appropriate,
without notice or demand and without affecting the validity or
enforceability of this Guaranty or giving rise to any reduction,
limitation, impairment, discharge or termination of any Guarantor's
liability hereunder, from time to time may (i) renew, extend,
accelerate, increase the rate of interest on, or otherwise change the
time, place, manner or terms of payment of the Guarantied Obligations,
(ii) settle, compromise, release or discharge, or accept or refuse any
offer of performance with respect to, or substitutions for, the
Guarantied Obligations or any agreement relating thereto and/or
subordinate the payment of the same to the payment of any other
obligations; (iii) request and accept other guaranties of the
Guarantied Obligations and take and hold security for the payment of
this Guaranty or the Guarantied Obligations; (iv) release, surrender,
exchange, substitute, compromise, settle, rescind, waive, alter,
subordinate or modify, with or without consideration, any security for
5
<PAGE> 7
payment of the Guarantied Obligations, any other guaranties of the
Guarantied Obligations, or any other obligation of any Person
(including any other Guarantor) with respect to the Guarantied
Obligations; (v) enforce and apply any security now or hereafter held
by or for the benefit of Lender in respect of this Guaranty or the
Guarantied Obligations and direct the order or manner of sale thereof,
or exercise any other right or remedy that Lender may have against any
such security, as Lender in its discretion may determine consistent
with the Credit Agreement and any applicable security agreement,
including foreclosure on any such security pursuant to one or more
judicial or nonjudicial sales, whether or not every aspect of any such
sale is commercially reasonable, and even though such action operates
to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of any Guarantor against Borrowers, or any of
them, or any security for the Guarantied Obligations; and (vi)
exercise any other rights available to it under the Credit Documents.
(f) This Guaranty and the obligations of Guarantors
hereunder shall be valid and enforceable and shall not be subject to
any reduction, limitation, impairment, discharge or termination for
any reason (other than indefeasible payment in full of the Guarantied
Obligations), including without limitation the occurrence of any of
the following, whether or not any Guarantor shall have had notice or
knowledge of any of them: (i) any failure or omission to assert or
enforce or agreement or election not to assert or enforce, or the stay
or enjoining, by order of court, by operation of law or otherwise, of
the exercise or enforcement of, any claim or demand or any right,
power or remedy (whether arising under the Credit Documents, at law,
in equity or otherwise) with respect to the Guarantied Obligations or
any agreement relating thereto, or with respect to any other guaranty
of or security for the payment of the Guarantied Obligations; (ii) any
rescission, waiver, amendment or modification of, or any consent to
departure from, any of the terms or provisions (including without
limitation provisions relating to events of default) of the Credit
Agreement, any of the other Credit Documents or any agreement or
instrument executed pursuant thereto, or of any other guaranty or
security for the Guarantied Obligations, in each case whether or not
in accordance with the terms of the Credit Agreement or such Credit
Document or any agreement relating to such other guaranty or security;
(iii) the Guarantied Obligations, or any agreement relating thereto,
at any time being found to be illegal, invalid or unenforceable in any
respect; (iv) the application of payments received from any source
(other than payments received pursuant to the other Credit Documents
or from the proceeds of any security for the Guarantied Obligations,
except to the extent such security also serves as collateral
6
<PAGE> 8
for indebtedness other than the Guarantied Obligations) to the payment
of indebtedness other than the Guarantied Obligations, even though
Lender might have elected to apply such payment to any part or all of
the Guarantied Obligations; (v) Lender's consent to the change,
reorganization or termination of the corporate structure or existence
of SEI or any of its Subsidiaries and to any corresponding
restructuring of the Guarantied Obligations; (vi) any failure to
perfect or continue perfection of a security interest in any
collateral which secures any of the Guarantied Obligations; (vii) any
defenses, set-offs or counterclaims which Borrowers, or any of them,
may allege or assert against Lender in respect of the Guarantied
Obligations, including but not limited to failure of consideration,
breach of warranty, payment, statute of frauds, statute of
limitations, accord and satisfaction and usury; and (viii) any other
act or thing or omission, or delay to do any other act or thing, which
may or might in any manner or to any extent vary the risk of any
Guarantor as an obligor in respect of the Guarantied Obligations.
2.4 WAIVERS BY GUARANTORS. Each Guarantor hereby waives, for the
benefit of Lender:
(a) any right to require Lender, as a condition of
payment or performance by such Guarantor, to (i) proceed against
Borrowers, or any of them, any other guarantor (including any other
Guarantor) of the Guarantied Obligations or any other Person, (ii)
proceed against or exhaust any security held from Borrowers, or any of
them, any other guarantor (including any other Guarantor) of the
Guarantied Obligations or any other Person, (iii) proceed against or
have resort to any balance of any deposit account or credit on the
books of Lender in favor of Borrowers, or any of them, or any other
Person, or (iv) pursue any other remedy in the power of Lender
whatsoever;
(b) any defense arising by reason of the incapacity, lack
of authority or any disability or other defense of Borrowers, or any
of them, including, without limitation, any defense based on or
arising out of the lack of validity or the unenforceability of the
Guarantied Obligations or any agreement or instrument relating thereto
or by reason of the cessation of the liability of Borrowers, or any of
them, from any cause other than indefeasible payment in full of the
Guarantied Obligations;
(c) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither larger
in amount nor in other respects more burdensome than that of the
principal;
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<PAGE> 9
(d) any defense based upon Lender's errors or omissions
in the administration of the Guarantied Obligations, except behavior
which amounts to bad faith;
(e) (i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms of this
Guaranty and any legal or equitable discharge of such Guarantor's
obligations hereunder, (ii) the benefit of any statute of limitations
affecting such Guarantor's liability hereunder or the enforcement
hereof, (iii) any rights to set-offs, recoupments and counterclaims,
and (iv) promptness, diligence and any requirement that Lender
protect, secure, perfect or insure any security interest or lien or
any property subject thereto;
(f) notices, demands, presentments, protests, notices of
protest, notices of dishonor and notices of any action or inaction,
including acceptance of this Guaranty, notices of default under the
Credit Agreement or any agreement or instrument related thereto,
notices of any renewal, extension or modification of the Guarantied
Obligations or any agreement related thereto, notices of any extension
of credit to the Borrowers, or any of them, and notices of any of the
matters referred to in subsection 2.3 and any right to consent to any
thereof; and
(g) any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate guarantors
or sureties, or which may conflict with the terms of this Guaranty,
including without limitation if and to the extent applicable, the
provisions of California Civil Code Sections 2809, 2810, 2819, 2839,
2845, 2846, 2849, 2850, 2899 and 3433.
2.5 PAYMENT BY GUARANTORS; APPLICATION OF PAYMENTS. Subject to
the provisions of subsection 2.2(a), Guarantors hereby jointly and severally
agree, in furtherance of the foregoing and not in limitation of any other right
which Lender or any other Person may have at law or in equity against any
Guarantor by virtue hereof, that upon the failure of Borrowers, or any of them,
to pay any of the Guarantied Obligations when and as the same shall become due,
whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (including amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11
U.S.C. Section 362(a) or the operation of any other provision of law or any
jurisdiction which would otherwise cause a stay of the payment of such
amounts), Guarantors will upon demand pay, or cause to be paid, in cash, to
Lender, an amount equal to the sum of the unpaid principal amount of all
Guarantied Obligations then due as aforesaid, accrued and unpaid interest on
such Guarantied Obligations (including, without limitation, interest which, but
for the filing of a petition in bankruptcy with respect to
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<PAGE> 10
Borrowers, or any of them, would have accrued on such Guarantied Obligations,
whether or not a claim is allowed against Borrowers, or any of them, for such
interest in any such bankruptcy proceeding) and all other Guarantied
Obligations then owed to Lender as aforesaid. All such payments shall be
applied promptly from time to time by Lender:
First, to the payment of the costs and expenses of any
collection or other realization under this Guaranty, including
reasonable compensation to Lender and its agents and counsel, and all
expenses, liabilities and advances made or incurred by Lender in
connection therewith;
Second, to the payment of all other Guarantied Obligations; and
Third, after payment in full of all Guarantied Obligations, to
the payment to Guarantors, or their respective successors or assigns,
or to whomsoever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct, of any surplus then
remaining from such payments.
2.6 GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC. Each
Guarantor hereby waives any claim, right or remedy, direct or indirect, that
such Guarantor now has or may hereafter have against Borrowers, or any of them,
or any of their assets in connection with this Guaranty or the performance by
such Guarantor of its obligations hereunder, in each case whether such claim,
right or remedy arises in equity, under contract, by statute, under common law
or otherwise and including without limitation (a) any right of subrogation,
reimbursement or indemnification that such Guarantor now has or may hereafter
have against any Borrower, (b) any right to enforce, or to participate in, any
claim, right or remedy that Lender now has or may hereafter have against
Borrowers, or any of them, and (c) any benefit of, and any right to participate
in, any collateral or security now or hereafter held by Lender. In addition,
until the Guarantied Obligations shall have been indefeasibly paid in full and
the Commitment shall have terminated, each Guarantor shall withhold exercise of
any right of contribution such Guarantor may have against any other guarantor
(including any other Guarantor) of the Guarantied Obligations (including
without limitation any such right of contribution under subsection 2.2(b).
Each Guarantor further agrees that, to the extent the waiver or withholding of
its rights of subrogation, reimbursement, indemnification and contribution as
set forth herein is found by a court of competent jurisdiction to be void or
voidable for any reason, any rights of subrogation, reimbursement or
indemnification such Guarantor may have against Borrowers, or any of them, or
against any collateral or security, and any rights of contribution such
Guarantor may have against any such other guarantor, shall be junior and
subordinate to any rights Lender
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<PAGE> 11
may have against Borrowers, or any of them, to all right, title and interest
Lender may have in any such collateral or security, and to any right Lender may
have against such other guarantor. Lender may use, sell or dispose of any item
of collateral or security as it sees fit without regard to any subrogation
rights any Guarantor may have, and upon any such disposition or sale any rights
of subrogation such Guarantor may have shall terminate. If any amount shall be
paid to any Guarantor on account of any such subrogation, reimbursement or
indemnification rights at any time when all Guarantied Obligations shall not
have been paid in full, such amount shall be held in trust for Lender and shall
forthwith be paid over to Lender to be credited and applied against the
Guarantied Obligations, whether matured or unmatured, in accordance with the
terms hereof.
2.7 SUBORDINATION OF OTHER OBLIGATIONS. Any indebtedness of
Borrowers, or any of them, now or hereafter held by any Guarantor is hereby
subordinated in right of payment to the Guarantied Obligations, and any such
indebtedness of Borrowers, or any of them, to such Guarantor collected or
received by such Guarantor after an Event of Default has occurred and is
continuing shall be held in trust for Lender and shall forthwith be paid over
to Lender to be credited and applied against the Guarantied Obligations but
without affecting, impairing or limiting in any manner the liability of such
Guarantor under any other provision of this Guaranty.
2.8 REAL PROPERTY SECURITY. Each Guarantor agrees that, if all or
a portion of the Guarantied Obligations are at any time secured by a deed of
trust or mortgage covering interests in real property, Lender or its designee,
in its sole discretion, without notice or demand and without affecting the
liability of any Guarantor under this Guaranty, may foreclose, pursuant to the
terms of the Credit Documents or otherwise, on such deed of trust or mortgage
and the interests in real property secured thereby by nonjudicial or other
sale. Each Guarantor understands (i) that the exercise by Lender, or any of
them, of certain rights and remedies contained in the Credit Agreement and
Borrowers, or any of them, such deed of trust or mortgage, including the right
to conduct such a nonjudicial foreclosure sale, may affect or eliminate such
Guarantor's right of subrogation against Borrowers, or any of them, (ii) that
such Guarantor may therefore incur a partially or totally nonreimbursable
liability hereunder, and (iii) that such actions by Lender that affect or
eliminate such right of subrogation may give rise to a defense by such
Guarantor to any liability under this Guaranty, absent a waiver of such defense
by such Guarantor. Nevertheless, each Guarantor hereby waives any such defense
and hereby authorizes and empowers Lender to exercise, in its sole discretion,
any rights and remedies, or any combination thereof, which may then be
available, since it is the intent and purpose of each Guarantor that the
obligations hereunder shall be absolute, independent and unconditional under
any and all circumstances. To the extent
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<PAGE> 12
permitted by law, without limiting the generality of the foregoing, if and to
the extent found applicable, each Guarantor hereby expressly waives any and all
benefits under California Code of Civil Procedure Sections 580a, 580d and 726.
Notwithstanding any foreclosure of the lien of such deed of trust or mortgage
with respect to any or all real or personal property secured thereby, whether
by the exercise of the power of sale contained therein, by an action for
judicial foreclosure or by an acceptance of a deed in lieu of foreclosure, each
Guarantor shall remain bound under this Guaranty, including its obligation to
pay any deficiency after a nonjudicial foreclosure, even though such Guarantor
may have no right of subrogation against Borrowers, or any of them, as a result
thereof.
2.9 EXPENSES. Guarantors jointly and severally agree to pay, or
cause to be paid, on demand, and to save Lender harmless against liability for,
any and all costs and expenses (including fees and disbursements of counsel and
allocated costs of internal counsel) incurred or expended by Lender in
connection with the enforcement of or preservation of any rights under this
Guaranty.
2.10 CONTINUING GUARANTY. This Guaranty is a continuing guaranty
and shall remain in effect until all of the Guarantied Obligations shall have
been indefeasibly paid in full and the Commitment shall have terminated. Each
Guarantor hereby irrevocably waives any right (including without limitation if
and to the extent applicable, any such right arising under California Civil
Code Section 2815) to revoke this Guaranty as to future transactions giving
rise to any Guarantied Obligations.
2.11 AUTHORITY OF GUARANTORS OR BORROWERS. It is not necessary for
Lender to inquire into the capacity or powers of any Guarantor or any Borrower
or the officers, directors or any agents acting or purporting to act on behalf
of any of them.
2.12 FINANCIAL CONDITION OF BORROWERS. Any Loans may be granted to
Borrowers or continued from time to time without notice to or authorization
from any Guarantor regardless of the financial or other condition of Borrowers,
or any of them, at the time of any such grant or continuation. Lender shall
have no obligation to disclose or discuss with any Guarantor their assessment,
or any Guarantor's assessment, of the financial condition of Borrowers, or any
of them. Each Guarantor has adequate means to obtain information from
Borrowers on a continuing basis concerning the financial condition of Borrowers
and their ability to perform their obligations under the Credit Documents, and
each Guarantor assumes the responsibility for being and keeping informed of the
financial condition of Borrowers and of all circumstances bearing upon the risk
of nonpayment of the Guarantied Obligations. Each Guarantor hereby waives and
relinquishes any duty on the part of Lender to disclose any matter, fact or
thing relating to the business,
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<PAGE> 13
operations or conditions of Borrowers, or any of them, now known or hereafter
known by Agent or any Lender.
2.13 RIGHTS CUMULATIVE. The rights, powers and remedies given to
Lender by this Guaranty are cumulative and shall be in addition to and
independent of all rights, powers and remedies given to Lender by virtue of any
statute or rule of law or in any of the other Credit Documents or any agreement
between any Guarantor and Lender between Borrowers, or any of them, and Lender.
Any forbearance or failure to exercise, and any delay by Lender in exercising,
any right, power or remedy hereunder shall not impair any such right, power or
remedy or be construed to be a waiver thereof, nor shall it preclude the
further exercise of any such right, power or remedy.
2.14 BANKRUPTCY; POST-PETITION INTEREST; REINSTATEMENT OF GUARANTY.
(a) So long as any Guarantied Obligations remain
outstanding, no Guarantor shall, without the prior written consent of Lender in
accordance with the terms of the Credit Agreement, commence or join with any
other Person in commencing any bankruptcy, reorganization or insolvency
proceedings of or against Borrowers, or any of them. The obligations of
Guarantors under this Guaranty shall not be reduced, limited, impaired,
discharged, deferred, suspended or terminated by any proceeding, voluntary or
involuntary, involving the bankruptcy, insolvency, receivership,
reorganization, liquidation or arrangement of Borrowers, or any of them, or by
any defense which Borrowers, or any of them, may have by reason of the order,
decree or decision of any court or administrative body resulting from any such
proceeding.
(b) Each Guarantor acknowledges and agrees that any
interest on any portion of the Guarantied Obligations which accrues after the
commencement of any proceeding referred to in clause (a) above (or, if interest
on any portion of the Guarantied Obligations ceases to accrue by operation of
law by reason of the commencement of said proceeding, such interest as would
have accrued on such portion of the Guarantied Obligations if said proceedings
had not been commenced) shall be included in the Guarantied Obligations because
it is the intention of Guarantors and Lender that the Guarantied Obligations
which are guarantied by Guarantors pursuant to this Guaranty should be
determined without regard to any rule of law or order which may relieve
Borrowers, or any of them, of any portion of such Guarantied Obligations.
Guarantors will permit any trustee in bankruptcy, receiver, debtor in
possession, assignee for the benefit of creditors or similar person to pay
Lender, or allow the claim of Lender in respect of, any such interest accruing
after the date on which such proceeding is commenced.
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<PAGE> 14
(c) In the event that all or any portion of the
Guarantied Obligations are paid by any Borrower, the obligations of Guarantors
hereunder shall continue and remain in full force and effect or be reinstated,
as the case may be, in the event that all or any part of such payment(s) are
rescinded or recovered directly or indirectly from Lender as a preference,
fraudulent transfer or otherwise, and any such payments which are so rescinded
or recovered shall constitute Guarantied Obligations for all purposes under
this Guaranty.
2.15 SET OFF. In addition to any other rights Lender may have
under law or in equity, if any amount shall at any time be due and owing by any
Guarantor to Lender under this Guaranty, such Lender is authorized at any time
or from time to time, without notice (any such notice being hereby expressly
waived), to set off and to appropriate and to apply any and all indebtedness of
Lender owing to such Guarantor and any other property of such Guarantor held by
Lender to or for the credit or the account of such Guarantor against and on
account of the Guarantied Obligations and liabilities of such Guarantor to
Lender under this Guaranty.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce Lender to accept this Guaranty and to enter
into the Credit Agreement and to make the Loans thereunder, each Guarantor
hereby represents and warrants to Lender that the following statements are true
and correct:
3.1 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Such
Guarantor has the corporate power, authority and legal right to execute,
deliver and perform this Guaranty and all obligations required hereunder and
has taken all necessary corporate action to authorize its Guaranty hereunder on
the terms and conditions hereof and its execution, delivery and performance of
this Guaranty and all obligations required hereunder. No consent of any other
Person including, without limitation, stockholders and creditors of such
Guarantor, and no license, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with, any
governmental authority is required by such Guarantor in connection with this
Guaranty or the execution, delivery, performance, validity or enforceability of
this Guaranty and all obligations required hereunder. This Guaranty has been,
and each instrument or document required hereunder will be, executed and
delivered by a duly authorized officer of such Guarantor, and this Guaranty
constitutes, and each instrument or document required hereunder when executed
and delivered by such Guarantor hereunder will constitute, the legally valid
and binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization,
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<PAGE> 15
moratorium or other similar laws or equitable principles relating to or
limiting creditors' rights generally.
3.2 NO LEGAL BAR TO THIS GUARANTY. The execution, delivery and
performance of this Guaranty and the documents or instruments required
hereunder, and the use of the proceeds of the borrowings under the Credit
Agreement, will not violate any provision of any existing law or regulation
binding on such Guarantor, or any order, judgment, award or decree of any
court, arbitrator or governmental authority binding on such Guarantor, or the
certificate of incorporation or bylaws of such Guarantor or any securities
issued by such Guarantor, or any mortgage, indenture, lease, contract or other
agreement, instrument or undertaking to which such Guarantor is a party or by
which such Guarantor or any of its assets may be bound, the violation of which
would have a material adverse effect on the business, operations, assets or
financial condition of such Guarantor and its Subsidiaries, taken as a whole,
and will not result in, or require, the creation or imposition of any Lien on
any of its property, assets or revenues pursuant to the provisions of any such
mortgage, indenture, lease, contract or other agreement, instrument or
undertaking.
3.3 CERTAIN GUARANTOR REPRESENTATIONS. Each Guarantor represents
that (a) it is in its best interest and in pursuit of its corporate purposes as
an integral part of the business conducted and proposed to be conducted by SEGI
and its Subsidiaries (including such Guarantor), and reasonably necessary and
convenient in connection with the conduct of the business conducted and
proposed to be conducted by it, to induce the Lender to enter into the Credit
Agreement and to extend credit to each Borrower by making the Guaranties
contemplated by this Guaranty, (b) the credit available under the Credit
Agreement will directly or indirectly inure to its benefit, and (c) by virtue
of the foregoing it is receiving at least reasonably equivalent consideration
from the Lender for its Guaranty. Each Guarantor acknowledges that it has been
advised by Lender that the Lender is unwilling to enter into the Credit
Agreement unless the Guaranties contemplated by this Guaranty are given by it.
Each Guarantor represents that (i) it will not be rendered insolvent as a
result of entering into this Guaranty, (ii) after giving effect to the
transactions contemplated by this Guaranty, it will have assets having a fair
saleable value in excess of the amount required to pay its probable liability
on its existing debts as they have become absolute and matured, (iii) it has,
and will have, access to adequate capital for the conduct of its business and
(iv) it has the ability to pay its debts from time to time incurred in
connection therewith as such debts mature.
SECTION 4. MISCELLANEOUS
4.1 SURVIVAL OF WARRANTIES. All agreements, representations and
warranties made herein shall survive the execution and
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delivery of this Guaranty, any increase in the Commitment under the Credit
Agreement and the execution and delivery of the Note.
4.2 NOTICES. Any communications between Lender and any Guarantor
and any notices or requests provided herein to be given may be given by mailing
the same, postage prepaid, or by telex, facsimile transmission or cable to each
such party at its address set forth in the Credit Agreement, on the signature
pages hereof or to such other addresses as each such party may in writing
hereafter indicate. Any notice, request or demand to or upon Lender or any
Guarantor shall not be effective until received.
4.3 SEVERABILITY. In case any provision in or obligation under
this Guaranty shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
4.4 AMENDMENTS AND WAIVERS. No amendment, modification,
termination or waiver of any provision of this Guaranty, or consent to any
departure by any Guarantor therefrom, shall in any event be effective without
the written concurrence of Lender under the Credit Agreement. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given.
4.5 HEADINGS. Section and subsection headings in this Guaranty
are included herein for convenience of reference only and shall not constitute
a part of this Guaranty for any other purpose or be given any substantive
effect.
4.6 APPLICABLE LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
4.7 SUCCESSORS AND ASSIGNS. This Guaranty is a continuing
guaranty and shall be binding upon each Guarantor and its respective successors
and assigns. This Guaranty shall inure to the benefit of Lender and its
respective successors and assigns. No Guarantor shall assign this Guaranty or
any of the rights or obligations of such Guarantor hereunder without the prior
written consent of Lender. Lender may, without notice or consent, assign its
interest in this Guaranty in whole or in part. The terms and provisions of
this Guaranty shall inure to the benefit of any transferee or assignee of any
Note, and in the event of such transfer or assignment the rights and privileges
herein conferred upon Lender shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
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<PAGE> 17
4.8 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST ANY GUARANTOR ARISING OUT OF OR RELATING TO THIS
GUARANTY MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION
IN THE STATES OF NEW YORK, FLORIDA AND CALIFORNIA, AND BY EXECUTION AND
DELIVERY OF THIS GUARANTY EACH GUARANTOR ACCEPTS FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS GUARANTY. Each Guarantor designates and appoints
Spelling Entertainment Group Inc., and such other Persons as may hereafter be
selected by such Guarantor irrevocably agreeing in writing to so serve, as its
agent to receive on its behalf service of all process in any such proceedings
in any such court, such service being hereby acknowledged by such Guarantor to
be effective and binding service in every respect. A copy of any such process
so served shall be mailed by registered mail to such Guarantor at its address
provided in subsection 4.2; provided that, unless otherwise provided by
applicable law, any failure to mail such copy shall not affect the validity of
service of such process. If any agent appointed by any Guarantor refuses to
accept service, such Guarantor hereby agrees that service of process sufficient
for personal jurisdiction in any action against such Guarantor in the States of
New York, California and Florida may be made by registered or certified mail,
return receipt requested, to such Guarantor at its address provided in
subsection 4.2, and each Guarantor hereby acknowledges that such service shall
be effective and binding in every respect. Nothing herein shall affect the
right to serve process in any other manner permitted by law or shall limit the
right of Lender to bring proceedings against any Guarantor in the courts of any
other jurisdiction.
4.9 NO OTHER WRITING. This writing is intended by Guarantors and
Lender as the final expression of this Guaranty and is also intended as a
complete and exclusive statement of the terms of their agreement with respect
to the matters covered hereby. No course of dealing, course of performance or
trade usage, and no parol evidence of any nature, shall be used to supplement
or modify any terms of this Guaranty. There are no conditions to the full
effectiveness of this Guaranty.
4.10 FURTHER ASSURANCES. At any time or from time to time, upon
the request of Agent or Requisite Lenders, Guarantors shall execute and deliver
such further documents and do such other acts and things as Lender may
reasonably request in order to effect fully the purposes of this Guaranty.
4.11 ADDITIONAL SUBSIDIARY GUARANTORS. The initial Guarantors
hereunder shall be SEGI and such of the Subsidiaries of SEGI as are signatories
hereto on the date hereof. From time to time subsequent to the date hereof,
additional Subsidiaries of
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<PAGE> 18
SEGI may become parties hereto, as additional Guarantors, by executing a
counterpart of this Guaranty. Upon delivery of any such counterpart to Lender,
notice of which is hereby waived by Guarantors, each such additional Guarantor
shall be as fully a party hereto as if such Guarantor were an original
signatory hereof. Each Guarantor expressly agrees that its obligations arising
hereunder shall not be affected or diminished by the addition or release of any
other Guarantor hereunder, nor by any election of Lender not to cause any
Subsidiary of SEGI to become an additional Guarantor hereunder. This Guaranty
shall be fully effective as to any Guarantor that is or becomes a party hereto
regardless of whether any other Person becomes or fails to become or ceases to
be a Guarantor hereunder. Each Guarantor shall from time to time cause any
present wholly owned subsidiary of Guarantor or future wholly owned subsidiary
of Guarantor, within 30 days after any such Person becomes a Subsidiary, that
is not a Guarantor to join this Guaranty as a Guarantor pursuant to a joinder
agreement in form and substance satisfactory to the Lender unless such
Subsidiary is a Subsidiary organized under the laws of a jurisdiction outside
of the United States and under applicable foreign law; such Subsidiary is not
permitted to guarantee the Credit Obligations. Each Guarantor will, promptly
upon the request of Lender from time to time, execute, acknowledge and deliver,
and file and record, all such instruments, and take all such action, as Lender
deems necessary or advisable to carry out the intent and purposes of this
Section 4.11.
4.12 COUNTERPARTS; EFFECTIVENESS. This Guaranty may be executed in
any number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original for all purposes; but all such counterparts together shall
constitute but one and the same instrument. This Guaranty shall become
effective as to each Guarantor upon the execution of a counterpart hereof by
such Guarantor (whether or not a counterpart hereof shall have been executed by
any other Guarantor) and receipt by Lender of written or telephonic
notification of such execution and authorization of delivery thereof.
(Remainder of page intentionally left blank)
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IN WITNESS WHEREOF, each of the undersigned Guarantors has
executed this Guaranty by its duly authorized officer as of the date first
above written.
SPELLING ENTERTAINMENT GROUP INC.
By __________________________________
Title:
Address: One Blockbuster Plaza
200 South Andrews Avenue
Fort Lauderdale, Florida 33301
SPELLING ENTERTAINMENT INC.
By __________________________________
Title:
Address: 5700 Wilshire Boulevard
Los Angeles, California
AARON SPELLING PRODUCTIONS, INC.
LAUREL ENTERTAINMENT, INC.
SPELLING FILMS INTERNATIONAL INC.
SPELLING TELEVISION INC.
TORAND PRODUCTIONS INC.
WORLDVISION ENTERPRISES, INC.
HAMILTON PROJECTS, INC.
LAUREL TV, INC.
LAUREL-KING, INC.
LAUREL PICTURES INC.
By __________________________________
As an authorized officer of each
of the foregoing corporations
Address: 5700 Wilshire Boulevard
Los Angeles, California
S-1
<PAGE> 1
EXHIBIT 99.5
Guaranty dated as of December 22, 1993 by the Registrant in
favor of Bank of America National Trust and Savings
Association, as agent.
<PAGE> 2
EXHIBIT 99.5
GUARANTY
This GUARANTY (this "Guaranty"), dated as of December 22,
1993, is made by SPELLING ENTERTAINMENT GROUP INC., a Florida corporation (the
"Guarantor"), in favor of BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION as agent (the "Agent") for its benefit and for the ratable benefit
of the Banks party to the Amended and Restated Credit Agreement.
WHEREAS, BLOCKBUSTER ENTERTAINMENT CORPORATION, a Delaware
corporation (the "Company"), the Designated Subsidiaries of the Company, the
Banks and Bank of America National Trust and Savings Association as Agent, and
BA Securities, Inc., as Arranger have entered into an Amended and Restated
Credit Agreement dated as of the date hereof (such Amended and Restated Credit
Agreement, as it may hereafter be amended, restated, supplemented, or otherwise
modified from time to time, the "Amended and Restated Credit Agreement"); and
WHEREAS, each Subsidiary is a subsidiary of the Company and is
engaged in related businesses and each of the Subsidiaries will derive direct
and indirect economic benefit from all of the Loans (as defined in the Amended
and Restated Credit Agreement) made to the Company;
WHEREAS, the Guarantor and the Company have agreed that
following the execution of this Guaranty, the Guarantor and the Company will
enter into a credit agreement (the "Intercompany Credit Agreement"), pursuant
to which the Company will make certain loans to the Guarantor from time to
time.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Banks to make Loans under the Amended and Restated Credit
Agreement, the Guarantor hereby agrees for the benefit of the Agent and for the
ratable benefit of the Banks (all such beneficially interested parties being
hereinafter sometimes referred to collectively as the "Secured Parties") as
follows:
1. Defined Terms. Unless otherwise defined herein,
terms defined in the Amended and Restated Credit Agreement are used herein as
therein defined.
2. Guaranty. The Guarantor hereby unconditionally and
irrevocably, guarantees the prompt performance and payment in full by the
Company when due (whether at stated maturity, by acceleration or otherwise) of
all the Company's obligations arising under, pursuant to or in connection with,
the Amended and Restated Credit Agreement and the other Loan Documents (all
such obligations being hereinafter referred to as the "Obligations"), and the
Guarantor further agrees to pay all reasonable costs, fees and expenses
(including counsel fees, including the allocated cost of in-house counsel)
incurred by any Secured Party in enforcing any rights under this Guaranty;
provided, however, that the Guarantor shall be liable under this Guaranty only
for the maximum amount of such liability that can be hereby incurred without
rendering this Guaranty voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater amount; provided
further that in no event shall the
<PAGE> 3
Guarantor's liability under this Section 2 exceed the amount of the Guarantor's
obligations to the Company under the Intercompany Credit Agreement at the time
of enforcement hereof.
3. Guaranty Absolute.
(a) This Guaranty is an unconditional and absolute
guaranty of payment and of performance. It shall be enforceable against the
Guarantor, its successors and assigns, without the necessity of resorting to
any suit against any other party or exhausting any other security or
collateral. The Guarantor waives the right to have the Banks or the Agent
pursue any other remedy, enforce any other rights, and the right to receive
notice of non-payment, non-performance or non-observance, non-acceptance,
demand or any other notice or demand to which the Guarantor might otherwise be
entitled. The Guarantor guarantees that all amounts payable by the Company will
be paid strictly in accordance with the terms of the Amended and Restated
Credit Agreement and the other Loan Documents, regardless of any law,
regulation or order, now or hereafter in effect in any jurisdiction affecting
any of such terms or the rights of the Agent or the Banks with respect thereto.
(b) This Guaranty is a guaranty of payment and the
obligations of the Guarantor contained herein shall be primary obligations and
debts of the Guarantor. Accordingly, the Banks or the Agent shall not be
obliged before enforcing such obligations to make any demand of the Company, to
take any action or proceedings or obtain judgment in any court against the
Company or to make or file any proof of claim in a liquidation or insolvency of
the Company and the Guarantor hereby expressly waives presentment, acceptance,
demand for payment, protest and notice of dishonor.
(c) The Guarantor shall not be exonerated or
discharged from liability hereunder by any time or grace period given to the
Company or by any other indulgence or concession granted to the Company or by
any other dealing or thing including, without limitation, any circumstances
whatsoever affecting or preventing a recovery of amounts due under the Amended
and Restated Credit Agreement or the other Loan Documents which, but for this
provision, might operate to exonerate or discharge the Guarantor from its
obligations hereunder.
(d) This Guaranty shall be a continuing guaranty, and
the obligations and liability of the Guarantor hereunder shall in no way be
affected, impaired, released, reduced or discharged by reason of the occurrence
of any of the following, although without further notice to or consent of the
Guarantor:
(i) the amendment, modification or supplement
(whether material or otherwise) of the Amended and Restated
Credit Agreement or the other Loan Documents;
(ii) the assertion of any of the rights or remedies
of the Banks or the Agent under the Amended and Restated
Credit Agreement or the other Loan Documents;
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(iii) the failure, omission or delay on the part of
the Banks or the Agent to enforce, assert or exercise any
right, power or remedy conferred on or available to the Banks
or the Agent under the Amended and Restated Credit Agreement
or the other Loan Documents;
(iv) any bankruptcy, insolvency, reorganization,
arrangement, assignment for the benefit of creditors,
receivership or trusteeship affecting the Company;
(v) any lack of validity or enforceability of the
Amended and Restated Credit Agreement, the other Loan
Documents or any other agreement or instrument relating
thereto;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or
consent to departure from any other guaranty, for all or any
of the Obligations; or
(vii) any other circumstances which might otherwise
constitute a defense available to, or a discharge of, the
Guarantor.
(e) This Guaranty shall continue to be effective or
be reinstated, as the case may be, if at any time, any payment of any amounts
payable by the Company is rescinded or must otherwise be returned by the Agent
or any Bank upon the insolvency, bankruptcy or reorganization of the Company or
otherwise, all as though such payment had not been made.
(f) If an event permitting the acceleration of any of
the Obligations shall any time have occurred and be continuing and such
acceleration shall at such time be prevented by reason of the pendency against
the Company of a case or proceeding under any bankruptcy or insolvency law, the
Guarantor agrees that, for purposes of this Guaranty and its obligations
hereunder, the Obligations shall be deemed to have been accelerated and the
Guarantor shall forthwith pay such Obligations, and the other obligations
hereunder, without any further notice or demand, (including interest which but
for the filing of a petition in bankruptcy with respect to the Company, would
accrue on such Obligations).
4. Taxes and payments.
(a) Subject to the requirements of Section 3.01(g) of
the Amended and Restated Credit Agreement, each payment to be made by the
Guarantor under this Guaranty or in connection herewith to any Person shall be
made free and clear of, and without deduction or withholding for or on account
of any tax, reserve, levy or duty of, or imposed by, any governmental or taxing
authority in any jurisdiction unless the Guarantor is required to make such a
payment subject to the deduction or withholding of such tax, in which case the
amount payable by the Guarantor in respect of which such deduction or
withholding is required to be made shall be increased to the extent necessary
to ensure that, after the making of such deduction or withholding (to the
extent provided in Section 3.01(d)(ii) the Amended and Restated Credit
Agreement), such other party receives and retains (free from any liability in
respect of any such deduction or withholding) a net amount equal to the amount
which it would have
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received and so retained had no such deduction or withholding been made or
required to be made.
(b) All payments made by the Guarantor shall be made
free and clear of and without any deduction for or on account of any set-off or
counterclaim or any other matter.
5. Waivers.
(a) The Guarantor expressly waives any and all rights
of subrogation, reimbursement and contribution, exoneration and indemnity
(contractual, statutory or otherwise), including without limitation, any claim
or right of subrogation under the Bankruptcy Code (Title 11 of the U.S. Code)
or any successor statute, arising from the existence or performance of this
Guaranty and the Guarantor irrevocably waives any right to enforce any remedy
which the Banks now have or may hereafter have against the Company, and waives
any benefit of, and any right to participate in, any security now or hereafter
held by the Banks. The provisions of this Section 5 shall survive the
termination of the Amended and Restated Credit Agreement and the payment in
full of the Obligations.
(b) The Guarantor hereby waives promptness,
diligence, notice of acceptance and any and all other notices with respect to
any of the Obligations and this Guaranty and any requirement that the Agent or
any Bank protect, secure, perfect or insure any security interest in or any
Lien on any property subject thereto or exhaust any right or take any action
against the Company, any other guarantor or any other obligor or any other
Person or any collateral or security or to any balance of any deposit accounts
or credit on the books of any Bank in favor of the Company or the guarantor.
6. Representations and Warranties. The Guarantor
represents and warrants to each Secured Party as follows:
(a) the Guarantor:
(i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation;
(ii) has the power and authority and all material
governmental licenses, authorizations, consents and approvals
to own its assets, carry on its business and to execute,
deliver, and perform its obligations under, this Guaranty;
(iii) is duly qualified as a foreign corporation,
licensed and in good standing under the laws of each
jurisdiction where failure to qualify would have a Material
Adverse Effect; and
(iv) is in compliance in all material respects with
all Requirements of Law.
(b) The execution, delivery and performance by the
Company of this Guaranty have been duly authorized by all necessary corporate
action, and do not and will not:
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(i) contravene the terms of any of the Guarantor's
Organization Documents;
(ii) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any
document evidencing any Contractual Obligation to which the
Guarantor is a party or any order, injunction, writ or decree
of any Governmental Authority to which the Guarantor or its
Property is subject; or
(iii) violate any Requirement of Law.
(c) No approval, consent, exemption, authorization,
or other action by, or notice to, or filing with, any Governmental Authority is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, the Guarantor of this Guaranty.
(d) This Guaranty constitutes the legal, valid and
binding obligation of the Guarantor, enforceable against the Guarantor in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability.
(e) Except as specifically disclosed in Schedule 5.05
to the Amended and Restated Credit Agreement, there are no actions, suits,
proceedings, claims or disputes pending, or to the best knowledge of the
Guarantor, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, against the Guarantor or any of its
Properties which:
(i) purport to affect the legality, validity or
enforceability of this Guaranty, or any of the transactions
contemplated hereby or thereby; or
(ii) if determined adversely to the Guarantor would
reasonably be expected to have a Material Adverse Effect. No
injunction, writ, temporary restraining order or any order of
any nature has been issued by any court or other Governmental
Authority purporting to enjoin or restrain the execution,
delivery and performance of this Guaranty, or directing that
the transactions provided for herein or therein not be
consummated as herein or therein provided.
(f) Each other representation and warranty made by
the Company in Article V of the Amended and Restated Credit Agreement
concerning the Guarantor is true and correct in all material respects.
The representations and warranties set forth in this
Section 6 shall survive the execution and delivery of this Guaranty.
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7. Miscellaneous.
(a) All of the rights and remedies of the Banks and
the Agent under this Guaranty are intended to be distinct, separate and
cumulative and no such right or remedy is intended to be an exclusion of or a
waiver of any of the others. All rights and remedies may be enforced
concurrently, separately, in any order and in any combination.
(b) THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. THE GUARANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
LITIGATION WHICH THE GUARANTOR, THE AGENT OR ANY OF THE BANKS SHALL BE ADVERSE
PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the date first above written.
SPELLING ENTERTAINMENT GROUP INC.,
a Florida corporation
By: _______________________________
Title: Steven R. Berrard,
Vice Chairman, President
and Chief Executive Officer
Address: c/o 200 South Andrews Avenue
Fort Lauderdale, Florida 33301
Attn: Thomas W. Hawkins, Esq.
Tel: 305-832-3000
Fax: 305-832-3929
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