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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT
(AMENDMENT NO. 45)
PURSUANT TO SECTION 14(D)(1) OF THE
SECURITIES EXCHANGE ACT OF 1934 AND
SCHEDULE 13D
(AMENDMENT NO. 46)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
PARAMOUNT COMMUNICATIONS INC.
(Name of Subject Company)
VIACOM INC.
NATIONAL AMUSEMENTS, INC.
SUMNER M. REDSTONE
BLOCKBUSTER ENTERTAINMENT CORPORATION
(Bidder)
COMMON STOCK, $1.00 PAR VALUE
(Title of Class of Securities)
699216 10 7
(CUSIP Number of Class of Securities)
PHILIPPE P. DAUMAN, ESQ.
VIACOM INC.
1515 BROADWAY
NEW YORK, NEW YORK 10036
TELEPHONE: (212) 258-6000
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications on Behalf of Bidder)
COPIES TO:
STEPHEN R. VOLK, ESQ.
SHEARMAN & STERLING
599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
TEL.: (212) 848-4000
ROGER S. AARON, ESQ.
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
TEL.: (212) 735-3000
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Page 1 of Pages
Exhibit Index on Page
<PAGE>
This Amendment No. 45 to the Tender Offer Statement on
Schedule 14D-1 and Amendment No. 46 to Schedule 13D (the
"Statement") relates to the offer by Viacom Inc., a Delaware
corporation ("Purchaser"), to purchase shares of Common Stock,
par value $1.00 per share (the "Shares"), of Paramount
Communications Inc., a Delaware corporation (the "Company"), at a
price of $107 per Share, net to the seller in cash, upon the
terms and subject to the conditions set forth in Purchaser's
Offer to Purchase dated October 25, 1993 (the "Offer to
Purchase"), a copy of which was attached as Exhibit (a)(1) to
Amendment No. 1, filed with the Securities and Exchange
Commission (the "Commission") on October 26, 1993, to the Tender
Offer Statement on Schedule 14D-1 filed with the Commission on
October 25, 1993 (the "Schedule 14D-1"), as supplemented by
the Supplement thereto dated November 8, 1993 (the "First
Supplement"), the Second Supplement thereto dated January 7,
1994 (the "Second Supplement"), the Third Supplement thereto
dated January 18, 1994 (the "Third Supplement") and the Fourth
Supplement thereto dated February 1, 1994 (the "Fourth
Supplement") and in the related Letters of Transmittal.
Capitalized terms used but not defined herein have the
meanings assigned to such terms in the Offer to Purchase, the
First Supplement, the Second Supplement, the Third Supplement,
the Fourth Supplement and the Schedule 14D-1.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 4 is hereby amended and supplemented as follows:
On February 15, 1994, Blockbuster entered into a credit
agreement with certain financial institutions named therein
and Bank of America National Trust and Savings Association
("Bank of America"), for itself and as Agent (the "New
Blockbuster Credit Agreement"), pursuant to which such
financial institutions have agreed to advance Blockbuster on
an unsecured basis an aggregate of $1,000,000,000 for the
purchase of shares of Viacom Class B Common Stock pursuant
to the Blockbuster Subscription Agreement (the "New
Blockbuster Facility"). The New Blockbuster Facility has a
364-day term and bears interest at Blockbuster's option at
the Reference Rate or at LIBOR plus a margin ranging from
0.50% up to 1.0% (based on Blockbuster's public debt
rating) for the first six months after the initial borrowing
and 1.25% after the first six months. Under the New Blockbuster
Facility, the Reference Rate is generally defined as the higher
of (i) the rate of interest publicly announced from time to time by
Bank of America in San Francisco, California as its
reference rate, or (ii) 0.5% per annum above the latest Federal
Funds Rate. LIBOR is generally defined as the average London
interbank offered rate for 1-, 2-, 3-, or 6-month Eurodollar deposits.
The New Blockbuster Facility requires, among other
items, that Blockbuster maintain certain financial ratios
and comply with certain financial covenants. The New
Blockbuster Facility contains certain events of default,
including a change of control default, which will require
<PAGE>
either a waiver in connection with the Blockbuster Merger or
the refinancing of the indebtedness incurred by Blockbuster
under the New Blockbuster Facility.
The foregoing summary is qualified in its entirety by
the New Blockbuster Credit Agreement, a copy of which is
filed as Exhibit (b)(10) to the Schedule 14D-1 and is
incorporated herein by reference.
ITEM 10. ADDITIONAL INFORMATION.
Item 10(e) is hereby amended and supplemented as
follows:
On February 28, 1994, plaintiffs in the consolidated
action In Re Blockbuster Entertainment Corp. Shareholders'
---------------------------------------------------
Litigation, Consolidated C.A. No. 13319, filed motions in
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the Delaware Court of Chancery seeking expedited discovery,
a temporary restraining order enjoining consummation of
the Blockbuster Subscription Agreement and the scheduling
of a preliminary injunction hearing. On March 1, 1994,
Vice Chancellor Berger issued an order denying plaintiffs'
motions.
A copy of the above-described order is filed as Exhibit
(a)(101) to the Schedule 14D-1 and is incorporated herein by
reference.
Following issuance of the above-described order,
plaintiffs filed a Motion for Clarification or, in the
Alternative, for Certification of an Interlocutory Appeal,
requesting that the Chancery Court clarify whether its order
also refers to a hearing for a preliminary injunction.
Plaintiffs requested that, if the order is limited to a hearing
for a temporary restraining order, the Court schedule a
hearing on plaintiffs' motion for a preliminary injunction.
On March 2, 1994, the plaintiffs informed the Court that they
had decided not to seek an interlocutory appeal and indicated
their understanding that the order precluded preliminary
injunctive relief as to the Blockbuster Subscription Agreement.
Item 10(f) is hereby amended and supplemented as
follows:
On March 2, 1994, Purchaser accepted for payment
61,657,432 of the Shares validly tendered pursuant to the
Offer and not withdrawn, on a pro rata basis, at $107 per
share. The Offer expired at 12:00 midnight, New York City
time, on March 1, 1994. A copy of a press release relating
to the foregoing is filed as Exhibit (a)(102) to the
Schedule 14D-1 and is incorporated herein by reference.
<PAGE>
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby amended and supplemented to add
the following Exhibits:
99(a)(101) Order of the Delaware Court of Chancery
dated March 1, 1994.
99(a)(102) Press Release issued by Purchaser on
March 2, 1994.
99(b)(10) Credit Agreement, dated as of February 15,
1994, by and among Blockbuster Entertainment
Corporation, BA Securities, Inc., as Arranger,
Bank of America National Trust and Savings
Association, as Agent, and certain other
financial institutions.
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Statement is true, complete and correct.
March 2, 1994
VIACOM INC.
By /s/ PHILIPPE P. DAUMAN
...................................
Philippe P. Dauman
Senior Vice President, General
Counsel and Secretary
*
...................................
Sumner M. Redstone,
Individually
NATIONAL AMUSEMENTS, INC.
By *
...................................
Sumner M. Redstone
Chairman, Chief Executive
Officer and President
*By /s/ PHILIPPE P. DAUMAN
...................................
Philippe P. Dauman
Attorney-in-Fact under Powers
of Attorney filed as Exhibit (a)(36)
to the Schedule 14D-1
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Statement is true, complete and correct.
March 2, 1994
BLOCKBUSTER ENTERTAINMENT CORPORATION
By /s/ STEVEN R. BERRARD
...................................
Steven R. Berrard
President and
Chief Operating Officer
<PAGE>
EXHIBIT INDEX
PAGE IN
SEQUENTIAL
EXHIBIT NUMBERING
NO. SYSTEM
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99(a)(101) Order of the Delaware Court of Chancery dated March 1,
1994.
99(a)(102) Press Release issued by Purchaser on March 2, 1994.
99(b)(10) Credit Agreement, dated as of February 15, 1994, by
and among Blockbuster Entertainment Corporation, BA
Securities, Inc., as Arranger, Bank of America
National Trust and Savings Association, as Agent,
and certain other financial institutions.
COURT OF CHANCERY
of the
STATE OF DELAWARE
Carolyn Berger COURT HOUSE
Vice-Chancellor WILMINGTON, DELAWARE 19801
March 1, 1994
David L. Finger, Esquire
Biggs & Battaglia
1800 Mellon Bank Center
P.O. Box 1489
Wilmington, Delaware 19899
Brian P. Glancey, Esquire
Schlusser, Reiver, Hughes & Sisk
1700 West 14th Street
Wilmington, Delaware 19806
Rodman Ward, Jr., Esquire
Marc B. Tucker, Esquire
Skadden, Arps, Slate, Meagher & Flom
P.O. Box 636
Wilmington, Delaware 19899
Lawrence A. Hamermesh, Esquire
Morris, Nichols, Arsht & Tunnell
P.O. Box 1347
Wilmington, Delaware 19899
Irving Morris, Esquire
Karen L. Morris, Esquire
Morris and Morris
1105 North Market Street, #1600
Wilmington, Delaware 19899-2166
Re: In Re Blockbuster Entertainment Corp. Shareholders'
Litigation, Consolidated Civil Action No. 13319
---------------------------------------------------
Dear Counsel:
Plaintiffs filed a Motion for a Temporary Restraining Order
and for Expedited Discovery on February 28, 1994. They seek an
order enjoining consummation of a January 7, 1994 Subscription
Agreement between Viacom, Inc. ("Viacom") and Blockbuster
Entertainment Corporation ("Blockbuster") pursuant to which
Blockbuster is obligated to purchase approximately 23 million
shares of Viacom Class B Common Stock for an aggregate purchase
price of $1.25 billion. Shortly after the motion was filed, the
Court held a telephone conference at which defendants and the
public stockholders of Paramount Communications, Inc.
("Paramount") opposed the scheduling of plaintiffs' motion.
<PAGE>
After considering the submissions of the parties and the
arguments made during our conference, I have decided that this
application should not be scheduled for a hearing. I recognize
that this Court rarely denies a party the opportunity to seek
interim relief. However, I am satisfied that the facts here
justify such a result.
Plaintiffs were aware of the terms of the Subscription
Agreement since January 7, 1994. They also have known since
February 15, 1994, that Viacom was the successful bidder in the
highly publicized battle for Paramount. Viacom's tender offer is
scheduled to close at midnight tonight, and after Viacom accepts
the shares tendered by Paramount stockholders, it will be
obligated to pay for those shares. As plaintiffs well know,
Viacom intends to use the $1.25 billion that will be invested by
Blockbuster to complete its acquisition of Paramount stock.
Under these circumstances, the prospect of an injunction
would create enormous uncertainty with widespread repercussions.
Paramount shareholders, for example, might reconsider their
decision to tender to Viacom and Viacom would be faced with a
last minute decision as to whether to proceed without the
assurance of Blockbuster's investment. Neither the parties nor
the Paramount stockholders would have been confronted with these
issues if plaintiffs had acted promptly. I find that plaintiffs'
failure to bring on their application for injunctive relief in a
timely fashion constitutes laches. See Federal United Corp. v.
---------------------------
Havender, Del. Supr., 11 A.2d 331, 343-48 (1940); Bacine, et al.,
- -------- ---------------
v. Scharffenberger, et al., Del. Ch., C.A. No. 7862, Brown, C.
- --------------------------
(December 11, 1984); Di Rocco v. Roessner, Del. Ch., C.A. No.
--------------------
8107, Berger, V.C. (August 12, 1985).
IT IS SO ORDERED.
Very truly yours,
/s/ Carolyn Berger
----------------------
CB/if
cc: Register in Chancery
NEWS FROM VIACOM
VIACOM SUCCESSFULLY COMPLETES PARAMOUNT TENDER OFFER
New York, New York, March 2, 1994 -- Viacom Inc. (ASE: VIA and VIAB) announced
today that it has successfully completed its cash tender offer for shares of
common stock of Paramount Communications Inc. (NYSE: PCI) by accepting for
payment 61,657,432 shares on a pro rata basis at $107 per share.
The tender offer expired at 12:00 midnight, New York City time, on
March 1, 1994.
First Chicago Trust Company of New York, the depository for the Offer, has
advised Viacom that, based on a preliminary count, 120,310,075 shares were
validly tendered pursuant to the Offer prior to the expiration of the Offer
and not withdrawn, of which 16,441,313 shares were tendered pursuant to
notices of guaranteed delivery. Viacom anticipates announcing preliminary
pro-ration results promptly and that final pro-ration results will be announced
by March 11, 1994 and that shares accepted for payment will be paid for on that
date.
# # #
Contact: Viacom Inc. Edelman
Hilary E. Condit Elliot Sloane
212/258-6346 212/704-8126
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===============================================================
CREDIT AGREEMENT
Dated as of February 15, 1994
among
BLOCKBUSTER ENTERTAINMENT CORPORATION,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
as Agent,
BA SECURITIES, INC.,
as Arranger,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
===============================================================
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<PAGE>
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS
1.01 Defined Terms . . . . . . . . . . . . . . . . . . . 1
1.02 Other Definitional Provisions . . . . . . . . . . . 18
(a) Defined Terms . . . . . . . . . . . . . . . . 18
(b) The Agreement . . . . . . . . . . . . . . . . 18
(c) Certain Common Terms . . . . . . . . . . . . . 18
(d) Performance; Time . . . . . . . . . . . . . . 18
(e) Contracts . . . . . . . . . . . . . . . . . . 18
(f) Laws . . . . . . . . . . . . . . . . . . . . . 19
(g) Captions . . . . . . . . . . . . . . . . . . . 19
1.03 Accounting Principles . . . . . . . . . . . . . . . 19
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments . . . . . . . . . 20
2.02 Loan Accounts . . . . . . . . . . . . . . . . . . . 20
2.03 Procedure for Committed Borrowings . . . . . . . . 20
2.04 Conversion and Continuation Elections for
Committed Borrowings . . . . . . . . . . . . . . . 22
2.05 Termination or Reduction of Commitments . . . . . . 23
2.06 Optional Prepayments of Loans . . . . . . . . . . . 24
2.07 Repayment . . . . . . . . . . . . . . . . . . . . . 24
2.08 Interest . . . . . . . . . . . . . . . . . . . . . 25
2.09 Fees . . . . . . . . . . . . . . . . . . . . . . . 26
(a) Commitment Fees . . . . . . . . . . . . . . . 26
(b) Other Fees . . . . . . . . . . . . . . . . . . 26
2.10 Computation of Fees and Interest . . . . . . . . . 26
2.11 Payments by the Company . . . . . . . . . . . . . . 27
2.12 Payments by the Banks to the Agent . . . . . . . . 28
2.13 Sharing of Payments, Etc. . . . . . . . . . . . . . 29
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes . . . . . . . . . . . . . . . . . . . . . . . 30
3.02 Illegality . . . . . . . . . . . . . . . . . . . . 34
3.03 Increased Costs and Reduction of Return . . . . . . 35
3.04 Funding Losses . . . . . . . . . . . . . . . . . . 36
3.05 Inability to Determine Rates . . . . . . . . . . . 36
3.06 Reserves on Offshore Rate Committed Loans . . . . . 37
3.07 Certificates of Banks . . . . . . . . . . . . . . . 37
3.08 Survival . . . . . . . . . . . . . . . . . . . . . 37
3.09 Replacement Banks . . . . . . . . . . . . . . . . . 37
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Loans . . . . . . . . . . . . . . . . 39
(a) Credit Agreement . . . . . . . . . . . . . . . 39
-i-
<PAGE>
Section Page
(b) Payment of Fees . . . . . . . . . . . . . . . 39
(c) Subscription Agreement . . . . . . . . . . . . 39
4.02 Additional Conditions Precedent to the making of
the Initial Loans . . . . . . . . . . . . . . . . . 39
(a) Resolutions; Incumbency . . . . . . . . . . . 39
(b) Certificates of Incorporation; By-laws and
Good Standing . . . . . . . . . . . . . . . . 40
(c) Guaranties/Pledge Agreement . . . . . . . . . 40
(d) Legal Opinions . . . . . . . . . . . . . . . . 40
(e) Contribution Agreement . . . . . . . . . . . . 40
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Corporate Existence and Power . . . . . . . . . . . 43
5.02 Corporate Authorization; No Contravention . . . . . 43
5.03 Governmental Authorization . . . . . . . . . . . . 43
5.04 Binding Effect . . . . . . . . . . . . . . . . . . 44
5.05 Litigation . . . . . . . . . . . . . . . . . . . . 44
5.06 No Default . . . . . . . . . . . . . . . . . . . . 44
5.07 ERISA Compliance . . . . . . . . . . . . . . . . . 44
5.08 Use of Proceeds . . . . . . . . . . . . . . . . . . 46
5.09 Title to Properties . . . . . . . . . . . . . . . . 46
5.10 Financial Condition . . . . . . . . . . . . . . . . 46
5.11 Environmental Matters . . . . . . . . . . . . . . . 46
5.12 Trademarks and Licenses, etc . . . . . . . . . . . 47
5.13 Subsidiaries . . . . . . . . . . . . . . . . . . . 48
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Financial Statements . . . . . . . . . . . . . . . 49
6.02 Certificates; Other Information . . . . . . . . . . 49
6.03 Notices . . . . . . . . . . . . . . . . . . . . . . 50
6.04 Preservation of Corporate Existence, Etc . . . . . 52
6.05 Maintenance of Property . . . . . . . . . . . . . . 52
6.06 Insurance . . . . . . . . . . . . . . . . . . . . . 52
6.07 Payment of Obligations . . . . . . . . . . . . . . 52
6.08 Compliance with Laws . . . . . . . . . . . . . . . 53
6.09 Inspection of Property and Books and Records . . . 53
6.10 Environmental Laws . . . . . . . . . . . . . . . . 53
6.11 Subsidiary Guaranties . . . . . . . . . . . . . . . 54
6.12 Application of Proceeds . . . . . . . . . . . . . . 55
6.13 No Amendments . . . . . . . . . . . . . . . . . . . 55
ARTICLE VII
NEGATIVE COVENANTS
7.01 Limitation on Liens . . . . . . . . . . . . . . . . 56
7.02 Disposition of Assets . . . . . . . . . . . . . . . 57
7.03 Mergers . . . . . . . . . . . . . . . . . . . . . . 58
7.04 Loans and Investments . . . . . . . . . . . . . . . 58
7.05 Federal Regulations . . . . . . . . . . . . . . . . 58
-ii-
<PAGE>
Section Page
7.06 Compliance with ERISA . . . . . . . . . . . . . . . 58
7.07 Consolidated Net Worth . . . . . . . . . . . . . . 59
7.08 Consolidated Senior Debt to Capital . . . . . . . . 59
7.09 Total Debt to Capital . . . . . . . . . . . . . . . 59
7.10 Net Cash Flow Ratio . . . . . . . . . . . . . . . . 59
7.11 Fixed Charge Coverage Ratio . . . . . . . . . . . . 59
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Event of Default . . . . . . . . . . . . . . . . . 60
(a) Non-Payment . . . . . . . . . . . . . . . . . 60
(b) Representation or Warranty . . . . . . . . . . 60
(c) Specific Defaults . . . . . . . . . . . . . . 60
(d) Other Defaults . . . . . . . . . . . . . . . . 60
(e) Cross-Default . . . . . . . . . . . . . . . . 60
(f) Bankruptcy or Insolvency . . . . . . . . . . . 61
(g) Involuntary Proceedings . . . . . . . . . . . 61
(h) Monetary Judgments . . . . . . . . . . . . . . 61
(i) Non-Monetary Judgments . . . . . . . . . . . . 61
(j) Change in Control . . . . . . . . . . . . . . 62
(k) Guarantor/Pledgor Defaults . . . . . . . . . . 62
8.02 Remedies . . . . . . . . . . . . . . . . . . . . . 62
8.03 Rights Not Exclusive . . . . . . . . . . . . . . . 62
ARTICLE IX
THE AGENT
9.01 Appointment and Authorization . . . . . . . . . . . 64
9.02 Delegation of Duties . . . . . . . . . . . . . . . 64
9.03 Liability of Agent . . . . . . . . . . . . . . . . 64
9.04 Reliance by Agent . . . . . . . . . . . . . . . . . 65
9.05 Notice of Default . . . . . . . . . . . . . . . . . 65
9.06 Credit Decision . . . . . . . . . . . . . . . . . . 66
9.07 Indemnification . . . . . . . . . . . . . . . . . . 66
9.08 Agent in Individual Capacity . . . . . . . . . . . 67
9.09 Successor Agent . . . . . . . . . . . . . . . . . . 67
9.10 The Arranger . . . . . . . . . . . . . . . . . . . 67
ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers . . . . . . . . . . . . 68
10.02 Notices . . . . . . . . . . . . . . . . . . . 68
10.03 No Waiver; Cumulative Remedies . . . . . . . . 69
10.04 Costs and Expenses . . . . . . . . . . . . . . 69
10.05 Indemnity . . . . . . . . . . . . . . . . . . 70
10.06 Marshalling; Payments Set Aside . . . . . . . 70
10.07 Successors and Assigns . . . . . . . . . . . . 71
10.08 Assignments, Participations, Confidentiality,
etc. . . . . . . . . . . . . . . . . . . . . . . . 71
10.09 Set-off . . . . . . . . . . . . . . . . . . . 73
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<PAGE>
Section Page
10.10 Notification of Addresses, Lending Offices,
Etc. . . . . . . . . . . . . . . . . . . . . . . . 74
10.11 Counterparts . . . . . . . . . . . . . . . . . 74
10.12 Severability . . . . . . . . . . . . . . . . . 74
10.13 No Third Parties Benefited . . . . . . . . . . 74
10.14 Governing Law . . . . . . . . . . . . . . . . 74
10.15 Waiver of Jury Trial . . . . . . . . . . . . . 74
10.16 Entire Agreement . . . . . . . . . . . . . . . 75
-iv-
<PAGE>
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of February 15, 1994,
among BLOCKBUSTER ENTERTAINMENT CORPORATION, a Delaware corporation
(the "Company"), the several financial institutions party to this
Agreement (collectively, the "Banks"; individually, a "Bank"),
Bank of America National Trust and Savings Association, as
administrative agent for the Banks (the "Agent") and BA Securities,
Inc., as Arranger.
WHEREAS, the Company has requested that the Banks enter into
this Agreement for the purpose of acquiring shares of capital stock
of Viacom Inc. for cash pursuant to a Subscription Agreement (as
defined herein).
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties hereto
hereby agree (as hereinafter defined), as follows:
ARTICLE I
DEFINITIONS
1.01 Defined Terms. In addition to the terms defined
-------------
elsewhere in this Agreement, the following terms have the following
meanings:
"Affiliate" means, as to any Person, any other Person
---------
which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. A Person
shall be deemed to control another Person if the controlling
Person possesses, directly or indirectly, the power to direct
or cause the direction of the management and policies of the
other Person, whether through the ownership of voting securi-
ties, by contract or otherwise. Without limitation, any
director, executive officer or beneficial owner of 10% or more
of the equity of a Person shall for the purposes of this
Agreement, be deemed to control the other Person. In no event
shall any Bank be deemed an "Affiliate" of the Company or any
Subsidiary of the Company.
"Agent" means Bank of America National Trust and Savings
-----
Association in its capacity as agent for the Banks hereunder,
and any successor agent.
"Agent-Related Persons" has the meaning specified in
---------------------
Section 9.03.
"Agent's Payment Office" means the address for payments
----------------------
set forth on the signature page hereto in relation to the
Agent or such other address as the Agent may from time to time
specify in accordance with Section 10.02.
<PAGE>
"Aggregate Commitment" means the combined Commitments of
--------------------
the Banks in the principal amount of $1,000,000,000, as such
amount may be reduced from time to time pursuant to this
Agreement.
"Agreement" means this Credit Agreement, as amended,
---------
supplemented or modified from time to time.
"Applicable Margin" means
-----------------
(i) with respect to Reference Rate Committed Loans,
zero percent (0%);
(ii) during the period from the Initial Funding
Date until the first six month anniversary thereafter,
with respect to all outstanding Offshore Rate Committed
Loans,
(A) if Level I Status exists on such day,
.50%;
(B) if Level II Status exists on such day,
.625%;
(C) if Level III Status exists on such day,
.75%;
(D) if Level IV Status exists on such day,
1.00%;
(iii) after the six month anniversary of the Initial
Funding Date, with respect to all outstanding Offshore
Rate Committed Loans, 1.25%.
"Arranger" means BA Securities, Inc. or a successor
--------
mutually agreed between BofA and the Company.
"Assignee" has the meaning specified in Section 10.08.
--------
"Assignment and Acceptance" has the meaning specified in
-------------------------
subsection 10.08(a).
"Attorney Costs" means and includes all reasonable fees
--------------
and disbursements of any law firm or other external counsel,
the allocated cost of internal legal services and all dis-
bursements of internal counsel.
"Availability Date" means 5:00 p.m. (New York time) April
-----------------
29, 1994.
2
<PAGE>
"Bank Affiliate" means a Person engaged primarily in the
--------------
business of commercial banking and that is a Subsidiary of a
Bank or of a Person of which a Bank is a Subsidiary.
"BofA" means Bank of America National Trust and Savings
----
Association, a national banking association.
"Borrowing" means a borrowing hereunder, consisting of
---------
one or more Loans made to the Company on the same day by the
Banks or a Bank pursuant to Article II.
"Business Day" means any day other than a Saturday,
------------
Sunday or other day on which commercial banks in New York City
or San Francisco are authorized or required by law to close
and, if the applicable Business Day relates to any Offshore
Rate Committed Loan, means such a day on which dealings are
carried on in the applicable offshore dollar interbank market.
"Capital" means the sum of all Indebtedness of the
-------
Company and its Subsidiaries plus Consolidated Net Worth.
"Capital Adequacy Regulation" means any guideline,
---------------------------
request or directive of any central bank or other Governmental
Authority, or any other law, rule or regulation, whether or
not having the force of law, regarding capital adequacy of any
bank or of any corporation controlling a bank.
"Capital Lease Obligations" means all monetary obliga-
-------------------------
tions of the Company or any of its Subsidiaries under any
leasing or similar arrangement which, in accordance with GAAP,
is classified as a capital lease.
"Cash Equivalents" means:
----------------
(a) securities issued or fully guaranteed or insured
by the United States Government or any agency thereof and
backed by the full faith and credit of the United States
having maturities of not more than six months from the
date of acquisition;
(b) certificates of deposit, time deposits, Eurodol-
lar time deposits, repurchase agreements, reverse
repurchase agreements, or bankers' acceptances, having in
each case a tenor of not more than six months, issued by
any Bank, or by any U.S. commercial bank or any branch or
agency of a non-U.S. bank licensed to conduct business in
the U.S. having combined capital and surplus of not less
than $100,000,000 whose ultimate parent's short term
securities are rated at least A-1 by S&P and P-1 by
Moody's;
3
<PAGE>
(c) commercial paper of an issuer rated at least A-1
by S&P and P-1 by Moody's and in either case having a
tenor of not more than six months.
"CERCLA" has the meaning specified in the definition of
------
"Environmental Laws."
"Change of Control" means that there is a report filed on
-----------------
Schedule 13D or 14D-1 (or any successor schedule, form or
report) pursuant to the Exchange Act, disclosing that any
person (for the purposes hereof only, as the term "person" is
------
used in Section 13(d)(3) or Section 14(d)(2) of the Exchange
Act) has become the beneficial owner (as the term "beneficial
----------
owner" is defined under Rule 13-d or any successor rule or
-----
regulation promulgated under the Exchange Act) of 50% or more
of the then outstanding shares of common stock of the Company;
provided, however, that a person shall not be deemed benefi-
-------- -------
cial owner of, or to own beneficially, (A) any securities
tendered pursuant to a tender or exchange offer made by or on
behalf of such person or any of such person's Affiliates until
such tendered securities are accepted for purchase or exchange
thereunder, or (B) any securities if such beneficial ownership
(1) arises solely as a result of a revocable proxy delivered
in response to a proxy or consent solicitation made pursuant
to the applicable rules and regulations under the Exchange
Act.
Notwithstanding the foregoing, a Change in Control shall
not be deemed to have occurred by virtue of the Company, any
Subsidiary, any employee stock ownership plan or any other
employee benefit plan of the Company or any Subsidiary, or any
person holding common stock of the Company for or pursuant to
the terms of any such employee benefit plan, filing or
becoming obligated to file a report under or in response to
Schedule 13D or Schedule 14D-1 (or any successor schedule,
form or report) under the Exchange Act disclosing beneficial
ownership by it of shares of common stock of the Company,
whether in excess of 50% or otherwise.
"Closing Date" means the date on which all conditions
------------
precedent set forth in Section 4.01 are satisfied or waived by
all Banks.
"Code" means the Internal Revenue Code of 1986, as
----
amended from time to time, and any regulations promulgated
thereunder.
"Commitment", with respect to each Bank, has the meaning
----------
specified in subsection 2.01.
4
<PAGE>
"Commitment Percentage" means, as to any Bank at any
---------------------
time, the percentage equivalent of such Bank's Commitment
divided by the Aggregate Commitment of all the Banks.
"Committed Borrowing" means a Borrowing hereunder
-------------------
consisting of Committed Loans made on the same day by the
Banks ratably according to their respective Commitment
Percentages and in the case of Offshore Rate Committed
Loans, having the same Interest Period.
"Committed Loan" means a Loan by a Bank to the
--------------
Company under Section 2.01, and shall be an Offshore Rate
Committed Loan or a Reference Rate Committed Loan.
"Company's Payment Office" means the address for payments
------------------------
set forth on the signature page hereto or such other instruc-
tions as the Company may from time to time specify in accor-
dance with Section 10.02.
"Consolidated Interest Expense" means, for any period,
-----------------------------
gross consolidated interest expense for the period (including
all commissions, discounts, fees and other charges in connec-
tion with standby letters of credit and similar instruments)
for the Company and its Subsidiaries, plus the portion of the
----
upfront costs and expenses for Rate Contracts (to the extent
not included in gross consolidated interest expense) fairly
allocated to such Rate Contracts as expenses for such period.
"Consolidated Net Worth" means, with respect to the
----------------------
Company and its Subsidiaries, the excess of consolidated total
assets over consolidated total liabilities, excluding,
however, from the determination of consolidated total assets
(i) capital stock, obligations, or other securities of, or
capital contributions to, or investments in, any Subsidiary,
to the extent otherwise included in the preparation of the
financial statements which set forth the consolidated total
assets of the Company and its Subsidiaries, and (ii) cash held
in a sinking or other analogous fund contractually established
for the purpose of redemption, retirement or prepayment of
capital stock or Indebtedness.
"Consolidated Senior Debt" means all Indebtedness of the
------------------------
Company and its consolidated Subsidiaries other than (i)
Subordinated Debt and (ii) Contingent Obligations relating to
the partnership agreement between The Westside Amphitheatre
and Charlotte Amphitheater Corporation and YM Corp. dated as
of December 1, 1993 in an amount not to exceed $50,000,000.
"Contingent Obligation" means, without duplication, as to
---------------------
any Person, (a) any Guaranty Obligation of that Person; and
(b) any direct or indirect recourse obligation or liability,
contingent or otherwise, of that Person, (i) in respect of any
5
<PAGE>
letter of credit or similar instrument issued for the account
of that Person or as to which that Person is otherwise liable
for reimbursement of drawings, (ii) to purchase any materials,
supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related
document or obligation requires that payment for such materi-
als, supplies or other property, or for such services, shall
be made if delivery of such materials, supplies or other
property is not made or tendered, or such services are never
performed or tendered, or (iii) incurred pursuant to any Rate
Contract net of any payments due to that Person. The amount
of any Contingent Obligation shall (subject, in the case of
Guaranty Obligations, to the last sentence of the definition
of "Guaranty Obligation") be deemed equal to the maximum
reasonably anticipated liability in respect thereof.
"Contractual Obligations" means, as to any Person, any
-----------------------
provision of any security issued by such Person or of any
agreement, undertaking, contract, indenture, mortgage, deed of
trust or other instrument, document or agreement to which such
Person is a party or by which it or any of its property is
bound.
"Controlled Group" means the Company and all Persons
----------------
(whether or not incorporated) under common control or treated
as a single employer with the Company pursuant to Section
414(b), (c), (m) or (o) of the Code.
"Conversion Date" means any date on which the Company
---------------
converts a Reference Rate Committed Loan to an Offshore Rate
Committed Loan or an Offshore Rate Committed Loan to a
Reference Rate Committed Loan.
"Default" means any event or circumstance which, with the
-------
giving of notice, the lapse of time, or both, would (if not
cured or otherwise remedied) constitute an Event of Default.
"Dollars", "dollars" and "$" each mean lawful money of
------- ------- -
the United States.
"Domestic Lending Office" means, with respect to each
-----------------------
Bank, the office of that Bank designated as such in the
signature pages hereto or such other office of the Bank as it
may from time to time specify to the Company and the Agent.
"Domestic Parent" means with respect to a foreign
---------------
Material Subsidiary, the domestic Subsidiary which most
directly owns such foreign Material Subsidiary.
"Eligible Assignee" means (i) a commercial bank organized
-----------------
under the laws of the United States, or any state thereof, and
having total assets of at least $10,000,000,000; (ii) a
6
<PAGE>
commercial bank organized under the laws of any other country
or a political subdivision of any such country, and having
total assets of at least $10,000,000,000, provided that such
bank is acting through a branch or agency located in the
United States; and (iii) any Bank Affiliate which meets the
qualifications of (i) and (ii) above.
"Environmental Claims" means all claims, however assert-
--------------------
ed, by any Governmental Authority or other Person alleging
potential liability or responsibility for violation of any
Environmental Law or for release or injury to the environment
or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resourc-
es damage, or otherwise alleging liability or responsibility
for damages (punitive or otherwise), cleanup, removal,
remedial or response costs, restitution, civil or criminal
penalties, injunctive relief, or other type of relief,
resulting from or based upon (a) the presence, placement,
discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental placement, spills,
leaks, discharges, emissions or releases) of any Hazardous
Material at, in, or from Property, whether or not owned by the
Company, or (b) any other circumstances forming the reasonable
basis of any violation, or alleged violation, of any Environ-
mental Law.
"Environmental Laws" means all Federal, State or local
------------------
laws, statutes, common law duties, rules, regulations,
ordinances and codes, together with all administrative orders,
directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authorities,
in each case relating to environmental, health, safety and
land use matters; including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"),
the Clean Air Act, the Federal Water Pollution Control Act of
1972, the Solid Waste Disposal Act, the Federal Resource
Conservation and Recovery Act, the Toxic Substances Control
Act, the Emergency Planning and Community Right-to-Know Act,
the California Hazardous Waste Control Law, the California
Solid Waste Management, Resource, Recovery and Recycling Act,
the California Water Code and the California Health and Safety
Code.
"Environmental Lien" means a lien in favor of any
------------------
Governmental Authority for (i) any liability under any
environmental or health and safety Requirement of Law, or (ii)
damages arising from, or costs incurred by such Governmental
Authority in response to, a release or threatened release of
Hazardous Materials into the environment.
7
<PAGE>
"ERISA" means the Employee Retirement Income Security Act
-----
of 1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or
---------------
not incorporated) under common control with the Company within
the meaning of Section 414(b), 414(c) or 414(m) of the Code.
"ERISA Event" means (a) a Reportable Event with respect
-----------
to a Qualified Plan or a Multiemployer Plan; (b) a withdrawal
by the Company or any ERISA Affiliate from a Qualified Plan
subject to Section 4063 of ERISA during a plan year in which
it was a substantial employer (as defined in Section
4001(a)(2) of ERISA); (c) a complete or partial withdrawal by
the Company or any ERISA Affiliate from a Multiemployer Plan;
(d) a failure by the Company or any member of the Controlled
Group to make required contributions to a Qualified Plan or
Multiemployer Plan; (e) the imposition of any liability under
Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or
any ERISA Affiliate; (f) an application for a funding waiver
or an extension of any amortization period pursuant to Section
412 of the Code with respect to any Plan; or (g) a violation
of the applicable requirements of Section 404 or 405 of ERISA
or the exclusive benefit rule under Section 401(a) of the Code
by any fiduciary or disqualified person with respect to any
Plan for which the Company or any member of the Controlled
Group may be directly or indirectly liable.
"Estimated Remediation Cost" means all costs associated
--------------------------
with performing work to remediate contamination of real
property or groundwater, including engineering and other
professional fees and expenses, costs to remove, transport and
dispose of contaminated soil, costs to "cap" or otherwise
contain contaminated soil, and costs to pump and treat water
and monitor water quality.
"Event of Default" means any of the events or circum-
----------------
stances specified in Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934,
------------
as amended from time to time, and regulations promulgated
thereunder.
"Existing Credit Agreement" shall mean the Amended and
-------------------------
Restated Credit Agreement, dated as of December 22, 1993 among
the Company, the Agent, BA Securities, Inc. and the other
financial institutions party thereto.
"Federal Funds Rate" means the weighted average of the
------------------
rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers,
as published for such day of determination (or if such day of
8
<PAGE>
determination is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such
transaction received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of
---------------------
the Federal Reserve System or any successor thereof.
"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 circum-
stances as of the date of determination.
"Governmental Authority" means any nation or government,
----------------------
any state or other political subdivision thereof, any central
bank (or similar monetary or regulatory authority) thereof,
any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise,
by any of the foregoing.
"Guarantor" means each domestic Material Subsidiary of
---------
the Company and such foreign Material Subsidiary which shall
have delivered a guaranty pursuant to Section 6.11.
"Guaranty Obligation" means, without duplication, as
-------------------
applied to any Person, any direct or indirect recourse
liability of that Person with respect to any Indebtedness,
capital lease, dividend, letter of credit or other obligation
(the "primary obligations") of another Person (the "primary
obligor"), including any obligation of that Person, whether or
not contingent, (a) to purchase, repurchase or otherwise
acquire such primary obligations or any property constituting
direct or indirect security therefor, or (b) to advance or
provide funds (i) for the payment or discharge of any such
primary obligation, or (ii) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain
the net worth or solvency or any balance sheet item, level of
income or financial condition of the primary obligor, or (c)
to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such
primary obligation, or (d) otherwise to assure or hold
harmless the holder of any such primary obligation against
loss in respect thereof. The amount of any Guaranty Obliga-
9
<PAGE>
tion shall be deemed equal to the stated or determinable
amount of the primary obligation in respect of which such
Guaranty Obligation is made or, if not stated or if indeter-
minable, the maximum reasonably anticipated liability in
respect thereof.
"Hazardous Materials" means all those substances which
-------------------
are regulated by, or which form the basis of liability under,
any Environmental Law, including all substances identified
under any Environmental Law as a pollutant, contaminant,
hazardous waste, hazardous constituent, special waste,
hazardous substance, hazardous material, or toxic substance,
asbestos or petroleum or petroleum derived substance or waste.
"Indebtedness" means, with respect to any Person, without
------------
duplication, (i) indebtedness for borrowed money or for the
deferred purchase price of property or services, (ii) obliga-
tions as lessee under leases which shall have been or should
be, in accordance with GAAP, recorded as capital leases, (iii)
Contingent Obligations of the kinds referred to in clause (i)
or (ii) above or in respect of any letter of credit or similar
instrument, but shall in no event include Rate Contracts, and
(iv) liabilities in respect of unfunded vested benefits under
plans covered by Title IV of ERISA.
"Indemnified Person" has the meaning specified in
------------------
subsection 10.05.
"Indemnified Liabilities" has the meaning specified in
-----------------------
subsection 10.05.
"Initial Funding Date" means the date on which the Banks
--------------------
make the Loans hereunder.
"Insolvency Proceeding" means (a) any case, action or
---------------------
proceeding before any court or other Governmental Authority
relating to bankruptcy, reorganization, insolvency, liquida-
tion, receivership, dissolution, winding-up or relief of
debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors or
other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors; in each
case (a) and (b) undertaken under U.S. Federal, State or
foreign law.
"Interest Payment Date" means, with respect to any
---------------------
Offshore Rate Committed Loan, the last day of each Interest
Period applicable to such Loan and, with respect to Reference
Rate Committed Loans, the last Business Day of each calendar
quarter and on each date a Reference Rate Committed Loan is
converted into an Offshore Rate Committed Loan, or prepaid
provided, however, that if any Interest Period for an Offshore
-------- -------
10
<PAGE>
Rate Committed Loan exceeds three months, the date which falls
three months after the beginning of such Interest Period shall
also be an "Interest Payment Date".
"Interest Period" means with respect to any Offshore Rate
---------------
Committed Loan, the period commencing on the Business Day the
Loan is disbursed or continued or on the Conversion Date on
which the Loan is converted to the Offshore Rate Committed
Loan and ending on the date one, two, three or six months
thereafter, as selected by the Company in its Notice of
Borrowing or Notice of Conversion/Continuation;
provided that:
--------
(i) if any Interest Period pertaining to an
Offshore Rate Committed Loan would otherwise end on a day
which is not a Business Day, that Interest Period shall
be extended to the next succeeding Business Day unless,
in the case of an Offshore Rate Committed Loan, the
result of such extension would be to carry such Interest
Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period pertaining to an Offshore
Rate Committed Loan that begins on the last Business Day
of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such
Interest Period; and
(iii) no Interest Period for any Loan shall extend
beyond the Termination Date.
"Lending Office" means, with respect to any Bank, the
--------------
office or offices of the Bank specified as its "Lending
Office" or "Domestic Lending Office" or "Offshore Lending
Office", as the case may be, opposite its name on the signa-
ture pages hereto, or such other office or offices of the Bank
as it may from time to time specify to the Company and the
Agent.
"Level I Status" exists at any date if, at such date the
--------------
Company's Public Debt Rating is rated A- or higher (or the
equivalent) as publicly announced by S&P and A3 or higher (or
the equivalent) as publicly announced by Moody's.
"Level II Status" exists at any date if, at such date (i)
---------------
the Company's Public Debt Rating is rated BBB+ or BBB or
higher (or the equivalent) as publicly announced by S&P and
11
<PAGE>
Baa1 or Baa2 or higher (or the equivalent) as publicly
announced by Moody's and (ii) Level I Status does not exist.
"Level III Status" exists at any date if, at such date
----------------
(i) the Company's Public Debt Rating is rated BBB- or higher
(or the equivalent) as publicly announced by S&P and Baa3 or
higher (or the equivalent) as publicly announced by Moody's
and (ii) Level I Status and Level II Status do not exist.
"Level IV Status" exists at any date if, at such date the
---------------
Company's Public Debt Rating is rated BB+ or lower (or the
equivalent) as publicly announced by S&P or Ba1 or lower (or
the equivalent) as publicly announced by Moody's.
"Lien" means any mortgage, deed of trust, pledge,
----
hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preference, priority
or other security interest or preferential arrangement of any
kind or nature whatsoever (including those created by, arising
under or evidenced by any conditional sale or other title
retention agreement, the interest of a lessor under a Capital
Lease Obligation, any financing lease having substantially the
same economic effect as any of the foregoing, or the filing of
any financing statement naming the owner of the asset to which
such lien relates as debtor, under the UCC or any comparable
law) and any other agreement to provide any of the foregoing.
"Loan" means an extension of credit by a Bank to the
----
Company pursuant to Article II.
"Loan Documents" means this Agreement and all documents
--------------
hereafter delivered to the Agent, including guaranties and
pledge agreements, in connection therewith.
"Majority Banks" means, at any time, Banks holding more
--------------
than 50% of the Commitments, provided, that if the Commitments
--------
have been terminated in full, "Majority Banks" shall mean
Banks holding more than 50% of the then aggregate unpaid
principal amount of the Loans.
"Margin Stock" means "margin stock" as defined in
------------
Regulation U by the Board of Governors of the Federal Reserve
System.
"Material Adverse Effect" means a material adverse change
-----------------------
in, or a material adverse effect upon, any of (a) the busi-
ness, results of operations or financial condition of the
Company and its Subsidiaries taken as a whole; or (b) the
legality, validity, binding effect or enforceability of any
Loan Document.
12
<PAGE>
"Material Subsidiary" means any Subsidiary of the
-------------------
Company, the assets of which represent 10% or more of the
consolidated assets of the Company and its Subsidiaries.
"Multiemployer Plan" means a "multiemployer plan" (within
------------------
the meaning of Section 4001(a)(3) of ERISA) and to which any
member of the Controlled Group makes, is making, or is
obligated to make contributions or, during the preceding three
calendar years, has made, or been obligated to make, contribu-
tions.
"Moody's" means Moody's Investors Service, Inc.
-------
"Net Cash Flow" means, for any period, the sum of (i)
-------------
consolidated net income (or net loss, as the case may be) of
the Company and its Subsidiaries during such period, minus
-----
(ii) additions to capitalized store pre-opening costs during
such period, plus (iii) amounts which in the determination of
----
net income for such period have been deducted for deprecia-
tion, amortization and interest expense. The calculation of
net income with respect to any period shall be made without
giving effect to any extraordinary gains or losses (as such
gains and losses are defined under GAAP) arising during such
period.
"Notice of Borrowing" means a notice given by the Company
-------------------
to the Agent pursuant to Section 2.03, in substantially the
form of Exhibit A.
---------
"Notice of Conversion/Continuation" means a notice given
---------------------------------
by the Company to the Agent pursuant to Section 2.04, in
substantially the form of Exhibit B.
---------
"Notice of Lien" means any "notice of lien" or similar
--------------
document intended to be filed or recorded with any court,
registry, recorder's office, central filing office or other
Governmental Authority for the purpose of evidencing, creat-
ing, perfecting or preserving the priority of a Lien securing
obligations owing to a Governmental Authority.
"Obligations" means all Loans, and other Indebtedness,
-----------
advances, debts, liabilities, obligations, covenants and
duties owing by the Company to any Bank, the Agent, or any
Indemnified Person, of any kind or nature, present or future,
whether or not evidenced by any note, guaranty or other
instrument, arising under this Agreement, under any other Loan
Document, or in respect of any Rate Contract, whether or not
for the payment of money, whether arising by reason of an
extension of credit, loan, guaranty, indemnification or in any
other manner, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to
13
<PAGE>
become due, now existing or hereafter arising and however
acquired.
"Offshore Lending Office" means with respect to each
-----------------------
Bank, the office of such Bank designated as such in the
signature pages hereto or such other office of such Bank as
such Bank may from time to time specify to the Company and the
Agent.
"Offshore Rate" means, for any Interest Period for
-------------
Offshore Rate Committed Loans comprising the same Borrowing,
the rate per annum equal to the average (rounded upward to the
nearest whole multiple of 1/16th of 1%) of the rates of
interest per annum notified to the Agent by each Reference
Bank as the rate at which dollar deposits for such Interest
Period and in an amount comparable to the amount of the
Offshore Rate Committed Loan of such Reference Bank during
such Interest Period would be offered by its Offshore Lending
Office to major banks in the London eurodollar market at or
about 11:00 a.m. (London time) on the second Business Day
before the first day of such Interest Period.
"Offshore Rate Committed Loan" means any Committed Loan
----------------------------
that bears interest at a rate determined with reference to the
Offshore Rate.
"Organization Documents" means, for any corporation, the
----------------------
certificate or articles of incorporation, the bylaws, any
certificate of determination or instrument relating to the
rights of preferred shareholders, and all applicable resolu-
tions of the board of directors (or any committee thereof) of
such corporation.
"Other Taxes" has the meaning specified in subsection
-----------
3.01(b).
"Paramount" means Paramount Communications Inc., a
---------
Delaware corporation.
"PBGC" means the Pension Benefit Guaranty Corporation or
----
any entity succeeding to any or all of its functions under
ERISA.
"Participant" has the meaning specified in subsection
-----------
10.08(d).
"Permitted Liens" has the meaning specified in Section
---------------
7.01.
"Person" means an individual, partnership, corporation,
------
business trust, joint stock company, trust, unincorporated
association, joint venture or Governmental Authority.
14
<PAGE>
"Plan" means an employee benefit plan (as defined in
----
Section 3(3) of ERISA) which the Company or any member of the
Controlled Group sponsors or maintains or to which the Company
or any member of the Controlled Group makes, is making or is
obligated to make contributions.
"Pledgor" means each Material Subsidiary that has
-------
delivered a pledge agreement pursuant to Section 6.11.
"Property" means any estate or interest in any kind of
--------
property or asset, whether real, personal or mixed, and
whether tangible or intangible.
"Public Debt Rating" means, as of any date, the lowest
------------------
rating that has been most recently announced by S&P or
Moody's, as the case may be, for any class of long-term senior
unsecured debt issued by the Company. For the purposes of the
foregoing, (a) if no Public Debt Rating shall be available
from either S&P or Moody's, the level will be set in accor-
dance with Level IV Status; (b) if only one of S&P or Moody's
shall have in effect a Public Debt Rating, the level shall be
determined by reference to the available rating; (c) if the
ratings established by S&P and Moody's shall fall within
different levels, the level shall be based upon the lower
rating; provided, however,that if one rating is at least BBB-
------------------
or Baa3 and the other rating is BB+ or Ba1, Level III Status
shall apply; and (d) if any rating established by S&P or
Moody's shall be changed, such change shall be effective as of
such date on which such change is first announced publicly by
the rating agency making such change.
"Qualified Plan" means a pension plan (as defined in
--------------
Section 3(2) of ERISA) intended to be tax-qualified under
Section 401(a) of the Code which is subject to Section 412 of
the Code and which any member of the Controlled Group spon-
sors, maintains, or to which it makes, is making or is
obligated to make contributions, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has
made contributions at any time during the immediately preced-
ing period covering at least five (5) plan years, but exclud-
ing any Multiemployer Plan.
"Rate Contracts" means interest rate and currency swap
--------------
agreements, cap, floor and collar agreements, interest rate
insurance, currency spot and forward contracts and other
agreements or arrangements designed to provide protection
against fluctuations in interest or currency exchange rates.
"Reference Banks" means initially, BofA, and after
---------------
syndication, such Banks as may be agreed between the Company,
the Agent and BofA. Subject to Section 3.05, in the event
that at any time of determination any two Banks designated as
15
<PAGE>
"Reference Banks" are providing rates for deposits referred to
in the definition of "Offshore Rate", those two Banks shall be
the "Reference Banks" or, if only one such Bank is providing
such rates, that Bank shall be the "Reference Bank" for
purposes of this Agreement.
"Reference Rate" means the higher of:
--------------
(a) the rate of interest publicly announced from
time to time by BofA in San Francisco, California, as its
reference rate. It is a rate set by BofA based upon
various factors including BofA's costs and desired
return, general economic conditions and other factors,
and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced
rate; and
(b) 1/2% per annum above the latest Federal Funds
Rate.
Any change in the reference rate announced by BofA shall
take effect at the opening of business on the day specified in
the public announcement of such change.
"Reference Rate Committed Loan" means a Committed Loan
-----------------------------
that bears interest based on the Reference Rate.
"Rents" means rental payments pursuant to any operating
-----
lease between the Company or any Subsidiary and any real
estate lessor.
"Reportable Event" means, as to any Plan, (a) any of the
----------------
events set forth in Section 4043(b) of ERISA or the regula-
tions thereunder, other than any such event for which the 30-
day notice requirement under ERISA has been waived in regula-
tions issued by the PBGC, (b) a withdrawal from a Plan
described in Section 4063 of ERISA, or (c) a cessation of
operations described in Section 4062(e) of ERISA.
"Requirement of Law" means, as to any Person, any law
------------------
(statutory or common), treaty, rule or regulation or determi-
nation of an arbitrator or of a Governmental Authority, in
each case applicable to or binding upon the Person or any of
its property or to which the Person or any of its property is
subject.
"Responsible Officer" means the vice chairman, chief
-------------------
executive officer, the president, chief financial officer or
treasurer of the Company or a Guarantor or any other officer
having substantially the same authority and responsibility.
16
<PAGE>
"SEC" means the Securities and Exchange Commission, or
---
any successor thereto.
"S&P" means Standard & Poor's Corporation.
---
"Subordinated Debt" means, unsecured Indebtedness of the
-----------------
Company or a Subsidiary which is subordinated in right of
payment to the Obligations.
"Subscription Agreement" means the Agreement between the
----------------------
Company and Viacom dated January 7, 1994 pursuant to which the
Company agreed to subscribe for, and Viacom agreed to sell the
capital stock of Viacom, subject to the terms and conditions
therein described.
"Subsidiary" of a Person means any corporation, associa-
----------
tion, partnership, joint venture or other business entity of
which at least 50% of the voting stock or other equity
interests (in the case of Persons other than corporations), is
owned or controlled directly or indirectly by the Person, or
one or more of the Subsidiaries of the Person, or a combina-
tion thereof.
"Taxes" has the meaning specified in subsection 3.01(a).
-----
"Termination Date" means the earlier to occur of
----------------
(a) February 14, 1995;
(b) the date the Aggregate Commitment is terminated
by the Company; and
(c) the date on which the Loans are accelerated
pursuant to Article VIII.
"Total Debt" means the aggregate of all Indebtedness of
----------
the Company, including Subordinated Debt.
"Transferee" has the meaning specified in subsection
----------
10.08(e).
"UCC" means the Uniform Commercial Code as in effect in
---
any jurisdiction.
"Unfunded Pension Liabilities" means the excess of a
----------------------------
Plan's benefit liabilities under Section 4001(a)(16) of ERISA,
over the current value of that Plan's assets, determined in
accordance with the assumptions used by the Plan's actuaries
for funding the Plan pursuant to Section 412 of the Code for
the applicable plan year.
17
<PAGE>
"United States" and "U.S." each means the United States
------------- ----
of America.
"Viacom" means Viacom Inc., a Delaware corporation.
------
"Withdrawal Liabilities" means, as of any determination
----------------------
date, the aggregate amount of the liabilities, if any,
pursuant to Section 4201 of ERISA if the Controlled Group made
a complete withdrawal from all Multiemployer Plans and any
increase in contributions pursuant to Section 4243 of ERISA.
1.02 Other Definitional Provisions.
-----------------------------
(a) Defined Terms. Unless otherwise specified herein or
-------------
therein, all terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or
delivered pursuant hereto. The meaning of defined terms shall be
equally applicable to the singular and plural forms of the defined
terms.
(b) The Agreement. The words "hereof", "herein",
-------------
"hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular
provision of this Agreement; and section, schedule and exhibit
references are to this Agreement unless otherwise specified.
(c) Certain Common Terms.
--------------------
(i) The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures,
notices and other writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(d) Performance; Time. Whenever any performance
-----------------
obligation hereunder (other than a payment obligation) shall be
stated to be due or required to be satisfied on a day other than a
Business Day, such performance shall be made or satisfied on the
next succeeding Business Day. In the computation of periods of
time from a specified date to a later specified date, the word
"from" means "from and including"; the words "to" and "until" each
mean "to but excluding," and the word "through" means "to and
including". If any provision of this Agreement refers to any
action taken or to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be interpreted to
encompass any and all means, direct or indirect, of taking, or not
taking, such action.
(e) Contracts. Unless otherwise expressly provided
---------
herein, references to agreements and other contractual instruments
shall be deemed to include all subsequent amendments and other
18
<PAGE>
modifications thereto, but only to the extent such amendments and
other modifications are not prohibited by the terms of any Loan
Document.
(f) Laws. References to any statute or regulation are
----
to be construed as including all statutory and regulatory provi-
sions consolidating, amending or replacing the statute or regula-
tion.
(g) Captions. The captions and headings of this
--------
Agreement are for convenience of reference only and shall not
affect the construction of this Agreement.
1.03 Accounting Principles.
---------------------
(a) Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed,
and all financial computations required under this Agreement shall
be made, in accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal
quarter" refer to such fiscal periods of the Company.
19
<PAGE>
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments. Each Bank severally
--------------------------------
agrees, on the terms and conditions hereinafter set forth, to make
a single Loan to the Company on any Business Day during the period
from the Closing Date to the Availability Date, in an aggregate
amount not to exceed at any time outstanding the amount set forth
opposite the Bank's name in Schedule 2.01 under the heading
-------------
"Commitment" (such amount as the same may be reduced pursuant to
Section 2.05 or as a result of one or more assignments pursuant to
Section 10.08, the Bank's "Commitment"); provided, however, that,
-------- -------
after giving effect to any Borrowing of Committed Loans, the
aggregate principal amount of all outstanding Committed Loans shall
not exceed the Aggregate Commitment. The Commitment of each Bank
shall terminate on the Availability Date. Any principal amount of
the Loans borrowed pursuant to this Section 2.01 which is repaid or
prepaid by the Company may not be reborrowed.
2.02 Loan Accounts. The Committed Loans made by each Bank
-------------
shall be evidenced by one or more loan accounts maintained by such
Bank in the ordinary course of business and not, except pursuant to
Section 10.08, by promissory notes. The loan accounts maintained
by the Agent and each Bank shall be conclusive, absent manifest
error, of the amount of the Committed Loans made by the Banks to
the Company and the interest and payments thereon. Any failure to
record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Company hereunder to pay any
amount owing with respect to the Committed Loans. In the case of
any dispute, action or proceeding relating to any amount payable
hereunder, the entries in each such account shall constitute
conclusive evidence of the accuracy of the information so recorded.
In case of a discrepancy between the entries in the Agent's books
and any Bank's books, such Bank's books shall be considered correct
in the absence of manifest error.
2.03 Procedure for Committed Borrowings.
----------------------------------
(a) The Committed Borrowing by the Company shall be
requested (which request shall be irrevocable) by a telephone
call to the Agent followed promptly by facsimile transmission
by the Company of a Notice of Borrowing in substantially the
form of Exhibit A (which notice must be received by the Agent
---------
prior to 11:00 a.m. (New York time) (i) three Business Days
prior to the requested borrowing date, in the case of Offshore
Rate Committed Loans; and (ii) one Business Day prior to the
requested borrowing date, in the case of Reference Rate
Committed Loans, specifying:
(A) the amount of the Committed Borrowing,
which shall be in an aggregate minimum principal
amount of $5,000,000 ($2,500,000 for Reference Rate
20
<PAGE>
Loans) or in an integral multiple of $1,000,000 in
excess thereof;
(B) the requested borrowing date, which shall
be a Business Day;
(C) whether the Committed Borrowing is to be
comprised of Offshore Rate Committed Loans or
Reference Rate Committed Loans;
(D) the duration of the Interest Period
applicable to such Loans included in such notice
subject to the provisions of the definition of
Interest Period. If the Notice of Borrowing shall
fail to specify the duration of the Interest Period
for any Committed Borrowing comprised of Offshore
Rate Committed Loans, such Interest Period shall be
one month.
provided, however, that with respect to the Borrowing to be
-------- -------
made on the Initial Funding Date, a Notice of Borrowing with
respect to Reference Rate Committed Loans may be delivered to
the Agent as aforesaid not later than 8:00 a.m. (New York
time) on such Initial Funding Date; and further provided that
if so requested by the Agent, all Borrowings during the first
thirty (30) days following the Initial Funding Date shall have
the same Interest Period and shall be Reference Rate Committed
Loans or Offshore Committed Rate Loans for Interest Periods no
longer than seven (7) days.
(b) Upon receipt of the Notice of Borrowing, the Agent
will promptly, but no later than the close of business (New
York time) on the day of such notice, notify each Bank thereof
and of the amount such Bank's Commitment Percentage of the
Borrowing.
(c) Each Bank will make the amount of its Commitment
Percentage of the Committed Borrowing available to the Agent
for the account of the Company at the Agent's Payment Office
by 11:00 a.m. (New York time) on the borrowing date requested
by the Company in funds immediately available to the Agent.
Unless any applicable condition specified in Article IV has
not been satisfied, the proceeds of all such Loans will then
be made available to the Company by the Agent at the Company's
Payment Office no later than 1:00 p.m. (New York time) by
crediting the account of the Company with the aggregate of the
amounts made available to the Agent by the Banks and in like
funds as received by the Agent.
(d) Unless the Majority Banks shall otherwise agree,
during the existence of a Default or Event of Default, the
21
<PAGE>
Company may not have a Committed Loan converted into or
continued as, an Offshore Rate Committed Loan.
(e) After giving effect to any Borrowing, there shall
not be more than 15 different Interest Periods in effect in
respect of all Committed Loans.
2.04 Conversion and Continuation Elections for Committed
---------------------------------------------------
Borrowings.
- ----------
(a) The Company may upon irrevocable written notice to
the Agent in accordance with subsection 2.04(b):
(i) elect to convert on any Business Day, any
Reference Rate Committed Loans (or any part thereof in an
amount not less than $5,000,000, or that is in an
integral multiple of $1,000,000 in excess thereof) into
Offshore Rate Committed Loans;
(ii) elect to convert at the end of any Interest
Period any Offshore Rate Committed Loans payable on such
date (or any part thereof in an amount not less than
$2,500,000) into Reference Rate Committed Loans (assuming
the balance of any such Committed Loans are simultaneous-
ly repaid); or
(iii) elect to continue at the end of any Interest
Period any Offshore Rate Committed Loans payable on such
date (or any part thereof in an amount not less than
$5,000,000, or that is in an integral multiple of
$1,000,000 in excess thereof);
provided, that if the aggregate amount of Offshore Rate
--------
Committed Loans shall have been reduced, by payment, prepay-
ment, or conversion of part thereof to be less than
$1,000,000, Offshore Rate Committed Loans shall automatically
convert into Reference Rate Committed Loans, and on and after
such date the right of the Company to continue such Loans as
Offshore Rate Committed Loans shall terminate, and further
-------
provided that during the first thirty (30) days following the
--------
Initial Funding Date, the Company shall only continue such
Offshore Rate Committed Loans for Interest Periods no longer
than seven (7) days and during the second thirty (30) days
following the Initial Funding Date, the Company shall only
continue such Offshore Rate Committed Loans for Interest
Periods no longer than one month.
(b) The Company shall call the Agent, followed promptly
by telex, cable or facsimile of a Notice of Conver-
sion/Continuation substantially in the form of Exhibit B to be
received by the Agent not later than 11:00 a.m. (New York
time) at least (i) three Business Days in advance of the
22
<PAGE>
Conversion Date or continuation date, if the Committed Loans
are to be converted into or continued as Offshore Rate
Committed Loans; and (ii) one Business Day in advance of the
Conversion Date or continuation date, if the Loans are to be
converted into Reference Rate Committed Loans, specifying:
(A) the proposed Conversion Date or continua-
tion date;
(B) the aggregate amount of Committed Loans to
be converted or continued;
(C) the nature of the proposed conversion or
continuation; and
(D) the duration of the Interest Period
applicable to such Loans included in such notice
subject to the provisions of the definition of
Interest Period. If the Notice of Conver-
sion/Continuation shall fail to specify the duration
of the Interest Period for any Committed Borrowing
comprised of Offshore Rate Committed Loans, such
Interest Period shall be one month.
(c) If upon the expiration of any Interest Period
applicable to Offshore Rate Committed Loans, the Company has
failed to select a new Interest Period to be applicable to
such Offshore Rate Committed Loans, or if any Default or Event
of Default shall then exist, the Company shall be deemed to
have elected to convert such Offshore Rate Committed Loans
into Reference Rate Committed Loans effective as of the
expiration date of such current Interest Period.
(d) Upon receipt of a Notice of Conversion/Continuation,
the Agent will promptly, no later than the same day, notify
each Bank thereof, or, if no timely notice is provided, the
Agent will promptly notify each Bank of the details of any
automatic conversion. All conversions and continuations shall
be made pro rata according to the respective outstanding
principal amounts of the Committed Loans with respect to which
the notice was given held by each Bank.
(e) After giving effect to any conversion or continua-
tion of any Loans, there shall not be more than 15 different
Interest Periods in effect in respect of all Committed Loans.
2.05 Termination or Reduction of Commitments.
---------------------------------------
(a) Prior to the Availability Date, the Company may,
upon not less than five Business Days' prior notice to the
Agent, terminate the Aggregate Commitments or permanently
reduce the Aggregate Commitment by an aggregate minimum amount
23
<PAGE>
of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof; and, provided, further, that once reduced in
-------- -------
accordance with this Section 2.05, the Aggregate Commitments
may not be increased. Any reduction of the Aggregate
Commitments shall be applied to each Bank's Commitment in
accordance with such Bank's Commitment Percentage. If the
Commitments are terminated in their entirety, all accrued
commitment fees to, but not including, the effective date of
such termination shall be payable on the effective date of
such termination without any premium or penalty.
(b) Prior to the Availability Date, if the Company
receives any cash payment (other than non-extraordinary cash
dividends) with respect to its investment in Viacom pursuant
to Section 5(c) of the Subscription Agreement or otherwise, or
should Viacom reduce the Company's obligations to invest in
Viacom the Company shall reduce the Aggregate Commitment by
the amount of such payment (in the case of Section 5(c) of the
Subscription Agreement, on a pro rata basis with respect to
loans made by the banks under the Existing Credit Agreement
for the purchase of shares of stock of Viacom pursuant to the
Subscription Agreement) or reduction.
2.06 Optional Prepayments of Loans. Subject to Section 3.04,
-----------------------------
the Company may, at any time or from time to time, upon at least
three Business Days' written notice to the Agent with respect to
Offshore Committed Loans, and one Business Day's notice with
respect to Reference Rate Committed Loans, ratably prepay Committed
Loans in whole or in part in minimum amounts of $5,000,000
($2,500,000 for Reference Rate Loans). Such notice of prepayment
shall be delivered by 11:00 a.m (New York time) on the applicable
day and shall specify the date and amount of such prepayment and
whether such prepayment is of Reference Rate Committed Loans or
Offshore Rate Committed Loans, or any combination thereof. Such
notice shall not thereafter be revocable by the Company and the
Agent will promptly notify each Bank thereof and of such Bank's
Commitment Percentage of such prepayment. If such notice is given,
the Company shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to each such date
on the amount prepaid and the amounts required pursuant to Section
3.04.
2.07 Repayment/Mandatory Prepayments.
-------------------------------
(a) The Company shall repay the principal amount of the
Loans on the Termination Date.
(b) If the Company receives any other cash payment
(other than non-extraordinary cash dividends) with respect to
its investment in Viacom pursuant to Section 5(c) of the
Subscription Agreement or otherwise, or should Viacom reduce
24
<PAGE>
the Company's obligations to invest in Viacom such payments
shall be applied to repay the Loans and any outstanding
accrued interest and fees in the amount of such payments or
proceeds, in the case of Section 5(c) of the Subscription
Agreement, on a pro rata basis with respect to loans made by
the banks under the Existing Credit Agreement for the purchase
of shares of Viacom pursuant to the Subscription Agreement.
(c) If the Company shall receive any cash payment of the
Make-Whole Amount (as defined in the Subscription Agreement),
the Company shall apply such payment to repay the Loans and
any outstanding accrued interest and fees in the amount of
such payment.
(d) With respect to any prepayments pursuant to Sections
2.07(b) or (c) above, if any Reference Rate Loans are then
outstanding, the Company shall first immediately prepay
Reference Rate Committed Loans. If no Reference Rate Committed
Loans are then outstanding, the Company shall on the first day
make such payment of Offshore Rate Committed Loans which is
the last day of an Interest Period for any Offshore Rate
Committed Loans only if the Interest Period does not exceed
thirty days, otherwise the Company shall make such payment
within thirty days.
2.08 Interest.
--------
(a) Subject to subsection 2.08(d), each Committed Loan
shall bear interest on the outstanding principal amount
thereof from the date when made until it becomes due at a rate
per annum equal to the Offshore Rate or the Reference Rate, as
the case may be, plus the Applicable Margin.
----
(b) Interest on each Loan shall be payable in arrears on
each Interest Payment Date. Interest shall also be payable on
the date of any prepayment of Loans for the portion of the
Loans so prepaid and upon payment (including prepayment) in
full thereof. During the existence of any Event of Default,
interest shall be payable on demand.
(c) While any Event of Default exists or upon accelera-
tion, and unless and until such Event of Default is waived,
the Company shall pay interest (after as well as before
judgment to the extent permitted by law) on the principal
amount of all Loans outstanding, at a rate per annum which is
determined by increasing the Applicable Margin then in effect
by 2% per annum; provided, however, that, on and after the
-------- -------
expiration of the Interest Period applicable to any Offshore
Rate Committed Loan outstanding on the date of occurrence of
such Event of Default or acceleration, the principal amount of
such Loan shall, during the continuation of such Event of
25
<PAGE>
Default or upon acceleration, bear interest at a fluctuating
rate per annum equal to the Reference Rate plus 2%.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Company hereunder shall be subject to the
limitation that payments of interest shall not be required,
for any period for which interest is computed hereunder, to
the extent (but only to the extent) that contracting for or
receiving such payment by the respective Bank would be
contrary to the provisions of any law applicable to such Bank
limiting the highest rate of interest which may be lawfully
contracted for, charged or received by such Bank, and in such
event the Company shall pay such Bank interest at the highest
rate permitted by applicable law.
2.09 Fees.
----
(a) Commitment Fees. The Company shall pay to the Agent
---------------
for the account of each Bank a commitment fee on the
unutilized daily unused portion of such Bank's Commitment
equal to 0.25% per annum. Such commitment fee shall accrue
from January 7, 1994 to the Availability Date or the
Termination Date and shall be due and payable on the
Availability Date, or if earlier, the date the Loans are made
or the Termination Date.
(b) Other Fees. The Company shall pay BofA and the
----------
Agent such other fees in the amounts and at the times set
forth in letter agreements and term sheet among the Company,
BofA and the Arranger dated January 7, 1994 and January 20,
1994.
2.10 Computation of Fees and Interest.
--------------------------------
(a) All computations of interest payable in respect of
Reference Rate Committed Loans and all computations of fees
shall be made on the basis of a year of 365 or 366 days, as
the case may be, and actual days elapsed. All other computa-
tions of interest under this Agreement shall be made on the
basis of a 360-day year and actual days elapsed. Interest and
fees shall accrue during each period during which interest or
such fees are computed from the first day thereof to the last
day thereof.
(b) The Agent will, with respect to the Offshore Rate at
least two Business Days before any borrowing date, notify the
Company, and the Banks of each determination of an Offshore
Rate, provided that any failure to do so shall not relieve the
Company of any liability hereunder. Any change in the
interest rate on a Loan resulting from a change in the
Applicable Margin or the Reserve Percentage shall become
effective as of the opening of business on the day on which
26
<PAGE>
such change in the Applicable Margin or the Reserve Percentage
occurs. The Company shall inform the Agent immediately if a
change in its Public Debt Rating occurs. The Agent will with
reasonable promptness notify the Company and the Banks of the
effective date and the amount of each such change, provided
--------
that any failure to do so shall not relieve the Company of any
liability hereunder.
(c) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclu-
sive and binding on the Company and the Banks in the absence
of manifest error.
(d) If any Reference Bank's Commitment shall terminate
(otherwise than on termination of all the Commitments), or for
any reason whatsoever the Reference Bank shall cease to be a
Bank hereunder, that Reference Bank shall thereupon cease to
be a Reference Bank and Offshore Rate shall be determined on
the basis of the rates as notified by the remaining Reference
Banks.
(e) Each Reference Bank shall use its best efforts to
furnish quotations of rates to the Agent as contemplated
hereby. If any of the Reference Banks shall be unable or
otherwise fails to supply such rates to the Agent upon its
request, the rate of interest shall be determined on the basis
of the quotations of the remaining Reference Banks or Refer-
ence Bank. Notwithstanding the foregoing, the Reference Banks
shall promptly notify the Agent of any change in the Offshore
Rate. If there shall only be one Reference Bank remaining,
then the Majority Banks shall select a Bank, acceptable to the
Agent and the Company, to be a Reference Bank, and the Agent
shall, by notice to the Company and the Banks, designate such
Bank as a Reference Bank so that there shall at all times be
at least two (2) Reference Banks; provided that such designat-
ed Bank agrees to be a Reference Bank.
2.11 Payments by the Company.
-----------------------
(a) All payments with respect to Committed Loans
(including prepayments) to be made by the Company on account
of principal, interest, fees and other amounts required
hereunder shall be made without set-off or counterclaim and
shall, except as otherwise expressly provided herein be made
to the Agent for the ratable account of the Banks at the
Agent's Payment Office, in dollars and in immediately avail-
able funds, no later than 1:00 p.m. (New York time) on the
date specified herein. The identification of a Fed wire
number shall constitute compliance with this deadline;
however, it shall not relieve the Company of its obligation
-------
to make payment if payment is not actually received, provided
--------
that provision of the Fed wire number in good faith shall not
27
<PAGE>
constitute a Default hereunder. The Agent will promptly
distribute to each Bank its Commitment Percentage (or other
applicable share as expressly provided herein) of such
principal, interest, fees or other amounts, in like funds as
received. Any payment which is received by the Agent later
than 1:00 p.m. (New York time) shall be deemed to have been
received on the immediately succeeding Business Day and any
applicable interest or fee shall continue to accrue.
(b) Whenever any payment hereunder shall be stated to be
due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension
of time shall in such case be included in the computation of
interest or fees, as the case may be; subject to the provi-
sions set forth in the definition of "Interest Period" herein.
(c) Unless the Agent shall have received notice from the
Company prior to the date on which any payment is due to the
Banks hereunder that the Company will not make such payment in
full, the Agent may assume that the Company has made such
payment in full to the Agent on such date and the Agent may
(but shall not be so required), in reliance upon such assump-
tion, cause to be distributed to each Bank on such due date an
amount equal to the amount then due such Bank. If and to the
extent the Company shall not have made such payment in full to
the Agent, each Bank shall repay to the Agent on demand such
amount distributed to such Bank, together with interest
thereon for each day from the date such amount is distributed
to such Bank until the date such Bank repays such amount to
the Agent, at the Federal Funds Rate as in effect for each
such day.
2.12 Payments by the Banks to the Agent.
----------------------------------
(a) Unless the Agent shall have received notice from a
Bank on the Closing Date or, with respect to each Borrowing
after the Closing Date, at least one Business Day prior to the
date of any proposed Borrowing that such Bank will not make
available to the Agent for the account of the Company the
amount of that Bank's Commitment Percentage of the Borrowing,
the Agent may assume that each Bank has made such amount
available to the Agent on the borrowing date and the Agent may
(but shall not be so required), in reliance upon such assump-
tion, make available to the Company on such date a correspond-
ing amount. If and to the extent any Bank shall not have made
its full amount available to the Agent and the Agent in such
circumstances has made available to the Company such amount,
that Bank shall on the next Business Day following the date of
such Borrowing make such amount available to the Agent,
together with interest at the Federal Funds Rate for and
determined as of each day during such period. A certificate
of the Agent submitted to any Bank with respect to amounts
28
<PAGE>
owing under this subsection 2.12(a) shall be conclusive,
absent manifest error. If such amount is so made available,
such payment to the Agent shall constitute such Bank's Loan on
the date of Borrowing for all purposes of this Agreement. If
such amount is not made available to the Agent on the next
Business Day following the date of such Borrowing, the Agent
shall notify the Company of such failure to fund and, upon
demand by the Agent, the Company shall pay such amount to the
Agent for the Agent's account, together with interest thereon
for each day elapsed since the date of such Borrowing, at a
rate per annum equal to the interest rate applicable at the
time to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any date
of Borrowing shall not relieve any other Bank of any obliga-
tion hereunder to make a Loan on the date of such Borrowing,
but no Bank shall be responsible for the failure of any other
Bank to make the Loan to be made by such other Bank on the
date of any Borrowing.
2.13 Sharing of Payments, Etc. If, other than as expressly
-------------------------
contemplated elsewhere herein, any Bank shall obtain on account of
the Committed Loans made by it any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its Commitment Percentage of payments on
account of the Committed Loans obtained by all the Banks, such Bank
shall forthwith (a) notify the Agent of such fact, and (b) purchase
from the other Banks such participations in the Committed Loans
made by them as shall be necessary to cause such purchasing Bank to
share the excess payment ratably with each of them; provided,
--------
however, that if all or any portion of such excess payment is
- -------
thereafter recovered from the purchasing Bank, such purchase shall
to that extent be rescinded and each other Bank shall repay to the
purchasing Bank the purchase price paid thereto together with an
amount equal to such paying Bank's Commitment Percentage (according
to the proportion of (i) the amount of such paying Bank's required
repayment to (ii) the total amount so recovered from the purchasing
Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The
Company agrees that any Bank so purchasing a participation from
another Bank pursuant to this Section 2.13 may, to the fullest
extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09) with
respect to such participation as fully as if such Bank were the
direct creditor of the Company in the amount of such participation.
The Agent will keep records (which shall be conclusive and binding
in the absence of manifest error), of participations purchased
pursuant to this Section 2.13 and will in each case notify the
Banks following any such purchases.
29
<PAGE>
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
-----
(a) Subject to subsection 3.01(g), any and all payments
by the Company to each Bank or the Agent under this Agreement
shall be made free and clear of, and without deduction or
withholding for, any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabili-
ties with respect thereto, excluding, in the case of each Bank
and the Agent, such taxes (including income taxes or franchise
taxes) as are imposed on or measured by each Bank's net income
by the jurisdiction under the laws of which such Bank or the
Agent, as the case may be, is organized or maintains a Lending
Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as
"Taxes").
(b) In addition, the Company shall pay any present or
future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies which arise from any
payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement
or any other Loan Documents (hereinafter referred to as "Other
Taxes").
(c) Subject to subsection 3.01(g), the Company shall
indemnify and hold harmless each Bank and the Agent for the
full amount of Taxes or Other Taxes (including any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable
under this Section 3.01) paid by the Bank or the Agent and any
liability (including penalties, interest, additions to tax and
expenses) arising therefrom or with respect thereto, whether
or not such Taxes or Other Taxes were correctly or legally
asserted. Payment under this indemnification shall be made
within 30 days from the date the Bank or the Agent makes
written demand therefor.
(d) If the Company shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any
sum payable hereunder to any Bank or the Agent, then, subject
to subsection 3.01(g):
(i) the sum payable shall be increased as necessary
so that after making all required deductions (including
deductions applicable to additional sums payable under
this Section 3.01) and including, in the case of non-U.S.
withholding tax imposed at rates of 5% or greater, any
U.S. tax (including, notwithstanding any exclusion from
Taxes in Section 3.01(a), taxes on net income of the
30
<PAGE>
Banks) attributable to such increase to the extent not
actually offset by a foreign tax credit in the Bank's
U.S. tax return as determined by the Bank in its sole
discretion, such Bank or the Agent, as the case may be,
receives an amount equal to the sum it would have
received had no such deductions been made;
(ii) the Company shall make such deductions, and
(iii) the Company shall pay the full amount
deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(e) Within 30 days after the date of any payment by the
Company of Taxes or Other Taxes, the Company shall furnish to
the Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment
satisfactory to the Agent.
(f) Each Bank which is a foreign person (i.e., a person
other than a United States person for United States Federal
income tax purposes) agrees that:
(i) it shall, no later than the Closing Date (or,
in the case of a Bank which becomes a party hereto
pursuant to Section 10.08 after the Closing Date, the
date upon which the Bank becomes a party hereto) deliver
to the Agent (with a copy to the Company) two accurate
and complete signed originals of Internal Revenue Service
Form 4224 or any successor thereto ("Form 4224"), or two
accurate and complete signed originals of Internal
Revenue Service Form 1001 or any successor thereto ("Form
1001"), as appropriate, in each case indicating that the
Bank is on the date of delivery thereof entitled to
receive payments of principal, interest and fees under
this Agreement free from withholding of United States
Federal income tax;
(ii) if at any time the Bank makes any changes
necessitating a new Form, it shall with reasonable
promptness deliver to the Agent (with a copy to the
Company) in replacement for, or in addition to, the forms
previously delivered by it hereunder, two accurate and
complete signed originals of Form 4224; or two accurate
and complete signed originals of Form 1001, as appropri-
ate, in each case indicating that the Bank is on the date
of delivery thereof entitled to receive payments of
principal, interest and fees under this Agreement free
from withholding of United States Federal income tax or
at a reduced rate of withholding under an applicable tax
treaty;
31
<PAGE>
(iii) it shall, before or promptly after the
occurrence of any event (including the passing of time
but excluding any event mentioned in (ii) above) requir-
ing a change in or renewal of the most recent Form 4224
or Form 1001 previously delivered by such Bank and
deliver to the Company through the Agent two accurate and
complete original signed copies of Form 4224 or Form 1001
in replacement for the forms previously delivered by the
Bank; and
(iv) it shall, promptly upon the Company's reason-
able request to that effect, deliver to the Company such
other forms or similar documentation as may be required
from time to time by any applicable law, treaty, rule or
regulation in order to establish such Bank's tax status
for withholding purposes.
(v) if such Bank claims exemption from withholding
tax under a United States tax treaty by providing a Form
1001 and such Bank sells or grants a participation of all
or part of its rights under this Agreement, such Bank
shall notify the Agent of the percentage amount in which
it is no longer the beneficial owner under this Agree-
ment. To the extent of this percentage amount, the Agent
shall treat such Bank's Form 1001 as no longer in
compliance with this Section 3.01(f). In the event a
Bank claiming exemption from United States withholding
tax by filing Form 4224 with the Agent, sells or grants a
participation in its rights under this Agreement, such
Bank agrees to undertake sole responsibility for comply-
ing with the withholding tax requirements imposed by
Sections 1441 and 1442 of the Code;
(vi) without limiting or restricting any Bank's
right to increased amounts under Section 3.01(d) from the
Company upon satisfaction of such Bank's obligations
under the provisions of this Section 3.01(f), if such
Bank is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest
to such Bank an amount equivalent to the applicable
withholding tax after taking into account such reduction.
If the forms or other documentation required by subpara-
graph (i) are not delivered to the Agent, then the Agent
may withhold from any interest payment to the Bank not
providing such forms or other documentation, an amount
equivalent to the applicable withholding tax. In
addition, the Agent may also withhold against periodic
payments other than interest payments to the extent
United States withholding tax is not eliminated by
obtaining Form 4224 or Form 1001; and
32
<PAGE>
(vii) if the IRS or any authority of the United
States or other jurisdiction asserts a claim that the
Agent or the Company did not properly withhold tax from
amounts paid to or for the account of any Bank (because
the appropriate form was not delivered by such Bank, was
not properly executed by such Bank, or because such Bank
failed to notify the Agent of a change in circumstances
which rendered the exemption from withholding tax
ineffective), such Bank shall indemnify the Agent and/or
the Company, as applicable, fully for all amounts paid,
directly or indirectly, by the Agent and/or the Company,
as applicable, as tax or otherwise, including penalties
and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to the Agent or the
Company, as applicable under this Section 3.01(f),
together with all costs, expenses and Attorneys' Costs.
(g) The Company will not be required to pay any addi-
tional amounts in respect of United States Federal income tax
pursuant to subsection 3.01(d)(i) to any Bank for the account
of any Lending Office of such Bank:
(i) if the obligation to pay such additional
amounts would not have arisen but for a failure by such
Bank to comply with its obligations under subsection
3.01(f) in respect of such Lending Office;
(ii) if such Bank shall have delivered to the
Company a Form 4224 in respect of such Lending Office
pursuant to subsection 3.01(f), and such Bank shall not
at any time be entitled to exemption from deduction or
withholding of United States Federal income tax in
respect of payments by the Company hereunder for the
account of such Lending Office for any reason other than
a change in United States law or regulations or in the
official interpretation of such law or regulations by any
governmental authority charged with the interpretation or
administration thereof (whether or not having the force
of law) after the date of delivery of such Form 4224; or
(iii) if the Bank shall have delivered to the
Company a Form 1001 in respect of such Lending Office
pursuant to Section 3.01(f), and such Bank shall not at
any time be entitled to exemption from deduction or
withholding of United States Federal income tax in
respect of payments by the Company hereunder for the
account of such Lending Office for any reason other than
a change in United States law or regulations or any
applicable tax treaty or regulations or in the official
interpretation of any such law, treaty or regulations by
any governmental authority charged with the interpreta-
tion or administration thereof (whether or not having the
33
<PAGE>
force of law) after the date of delivery of such Form
1001.
(h) If, at any time, the Company requests any Bank to
deliver any forms or other documentation pursuant to subsec-
tion 3.01(f)(iv), then the Company shall, on demand of such
Bank through the Agent, reimburse such Bank for any costs and
expenses (including Attorney Costs) reasonably incurred by
such Bank in the preparation or delivery of such forms or
other documentation.
(i) If the Company is required to pay additional amounts
to any Bank or the Agent pursuant to subsection 3.01(d), then
such Bank shall use its reasonable best efforts (consistent
with legal and regulatory restrictions) to change the juris-
diction of its Lending Office so as to eliminate any such
additional payment by the Company which may thereafter accrue
if such change in the sole judgment of such Bank is not
otherwise disadvantageous to such Bank.
(j) The agreements and Obligations of the Company
contained in this Section 3.01 shall survive the payment in
full of principal and interest hereunder and termination of
the Commitments.
3.02 Illegality.
----------
(a) If any Bank shall determine upon advice of its
counsel, that the introduction of any Requirement of Law or
any change in or in the interpretation or administration
thereof has made it unlawful, or that any central bank or
other Governmental Authority has asserted that it is unlawful,
for any Bank or its Lending Office to make Offshore Rate
Committed Loans, then, on notice thereof by the Bank to the
Company through the Agent, the obligation of the Bank to make
Offshore Rate Committed Loans shall be suspended until the
Bank shall have notified the Agent and the Company that the
circumstances giving rise to such determination no longer
exists. During such period of suspension as to any Bank, any
subsequent Committed Borrowings consisting of Offshore Rate
Committed Loans shall include a Reference Rate Loan rather
than Offshore Rate Committed Loan by the Bank subject to such
suspension.
(b) If a Bank shall determine upon advice of its counsel
that it is unlawful to maintain any Offshore Rate Committed
Loan, the Company shall prepay in full all Offshore Rate
Committed Loans of the Bank then outstanding, together with
interest accrued thereon, either on the last day of the
Interest Period thereof if the Bank may lawfully continue to
maintain such Offshore Rate Committed Loans to such day, or
immediately, if the Bank may not lawfully continue to maintain
34
<PAGE>
such Offshore Rate Committed Loans, together with any amounts
required to be paid in connection therewith pursuant to
Section 3.04.
(c) If the Company is required to prepay any Offshore
Rate Committed Loan immediately as provided in subsection
3.02(b), then concurrently with such prepayment, the Company
shall borrow from the affected Bank, in the amount of such
repayment, a Reference Rate Committed Loan.
3.03 Increased Costs and Reduction of Return. In the event
---------------------------------------
that any Bank determines that compliance with any United States
(including any state, political subdivision, territory or posses-
sion thereof) or foreign law, regulation, treaty, directive or
guideline, currently or hereafter in effect, or the interpretation
or application thereof, or the compliance with any request,
guideline or directive (whether or not having the force of law)
from any United States or foreign central bank or any other
governmental authority:
(a) imposes, modifies or holds applicable any reserve,
special deposit, compulsory loan or similar requirement
against, or imposes any other conditions with respect to
assets held by, or deposits or other liabilities in or for the
account of, advances or loans by, or other credit or commit-
ment therefor extended by, or any other acquisition of funds
by, any office of any Bank which is not otherwise included or
accounted for in any determination of the Reference Rate or
the Offshore Rate or any interest payable hereunder; or
(b) affects or would affect the amount of capital
required or expected to be maintained by any Bank or any
corporation controlling any such Bank and such Bank determines
that the amount of such capital is increased by or based upon
the existence of such Bank's Commitment, or the making,
maintaining or funding of such Bank's Loans or other exten-
sions of credit hereunder;
and the result is to increase (as reasonably determined by such
Bank) the cost to such Bank of (A) agreeing to make, making,
funding, renewing or maintaining its Loans hereunder, or (B)
agreeing to maintain, or its maintenance of, its Commitment
hereunder, or to reduce any amount receivable in respect of any of
the foregoing, or to reduce (as determined by such Bank) the rate
of return on such Bank's or such controlling corporation's capital
(taking into account the policies of such Bank or corporation with
regard to capital), then, in any such case, the Company agrees to
pay to the Agent, for the account of such Bank, upon such Bank's
demand, any additional amount as may be necessary to compensate
fully such Bank for such additional cost, reduced amount receiv-
able, or reduced rate of return as reasonably determined by such
Bank to place such Bank in the same economic position as if such
35
<PAGE>
compliance had not occurred. Each Bank will promptly notify the
Agent, in writing, of the occurrence of any of the events described
in this Section 3.03 and, upon its receipt of such notice, the
------------
Agent will promptly notify the Company thereof, provided, however,
-------- -------
that the Company shall not be liable to compensate any Bank for
such additional costs or reduced rate of return which accrue prior
to a date which is 45 days before such notice is given. A
certificate as to such amounts in reasonable detail, submitted to
the Company and the Agent by such Bank, shall be conclusive and
binding for all purposes, absent manifest error. Each Bank agrees
that, in the determination of any such amount, such Bank shall use
reasonable means of allocation and attribution with respect to the
Loans and Commitment hereunder as among all loans, advances,
commitments and other extensions of credit by such Bank generally.
3.04 Funding Losses. The Company agrees to reimburse each
--------------
Bank and to hold each Bank harmless from any loss, cost or expense
which the Bank may sustain or incur as a consequence of:
(a) any failure of the Company to make any payment or
prepayment, after having given notice, of principal of any
Offshore Rate Committed Loan (including payments made after
any acceleration thereof);
(b) any failure of the Company to borrow, continue or
convert a Committed Loan after the Company has given a Notice
of Borrowing or a Notice of Conversion/Continuation;
(c) any failure of the Company to make any prepayment
after the Company has given a notice in accordance with
Section 2.06;
(d) any prepayment of an Offshore Rate Committed Loan on
a day which is not the last day of the Interest Period with
respect thereto; or
(e) the conversion of any Offshore Rate Committed Loan
to a Reference Rate Committed Loan on a day that is not the
last day of the respective Interest Period pursuant to
subsection 2.04;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate
Committed Loans hereunder or from fees payable to terminate the
deposits from which such funds were obtained.
3.05 Inability to Determine Rates. If two or more Reference
----------------------------
Banks or the Majority Banks shall have reasonably determined that
for any reason adequate and reasonable means do not exist for
ascertaining the Offshore Rate for any requested Interest Period
with respect to a proposed Offshore Rate Committed Loan or that the
Offshore Rate for any requested Interest Period with respect to a
36
<PAGE>
proposed Offshore Rate Committed Loan does not adequately reflect
the funding cost to such Banks of such Loan, the Agent will
forthwith give notice of such determination to the Company and each
Bank. Thereafter, the obligation of the Banks to make Offshore
Rate Committed Loans hereunder shall be suspended until the Agent
upon the instruction of the Majority Banks revokes such notice in
writing. Upon receipt of such notice, the Company may revoke any
Notice of Borrowing or Notice of Conversion/Continuation then
submitted by it. If the Company does not revoke such notice, the
Banks shall make, convert or continue the Committed Loans, as
proposed by the Company, in the amount specified in the applicable
notice submitted by the Company, but such Loans shall be made,
converted or continued as Reference Rate Committed Loans instead of
Offshore Rate Committed Loans.
3.06 Reserves on Offshore Rate Committed Loans. The Company
-----------------------------------------
shall pay to each Bank, as long as such Bank shall be required
under regulations of the Federal Reserve Board to maintain reserves
with respect to liabilities or assets consisting of or including
Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), additional costs on the unpaid principal amount of
each Offshore Rate Committed Loan equal to actual costs of such
reserves allocated to such Loan by the Bank (as determined by the
Bank in good faith, which determination shall be conclusive),
payable on each date on which interest is payable on such Loan
provided the Company shall have received at least fifteen days'
prior written notice (with a copy to the Agent) of such additional
interest from the Bank. If a Bank fails to give notice fifteen
days prior to the relevant Interest Payment Date, such additional
interest shall be payable fifteen days from receipt of such notice.
3.07 Certificates of Banks. Any Bank claiming reimbursement
---------------------
or compensation pursuant to this Article III shall deliver to the
Company (with a copy to the Agent) a certificate setting forth in
reasonable detail the amount payable to the Bank hereunder and such
certificate shall be conclusive and binding on the Company and in
the absence of manifest error.
3.08 Survival. The agreements and obligations of the Company
--------
in this Article III shall survive the payment of all other
Obligations provided that, any Bank desiring to make a claim for
-------------
reimbursement under Section 3.04 shall do so within 180 days after
the Termination Date.
3.09 Replacement Banks. If the obligation of any Bank to make
-----------------
Offshore Rate Committed Loans has been suspended pursuant to
Section 3.02, the Company may, with respect to such Bank, elect to
terminate this Agreement, and in connection therewith, not to
borrow any Reference Rate Loan provided for in Section 3.02 , or to
repay any Reference Rate Loan made pursuant to Section 3.02;
provided, that the Company notifies such Bank through the Agent of
- --------
such election at least three Business Days before any date fixed
37
<PAGE>
for such a borrowing or such a prepayment, as the case may be, and
(i) repays all of such Bank's outstanding Loans plus all accrued
interest, commitment fees and other amounts owing to, but not
including, the date of repayment at the end of the respective
Interest Periods applicable thereto or as otherwise required by
Section 3.02, and (ii) selects, with the consent of the Agent,
which shall not be unreasonably withheld, an Eligible Assignee
which shall assume all the rights and obligations of such Bank as
to which this Agreement has been terminated. Upon receipt by the
Agent of such notice and the assignment to and assumption of the
Commitment by a replacement bank, the Commitment of such Bank shall
terminate.
38
<PAGE>
ARTICLE IV
CONDITIONS PRECEDENT
--------------------
4.01 Conditions of Loans. The obligation of each Bank to make
-------------------
its Loan hereunder is subject to the condition that the Agent shall
have received all of the following on the Closing Date, in form and
substance satisfactory to the Agent, each Bank and their respective
counsel and in sufficient copies for each Bank:
(a) Credit Agreement. This Agreement executed by the
----------------
Company, the Agent and each of the Banks;
(b) Payment of Fees. The Company shall have paid all
---------------
costs, accrued fees and expenses then due and owing referred
to in Section 3.01; and
(c) Subscription Agreement. A copy of the Subscription
----------------------
Agreement, which shall be in full force and effect and
certified as being complete and correct by a Responsible
Officer of the Company.
4.02 Additional Conditions Precedent to the making of the
----------------------------------------------------
Initial Loans. The making of the Loans hereunder is subject to the
- -------------
further conditions precedent that on the Initial Funding Date the
following conditions shall be satisfied:
(a) Resolutions; Incumbency.
-----------------------
(i) Copies of the resolutions of the board of
directors of the Company approving and authorizing the
execution, delivery and performance by the Company of
this Agreement and the other Loan Documents to be
delivered hereunder, and authorizing the borrowing of the
Loans, certified as of the Initial Funding Date by the
Secretary or an Assistant Secretary of the Company;
(ii) Certified copies of the resolutions of the
board of directors of each Guarantor approving the Loan
Documents to be delivered by it hereunder;
(iii) A certificate of the Secretary or Assistant
Secretary of the Company certifying the names and true
signatures of the officers of the Company authorized on
behalf of the Company to execute and deliver and perform,
as applicable, this Agreement, and all other Loan
Documents to be delivered hereunder;
(iv) A certificate of the Secretary or Assistant
Secretary of each Guarantor, certifying the names and
true signatures of the officers of the Guarantor autho-
rized on behalf of the Guarantor to execute and deliver,
39
<PAGE>
as applicable, this Agreement, and all other Loan
Documents to be delivered hereunder;
(b) Certificates of Incorporation; By-laws and Good
-----------------------------------------------
Standing. Each of the following documents:
--------
(i) the certificate of incorporation of the Company
as in effect on the Initial Funding Date, certified by
the Secretary of State of the state of incorporation of
the Company as of a recent date and by the Secretary or
Assistant Secretary of the Company as of the Initial
Funding Date and the bylaws of the Company as in effect
on the Initial Funding Date, certified by the Secretary
or Assistant Secretary of the Company as of the Initial
Funding Date; and
(ii) a good standing certificate for the Company,
the Guarantors and the Domestic Parent from the Secretary
of State of its state of incorporation as of a recent
date;
(c) Guaranties/Pledge Agreement. A guaranty substan-
---------------------------
tially in the form of Exhibit C hereto executed by each of the
---------
Subsidiaries listed on Schedule 4.02(c) hereto (each a
"Guaranty" and collectively the "Guaranties") and the pledge
-------- ----------
agreement substantially in the form of Exhibit E-1 executed by
------------
each of the Subsidiaries listed on Schedule 4.02(c);
(d) Legal Opinions. (1) An opinion of Thomas W.
--------------
Hawkins, Esq., counsel to the Company and the Guarantors and
addressed to the Agent and the Banks, substantially in the
form of Exhibit F-1; and
-----------
(2) An opinion of Skadden, Arps, Meagher & Flom,
special counsel to the Company, and addressed to the
Agent and the Banks, substantially in the form of Exhibit
-------
F-2;
---
(e) Contribution Agreement. A Contribution Agreement,
----------------------
substantially in the form of Exhibit D attached hereto,
---------
executed by the Guarantors;
(f) Payment of Fees. The Company shall have paid all
---------------
costs, accrued and unpaid fees and expenses then due and owing
(including, without limitation, Attorney's Cost's of the
Agent) referred to in Sections 2.09, 3.01 and 10.04;
(g) Officer's Certificate. An officer's certificate,
---------------------
signed by a Responsible Officer of the Company, and dated as
of the Initial Funding Date stating that:
40
<PAGE>
(i) the conditions specified in Section 4.01 and
4.02 have been met;
(ii) the representations and warranties contained in
Article V are true and correct in all material respects
on and as of such date, as though made on and as of such
date; and
(iii) no Default or Event of Default exists or would
result from the initial Borrowing;
(h) The Subscription Agreement shall not have been
materially amended without the consent of the Majority Banks
and is in full force and effect;
(i) Viacom shall have accepted for payment at least
50.1% of the shares of common stock of Paramount then
outstanding pursuant to Viacom's tender offer therefor;
(j) There shall not exist any material claim, action,
suit, investigation, litigation or proceedings pending or, to
the Company's knowledge, threatened, in any court or before
any arbitration or governmental instrumentality, or any
judgment, order, injunction or other restraint which has any
reasonable likelihood of having a material adverse effect on
the condition (financial or otherwise), operations, business
or properties of the Company and its Subsidiaries taken as a
whole;
(k) There shall not exist any judgment order, injunction
or other restraint prohibiting or imposing materially adverse
conditions upon the purchase of the stock of Viacom pursuant
to the Subscription Agreement or the making of the Loans;
(l) All material governmental and third party consents
and approvals necessary in connection with consummation of the
Subscription Agreement shall have been obtained and remain in
effect and all applicable waiting periods shall have expired;
and
(m) All Loans made by the Banks are in full compliance
with all applicable requirements of law, including Regulations
G, T, U and X of the Board of Governors of the Federal Reserve
System. At the time of the making of such Loans, and after
given effect thereto and the purchase of the shares of capital
stock of Viacom pursuant to the Subscription Agreement, no
more than 25% of the value (as defined in Regulation U of the
Board of Governors Federal Reserve System) of the assets of
the Company and of, the Company and its Subsidiaries on a
consolidated basis, subject to the restrictions set forth in
Sections 7.01 and 7.02 shall constitute Margin Stock.
41
<PAGE>
(n) The Agent shall have received a timely Notice of
Borrowing;
(o) The representations and warranties made by the
Company contained in Article V shall be true and correct in
all material respects on and as of the Initial Funding Date;
and
(p) No Default or Event of Default shall exist or shall
result from such Borrowing.
The Notice of Borrowing submitted by the Company shall
constitute a representation and warranty by the Company hereunder,
as of the date of each such notice or request that the conditions
in Sections 4.01 and 4.02 are satisfied.
42
<PAGE>
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
The Company represents and warrants the Agent and each Bank
that:
5.01 Corporate Existence and Power. The Company, each of its
-----------------------------
Subsidiaries and each of the Guarantors:
(a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation;
(b) 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, the Loan Docu-
ments;
(c) 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
(d) is in compliance in all material respects with all
Requirements of Law.
5.02 Corporate Authorization; No Contravention. The execu-
-----------------------------------------
tion, delivery and performance by the Company and its Subsidiaries
of this Agreement, and any other Loan Document to which such Person
is party, have been duly authorized by all necessary corporate
action, and do not and will not:
(a) contravene the terms of any of that Person's
Organization Documents;
(b) conflict with or result in any breach or contraven-
tion of, or the creation of any Lien under, any document
evidencing any Contractual Obligation to which such Person is
a party or any order, injunction, writ or decree of any
Governmental Authority to which such Person or its Property is
subject; or
(c) violate any Requirement of Law.
5.03 Governmental Authorization. No approval, consent,
--------------------------
exemption, authorization, or other action by, or notice to, or
filing with, other than any routine filing with the SEC pursuant to
the Exchange Act, and the Securities Act of 1933 (including,
without limitation, filings on Form 8-K), any Governmental
Authority is necessary or required in connection with the execu-
tion, delivery or performance by, or enforcement against, the
43
<PAGE>
Company or any of its Subsidiaries of the Agreement or any other
Loan Document.
5.04 Binding Effect. This Agreement and each other Loan
--------------
Document to which the Company or any of its Subsidiaries is a party
constitute the legal, valid and binding obligations of the Company
and any of its Subsidiaries to the extent it is a party thereto,
enforceable against such Person in accordance with their respective
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.
5.05 Litigation. Except as specifically disclosed in Schedule
----------
5.05, there are no actions, suits, proceedings, claims or disputes
pending, or to the best knowledge of the Company, threatened or
contemplated, at law, in equity, in arbitration or before any
Governmental Authority, against the Company, or any of its
Subsidiaries or any of their respective Properties which:
(a) purport to affect the legality, validity or enforce-
ability or pertain to this Agreement, or any other Loan
Document, or any of the transactions contemplated hereby or
thereby; or
(b) if determined adversely to the Company, or its
Subsidiaries 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
Agreement or any other Loan Document, or directing that the
transactions provided for herein or therein not be consummated
as herein or therein provided.
5.06 No Default. No Default or Event of Default exists
----------
hereunder or would result from the incurring of any Obligations by
the Company. Neither the Company nor any of its Subsidiaries is in
default under or with respect to any Contractual Obligation in any
respect which, individually or together with all such defaults,
would reasonably be expected to have a Material Adverse Effect.
5.07 ERISA Compliance.
----------------
(a) Schedule 5.07 lists all Plans and separately
identifies Plans intended to be Qualified Plans and
Multiemployer Plans. All written descriptions thereof
provided to the Agent are true and complete in all material
respects.
(b) Each Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code and other
44
<PAGE>
Federal or state law, including all requirements under the
Code or ERISA for filing reports (which are true and correct
in all material respects as of the date filed), and benefits
have been paid in accordance with the provisions of the Plan.
(c) Except as specifically disclosed in Schedule 5.07,
there is no outstanding liability under Title IV of ERISA with
respect to any Plan maintained or sponsored by the Company or
any ERISA Affiliate, nor with respect to any Plan to which the
Company or any ERISA Affiliate contributes or is obligated to
contribute.
(d) Except as specifically disclosed in Schedule 5.07,
no Plan subject to Title IV of ERISA has any Unfunded Pension
Liability.
(e) The Company does not maintain an Employee Welfare
Benefit Plan which provides benefits (within the meaning of
section 3(1) of ERISA) following retirement or termination of
employment.
(f) Members of the Controlled Group have complied in all
material respects with the notice and continuation coverage
requirements of Section 4980B of the Code.
(g) There are no pending or, to the best knowledge of
the Company, threatened claims, actions or lawsuits, other
than routine claims for benefits in the usual and ordinary
course, asserted or instituted against (i) any Plan maintained
or sponsored by the Company, (ii) any member of the Controlled
Group with respect to any Qualified Plan, or (iii) any
fiduciary with respect to any Plan for which the Company may
be directly or indirectly liable, through indemnification
obligations or otherwise.
(h) Except as specifically disclosed in Schedule 5.07,
neither the Company nor any ERISA Affiliate has incurred nor
reasonably expects to incur (i) any liability (and no event
has occurred which, with the giving of notice under Section
4219 of ERISA, would result in such liability) under Section
4201 or 4243 of ERISA with respect to a Multiemployer Plan or
(ii) any liability under Title IV of ERISA (other than
premiums due and not delinquent under Section 4007 of ERISA)
with respect to a Plan.
(i) Except as specifically disclosed in Schedule 5.07,
neither the Company nor any ERISA Affiliate has transferred
any Unfunded Pension Liability to a Person other than the
Company or an ERISA Affiliate or otherwise engaged in a
transaction that could be subject to Section 4069 or 4212(c)
of ERISA.
45
<PAGE>
(j) No member of the Controlled Group has engaged,
directly or indirectly, in a non-exempt prohibited transaction
(as defined in Section 4975 of the Code or Section 406 of
ERISA) in connection with any Plan which has a reasonable
likelihood of having a Material Adverse Effect.
5.08 Use of Proceeds. The proceeds of the Loans shall be used
---------------
solely for the purchase of shares of common stock of Viacom as set
forth in the Subscription Agreement.
5.09 Title to Properties. The Company and each of its
-------------------
Subsidiaries has good record and marketable title in fee simple to,
or valid leasehold interests in, all real Property necessary or
used in the ordinary conduct of its business, except as would not
reasonably be expected, in the aggregate, to have a Material
Adverse Effect. As of the Closing Date, the Property of the
Company and its Subsidiaries is subject to no Liens, other than
Permitted Liens.
5.10 Financial Condition.
-------------------
(a) The unaudited consolidated condensed balance sheets
of the Company and its Subsidiaries dated September 30, 1993,
and the related unaudited condensed consolidated statements of
operations and cash flows for the fiscal quarter ended on that
date:
(i) were prepared in accordance with SEC guidelines
for the preparation of interim financial statements,
consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein;
(ii) fairly present the consolidated financial
condition of the Company and its Subsidiaries in all
material respects as of the date thereof and results of
operations for the period covered thereby; and
(iii) except as specifically disclosed in Schedule
5.10, show all material indebtedness and other liabili-
ties of the Company and its consolidated Subsidiaries as
of the date thereof, including liabilities for taxes,
material commitments and Contingent Obligations.
(b) Since September 30, 1993, there has been no Material
Adverse Effect other than as publicly disclosed on or prior to
January 18, 1994.
5.11 Environmental Matters.
---------------------
(a) The on-going operations of the Company and each of
its Subsidiaries comply in all respects with all Environmental
Laws, except such non-compliance which would not (if enforced
46
<PAGE>
in accordance with applicable law) result in a Material
Adverse Effect.
(b) The Company and each of its Subsidiaries has
obtained all material licenses, permits, authorizations and
registrations required under any Environmental Law ("Environ-
mental Permits") and necessary for its ordinary course
operations, all such Environmental Permits are in good
standing, and the Company and each of its Subsidiaries is in
compliance with all material terms and conditions of such
Environmental Permits.
(c) Except as provided in Schedule 5.11, none of the
Company, any of its Subsidiaries or any of their respective
present Property or operations is subject to any outstanding
written order from or agreement with any Governmental Authori-
ty nor subject to any judicial or docketed administrative
proceeding, respecting any Environmental Law, Environmental
Claim or Hazardous Material, which order, agreement or
proceeding would have a Material Adverse Affect.
(d) To the best of the Company's knowledge after due
inquiry in the course of conducting its business, there are no
Hazardous Materials or other conditions or circumstances
existing with respect to any Property, or arising from
operations prior to the Closing Date, of the Company or any of
its Subsidiaries that would reasonably be expected to give
rise to Environmental Claims with a potential liability to the
Company and its Subsidiaries that would result in a Material
Adverse Effect. In addition, to the best of the Company's
knowledge after due inquiry in the course of conducting its
business (i) neither the Company nor any of its Subsidiaries
has any underground storage tanks (x) that are not properly
registered or permitted under applicable Environmental Laws,
or (y) that are leaking or disposing of Hazardous Materials
off-site, and (ii) the Company and its Subsidiaries have
notified all of their employees of the existence, if any, of
any health hazard arising from the conditions of their
employment and have met all notification requirements under
Title III of CERCLA and all other Environmental Laws.
5.12 Trademarks and Licenses, etc. The Company or its
----------------------------
consolidated Subsidiaries own or are licensed or otherwise have the
right to use, to the best of their knowledge, all of the trade-
marks, service marks, trade names, franchises, authorizations and
other rights that are reasonably necessary for the operation of
their respective businesses, without conflict with the rights of
any other Person, to the extent that failure to have such rights
would reasonably be likely to cause a Material Adverse Effect. To
the best knowledge of the Company, no slogan or other advertising
device or product, now employed, or now contemplated to be employed
by the Company or any of its Subsidiaries infringes upon any rights
47
<PAGE>
held by any other Person; no claim or litigation regarding any of
the foregoing is pending or threatened, and no statute, law, rule,
regulation, standard or code is pending or, to the knowledge of the
Company, proposed regarding the foregoing, which, in either case,
would reasonably be expected to result in a Material Adverse
Effect.
5.13 Subsidiaries. As of the Closing Date, the Company has no
------------
Subsidiaries other than those specifically disclosed in Schedule
5.13 hereto.
48
<PAGE>
ARTICLE VI
AFFIRMATIVE COVENANTS
---------------------
The Company covenants and agrees that, so long as any Bank
shall have any Commitment hereunder, or any Loan or other Obliga-
tion shall remain unpaid or unsatisfied, unless the Majority Banks
waive compliance in writing:
6.01 Financial Statements. The Company shall furnish to the
--------------------
Agent, with sufficient copies for each Bank:
(a) as soon as available, but not later than 90 days
after the end of each fiscal year, a copy of the audited
consolidated balance sheet of the Company and its consolidated
Subsidiaries as at the end of such year and the related
consolidated statements of income, shareholders' equity and
cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous year, and
accompanied by the opinion of Arthur Andersen or another
nationally-recognized independent public accounting firm which
report shall state that such consolidated financial statements
present fairly in all material respects the financial position
for the periods indicated in conformity with GAAP (for
purposes of this Section 6.01(a) Form 10-K will suffice);
(b) as soon as available, but not later than 45 days
after the end of each of the first three fiscal quarters of
each year a copy of the unaudited condensed consolidated
balance sheets of the Company and its consolidated Subsidiar-
ies as of the end of such quarter and the related condensed
consolidated statements of income and cash flows for the
period commencing on the first day and ending on the last day
of such quarter, and certified by an appropriate Responsible
Officer with a statement that in management's opinion such
financial statements contain all material adjustments (which
include only normal recurring adjustments) necessary to
present fairly the Company's financial position and results of
operations (for purposes of this Section 6.01(b) Form 10-Q
will suffice).
6.02 Certificates; Other Information. The Company shall
-------------------------------
furnish to the Agent, with sufficient original copies for each
Bank:
(a) together with the financial statements required to
be delivered under Sections 6.01 (a) and (b) above, a certifi-
cate of the chief financial officer or treasurer of the
Company (A) setting forth calculations demonstrating compli-
ance with the financial covenants set forth in Sections
7.01(j), 7.02, 7.04, 7.07, 7.08, 7.09, 7.10 and 7.11 for and
as at the end of such year or quarter as applicable, (B)
certifying on behalf of the Company that (i) no Event of
49
<PAGE>
Default or Default shall have occurred during such period
relating to any covenant contained in Sections 7.01(j), 7.02,
7.04, 7.07, 7.08, 7.09, 7.10 or 7.11, or (ii) to the best of
such officer's knowledge following diligent inquiry, no other
Event of Default or Default shall have occurred during such
period, or, if an Event of Default or any such other event
shall have occurred, describing the nature thereof and the
actions that the Company has taken or proposes to take with
respect thereto and (C) describing in reasonable detail any
material variation between the application of accounting
principles employed in the preparation of such certificates
and the application of accounting principles employed in the
preparation of the financial statements referred to in Section
6.01, and reasonable estimates of the difference for the
period in question between such certificates arising as a
consequence thereof; and (D) setting forth the total assets of
each foreign Material Subsidiary covered by an executory
pledge agreement; and
(b) within 90 days of the beginning of each fiscal year
of the Company, financial projections ("Projections") with
-----------
respect to each fiscal year through the Termination Date, or
budgets or related items as the Agent, or any Bank through the
Agent, may reasonably request, all in such detail as the Agent
or any Bank through the Agent may reasonably request.
(c) promptly after the same are filed, copies of all
financial statements and regular, periodical or special
reports which the Company is required to make to, or file
with, the Securities and Exchange Commission or any successor
or similar Governmental Authority;
(d) promptly, such additional financial and other
information as the Agent, at the request of any Bank, may from
time to time reasonably request; and
(e) within 90 days of the beginning of each fiscal year
of the Company, a chart of the corporate structure of the
Company.
6.03 Notices. The Company shall promptly notify the Agent and
-------
each Bank:
(a) as soon as possible and in any event within five
days after the Company shall have knowledge of the occurrence
of any Default or Event of Default;
(b) of (i) any breach or non-performance of, or any
default under, any Contractual Obligation of the Company or
any of its Subsidiaries which would reasonably be expected to
result in a Material Adverse Effect; and (ii) any material
dispute, litigation, investigation, proceeding or suspension
50
<PAGE>
which exists at any time between the Company or any of its
Subsidiaries and any Governmental Authority;
(c) upon, but in no event later than 10 days after,
becoming aware of (i) any and all enforcement, cleanup,
removal or other governmental or regulatory actions institut-
ed, completed or threatened against the Company or any
Subsidiary or any of their Properties pursuant to any applica-
ble Environmental Laws, (ii) all other Environmental Claims,
and (iii) any environmental or similar condition on any real
property adjoining or in the vicinity of the property of the
Company or any Subsidiary that would reasonably be anticipated
to cause such property or any part thereof to be subject to
any restrictions on the ownership, occupancy, transferability
or use of such property under any Environmental Laws which
restrictions would reasonably be expected to have a Material
Adverse Effect;
(d) of any other litigation or proceeding affecting the
Company or any of its Subsidiaries which the Company would be
required to report to the SEC pursuant to the Exchange Act,
within four days after reporting the same to the SEC;
(e) of any of the following ERISA events affecting the
Company or any member of its Controlled Group (but in no event
more than 10 days after such event), together with a copy of
any notice with respect to such event that may be required to
be filed with a Governmental Authority and any notice deliv-
ered by a Governmental Authority to the Company or any member
or its Controlled Group with respect to such event:
(i) an ERISA Event;
(ii) the adoption of any new Plan that is subject
to Title IV of ERISA or section 412 of the Code by any
member of the Controlled Group;
(iii) the adoption of any amendment to a Plan that
is subject to Title IV of ERISA or section 412 of the
Code, if such amendment results in a material increase in
benefits or unfunded liabilities; or
(iv) the commencement of contributions by any
member of the Controlled Group to any Plan that is
subject to Title IV of ERISA or section 412 of the Code;
(f) any Material Adverse Effect subsequent to the date
of the most recent audited financial statements of the Company
delivered to the Banks pursuant to subsection 6.01(a).
Each notice pursuant to this Section shall be accompanied
by a written statement by a Responsible Officer of the Company
51
<PAGE>
setting forth details of the occurrence referred to therein,
the provisions of this Agreement affected, and stating what
action the Company proposes to take with respect thereto.
Each notice under subsection 6.03(a) shall describe with
particularity the clause or provision of this Agreement or
other Loan Document that has been breached or violated.
6.04 Preservation of Corporate Existence, Etc. The Company
----------------------------------------
shall preserve and keep in full force and effect its corporate
existence and the rights, privileges and franchises material to its
business; and cause to be preserved and kept in full force and
effect the corporate existence of such of its Subsidiaries and such
rights, privileges and franchises of its Subsidiaries the failure
to so preserve or keep would have a Material Adverse Effect.
6.05 Maintenance of Property. The Company shall maintain, or
-----------------------
cause to be maintained, in good repair, working order and condi-
tion, except ordinary wear and tear, all Properties which the
Company or any of its Subsidiaries owns, leases or otherwise holds
an interest in (to the extent the terms of any such leases or other
agreements establishing such property interests permit such
maintenance), and from time to time make or cause to be made all
appropriate (as determined by the senior management of the Company
in the exercise of prudent business judgment) repairs, renewals and
replacements thereof and maintain, or cause its subsidiaries to
maintain, all franchise privileges, licenses, patents, trademarks,
copyrights and trade names deemed by the Company to be reasonably
necessary to conduct its business.
6.06 Insurance. The Company shall maintain, and shall cause
---------
each Subsidiary to maintain, with financially sound and reputable
independent insurers, insurance with respect to its Properties and
business against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of such
types and in such amounts as are customarily carried under similar
circumstances by such other Persons. Not later than thirty days
after the renewal, replacement or modification of any policy, the
Company shall deliver to the Agent for distribution to each Bank a
detailed schedule setting forth for each such policy: (i) the
amount of such policy, (ii) the risks insured against by such
policy, (iii) the name of the insurer and each insured party under
such policy, (iv) the policy number of such policy, and (v) such
other information as any Bank through the Agent may reasonably
request. In addition, the Company shall deliver to the Agent for
distribution to each Bank written notice of any cancellation of any
of the insurance policies required by this Section 6.06 within
seven Business Days after the Company receives notification of such
cancellation.
6.07 Payment of Obligations. The Company shall, and shall
----------------------
cause its Subsidiaries to, pay and discharge as the same shall
become due and payable:
52
<PAGE>
(a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless
the same are being contested in good faith by appropriate
proceedings and adequate reserves in accordance with GAAP are
being maintained by the Company or such Subsidiary; and
(b) all lawful claims which, if unpaid, would by law
become a material Lien upon its Property.
6.08 Compliance with Laws. The Company shall comply, and
--------------------
shall cause each of its Subsidiaries to comply, in all material
respects with all Requirements of Law of any Governmental Authority
having jurisdiction over it or its business (including the Federal
Fair Labor Standards Act), except such as may be contested in good
faith or as to which a bona fide dispute may exist.
6.09 Inspection of Property and Books and Records. The
--------------------------------------------
Company shall keep and shall cause each of its Subsidiaries to
keep, proper books of record and account, in which true and correct
entries in all material respects, in conformity with GAAP subject
to customary periodic adjustments in connection with the prepara-
tion of financial statements and all legal requirements, shall be
made of all material dealings and transactions in relation to their
respective businesses and activities. The Company shall permit,
and shall cause each of its Subsidiaries to permit, authorized
representatives of the Agent or any Bank to visit and inspect any
of their respective Properties, to examine their respective
corporate, financial and operating records, and make copies thereof
or abstracts therefrom (except copies and extracts of the Company's
monthly reports internally known as the "blue book" and other
specified documents which the Company in its reasonable judgment
deems highly confidential), and to discuss their respective
affairs, finances and accounts with their respective directors,
officers, and independent public accountants, all at the expense of
the Agent or such Bank and at such reasonable times during normal
business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Company; provided, however, when
-------- -------
an Event of Default exists the Agent or any Bank may visit and
inspect at the expense of the Company such Properties at any time
during business hours and without advance notice.
6.10 Environmental Laws.
------------------
(a) The Company shall, and shall cause each of its
Subsidiaries to, conduct its operations and keep and maintain
its Property in compliance with all material Environmental
Laws the non-compliance with which could reasonably be
expected to cause a Material Adverse Effect.
(b) Upon the written request of the Agent or any Bank,
the Company shall submit and cause each of its Subsidiaries to
submit, to the Agent and such Bank, at the Company's sole cost
53
<PAGE>
and expense, at reasonable intervals, a report providing an
update of the status of any environmental, health or safety
compliance, hazard or liability issue identified in any notice
or report required pursuant to subsection 6.03(d), that would
reasonably be expected to have a Material Adverse Effect.
6.11 Subsidiary Guaranties.
---------------------
(a) The Company shall cause each domestic Material
Subsidiary of the Company now or hereafter existing (except
Spelling Entertainment Group Inc.) to execute and deliver for
the benefit of the Banks a guaranty substantially in the form
of Exhibit C. SEGI, the parent of Spelling Entertainment
---------
Group Inc. shall provide a guaranty substantially in the form
of Exhibit C.
---------
(b) The Company shall cause each foreign Material
Subsidiary of the Company now or hereafter existing, or its
Domestic Parent with respect to any pledge, to execute and
deliver for the benefit of the Banks one of the following: (i)
a guaranty substantially in the form of Exhibit C, (ii) an
---------
executory pledge agreement executed by its Domestic Parent
substantially in the form of Exhibit E-1 (which pledge
-----------
agreement shall require the delivery of pledged shares upon
the occurrence of Default) or (iii) a completed pledge
agreement executed by its Domestic Parent substantially in the
form of Exhibit E-2 (which pledge agreement shall require the
-----------
delivery of the pledged shares contemporaneously with the
delivery of such pledge agreement). At any time, the Company
may cause the Domestic Parent or its foreign Material Subsid-
iary to substitute a guaranty, an executory pledge agreement
or a completed pledge agreement for any previously delivered
guaranty, executory pledge agreement or completed pledge
agreement. The total assets of all foreign Material Subsid-
iaries with respect to which executory pledge agreements have
been delivered shall not at any time exceed 30% of the
Company's consolidated total assets.
As of the Initial Funding Date, there are no foreign
Material Subsidiaries of the Company. If any such pledge
agreement or executory pledge agreement is required to be
delivered hereunder, the Company and the Agent shall negotiate
an intercreditor agreement acceptable to the parties hereunder
and the parties to the Existing Credit Agreement in which all
lenders shall be pari passu.
(c) Notwithstanding the foregoing, if at any time the
total assets of the domestic and foreign Material Subsidiaries
of the Company for which guaranties have been provided and/or
shares have been pledged, represent less than 66 2/3% of the
Company's consolidated total assets, the Company shall cause
additional Subsidiaries (commencing with the Subsidiaries with
54
<PAGE>
the largest amount of total assets, in descending order) to
provide guarantees and pledge agreements so that the total
assets of the Subsidiaries of the Company which have provided
guaranties and/or whose shares have been pledged represent at
least 66 2/3% of the Company's consolidated total assets.
6.12 Application of Proceeds. The Company will apply the
-----------------------
entire amount of the proceeds of the Loans solely to purchase
shares of common stock of Viacom in accordance with the terms of
the Subscription Agreement and all material conditions to such
purchase shall be satisfied or waived (with the consent of the
Majority Banks); provided that the foregoing shall not prohibit the
--------
Company from agreeing to changes as described in Section 10(b) of
the Subscription Agreement.
6.13 No Amendments. The Company shall not materially amend
-------------
the Subscription Agreement without the Majority Banks' consent.
55
<PAGE>
ARTICLE VII
NEGATIVE COVENANTS
------------------
The Company hereby covenants and agrees that, so long as any
Bank shall have any Commitment hereunder, or any Loan or other
Obligation shall remain unpaid or unsatisfied, unless the Majority
Banks waive compliance in writing:
7.01 Limitation on Liens. The Company shall not, and shall
-------------------
not suffer or permit any of its Subsidiaries to, directly or
indirectly, make, create, incur, assume or suffer to exist any Lien
or Environmental Lien upon or with respect to any part of its or
its Subsidiaries' Property, whether now owned or hereafter
acquired, other than the following ("Permitted Liens"):
(a) any Lien existing on the Property of the Company or
its Subsidiaries on the Closing Date and set forth in Schedule
--------
7.01 securing Indebtedness outstanding on such date and any
----
extensions or renewals thereof, provided that any such
--------
extension or renewal shall not (A) secure Indebtedness in an
aggregate amount greater than the Indebtedness so secured on
the date hereof or (B) attach to or otherwise encumber
Property other than Property subject thereto as of the date
hereof;
(b) Liens for taxes, fees, assessments or other govern-
mental charges which are not delinquent or remain payable
without penalty, or to the extent that non-payment thereof is
permitted by Section 6.07, provided that no Notice of Lien has
been filed or recorded;
(c) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in
the ordinary course of business which are not delinquent or
remain payable without penalty;
(d) Liens (other than any Lien imposed by ERISA)
consisting of pledges or deposits required in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other social security legislation;
(e) Liens securing (i) the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, (ii) obligations on surety and appeal bonds, and
(iii) other obligations of a like nature; in each case,
incurred in the ordinary course of business, provided all such
Liens in the aggregate would not (even if enforced) cause a
Material Adverse Effect;
(f) Liens on Property hereafter acquired in connection
with an acquisition of a business and its property by the
Company or any of its Subsidiaries, provided that such liens
--------
56
<PAGE>
and security interests secure amounts not then due and payable
by the Company or any such Subsidiary and were not created and
did not arise in contemplation of such acquisition;
(g) Liens arising in favor of a lessee of assets or
Property of the Company or any Subsidiary of the Company in
connection with the grant by the Company or such Subsidiary to
such lessee of an option to purchase the leased Property;
(h) any Lien on real property, and on any fixtures
thereon or attached thereto, acquired, constructed or improved
by the Company or any Subsidiary and created contemporaneously
with or within eighteen (18) months after the date the
Indebtedness has been incurred with respect to such acquisi-
tion, construction or improvement, to secure all or a portion
of the purchase price of such real property or the cost of
such construction, acquisition or improvement, or any of them;
provided, that, that principal amount of the Indebtedness
--------------
secured by all such purchase money security interests shall
not at any time exceed $50,000,000;
(i) Purchase money security interests on any Property
acquired or held by the Company or its Subsidiaries in the
ordinary course of business, securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the
cost of acquiring such Property; provided that (i) any such
-------- ----
Lien attaches to such Property concurrently with or within 20
days after the acquisition thereof, (ii) such Lien attaches
solely to the Property so acquired in such transaction, (iii)
the principal amount of the debt secured thereby does not
exceed 100% of the cost of such Property, and (iv) the
principal amount of the Indebtedness secured by any and all
such purchase money security interests shall not at any time
exceed 25% of the Company's Consolidated Net Worth at the
time; and
(j) Liens, other than as described in clauses (a)
through (h) above, in an aggregate amount not to exceed 25% of
the Company's Consolidated Net Worth at any time.
7.02 Disposition of Assets. The Company shall not, and shall
---------------------
not suffer or permit any of its Subsidiaries to, directly or
indirectly, sell, assign, lease, convey, transfer or otherwise
dispose of (whether in one or a series of transactions) all or
substantially all of its Property (including accounts and notes
receivable, with or without recourse, and equipment sale-leaseback
transactions) or enter into any agreement to do any of the
foregoing; provided that the Subsidiaries of the Company may sell,
--------
lease, assign, transfer or otherwise dispose of their Property
having an aggregate fair market value, not to exceed 20% of
Consolidated Net Worth during any fiscal year; provided further
-------- -------
that the consideration received by a Subsidiary in each such
57
<PAGE>
transaction permitted hereunder shall constitute fair market value
determined in the Company's management's best business judgment.
7.03 Mergers.
-------
(a) The Company shall not merge with or consolidate into
any other Person unless (i) the Company is the continuing or
surviving corporation or (ii) if the Company is merged into a
public holding company or is merged with a Subsidiary located
in another jurisdiction, the holders of common stock of the
Company are entitled to receive (other than cash in lieu of
fractional shares) solely common stock in amounts proportion-
ate to their holdings of common stock of the Company immedi-
ately prior to such transaction and, in either case of (i) or
(ii) above, immediately after giving effect to such transac-
tion, no Default shall have occurred and be continuing; and
(b) The Company shall not permit any Guarantor or
Domestic Parent to merge with another Subsidiary that is not a
Guarantor unless the surviving entity is or becomes a
Guarantor or Domestic Parent.
7.04 Loans and Investments. The Company shall not purchase or
---------------------
acquire and shall not permit any of its Subsidiaries to purchase or
acquire, or make any commitment therefor, any capital stock, equity
interest, assets, obligations or other securities of or any
interest in, any Person or make any advance, loan, extension of
credit or capital contribution to or any other investment in, any
Person including any Affiliate of the Company, (other than (i) the
acquisition of the shares of Viacom pursuant to the Subscription
Agreement; (ii) loans and advances to employees in the ordinary
course of business consistent with past practice; (iii) other
investments (other than directly or indirectly in Viacom or
Paramount), acquisitions and capital contributions in an aggregate
amount not greater than $200,000,000); and (iv) transactions the
sole payment or consideration for which is common stock of the
Company.
7.05 Federal Regulations. The Company shall not and shall not
-------------------
suffer or permit any of its Subsidiaries to use the proceeds of any
Loan, directly or indirectly, in violation of Regulations G, T, U
and X of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
7.06 Compliance with ERISA. The Company shall not, and shall
---------------------
not suffer or permit any of its Subsidiaries to, (i) terminate any
Plan subject to Title IV of ERISA so as to result in any material
liability to the Company or any ERISA Affiliate, which would have a
Material Adverse Effect (ii) permit to exist any ERISA Event or any
other event or condition, which presents the risk of a material
liability to any member of the Controlled Group which would have a
Material Adverse Effect, (iii) make a complete or partial withdraw-
58
<PAGE>
al within the meaning of ERISA Section 4201) from any Multiemployer
Plan which is reasonably likely to result in any liability to the
Company or any ERISA Affiliate, which would have a Material Adverse
Effect, (iv) enter into any new Plan or modify any existing Plan so
as to increase its obligations thereunder in excess of 20% of
payroll except in the ordinary course of business, or (v) permit
the minimum funding requirements of ERISA to be violated with
respect to any Plan if the liability to the Company resulting
therefrom would have a Material Adverse Effect.
7.07 Consolidated Net Worth. The Company shall not permit its
----------------------
Consolidated Net Worth at any time to be less than $1,250,000,000
plus 50% of capital stock issued and 50% of consolidated net income
(excluding net losses) earned subsequent to December 31, 1993.
7.08 Consolidated Senior Debt to Capital. The Company shall
-----------------------------------
not permit the ratio of Consolidated Senior Debt to Capital to
exceed 0.50 to 1.
7.09 Total Debt to Capital. The Company shall not permit its
---------------------
ratio of Total Debt to Capital to exceed 0.60 to 1.
7.10 Net Cash Flow Ratio. The Company shall not permit its
-------------------
ratio at the end of any fiscal quarter for the previous four
quarters during the calendar years set forth below of (a) Net Cash
Flow to (b) purchases of property, plant and equipment and video
cassettes (other than acquisitions and new store development) plus
cash interest and cash dividends to be less than 1.25 to 1.00.
7.11 Fixed Charge Coverage Ratio. The Company shall not
---------------------------
permit its ratio of (i) consolidated earnings before interest,
taxes and Rents to (ii) Consolidated Interest Expense and Rents to
be less than 1.5 to 1 as of each quarter for the current fiscal
year to date period.
59
<PAGE>
ARTICLE VIII
EVENTS OF DEFAULT
-----------------
8.01 Event of Default. Any of the following shall constitute
----------------
an "Event of Default":
(a) Non-Payment. The Company fails to pay, (i) when and
-----------
as required to be paid herein, any amount of principal of any
Loan, or (ii) within three days after the same shall become
due, any other interest, or any fee or any other amount
payable hereunder or pursuant to any other Loan Document; or
(b) Representation or Warranty. Any representation or
--------------------------
warranty by the Company or any of its Subsidiaries made
herein, in any Loan Document, or which is contained in any
certificate, document or financial or other statement by the
Company, any of its Subsidiaries, or their respective Respon-
sible Officers, furnished at any time under this Agreement, or
in or under any Loan Document, shall prove to have been
incorrect in any material respect on or as of the date made
(except with respect to Section 6.02(b) as to which the extent
of the representations are limited as set forth therein); or
(c) Specific Defaults. The Company fails to perform or
-----------------
observe any term, covenant or agreement contained in Article
VII; or
(d) Other Defaults. The Company fails to perform or
--------------
observe any other term or covenant contained in this Agreement
or any Loan Document, and such default shall continue
unremedied for a period of 15 days after the initial occur-
rence thereof; or
(e) Cross-Default. The Company or any of its Subsidiar-
-------------
ies (i) fails to make any payment in respect of any other
Indebtedness or Guaranty Obligation or Rate Contracts having
an aggregate principal amount of more than $10,000,000 when
due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) and such failure continues
after the applicable grace or notice period, if any, specified
in the document relating thereto; or (ii) fails to perform or
observe any other condition or covenant, or any other event
shall occur or condition exist, under any agreement or
instrument relating to any such Indebtedness or Guaranty
Obligation or Rate Contract, and such failure continues after
the applicable grace or notice period, if any, specified in
the document relating thereto if the effect of such failure,
event or condition is to cause, or to permit the holder or
holders of such Indebtedness or beneficiary or beneficiaries
of such Indebtedness or Rate Contract (or a trustee or agent
on behalf of such holder or holders or beneficiary or benefi-
ciaries) to cause such Indebtedness to be declared to be due
60
<PAGE>
and payable prior to its stated maturity, or such Guaranty
Obligation to become payable or cash collateral in respect
thereof to be demanded; provided, however, that if the Company
-------- -------
is contesting the payment amount on any such other Indebted-
ness or Guaranty Obligation or the date such payment is due in
good faith and the Company establishes reserves on its books
if required by and in accordance with GAAP as consistently
applied, then such nonpayment, in and of itself, shall not,
absent an acceleration of such Indebtedness or Guaranty
Obligation or Rate Contract constitute an Event of Default; or
(f) Bankruptcy or Insolvency. The Company or any
------------------------
Guarantor (i) ceases or fails to be solvent, or generally
fails to pay, or admits in writing its inability to pay, its
debts as they become due, subject to applicable grace periods,
if any, whether at stated maturity or otherwise; (ii) volun-
tarily ceases to conduct its business in the ordinary course;
(iii) commences any Insolvency Proceeding with respect to
itself; or (iv) takes any action to effectuate or authorize
any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary
-----------------------
Insolvency Proceeding is commenced or filed against the
Company or any Guarantor, or any writ, judgment, warrant of
attachment, execution or similar process, is issued or levied
against a substantial part of the Company's or any Guarantor's
Properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or
fully bonded within 60 days after commencement, filing or
levy; (ii) the Company or any Guarantor admits the material
allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under
non-U.S. law) is ordered in any Insolvency Proceeding; or
(iii) the Company or any Guarantor acquiesces in the appoint-
ment of a receiver, trustee, custodian, conservator, liquida-
tor, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its
Property or business; or
(h) Monetary Judgments. One or more final (non-inter-
------------------
locutory) judgments, orders or decrees shall be entered
against the Company or any of its Subsidiaries involving in
the aggregate a liability (not fully covered by insurance) as
to any single or related series of transactions, incidents or
conditions, of $10,000,000 or more, and the same shall remain
unvacated and unstayed pending appeal for a period of 10 days
after the entry thereof; or
(i) Non-Monetary Judgments. Any non-monetary judgment,
----------------------
order or decree shall be rendered against the Company or any
of its Subsidiaries which does or would reasonably be expected
61
<PAGE>
to have a Material Adverse Effect, and there shall be any
period of 10 consecutive days during which a stay of enforce-
ment of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
(j) Change in Control. Any Change in Control; or
-----------------
(k) Guarantor/Pledgor Defaults. Any Guarantor or any
--------------------------
Pledgor shall fail in any material respect to perform or
observe any term, covenant or agreement in any guaranty or any
pledge agreement delivered hereunder; or the guaranty or any
pledge agreement delivered hereunder shall for any reason
other than as contemplated by Section 6.11 be partially
(including with respect to future advances) or wholly revoked
or invalidated, or otherwise cease to be in full force and
effect, or any Guarantor or any Pledgor or any other Person
shall contest in any manner the validity or enforceability
thereof or deny that it has any further liability or obliga-
tion thereunder; or any event described at paragraphs (f) or
(g) shall occur with respect to any Guarantor or any Pledgor.
8.02 Remedies. If any Event of Default occurs, the Agent
--------
shall, at the request of, or may, with the consent of, the Majority
Banks,
(a) declare the Commitment of each Bank to make Commit-
ted Loans to be terminated, whereupon such Commitments shall
forthwith be terminated;
(b) declare the unpaid principal amount of all outstand-
ing Loans, all interest accrued and unpaid thereon, and all
other amounts owing or payable hereunder or under any other
Loan Document to be immediately due and payable; without
presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Banks all
rights and remedies available to it and the Banks under the
Loan Documents or applicable law;
provided, however, that upon the occurrence of any event specified
- -------- -------
in paragraph (f) or (g) above (in the case of clause (i) of
paragraph (g) upon the expiration of the 60-day period mentioned
therein), the obligation of each Bank to make Loans shall automati-
cally terminate and the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the
Agent or any Bank.
8.03 Rights Not Exclusive. The rights provided for in this
--------------------
Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies
62
<PAGE>
provided by law or in equity, or under any other instrument,
document or agreement now existing or hereafter arising.
63
<PAGE>
ARTICLE IX
THE AGENT
---------
9.01 Appointment and Authorization. Each Bank hereby
-----------------------------
irrevocably appoints, designates and authorizes the Agent to take
such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms
of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or
in any other Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor
shall the Agent have or be deemed to have any fiduciary relation-
ship with any Bank, and no implied covenants, functions, responsi-
bilities, duties, obligations or liabilities shall be read into
this Agreement or any other Loan Document or otherwise exist
against the Agent.
9.02 Delegation of Duties. The Agent may execute any of its
--------------------
duties under this Agreement or any other Loan Document by or
through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to
such duties. The Agent shall not be responsible for the negligence
or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
9.03 Liability of Agent. None of the Agent, its Affiliates,
------------------
or any of their respective officers, directors, employees, agents,
or attorneys-in-fact (collectively, the "Agent-Related Persons")
shall (i) be liable for any action taken or omitted to be taken by
any of them under or in connection with this Agreement or any other
Loan Document (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of the
Banks for any recital, statement, representation or warranty made
by the Company or any Subsidiary or Affiliate of the Company, or
any officer thereof, contained in this Agreement or in any other
Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent
under or in connection with, this Agreement or any other Loan
Document, or the validity, effectiveness, genuineness, enforceabil-
ity or sufficiency of this Agreement or any other Loan Document, or
for any failure of the Company or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Bank to
ascertain or to inquire as to the observance or performance of any
of the agreements contained in, or conditions of, this Agreement or
any other Loan Document, or to inspect the Properties, books or
records of the Company or any of its Subsidiaries or Affiliates.
64
<PAGE>
9.04 Reliance by Agent.
-----------------
(a) The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other
document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal
counsel (including counsel to the Company), independent
accountants and other experts selected by the Agent. The Agent
shall be fully justified in failing or refusing to take any
discretionary action under this Agreement or any other Loan
Document unless it shall first receive such advice or concur-
rence of the Majority Banks as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction
by the Banks against any and all liability and expense which
may be incurred by it by reason of taking or continuing to
take any such action. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a
request or consent of the Majority Banks or the Banks, as the
case may be, and such request and any action taken or failure
to act pursuant thereto shall be binding upon all of the
Banks.
(b) For purposes of determining compliance with the
conditions specified in Sections 4.01 and 4.02, each Bank that
has executed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with each document
or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to the Bank, unless
an officer of the Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice
from the Bank prior to the initial Borrowing specifying its
objection thereto and either such objection shall not have
been withdrawn by notice to the Agent to that effect or the
Bank shall not have made available to the Agent the Bank's
ratable portion of such Committed Borrowing.
9.05 Notice of Default. The Agent shall not be deemed to have
-----------------
knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Agent for
the account of the Banks, unless the Agent shall have received
written notice from a Bank, the Company referring to this Agree-
ment, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall give prompt notice thereof
to the Banks. The Agent shall take such action with respect to
such Default or Event of Default as shall be requested by the
Majority Banks in accordance with Article VIII; provided, however,
-------- -------
65
<PAGE>
that unless and until the Agent shall have received any such
request, the Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the
best interest of the Banks.
9.06 Credit Decision. Each Bank expressly acknowledges that
---------------
none of the Agent-Related Persons has made any representation or
warranty to it and that no act by the Agent hereinafter taken,
including any review of the affairs of the Company and its
Subsidiaries shall be deemed to constitute any representation or
warranty by the Agent to any Bank. Each Bank represents to the
Agent and the Arranger that it has, independently and without
reliance upon the Agent or the Arranger and based on such documents
and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and
creditworthiness of the Company and its Subsidiaries, and all
applicable bank regulatory laws relating to the transactions
contemplated thereby, and made its own decision to enter into this
Agreement and extend credit to the Company hereunder. Each Bank
also represents that it will, independently and without reliance
upon the Agent and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other
condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly herein required to be
furnished to the Banks by the Agent, the Agent shall not have any
duty or responsibility to provide any Bank with any credit or other
information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of the
Company which may come into the possession of any of the
Agent-Related Persons.
9.07 Indemnification. The Banks shall indemnify upon demand
---------------
the Agent-Related Persons (to the extent not reimbursed by or on
behalf of the Company and without limiting the obligation of the
Company to do so), ratably from and against any and all liabili-
ties, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements of any kind whatsoever
which may at any time (including at any time following the
repayment of the Loans) be imposed on, incurred by or asserted
against any such Person any way relating to or arising out of this
Agreement or any document contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any
action taken or omitted by any such Person under or in connection
with any of the foregoing; provided, however, that no Bank shall be
-------- -------
liable for the payment to the Agent-Related Persons of any portion
of such liabilities, obligations, losses, damages, penalties,
66
<PAGE>
actions, judgments, suits, costs, expenses or disbursements
resulting solely from such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank shall
reimburse the Agent upon demand for its ratable share of any costs
or out-of-pocket expenses (including Attorney Costs) incurred by
the Agent in connection with the administration, modification,
amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights
or responsibilities under, this Agreement, any other Loan Document,
or any document contemplated by or referred to herein to the extent
that the Agent is not reimbursed for such expenses by or on behalf
of the Company. The obligation of the Banks in this Section shall
survive the payment of all Obligations hereunder.
9.08 Agent in Individual Capacity. BofA and its Affiliates
----------------------------
may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory or other
business with the Company and its Subsidiaries and Affiliates as
though BofA were not the Agent hereunder and without notice to the
Banks. With respect to its Loans, BofA shall have the same rights
and powers under this Agreement as any other Bank and may exercise
the same as though it were not the Agent, and the terms "Bank" and
"Banks" shall include BofA in its individual capacity. BofA acts
in the capacity of Agent under the Existing Credit Agreement.
9.09 Successor Agent. The Agent may resign as Agent upon 30
---------------
days' notice to the Banks or the Agent, respectively. If the Agent
shall resign as Agent under this Agreement, the Majority Banks,
after consultation with the Company, shall appoint from among the
Banks a successor agent for the Banks. If no successor Agent is
appointed prior to the effective date of the resignation of the
Agent, the Agent shall appoint, after consulting with the Banks and
the Company, a successor agent from among the Banks. Upon the
acceptance of its appointment as successor agent hereunder, such
successor agent shall succeed to all the rights, powers and duties
of the retiring Agent and the term "Agent" shall mean such
successor agent and the retiring Agent's rights, powers and duties
as Agent shall be terminated. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article IX
and Sections 10.04 and 10.05 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under
this Agreement.
9.10 The Arranger. The Arranger shall have no right, power,
------------
obligation, liability, responsibility or duty under this Agreement
other than the right to receive the fees referred to in Section
-------
2.09(b) and the right to indemnity under Section 10.05.
- ------- -------------
67
<PAGE>
ARTICLE X
MISCELLANEOUS
-------------
10.01 Amendments and Waivers. No amendment or waiver of any
----------------------
provision of this Agreement or any other Loan Document, and no
consent with respect to any departure by the Company therefrom,
shall be effective unless the same shall be in writing and signed
by the Company, Majority Banks, and acknowledged in writing by the
Agent, and then such waiver shall be effective only in the specific
instance and for the specific purpose for which given; provided,
--------
however, that no such waiver, amendment, or consent shall, unless
- -------
in writing and signed by all the Banks, acknowledged in writing by
the Agent, do any of the following:
(a) increase the Commitment of any Bank or subject any
Bank to any additional obligations (except pursuant to Section
10.08);
(b) postpone or delay any date fixed for any payment of
principal, interest, fees or other amounts due hereunder or
under any Loan Document or extend the Termination Date;
(c) reduce the principal of, or the rate of interest
specified herein on any Loan, or of any fees or other amounts
payable hereunder or under any Loan Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which shall be
required for the Banks or any of them to take any action
hereunder;
(e) amend this Section 10.01 or Section 2.13; or
(f) release any guaranty or pledge agreement delivered
pursuant to Section 6.11 except as otherwise contemplated by
Section 6.11 or change the criteria for delivering any guaranty
or pledge agreement set forth in Section 6.11;
and, provided further, that no amendment, waiver or consent shall,
-------- -------
unless in writing and consented to and signed by the Agent in
addition to the Majority Banks or all the Banks, as the case may
be, affect the rights or duties of the Agent under this Agreement
or any other Loan Document.
10.02 Notices.
-------
(a) All notices, requests and other communications
provided for hereunder except as specifically provided other-
wise herein, shall be in writing (including, unless the context
expressly otherwise provides, telegraphic, telex, facsimile
transmission or cable communication) and telegraphed, telexed
or delivered, (i) if to the Company, to its address specified
68
<PAGE>
on the signature pages hereof, (ii) if to any Bank, to its
Domestic Lending Office, and (iii) if to the Agent, to its
address specified on the signature pages hereof; or, as to the
Company or the Agent, to such other address as shall be
designated by such party in a written notice to the other
parties, and as to each other party, at such other address as
shall be designated by such party in a written notice to the
Company and the Agent.
(b) All such notices and communications shall, when
transmitted by overnight delivery, telegraphed, by facsimile,
telexed or cabled, be effective when delivered for overnight
delivery or to the telegraph company, transmitted by facsimile,
confirmed by telex answerback or delivered to the cable
company, respectively, or if delivered, upon delivery, except
that notices pursuant to Article II or VIII shall not be
effective until actually received by the Agent or the Banks as
specified herein.
(c) The Company acknowledges and agrees that any
agreement of the Agent and the Banks at Article II herein to
receive certain notices by telephone and facsimile is solely
for the convenience and at the request of the Company. The
Agent and the Banks shall be entitled to rely on the authority
of any Person purporting to be a Person authorized by the
Company to give such notice and the Agent and the Banks shall
not have any liability to the Company or other Person on
account of any action taken or not taken by the Agent and the
Banks in reliance upon such telephonic or facsimile notice.
The obligation of the Company to repay the Loans shall not be
affected in any way or to any extent by any failure by the
Agent and the Banks to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Agent and
the Banks of a confirmation which is at variance with the terms
understood by the Agent and the Banks to be contained in the
telephonic or facsimile notice.
10.03 No Waiver; Cumulative Remedies. No failure to exercise
------------------------------
and no delay in exercising, on the part of the Agent or any Bank,
any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right,
remedy, power or privilege.
10.04 Costs and Expenses. The Company shall, whether or not
------------------
the transactions contemplated hereby shall be consummated:
(a) pay or reimburse the Agent and the Arranger on
demand for all costs and expenses incurred by the Agent in
connection with the development, preparation, delivery, and
execution of and any amendment, supplement, waiver or modifica-
69
<PAGE>
tion to, this Agreement, any Loan Document and any other
documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and
thereby, including the Attorney Costs incurred by the Agent and
the Arranger with respect thereto;
(b) pay or reimburse each Bank and the Agent on demand
for all costs and expenses incurred by them in connection with
the enforcement, attempted enforcement, or preservation of any
rights or remedies (including in connection with any "workout"
or restructuring regarding the Loans) under this Agreement, any
other Loan Document, and any such other documents, including
Attorney Costs incurred by the Agent and any Bank; and
(c) pay or reimburse the Agent on demand for all
appraisal (including the allocated cost of internal appraisal
services), audit, environmental inspection and review (includ-
ing the allocated cost of such internal services), search and
filing costs, fees and expenses, incurred or sustained by the
Agent in connection with the matters referred to under para-
graphs (a) and (b) of this Section.
10.05 Indemnity. The Company shall pay, indemnify, and hold
---------
each Bank, the Agent, the Arranger and each of their respective
officers, directors, employees, counsel, agents and
attorneys-in-fact (each, an "Indemnified Person") harmless from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses or
disbursements (including Attorney Costs) of any kind or nature
whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement and any other Loan
Documents, or the transactions contemplated hereby and thereby, and
with respect to any investigation, litigation or proceeding related
to this Agreement or the Loans or the use of the proceeds thereof,
whether or not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided,
--------
that the Company shall have no obligation hereunder to any
Indemnified Person with respect to Indemnified Liabilities arising
from the gross negligence or willful misconduct of such Indemnified
Person. The agreements in this Section shall survive payment of all
other Obligations.
10.06 Marshalling; Payments Set Aside. Neither the Agent nor
-------------------------------
the Banks shall be under any obligation to marshall any assets in
favor of the Company or any other Person or against or in payment
of any or all of the Obligations. To the extent that the Company
makes a payment or payments to the Agent or the Banks, or the Agent
or the Banks exercise their rights of set-off, and such payment or
payments or the proceeds of such enforcement or set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee,
receiver or any other party in connection with any Insolvency
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Proceeding, or otherwise, then to the extent of such recovery the
obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or set-off had not
occurred.
10.07 Successors and Assigns. The provisions of this
----------------------
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except
that the Company may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent
of the Agent and each Bank.
10.08 Assignments, Participations, Confidentiality, etc.
--------------------------------------------------
(a) Any Bank may, with the written consent of the
Company (which will not be unreasonably withheld) and the Agent
(which will not be unreasonably withheld), at any time assign
and delegate to one or more Eligible Assignees (provided that
no written consent of the Company or the Agent shall be
required in connection with any assignment and delegation by a
Bank to a Bank Affiliate of such Bank) (each an "Assignee")
--------
all, or any ratable part of all, of the Loans, the Commitments
and the other rights and obligations of such Bank hereunder, in
a minimum amount of $10,000,000; provided, however, that (i)
-------- -------
the Company and the Agent may continue to deal solely and
directly with such Bank in connection with the interest so
assigned to an Assignee until (A) written notice of such
assignment, together with payment instructions, addresses and
related information with respect to the Assignee, shall have
been given to the Company and the Agent by such Bank and the
Assignee; and (B) such Bank and its Assignee shall have
delivered to the Company and the Agent an Assignment and
Acceptance in the form of Exhibit N ("Assignment and Accep-
---------
tance").
(b) From and after the date that the Agent notifies the
assignor Bank that it has received an executed Assignment and
Acceptance and payment of a recordation fee of $2,500, (i) the
Assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, shall have the
rights and obligations of a Bank under the Loan Documents, and
(ii) the assignor Bank shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Loan Documents.
(c) Immediately upon each Assignee's making its payment
under the Assignment and Acceptance, this Agreement, shall be
deemed to be amended to the extent, but only to the extent,
necessary to reflect the addition of the Assignee and the
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resulting adjustment of the Commitments arising therefrom. The
Commitment allocated to each Assignee shall reduce such
Commitments of the assigning Bank pro tanto.
--- -----
(d) Any Bank may at any time sell to one or more
commercial banks (a "Participant") participating interests in
-----------
any Loans, the Commitment of that Bank and the other interests
of that Bank (the "originating Bank") hereunder and under the
other Loan Documents; provided, however, that (i) the originat-
-------- -------
ing Bank's obligations under this Agreement shall remain
unchanged, (ii) the originating Bank shall remain solely
responsible for the performance of such obligations, (iii) the
Company, and the Agent shall continue to deal solely and
directly with the originating Bank in connection with the
originating Bank's rights and obligations under this Agreement
and the other Loan Documents, and (iv) no Bank shall transfer
or grant any participating interest under which the Participant
shall have rights to approve any amendment to, or any consent
or waiver with respect to, this Agreement or any other Loan
Document, except to the extent such amendment, consent or
waiver would require unanimous consent as described in the
first proviso to Section 10.01. In the case of any such
----- -------
participation, the Participant shall not have any rights under
this Agreement, or any of the other Loan Documents, and all
amounts payable by the Company hereunder shall be determined as
if such Bank had not sold such participation; except that, if
amounts outstanding under this Agreement are due and unpaid, or
shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant
shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest
were owing directly to it as a Bank under this Agreement.
(e) Each Bank agrees to take normal and reasonable
precautions and exercise due care to maintain the confidential-
ity of all non-public information provided to it by the Company
or any Subsidiary of the Company, or by the Agent on such
Company's or Subsidiary's behalf, in connection with this
Agreement or any other Loan Document, and neither it nor any of
its Affiliates shall use any such information for any purpose
or in any manner other than pursuant to the terms contemplated
by this Agreement; except to the extent such information (i)
was or becomes generally available to the public other than as
a result of a disclosure by the Bank, or (ii) was or becomes
available on a non-confidential basis from a source other than
the Company, provided that such source is not bound by a
confidentiality agreement with the Company or subject to a
fiduciary duty to the Company or its stockholders; provided
--------
further, however, that any Bank may disclose such information
------- -------
(A) at the request or pursuant to any requirement of any
Governmental Authority to which the Bank is subject or in
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connection with an examination of such Bank by any such
authority; (B) pursuant to subpoena or other court process,
provided that the Bank will promptly notify the Company of any
--------
such process and shall make only such disclosures as such
Bank's legal counsel advises are required; (C) when required to
do so in accordance with the provisions of any applicable
Requirement of Law; and (D) to such Bank's independent auditors
and other professional advisors. Notwithstanding the forego-
ing, the Company authorizes each Bank to disclose to any
Participant or Assignee (each, a "Transferee") and to any
prospective Transferee, such financial and other information in
such Bank's possession concerning the Company or its Subsidiar-
ies which has been delivered to Agent or the Banks pursuant to
this Agreement or which has been delivered to the Agent or the
Banks by the Company in connection with the Banks' credit
evaluation of the Company prior to entering into this Agree-
ment; provided that, unless otherwise agreed by the Company,
--------
such Transferee agrees in writing to such Bank to keep such
information confidential to the same extent required of the
Banks hereunder and such Bank agrees to provide the Company
with a copy of the confidentiality agreement executed in
connection therewith.
(f) Notwithstanding any other provision contained in
this Agreement or any other Loan Document to the contrary, any
Bank may assign all or any portion of the Loans or Notes held
by it to any Federal Reserve Bank or the United States Treasury
as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating
Circular issued by such Federal Reserve Bank, provided that any
payment in respect of such assigned Loans or Notes made by the
Company to or for the account of the assigning and/or pledging
Bank in accordance with the terms of this Agreement shall
satisfy the Company's obligations hereunder in respect to such
assigned Loans or Notes to the extent of such payment. No such
assignment shall release the assigning Bank from its obliga-
tions hereunder.
(g) Any Bank may request the Agent to obtain from the
Company a promissory note evidencing the Company's Indebtedness
to it hereunder for the purpose of pledging such note to a
Federal Reserve Bank located outside the State of Florida.
10.09 Set-off. In addition to any rights and remedies of the
-------
Banks provided by law, if an Event of Default exists, each Bank is
authorized at any time and from time to time, without prior notice
to the Company, any such notice being waived by the Company to the
fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final)
at any time held by, and other indebtedness at any time owing to,
such Bank to or for the credit or the account of the Company
against any and all Obligations owing to such Bank, now or
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hereafter existing, irrespective of whether or not the Agent or
such Bank shall have made demand under this Agreement or any Loan
Document and although such Obligations may be contingent or
unmatured. Each Bank agrees promptly to notify the Company and the
Agent after any such set-off and application made by such Bank;
provided, however, that the failure to give such notice shall not
- -------- -------
affect the validity of such set-off and application. The rights of
each Bank under this Section 10.09 are in addition to the other
rights and remedies (including other rights of set-off) which the
Bank may have.
10.10 Notification of Addresses, Lending Offices, Etc. Each
------------------------------------------------
Bank shall notify the Agent in writing of any changes in the
address to which notices to the Bank should be directed, of
addresses of its Offshore Lending Office, of payment instructions
in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably
request.
10.11 Counterparts. This Agreement may be executed by one or
------------
more of the parties to this Agreement in any number of separate
counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be
deemed to constitute but one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged
with the Company and the Agent.
10.12 Severability. The illegality or unenforceability of any
------------
provision of this Agreement or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this Agreement or any
instrument or agreement required hereunder.
10.13 No Third Parties Benefited. This Agreement is made and
--------------------------
entered into for the sole protection and legal benefit of the
Company, the Banks and the Agent, and their permitted successors
and assigns, and no other Person shall be a direct or indirect
legal beneficiary of, or have any direct or indirect cause of
action or claim in connection with, this Agreement or any of the
other Loan Documents. Neither the Agent nor any Bank shall have
any obligation to any Person not a party to this Agreement or other
Loan Documents.
10.14 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK;
PROVIDED THAT THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
10.15 Waiver of Jury Trial. THE COMPANY, THE GUARANTORS, THE
--------------------
BANKS AND THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL
BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE
74
<PAGE>
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE
GUARANTORS, THE BANKS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM
OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT
THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY
PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.16 Entire Agreement. This Agreement, together with the
----------------
other Loan Documents, embodies the entire Agreement and understand-
ing among the Company, the Banks and the Agent, and supersedes all
prior or contemporaneous Agreements and understandings of such
Persons, verbal or written, relating to the subject matter hereof
and thereof, except for the fee letters referenced in subsection
2.09(b), and any prior arrangements made with respect to the
payment by the Company of (or any indemnification for) any fees,
costs or expenses payable to or incurred (or to be incurred) by or
on behalf of the Agent or the Banks.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in New York City by
their proper and duly authorized officers as of the day and year
first above written.
BLOCKBUSTER ENTERTAINMENT CORPORATION
/s/ Gregory Fairbanks
_____________________________________
By: Gregory Fairbanks
Title: Senior Vice President,
Chief Financial Officer and
Treasurer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
/s/ Dietmar Schiel
_____________________________________
By: Dietmar Schiel
Title: Vice President
Address for notices:
Bank of America National Trust
and Savings Association
1455 Market Street 12th Floor
San Francisco, CA 94103
Attn: Global Agency #5596
Facsimile: (415) 622-4894
Telex: 3726050BA GA SFO
Address for payments:
Bank of America National Trust
and Savings Association
ABA #:121-000-358-SF
For Credit to:
Bank Control Account #12339-14237
Attn: Global Agency, Unit 5596
Ref: Blockbuster/NYC 054
BA SECURITIES, INC., as Arranger
/s/ Keith C. Barnish
_____________________________________
By: Keith C. Barnish
Title: Managing Director
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
/s/ Charles S. Francavilla
_____________________________________
By: Charles S. Francavilla
Title: Senior Vice President
Domestic and Offshore Lending Office
1850 Gateway Boulevard
Concord, CA 94520
77