MASTER AGREEMENT
This Amended and Restated Master Agreement, dated as of
November 19, 1997 (this "Agreement"), amends and restates the Master Agreement
dated as of October 7, 1997 (the "Original Agreement"), by and among (i) Toy
Biz, Inc., a Delaware corporation ("Toy Biz"), (ii) the secured creditors of
Marvel Entertainment Group, Inc., a Delaware corporation ("Entertainment"), and
certain of its direct and indirect subsidiaries who become parties to this
Agreement by executing and delivering a separate Consenting Lender Execution
Page in the form attached as Exhibit 1 to this Agreement (the "Consenting
Lenders") and (iii) the Panini Lenders (as defined in the Plan of
Reorganization) who become parties to this Agreement by executing and delivering
a separate Consenting Panini Lender Execution Page in the form attached as
Exhibit 2 to this Agreement (the "Consenting Panini Lenders").
PRELIMINARY STATEMENT
A. Entertainment, together with eight of its wholly owned
subsidiaries (collectively with Entertainment, the "Debtors"), are chapter 11
debtors and debtors in possession in cases pending under chapter 11 of title 11
of the United States Code (11 U.S.C. xx.xx. 101 et seq.) (the "Bankruptcy
Code"), having commenced voluntary cases (Nos. 96-2066 through 96-2077 (HSB))
(the "Reorganization Cases") in the United States Bankruptcy Court for the
District of Delaware (the "Bankruptcy Court").
B. Entertainment, certain affiliates of Entertainment, and The
Chase Manhattan Bank ("Chase") as administrative agent for the holders of Senior
Secured Claims (as defined in the Plan of Reorganization referred to below) are
parties to the Existing Credit Agreements (as such term is defined in the Plan
of Reorganization) pursuant to which the Debtors are indebted to the holders of
Senior Secured Claims.
C. Entertainment (i) owns approximately 26.7% of the Class A
Common Stock of Toy Biz, (ii) licenses certain intellectual property to Toy Biz,
and (iii) has entered into certain agreements with Toy Biz.
D. The Consenting Lenders and Toy Biz intend to jointly
propose a chapter 11 plan of reorganization (substantially in the form attached
hereto as Exhibit 3 (the "Plan of Reorganization"), as creditors and parties in
interest in the Reorganization Cases pending in the Bankruptcy Court. The
639892.14
Plan of Reorganization will provide, among other things, that pursuant to an
Agreement and Plan of Merger (the "Merger Agreement"), Toy Biz and Entertainment
will combine (the "Merger") to form Newco ("Newco"), and each holder of Class A
Shares (as hereinafter defined) will receive a certain amount of shares of Newco
Common Stock (as hereinafter defined), other than Marvel, and (ii) Newco's
certificate of incorporation and by-laws will be amended and restated as
provided in the Plan of Reorganization.
E. At the same time as the execution and delivery of the
Original Agreement by Toy Biz, Xxxxx Xxxxxxxxxx, Xxxxx Xxxxxxxxxx T.A., and Zib
Inc. (the "Xxxxxxxxxx Stockholders") and Xxx Xxxx executed and delivered into
escrow a stockholders agreement (the "New Stockholders Agreement") having
substantially the same terms as the Stockholders' Agreement, dated as of March
2, 1995, by and among Toy Biz, the Xxxxxxxxxx Stockholders, Xxx Xxxx and
Entertainment, and each of Xxxxx Xxxxxxxxxx and Xxx Xxxx executed and delivered
into escrow voting trust agreements having substantially the same terms as the
Voting Trust Agreements, dated as of March 2, 1995, by and among Entertainment
and each of Xxxxx Xxxxxxxxxx and Xxx Xxxx (the "New Voting Trust Agreements").
F. At the same time as the execution and delivery of this
Agreement by Toy Biz, the Xxxxxxxxxx Stockholders and Xxx Xxxx have executed and
delivered Amended and Restated Proxy and Stock Option Agreements (the "Proxy and
Stock Option Agreements") which amend and restate the Proxy and Stock Option
Agreements dated as of October 7, 1997, by and between the Xxxxxxxxxx
Stockholders and Xxx Xxxx, respectively, and the Consenting Lenders (as defined
in the Proxy and Stock Option Agreements), pursuant to which the Xxxxxxxxxx
Stockholders and Xxx Xxxx have, among other things, granted to the Designated
Consenting Lender a proxy to vote their Class A Shares in favor of the
transactions contemplated by this Agreement.
G. The parties hereto desire that the parties take the actions
set forth in this Agreement, subject to the terms and conditions contained
herein, so that (i) the Plan of Reorganization is confirmed by the Bankruptcy
Court (or such other court as may from time to time exercise jurisdiction over
the Debtors' Bankruptcy cases) in accordance with the Bankruptcy Code, (ii) the
Merger is consummated as provided in the Plan of Reorganization and the Merger
Agreement, and (iii) certain other related transactions are consummated as set
forth herein.
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises and covenants set forth herein, and on the terms and subject to
the conditions set forth herein, the parties hereto agree as follows:
639892.14
2
ARTICLE 1
DEFINITIONS
For the purpose of this Agreement, capitalized terms which are
used herein and not otherwise defined shall have the meanings given such terms
in the Plan of Reorganization and the following terms shall have the meanings
specified in this Article 1.
"Adverse Order" shall mean an order of any court preventing
Toy Biz from complying with this Agreement or consummating the Plan of
Reorganization based wholly or in part on any contention that the board of
directors of Toy Biz which approved this Agreement was not the duly authorized
board of directors of Toy Biz at such time.
"Agreement" shall have the meaning set forth in the
preamble.
"Antitrust Division" shall have the meaning set forth
in Section 2.7.
"Bankruptcy Code" shall have the meaning set forth in
the Preliminary Statement.
"Bankruptcy Court" shall have the meaning set forth in
the Preliminary Statement.
"Change in Control" shall mean a determination of any court
that the board of directors of Toy Biz which approved the Master Agreement was
not at such time the duly authorized board of directors of Toy Biz.
"Chase" shall have the meaning set forth in the
Preliminary Statement.
"Class A Shares" means shares of Class A common stock, par
value $.01 per share, of Toy Biz.
"Class B Shares" means shares of Class B common stock, par
value $.01 per share, of Toy Biz.
"Consenting Lenders" shall have the meaning set forth
in the preamble.
"Consenting Lenders Threshold" means holders of Senior Secured
Claims holding at least two-thirds in principal amount and a majority in number
of the Senior Secured Claims, excluding Excluded Claims. For purposes hereof, if
a secured creditor is a Consenting Lender, all of the Senior Secured Claims in
which it has a beneficial interest, to the extent of its beneficial
639892.14
3
interest therein, shall be included for purposes of the computations in this
definition.
"Consenting Lenders Threshold Date" means the date this
Agreement has been executed and delivered by holders of Senior Secured Claims
who constitute the Consenting Lenders Threshold.
"Consenting Panini Lenders" shall have the meaning set
forth in the preamble.
"Contingent Senior Secured Claims" shall have the meaning set
forth in the Plan of Reorganization.
"Converted Class B Shares" means the Class A Shares issued
upon conversion of the Class B Shares as a result of a change in control of
Entertainment pursuant to the Toy Biz Stockholders Agreement, dated as of March
2, 1995.
"Debtors" shall have the meaning set forth in the
Preliminary Statement.
"Designated Consenting Lender" shall have the meaning set
forth in the Proxy and Stock Option Agreements.
"DIP Claim" shall have the meaning set forth in the
Plan of Reorganization.
"DIP Credit Agreement" shall have the meaning set forth
in the Plan of Reorganization.
"Disclosure Schedule" means the disclosure schedule separately
delivered by Toy Biz to the Consenting Lenders with the Original Agreement.
"Disclosure Statement" shall have the meaning set forth
in Section 2.2.
"DGCL" means the General Corporation Law of the State
of Delaware.
"Effective Time" shall have the meaning set forth in
the Merger Agreement.
"Employee Option" have the meaning set forth in Section
2.12.
"Entertainment" shall have the meaning set forth in the
preamble.
"Excluded Claims" means Senior Secured Claims which are
held or controlled, directly or indirectly, by Xxxx Xxxxx, High
River Limited Partnership, Xxxxxxx Associates, L.P., Westgate
639892.14
4
International, L.P. or any affiliates of any of the foregoing or in which any of
the foregoing have any interest, including any participation interest, solely to
the extent of such interest.
"Form S-4" shall have the meaning set forth in Section
2.3.
"FTC" shall have the meaning set forth in Section 2.7.
"Governmental Entity" means any court, arbitral tribunal,
administrative agency or commission, or other governmental or regulatory
authority or agency.
"HSR Act" shall have the meaning set forth in Section
2.7.
"Information Statement/Prospectus" shall have the
meaning set forth in Section 2.3.
"Merger" shall have the meaning set forth in the
Preliminary Statement.
"Merger Agreement" shall have the meaning set forth in
the Preliminary Statement.
"Newco" shall have the meaning set forth in the
Preliminary Statement.
"Newco Common Stock" shall mean Common Stock as defined in the
Plan of Reorganization.
"New Investment" shall mean the $90 million investment in
Newco to be made in exchange for the issuance by Newco of Convertible Preferred
Stock or New Convertible Notes (as defined in the Plan of Reorganization).
"New Stockholders Agreements" shall have the meaning
set forth in the Preliminary Statement.
"New Voting Trust Agreements" shall have the meaning set forth
in the Preliminary Statement.
"Xxxxxxxxxx Stockholders" shall have the meaning set
forth in the Preliminary Statement.
"Plan of Reorganization" shall have the meaning set
forth in the Preliminary Statement.
"Preferred Shares" means Preferred Stock, par value $.01 per
share of Toy Biz.
639892.14
5
"Proxy and Stock Option Agreements" shall have the meaning set
forth in the Preliminary Statement.
"Qualifying Transaction" shall have the meaning set
forth in the Plan of Reorganization.
"Reorganization Cases" shall have the meaning set forth
in the Preliminary Statement.
"Requisite Amount of the Consenting Lenders" means Consenting
Lenders holding at least two-thirds in principal amount of the Fixed Senior
Secured Claims held by all of the Consenting Lenders, as shown on the Consenting
Lender Execution Pages signed by the Consenting Lenders.
"Requisite Amount of the Consenting Panini Lenders" means
Panini Lenders holding at least two-thirds in principal amount of the Contingent
Senior Secured Claims held by all of the Panini Lenders, as shown on the Panini
Lenders Execution Pages signed by the Consenting Panini Lenders.
"SEC" means the Securities and Exchange Commission.
"Senior Secured Claims" shall have the meaning set
forth in the Plan of Reorganization.
"Stock Option Plan" shall have the meaning set forth in
Section 2.12.
"Subsidiary" means all of the corporations or other entities
of which Toy Biz owns a majority of the issued and outstanding capital stock or
similar interests.
"Toy Biz" shall have the meaning set forth in the
preamble.
"Toy Biz Shares" shall mean the Class A Shares and
Preferred Shares.
"Voting Debt" shall have the meaning set forth in
Section 3.2.
ARTICLE 2
COVENANTS
2.1 Interim Operations of Toy Biz. Toy Biz covenants and
agrees that, except (x) as expressly contemplated by this Agreement, the Plan of
Reorganization or the Merger Agreement or as disclosed on Schedule 2.1 in the
Disclosure Schedule or (y) as agreed in writing by a Requisite Amount of the
639892.14
6
Consenting Lenders after the date hereof and prior to the Effective Time, the
business of Toy Biz and its Subsidiary shall be conducted only in the ordinary
and usual course, in substantially the same manner as heretofore conducted, and,
in particular, Toy Biz will not, directly or indirectly, (i) issue, sell,
transfer, pledge or otherwise encumber, or agree (including pursuant to options
or warrants) to issue, sell, transfer, pledge or otherwise encumber, any of the
Toy Biz Shares (other than Class A Shares reserved for issuance on the date
hereof pursuant to the exercise of Employee Options outstanding on the date
hereof and upon the conversion of shares of Toy Biz' outstanding Series A
Preferred Stock) or capital stock of its Subsidiary beneficially owned by it;
(ii) amend its certificate of incorporation, by-laws or other comparable
organizational documents; (iii) split, combine or reclassify the outstanding Toy
Biz Shares; (iv) declare, set aside or pay any dividend or other distribution
payable in cash, stock or property with respect to its capital stock; (v)
redeem, purchase or otherwise acquire directly or indirectly any shares of
capital stock of Toy Biz or its Subsidiary; (vi) acquire or agree to acquire by
merging or consolidating with, or by purchasing a substantial portion of the
assets of, any business or any corporation, partnership, joint venture or other
business organization; (vii) subject to any lien, mortgage, security interest,
pledge or other encumbrance or sell, lease or otherwise dispose of a material
portion of its assets other than in the ordinary course of business and any such
actions in connection with the refinancing of Toy Biz's current revolving credit
agreement; (viii) incur any indebtedness for borrowed money or guarantee any
such indebtedness, other than borrowings and guarantees incurred in the ordinary
course of business and except for refinancings of Toy Biz's current revolving
credit agreement; or (ix) enter into any transactions or agreements with any
directors or officers of Toy Biz or Xxxxx Xxxxxxxxxx or Xxx Xxxx or any
affiliates of any of the foregoing, other than consistent with past practice.
2.2 Consents and Approvals. Upon the terms and subject to the
conditions of this Agreement, Toy Biz and the Consenting Lenders, acting
collectively, agree to use their reasonable best efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement and the Plan of
Reorganization as promptly as practicable including, but not limited to: (i) the
preparation and filing of all forms, registrations, notices and pleadings
required to be filed to consummate the transactions contemplated by this
Agreement and the taking of such actions as are necessary to obtain any
requisite approvals, consents, order, exemptions or waivers by any third party
or Governmental Entity, including, but not limited to the Bankruptcy Court; (ii)
the defending of any lawsuits or other legal proceedings, whether judicial or
639892.14
7
administrative, challenging this Agreement or the consummation of the
transactions contemplated by this Agreement including seeking to have any stay
or temporary restraining order entered by any court or other Governmental Entity
vacated or reversed; (iii) the filing of the Plan of Reorganization, together
with a disclosure statement (the "Disclosure Statement") with respect thereto,
as required by section 1125 of the Bankruptcy Code, no later than ten business
days after the Consenting Lender Threshold Date; and (iv) causing the
satisfaction of all conditions to the Merger as provided in the Merger
Agreement. In connection with and without limiting the foregoing, Toy Biz and
its board of directors shall (i) take all action it has the power to take
necessary so that no state takeover statute or similar statute or regulation is
or becomes applicable to the Merger, the Merger Agreement, this Agreement or any
other transaction contemplated by this Agreement and (ii) if any state takeover
statute or similar statute or regulation becomes applicable to the Merger, the
Merger Agreement, this Agreement or any other transaction contemplated by this
Agreement, take all action it has the power to take necessary so that the Merger
and the other transactions contemplated by this Agreement may be consummated as
promptly as practicable on the terms contemplated by this Agreement and
otherwise to minimize the effect of such statute or regulation on the Merger and
the other transactions contemplated by this Agreement.
2.3 Information Statement/Prospectus, Form S-4, etc.
(a) To the extent required by applicable law,
Toy Biz shall use its best efforts to prepare and file with the SEC no later
than thirty (30) days after the Consenting Lender Threshold Date, a combined
information statement and prospectus on Form S-4 (the "Form S-4") with respect
to the Toy Biz stockholder action to approve the Merger and the registration of
the shares of Newco Common Stock to be issued in the Merger and shall use its
best efforts to have the Form S-4 declared effective by the SEC as promptly as
practicable. Toy Biz shall also take any action reasonably required to be taken
under state blue sky or other securities laws in connection with the issuance of
shares of Newco Common Stock in the Merger.
(b) Toy Biz shall promptly prepare and
thereafter promptly distribute to its stockholders, the combined information
statement and prospectus which is included in the Form S-4 to be filed pursuant
to Section 2.3(a) hereof (the "Information Statement/Prospectus"), which
Information Statement/Prospectus shall comply in all material respects with the
rules and regulations of the SEC. The Information Statement/Prospectus shall be
mailed to stockholders of Toy Biz in accordance with Rule 14c-2 under the
Securities Exchange Act of 1934, as amended, at least 20 calendar days in
advance of the Effective Time.
639892.14
8
(c) Toy Biz shall notify the Consenting Lenders
and the Consenting Panini Lenders of the receipt of any comments from the SEC
and of any requests by the SEC for amendments or supplements to the Form S-4 or
the Information Statement/Prospectus or for additional information, and shall
promptly supply Chase with copies of all correspondence between Toy Biz (or
their representatives) and the SEC (or its staff) with respect thereto.
2.4 Stock Exchange Listing. Toy Biz shall use its best efforts
to cause the shares of Newco Common Stock to be issued in the Merger and the
Plan of Reorganization and the Convertible Preferred Stock to be issued pursuant
to the Plan of Reorganization to be approved for listing on the New York Stock
Exchange, subject to official notice of issuance, prior to the Effective Time.
2.5 Publicity. After the initial press release with respect to
the execution of this Agreement, so long as this Agreement is in effect, neither
Toy Biz, the Consenting Lenders, the Consenting Panini Lenders, nor any of their
respective affiliates shall issue or cause the publication of any press release
or other announcement with respect to the Merger, this Agreement, the Plan of
Reorganization or the other transactions contemplated hereby without the
exercise of reasonable efforts to consult with the Consenting Lenders, the
Consenting Panini Lenders and Toy Biz, except as may be required by law or by
any listing agreement with a national securities exchange or trading market.
2.6 Notification of Certain Matters.
(a) Toy Biz shall give prompt notice to the
Consenting Lenders and the Consenting Panini Lenders of (i) the occurrence or
non-occurrence of any event the occurrence or non-occurrence of which would
cause any representation or warranty of Toy Biz contained in this Agreement to
be untrue or inaccurate in any material respect at or prior to the Effective
Time and (ii) any material failure of Toy Biz to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by such party
hereunder; provided, however, that the failure to deliver any notice pursuant to
this Section 2.6 shall not limit or otherwise affect the remedies available
hereunder to the non-defaulting or non-breaching party.
(b) Each of the Consenting Lenders and each of
the Consenting Panini Lenders shall give prompt notice to Toy Biz of (i) the
occurrence or non-occurrence of any event the occurrence or non-occurrence of
which would cause any representation or warranty of such Consenting Lender or
such Consenting Panini Lender contained in this Agreement to be untrue or
inaccurate in any material respect at or prior to the
639892.14
9
Effective Time and (ii) any material failure of such Consenting Lender or such
Consenting Panini Lender, to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by such party hereunder; provided
however, that the failure to deliver any notice pursuant to this Section 2.6
shall not limit or otherwise affect the remedies available hereunder to the
non-defaulting or non-breaching party.
2.7 HSR Act. Toy Biz shall, as soon as practicable, file a
Notification and Report Forms under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended ("HSR Act") with the Federal Trade Commission (the
"FTC") and the Antitrust Division of the Department of Justice (the "Antitrust
Division") with respect to the Merger and shall use its best efforts to respond
as promptly as practicable to all inquiries received from the FTC or the
Antitrust Division, including any request for additional information or
documentary material.
2.8 Required Actions. Each of the parties hereto hereby agrees
to use its reasonable best efforts to take, or cause to be done, all things
necessary, proper or advisable under applicable laws or regulations to:
(a) obtain approval of the Disclosure Statement
in accordance with section 1125 of the
Bankruptcy Code as soon as reasonably
practicable, including, without limitation,
requesting that on or before January 5,
1998, the Bankruptcy Court or such other
court as may from time to time exercise
jurisdiction over the Debtors' Bankruptcy
Cases schedule a hearing on or before
February 15, 1998 to consider the adequacy
of the Disclosure Statement;
(b) obtain entry of the Confirmation Order as
soon as reasonably practicable;
(c) cause the Consummation Date of the Plan of
Reorganization to occur as soon as soon as
reasonably practicable; and
(d) obtain from the Bankruptcy Court or such
other court as may from time to time
exercise jurisdiction over the Debtors'
Bankruptcy Cases such other relief as may be
necessary or appropriate in connection with
this Agreement, the Plan of Reorganization
and the consummation of the transactions
contemplated hereby and thereby.
639892.14
10
In addition, the parties to this Agreement shall consult with one
another concerning additional motions and/or pleadings that may be made in
connection with any of the foregoing or otherwise in connection with the Plan of
Reorganization.
2.9 Prohibited Actions. Each of the parties hereto
hereby agrees not to:
(a) object to the Disclosure Statement;
(b) object to entry of the Confirmation Order;
(c) take any action to hinder, delay, preclude
or interfere with the entry of an order
approving the Disclosure Statement, the
entry of the Confirmation Order or the
occurrence of the Consummation Date;
(d) with respect to the Consenting Lenders,
foreclose against any collateral without the
consent of Toy Biz which consent will not be
unreasonably withheld, unless a Requisite
Amount of the Consenting Lenders shall have
first confirmed in writing to Toy Biz that
they will thereafter use reasonable best
efforts to effect transactions substantially
similar to those contemplated by this
Agreement or, in the case of an asset of
immaterial value, provide an appropriate
cash credit, provided, however, that under
no circumstance may the Consenting Lenders
foreclose against the Common Stock of Fleer
Corp.;
(e) with respect to the Consenting Panini
Lenders, each Consenting Panini Lender
agrees that it shall not exercise any of its
remedies under the Existing Panini Credit
Agreements, to collect any of the Panini
Obligations or to realize on any of the
collateral security or guarantee obligations
held with respect to any of the Panini
Obligations against any subsidiary of any of
the Debtors that is not the subject of a
case under Title 11 of the United States
Code, except to the extent reasonably
necessary to protect their rights under the
Existing Panini Credit Agreements if (x)
Panini becomes the subject of a bankruptcy,
insolvency, liquidation or similar
proceeding and/or (y) creditors of Panini,
other than Panini Lenders, holding claims
against Panini
639892.14
11
aggregating greater than $1,000,000 exercise
their rights and remedies against Panini
under their applicable credit documents or
under applicable law; provided, however,
notwithstanding the foregoing, the
Consenting Panini Lenders shall be entitled
to seek adequate protection and object to
continued use of cash collateral.
(f) with respect to the Consenting Lenders and
the Consenting Panini Lenders, file a motion
to dismiss or convert one or more of the
Reorganization Cases without the consent of
Toy Biz which consent will not be
unreasonably withheld, unless a Requisite
Amount of the Consenting Lenders and a
Requisite Amount of the Consenting Panini
Lenders shall have first confirmed in
writing to Toy Biz that they will thereafter
effect transactions substantially similar to
those contemplated by this Agreement;
(g) with respect to Toy Biz, file a motion to
dismiss or convert one or more of the
Reorganization Cases without the consent of
the Requisite Amount of the Consenting
Lenders which consent will not be
unreasonably withheld, unless Toy Biz shall
have first confirmed in writing to the
Consenting Lenders and the Panini Lenders
that it will thereafter effect transactions
substantially similar to those contemplated
by this Agreement;
(h) with respect to the Consenting Lenders,
transfer, sell or assign, or agree to
transfer, sell or assign their respective
Senior Secured Claims unless the transferee
of such Senior Secured Claims agrees in a
writing reasonably acceptable to Toy Biz to
be bound by the terms and conditions of this
Agreement;
(i) with respect to the Consenting Panini
Lenders, transfer, sell or assign, or agree
to transfer, sell or assign their respective
Senior Secured Claims unless the transferee
of such Senior Secured Claims agrees in
writing reasonably acceptable to Toy Biz to
be bound by the terms and conditions of this
Agreement; or
639892.14
12
(j) support any other plan of reorganization,
arrangement or other settlement in any way
inconsistent with the Plan of
Reorganization.
2.10 Merger. Upon satisfaction of the conditions set forth in
Section 5.3, Toy Biz shall, in accordance with the Plan of Reorganization, (i)
execute and deliver the Merger Agreement and any other documents or instruments
required to be executed and delivered by it pursuant to the Merger Agreement,
and (ii) take any and all other action required under the Plan of Reorganization
and the Merger Agreement to effect the Merger.
2.11 Financing. On or before the Confirmation Date, Toy Biz
shall provide the Consenting Lenders and the Consenting Panini Lenders with
written evidence of firm commitments, subject to customary exceptions, for the
Term Loan Facility, the Working Capital Facility and the New Investment. On or
before the Consummation Date, Toy Biz shall obtain the Term Loan Facility, the
Working Capital Facility and the New Investment; it being understood and agreed
that such financing obligation of Toy Biz is absolute and unconditional.
2.12 Company Stock Options.
(a) Toy Biz's board of directors, or, if
appropriate, any committee administering Toy Biz's 1995 Stock Option Plan (the
"Stock Option Plan") shall, prior to the Effective Time, terminate, or adopt
such resolutions or take such actions as may be required to adjust, the terms of
all then outstanding employee stock options to purchase Toy Biz Shares granted
under the Stock Option Plan (each, an "Employee Option") and the terms of the
Stock Option Plan to provide that at the Effective Time, each Employee Option
outstanding immediately prior to the Effective Time will be deemed to constitute
an option to acquire, on the same terms and conditions as under such Employee
Option, the number of shares of Newco Common Stock as the holder of such
Employee Option would have been entitled to receive pursuant to the Merger
Agreement had such holder exercised such Employee Option in full immediately
prior to the Effective Time, at the price provided for in the Merger Agreement
and any such shares issuable under such Employee Options shall dilute only the
shares to be issued to holders of Toy Biz Shares in the Merger. Any such
Employee Options which are not terminated will dilute only the Newco Common
Stock to be issued to holders of Class A Shares in the Merger.
(b) Toy Biz shall not grant any stock options or
stock appreciation rights under the Stock Option Plan and will not accelerate
the exercisability of Employee Options and/or permit cash payments to holders of
Employee Options with respect to such options.
639892.14
13
2.13 Qualifying Transactions. Toy Biz shall use its reasonable
best efforts, without being required to incur any material expense, to cooperate
with efforts by the Secured Lenders or the Debtors to consummate a Qualifying
Transaction and, in connection therewith, shall cooperate with financial
advisors, accountants and other advisors to the Consenting Lenders and provide
financial information and projections and other information, subject to
customary confidentiality agreements, to such advisors and potential parties to
a Qualifying Transaction.
2.14 Restructuring of Panini Loan Documents. The
Consenting Panini Lenders shall restructure the Panini Obligations (as such term
is defined in the Plan of Reorganization) in accordance with the Plan of
Reorganization.
ARTICLE 3
REPRESENTATIONS AND
WARRANTIES OF TOY BIZ
Toy Biz hereby represents and warrants to each Consenting
Lender and each Consenting Panini Lender as follows:
3.1 Organization. Each of Toy Biz and its Subsidiary is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation.
3.2 Capitalization.
(a) The authorized capital stock of Toy Biz
consists of 100,000,000 Class A Shares, 20,000,000 Class B Shares and 25,000,000
shares of Preferred Stock. As of the date of this Agreement, (i) 27,746,127
Class A Shares are issued and outstanding and no Class A Shares are held in the
treasury of Toy Biz, (ii) no Class B Shares are issued and outstanding or held
in the treasury of Toy Biz, (iii) no shares of Preferred Stock are issued and
outstanding, and (iv) 704,386 Class A Shares are reserved for issuance upon
exercise of outstanding Employee Options. All the outstanding shares of Toy
Biz's capital stock are, and all Class A Shares which may be issued pursuant to
the exercise of outstanding Employee Options will be, when issued in accordance
with the respective terms thereof, duly authorized, validly issued, fully paid
and non-assessable. There are no bonds, debentures, notes or other indebtedness
having general voting rights (or convertible into securities having such rights)
("Voting Debt") of Toy Biz or its Subsidiary issued and outstanding. Except as
set forth above, as of the date hereof, (i) there are no shares of capital stock
of Toy Biz authorized, issued or outstanding, and (ii) there are no existing
options,
639892.14
14
warrants, calls, preemptive rights, subscriptions or other rights, agreements,
arrangements or commitments of any character, relating to the issued or unissued
capital stock of Toy Biz or its Subsidiary, obligating Toy Biz or its Subsidiary
to issue, transfer or sell or cause to be issued, transferred or sold any shares
of capital stock or Voting Debt of Toy Biz or its Subsidiary or securities
convertible into or exchangeable for such shares or equity interests, or
obligating Toy Biz or its Subsidiary to grant, extend or enter into any such
option, warrant, call, subscription or other right, agreement, arrangement or
commitment.
(b) Except as disclosed in Schedule 3.2(b) of
the Disclosure Schedule, all of the outstanding shares of capital stock of Toy
Biz's Subsidiary are owned of record and beneficially by Toy Biz, directly or
indirectly. All such shares have been validly issued and are fully paid and
non-assessable and are owned by Toy Biz free and clear of all liens, charges,
claims or encumbrances.
(c) Neither Toy Biz nor its Subsidiary is
required to redeem, repurchase or otherwise acquire shares of capital stock of
Toy Biz, or its Subsidiary, respectively, as a result of the transactions
contemplated by this Agreement.
3.3 Authorization; Validity of Agreement; Corporate Action.
Toy Biz has all requisite corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery and performance by Toy Biz of this Agreement, and the
consummation by it of the transactions contemplated hereby, have been duly
authorized by the board of directors of Toy Biz and no other corporate action on
the part of Toy Biz is necessary to authorize the execution and delivery by Toy
Biz of this Agreement and, except for the approval of the stockholders of Toy
Biz, the consummation by it of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Toy Biz and constitutes a
valid and binding obligation of Toy Biz enforceable against Toy Biz in
accordance with its terms except that the enforcement thereof may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium or similar laws now or
hereafter in effect relating to creditors' rights generally and (b) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity). Except as disclosed in Schedule 3.3 of the
Disclosure Schedule, the execution delivery and performance of this Agreement by
Toy Biz do not breach, violate, conflict with or constitute a default under any
material agreement to which Toy Biz is a party.
The Consenting Lenders and the Consenting Panini Lenders
acknowledge that Toy Biz is engaged in litigation with Entertainment concerning
the status of Toy Biz's class B common
639892.14
15
stock and its stockholders' agreement (the "Stockholder Agreement Litigation").
The representations in this Article 3 are qualified by the Stockholder Agreement
Litigation.
3.4 Information. Toy Biz has adequate information concerning
the business and financial condition of the Debtors, the Reorganization Cases
and the transactions contemplated by this Agreement and the Plan of
Reorganization to make an informed decision with respect to this transactions
contemplated by this Agreement and the Plan of Reorganization. Toy Biz has
independently and without reliance upon any of the Consenting Lenders or any of
the Consenting Panini Lenders (except for the representations, warranties, and
covenants and agreements contained herein) and based on such information as Toy
Biz has deemed appropriate in its independent judgment, made its own analysis
and decision to enter into this Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE
CONSENTING LENDERS AND THE CONSENTING PANINI LENDERS
Each of the Consenting Lenders and each of the Consenting
Panini Lenders hereby represents and warrants with respect to itself to Toy Biz
as follows:
4.1 Organization. It is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
formation.
4.2 Authorization; Validity of Agreement; Corporate Action. It
has all requisite corporate or similar power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby;
the execution, delivery and performance by such party of this Agreement, and the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary action by such party and no further action on the
part of such part is necessary to authorize the execution and delivery by such
party of this Agreement and the consummation by it of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by such
party, and assuming due and valid authorization, execution and delivery hereof
of the other parties hereto, is a valid and binding obligation of such party
enforceable against such party in accordance with its terms except that the
enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect relating
to creditor's rights generally and (b) general principles of equity (regardless
of whether enforceability is considered in a proceeding at law or in equity).
639892.14
16
4.3 Ownership of Claims. Each Consenting Lender and each
Consenting Panini Lender owns or beneficially owns, respectively, the
outstanding principal amount of Senior Secured Claims set forth on its
Consenting Lender Execution Page or Consenting Panini Lender Execution Page and,
with respect to each such claim, such party has the legal right to exercise all
voting rights relating thereto (collectively, "Controlled Claims"); and such
party represents that to the extent that it has previously pledged,
hypothecated, transferred, participated or otherwise encumbered any interests in
such Senior Secured Claim, the other party to any such conveyance has agreed to
be bound hereby.
4.4 Information. Each Consenting Lender and each Consenting
Panini Lender has adequate information concerning the business and financial
condition of Toy Biz, the Debtors, the Reorganization Cases and the transactions
contemplated by this Agreement and the Plan of Reorganization to make an
informed decision with respect to the transactions contemplated by this
Agreement and the Plan of Reorganization. Each Consenting Lender and each
Consenting Panini Lender has independently and without reliance upon Toy Biz,
and its officers, directors and representatives whatsoever (except for the
representations, warranties, and covenants and agreements contained herein) and
based on such information as such party has deemed appropriate in its
independent judgment, made its own analysis and decision to enter into this
Agreement.
ARTICLE 5
CONDITIONS
5.1 Conditions to Each Party's Obligations to Continue to
Perform Its Respective Obligations in Accordance with Article 2. The obligations
of each party to perform its respective obligations under Article 2 (other than
Section 2.10) during the term of this Agreement shall be subject to there being
no order or injunction of a Governmental Entity of competent jurisdiction in
effect precluding, restraining, enjoining or prohibiting the transactions
contemplated in this Agreement and in the Plan of Reorganization during the term
hereof, which condition may be waived in whole or in part by Toy Biz or a
Requisite Amount of the Consenting Lenders as the case may be, to the extent
permitted by applicable law.
5.2 Conditions to Consenting Lenders' Obligations to Perform
Their Respective Obligations in Accordance with Article 2. The obligations of
the Consenting Lenders and the Consenting Panini Lenders to perform their
respective obligations under Article 2 during the term of this Agreement shall
be subject to the satisfaction of each of the following conditions
639892.14
17
during the term hereof, any and all of which may be waived in whole or part by a
Requisite Amount of the Consenting Lenders to the extent permitted by applicable
law.
(a) Representations and Warranties of Toy Biz.
The representations and warranties of Toy Biz shall be true and correct in all
material respects during the term hereof (except for those representations and
warranties that address matters only as of a particular date which need only be
true and correct in all material respects as of such date).
(b) Covenants of Toy Biz. Toy Biz shall have
performed in all material respects its obligations required to be performed
during the term of this Agreement.
(c) No Stockholder Breach Event. No Stockholder
Breach Event, as defined in the Proxy and Stock Option Agreements, shall have
occurred and be continuing.
(d) Opinion of Counsel. No later than 5:00 p.m.,
New York Time, on November 24, 0000, Xxxxxx Xxxxxx XXX, counsel to Toy Biz shall
have delivered to Wachtell, Lipton, Xxxxx & Xxxx, its opinion in the form
attached hereto as Exhibit 5.2(d).
(e) Stockholders Agreement. Toy Biz, Xxx Xxxx
and the Xxxxxxxxxx Stockholders shall have entered into a stockholders agreement
pursuant to which Xxx Xxxx and the Xxxxxxxxxx Stockholders agree to vote their
shares of Newco Common Stock in favor of the election to the Newco board of
directors of five nominees designated by the Consenting Lenders and certain of
their transferees for as long as the Consenting Lenders and those transferees
hold more than a specified percentage of the outstanding Newco Common Stock.
5.3 Conditions to Toy Biz's Obligation to Execute and Deliver
the Merger Agreement. The obligation of Toy Biz to execute and deliver the
Merger Agreement and to perform its obligation under Section 2.10 shall be
subject to the satisfaction on or prior to the date upon which Toy Biz executes
the Merger Agreement of each of the following conditions, any and all of which
may be waived in whole or in part by Toy Biz, to the extent permitted by
applicable law:
(a) Effectiveness of Form S-4. If required by
applicable law, the Form S-4 shall have become effective and no stop order
suspending the effectiveness of the Form S-4 shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by the SEC.
(b) HSR Act. Any waiting period (including any
extension thereof) under the HSR Act applicable to the Merger shall have expired
or been terminated.
639892.14
18
(c) Injunctions. There shall be no order or
injunction of a Governmental Entity of competent jurisdiction in effect
precluding, restraining, enjoining or prohibiting consummation of the Merger.
(d) Confirmation Order. The Bankruptcy Court (or
such other court as may from time to time exercise jurisdiction over the
Debtors' Bankruptcy Cases) shall have entered the Confirmation Order and its
effectiveness and enforceability shall not be subject to any stay or injunction
and all conditions to the consummation of the Plan of Reorganization shall have
been satisfied or duly waived in accordance with the Plan of Reorganization.
ARTICLE 6
CONVERSION OF MARVEL-OWNED SHARES
6.1 Conversion of Marvel-Owned Shares. If this Agreement is
terminated by the Consenting Lenders under Section 7.1(d) or the Merger
Agreement is terminated in accordance with Section 6.1(d) thereof, a Requisite
Amount of the Consenting Lenders shall have the right to direct Toy Biz to, and
Toy Biz shall thereupon be obligated to, convert the Converted Class B Shares
into an equal number of duly authorized, fully paid and nonassessable Class B
Shares. Following that conversion, the holders of the Converted Class B Shares
shall thereafter be deemed to be the holders of such new Class B Shares and the
certificates evidencing those Converted Class B Shares shall be deemed to
evidence those new Class B Shares. As a condition precedent to that conversion,
the New Stockholders Agreement and New Voting Trust Agreements will be released
from escrow and the holders of such new Class B Shares will be required to
complete, execute and deliver to each of the parties thereto the New
Stockholders Agreement and the New Voting Trust Agreements and Toy Biz will
deposit one of the Class B Shares into each of the voting trusts established
under the New Voting Trust Agreements as contemplated by the New Voting Trust
Agreements.
ARTICLE 7
TERMINATION AND WITHDRAWAL
7.1 Termination. This Agreement shall terminate upon the
consummation of the Merger at the Effective Time unless terminated sooner in
accordance with this Section 7.1. This Agreement may be terminated and the
Merger contemplated herein may be abandoned at any time prior to the Effective
Time:
639892.14
19
(a) by mutual written agreement of each of the
Consenting Lenders and Toy Biz;
(b) by Toy Biz if the Consummation Date has not
occurred on or before September 21, 1998, provided that the failure of the
Consummation Date to occur on or before such date is not the result of the
breach of any representation or warranty or the failure to perform any covenant
or agreement or satisfy any condition under this Agreement or the Merger
Agreement by Toy Biz, it being understood and agreed that the Consummation Date
will be deemed to have occurred if the parties effect a substantially similar
transaction as contemplated by Sections 2.9 (d) hereof on terms no less
favorable to Toy Biz's shareholders (other than the Debtors) than those
contemplated by this Master Agreement on or before September 21, 1998;
(c) by any Consenting Lenders or Toy Biz upon
written notice given to the other if there shall be any law or regulation of any
competent authority that makes consummation of the Merger illegal or otherwise
prohibited, or if any Governmental Entity of competent jurisdiction shall have
issued a final non-appealable order, judgment, injunction or order enjoining or
otherwise prohibiting the transactions contemplated by this Agreement, other
than an Adverse Order or a Change in Control;
(d) by a Requisite Amount of the Consenting
Lenders if Toy Biz breaches or fails in any material respect to perform or
comply with any of its covenants and agreements contained herein or breaches its
representations and warranties in any material respect and such breach has not
been cured to the reasonable satisfaction of the Consenting Lenders within 10
days of the notice by a Requisite Amount of the Consenting Lenders of such
breach;
(e) by a Requisite Amount of the Consenting
Lenders if there is a Stockholder Breach Event (as defined in the
Proxy and Stock Option Agreements);
(f) by Toy Biz or any Consenting Lender if the
Consenting Lender Threshold Date has not occurred by 5:00 p.m., New York Time on
November 21, 1997;
(g) by Toy Biz after the Consenting Lender
Threshold Date if one or more Consenting Lenders breach their respective
representations, warranties or covenants contained herein in any material
respect, such breaches have not been cured to Toy Biz's reasonable satisfaction
within 10 days' receipt by such Consenting Lender of notice by Toy Biz and, as a
result of such breach, the amount of Senior Secured Claims held by, or number
of, non-breaching Consenting Lenders falls below the Consenting Lender
Threshold; and/or
639892.14
20
(h) by Toy Biz or any Consenting Lender after the
Consenting Lender Threshold Date, if as a result of breaches by one or more
Consenting Lenders contemplated by Section 7.1(f) and/or withdrawals by
Consenting Lenders pursuant to Section 7.2 and 8.2, the amount of Senior Secured
Claims held by, or number of, non-breaching Consenting Lenders and
non-withdrawing Consenting Lenders falls below the Consenting Lenders Threshold.
7.2 Withdrawal. A Consenting Lender shall have the right to
withdraw from this Agreement during the following periods. Upon withdrawal from
this Agreement by a Consenting Lender the withdrawing Consenting Lender shall
thereupon cease to have any rights or obligations under this Agreement, and
shall no longer be deemed to be a Consenting Lender. A Consenting Lender may
withdraw:
(a) at any time prior to 5:00 p.m., New York
Time, January 15, 1998, if a court of competent jurisdiction has not by January
5, 1998 established a date on or prior to February 15, 1998 to consider the
adequacy of the Disclosure Statement provided that failure to establish such a
date is not the result of the breach of any representation or warranty or the
failure to perform any covenant or agreement or satisfy any condition under this
Agreement or the Merger Agreement by any of the Consenting Lenders or any of the
Consenting Panini Lenders;
(b) at any time prior to 5:00 p.m., New York
Time, February 25, 1998, if the Disclosure Statement relating to the Plan of
Reorganization has not been approved by the Bankruptcy Court (or such other
court as may from time to time exercise jurisdiction over the Debtors'
Bankruptcy Cases) by February 15, 1998 provided that failure to approve the
Disclosure Statement by such date is not the result of the breach of any
representation or warranty or the failure to perform any covenant or agreement
or satisfy any condition under this Agreement or the Merger Agreement by any of
the Consenting Lenders or any of the Consenting Panini Lenders;
(c) at any time prior to 5:00 p.m., New York
Time, April 10, 1998, if the Confirmation Date has not occurred on or before
April 1, 1998, provided that failure of the Confirmation Date to occur on or
before such date is not the result of the breach of any representation or
warranty or the failure to perform any covenant or agreement or satisfy any
condition under this Agreement or the Merger Agreement by any of the Consenting
Lenders or any of the Consenting Panini Lenders;
(d) at any time prior to 5:00 p.m., New York
Time, May 25, 1998, if the Consummation Date has not occurred on or before May
15, 1998, provided that the failure of the Consummation Date to occur on or
before such date is not the result of the breach of any representation or
warranty or the
639892.14
21
failure to perform any covenant or agreement or satisfy any condition under this
Agreement or the Merger Agreement by any of the Consenting Lenders or any of the
Consenting Panini Lenders;
(e) at any time during the sixty (60) day period
following the entry of an Adverse Order.
(f) at any time during the thirty (30) day period
following a Change in Control.
ARTICLE 8
MISCELLANEOUS
8.1 Fees and Expenses. Except as contemplated by this
Agreement and the Plan of Reorganization, all costs and expenses incurred in
connection with this Agreement and the consummation of the transactions
contemplated hereby shall be paid by the party incurring such expenses.
8.2 Amendment, Modification, Waiver and Other Action.
Subject to applicable law, this Agreement may be amended,
modified and supplemented in any and all respects, and any provision hereof may
be waived, by written agreement of Toy Biz and a Requisite Amount of the
Consenting Lenders, provided that any Consenting Lender who does not agree to
any such amendment, modification, supplement or waiver shall have the right to
withdraw from this Agreement within ten days after such amendment, modification,
supplement or waiver becomes effective, and in addition, provided that no such
amendment, modification supplement or waiver shall affect the amount of the
Newco Guaranty, the collateral securing the Newco Guaranty or any of the terms
of the Restructured Panini Obligations without the written agreement of a
Requisite Amount of the Consenting Panini Lenders.
8.3 Nonsurvival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any schedule, instrument
or other document delivered pursuant to this Agreement shall survive the
Effective Time.
8.4 Notices. All notices and other communications hereunder
shall be in writing and shall be sufficient if in writing and delivered
personally, telecopied (which is confirmed) or sent by an overnight courier
service, such as Federal Express, and shall be deemed given when so delivered
personally, telecopied or if mailed or sent by overnight courier service, on the
scheduled delivery date, to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
639892.14
22
if to the Consenting Lenders, to:
To the address of that Consenting Lender set
forth adjacent to the signature of that
Consenting Lender on the signature pages to
this Agreement
with a copy to:
Xxxxx X. Xxxxxxxx
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and
if to the Consenting Panini Lenders, to:
To the address of that Consenting Panini
Lender set forth adjacent to the signature
of that Consenting Panini Lender on the
signature pages to this Agreement
with a copy to:
Xxxxx X. Xxxxxxxx
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and
if to Toy Biz, to:
Toy Biz, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
639892.14
23
with a copy to:
Xxxxxxxx Xxxxxxx
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
8.5 Interpretation. When a reference is made in this Agreement
to Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. Whenever the words "include", "includes" or "including" are
used in this Agreement they shall be deemed to be followed by the words "without
limitation". As used in this Agreement, the term "affiliate(s)" shall have the
meaning set forth in Rule 12b-2 of the Exchange Act.
8.6 Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when two or more counterparts have been signed by
each of the parties and delivered to the other parties. Delivery of an executed
signature page of this Agreement by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
8.7 Entire Agreement, No Third Party Beneficiaries. This
Agreement (including the documents and the instruments referred to herein)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, and is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
8.8 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a Governmental Entity of competent
jurisdiction to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
8.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the general corporation law of the State of
Delaware with respect to matters covered therein and otherwise in accordance
with the laws of the State of New York, in each case without giving effect to
the principles of conflicts of law thereof.
639892.14
24
8.10 Enforcement; Damages. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which they are entitled at law or in equity; provided,
however, in no event shall Toy Biz be liable for any damages as a result of a
breach or failure by Toy Biz to perform or comply with any of its covenants or
agreements contained in this Agreement which (i)(x) occurs after there has been
a Change in Control and (y) is caused by the action or inaction of the new board
of directors or new management of Toy Biz or (ii) occurs as a result of an
Adverse Order.
639892.14
25
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the date first written above.
TOY BIZ, INC.
By:/s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
26
EXHIBIT 1
CONSENTING LENDER EXECUTION PAGE
By signing below, the undersigned is hereby executing and agreeing to be bound
by the (a) Amended and Restated Master Agreement (the "Master Agreement"), dated
as of November 19, 1997, by and among (i) Toy Biz, Inc., (ii) certain secured
creditors of Marvel Entertainment Group, Inc. and certain of its direct and
indirect subsidiaries (the "Marvel Debtors"), and (iii) the Panini Lenders (as
defined in the Plan of Reorganization referred to in the Master Agreement), (b)
Amended and Restated Proxy and Stock Option Agreement, dated as of November 19,
1997, by and among Xxxxx Xxxxxxxxxx, Xxxxx Xxxxxxxxxx, T.A. and Zib, Inc. and
certain secured creditors of the Marvel Debtors, and (c) Amended and Restated
Proxy and Stock Option Agreement, dated as of November 19, 1997, by and among
Xxx Xxxx and certain secured creditors of the Marvel Debtors. This Consenting
Lender Execution Page shall be deemed to be a signature page to each of the
agreements listed above and the undersigned shall be deemed to have signed each
as a "Consenting Lender."
Name of Consenting Lender:
-----------------------------
By:__________________________
Name:
Title:
Address for Notices:
-----------------------------
-----------------------------
-----------------------------
Telephone No.:_______________
Telecopy No.:________________
Principal amount of Fixed
Senior Secured Claims owned
or beneficially owned and
which is consenting as set
forth above:$_________.
EXHIBIT 2
CONSENTING PANINI LENDER EXECUTION PAGE
By signing below, the undersigned is hereby executing and agreeing to be bound
by the Amended and Restated Master Agreement (the "Master Agreement"), dated as
of November 19, 1997, by and among (i) Toy Biz, Inc., (ii) certain secured
creditors of Marvel Entertainment Group, Inc. and certain of its direct and
indirect subsidiaries, and (iii) the Panini Lenders (as defined in the Plan of
Reorganization referred to in the Master Agreement).
Name of Consenting Panini Lender:
-----------------------------
By:__________________________
Name:
Title:
Address for Notices:
-----------------------------
-----------------------------
Telephone No.:_______________
Telecopy No.:________________
Principal amount of claims under
the Existing Panini Junior Credit
Agreements owned or beneficially
owned and which is consenting as
set forth above: It. Lire_____________.
Principal amount of claims under
the Existing Panini Senior Credit
Agreements owned or beneficially
owned and which is consenting as
set forth above: It. Lire_____________.
