EXHIBIT 15(D)
TRADEMARK SECURITY AGREEMENT
This TRADEMARK SECURITY AGREEMENT (this "Agreement"), dated as of
October 12, 2001, is made by JAKKS PACIFIC, INC., a Delaware corporation, FLYING
COLORS TOYS, INC., a Michigan corporation, ROAD CHAMPS, INC., a Delaware
corporation, and PENTECH INTERNATIONAL INC., a Delaware corporation, together
with each other Person which hereafter may become a party hereto pursuant to
Section 9 of this Agreement (each a "Grantor" and collectively, "Grantors"),
jointly and severally, in favor of BANK OF AMERICA, N.A., as the Administrative
Agent under the Loan Agreement hereafter referred to, the Lenders therein named
and in favor of each of the Lenders which may hereafter become a party hereto
collectively as Secured Party, with reference to the following facts:
RECITALS
A. Grantors have entered into a Loan Agreement of even date herewith
among Grantors, the Lenders referred to therein, and Bank of America, N.A., as
Administrative Agent (as it may from time to time be amended, restated,
extended, renewed, modified or supplemented, the "Loan Agreement"). This
Agreement is the Trademark Security Agreement referred to in the Loan Agreement
and is one of the "Loan Documents" referred to in the Loan Agreement.
B. Pursuant to the Loan Documents of even date the Lenders are making
certain credit facilities available to Grantors.
C. As a condition of the availability of such credit facilities,
Grantors are required to enter into this Agreement to grant security interests
to Secured Party as herein provided.
D. Each Grantor expects to realize direct and indirect benefits as a
result of the availability of the aforementioned credit facilities.
AGREEMENT
NOW, THEREFORE, in order to induce the Lenders to extend the
aforementioned credit facilities to the Grantors, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Grantors, and each of the subsequent Grantors which hereafter
become party hereto, hereby jointly and severally represent, warrant, covenant
and agree as follows:
1. Definitions. Terms defined in the Loan Agreement and not otherwise defined in
this Agreement shall have the meanings defined for those terms in the Loan
Agreement. As used in this Agreement, the following terms shall have the
meanings respectively set forth after each:
"Agreement" means this Trademark Security Agreement, and any extensions,
modifications, renewals, restatements, supplements or amendments hereof,
including, without limitation, any documents or agreements by which additional
Grantors become party hereto.
"Collateral" means and includes all of the following: (a) all of
Grantors' now-existing, or hereafter acquired, right, title, and interest in and
to all of Grantors' trademarks, trade names, trade styles, and service marks;
all prints and labels on which said trademarks, trade names, trade styles, and
service marks appear, have appeared, or will appear, and all designs and general
intangibles of a like nature; all applications, registrations, and recordings
relating to the foregoing in the United States Patent and Trademark Office
("USPTO") or in any similar office or agency of the United States, any State
thereof, or any political subdivision thereof (provided that no "intent to use"
application filed by any Grantor with the USPTO relating to the foregoing shall
constitute part of the Collateral unless and until such Grantor files a
"declaration of use" with respect to such application and the USPTO accepts such
declaration), and all reissues, extensions, and renewals thereof, including
those trademarks, trade names, trade styles, service marks, terms, designs, and
applications described in Schedule 1 hereto (the "Trademarks"); (b) the goodwill
of the business symbolized by each of the Trademarks, including, without
limitation, all customer lists and other records relating to the distribution of
products or services bearing the Trademarks; (c) all licenses and sublicenses of
trademarks, trade names, trade styles and service marks, to the extent that
there exists no prohibition as a matter of law on the transfer thereof for
security as contemplated by this Agreement, and (d) any and all proceeds of any
of the foregoing, including any claims by Grantors against third parties for
past, present and future infringement of the Trademarks or any licenses with
respect thereto.
"Secured Obligations" means any and all present and future Obligations
of any type or nature of Grantors or any one or more of them to the
Administrative Agent, the Lenders, and any one or more of them, arising under or
relating to the Loan Documents or any one or more of them, whether due or to
become due, matured or unmatured, liquidated or unliquidated, or contingent or
noncontingent, including Obligations of performance as well as Obligations of
payment, and including interest that accrues after the commencement of any
bankruptcy or insolvency proceeding by or against any Grantor.
"Secured Party" means the Administrative Agent under the Loan Agreement,
the Lenders therein named and each of the Lenders which may hereafter become a
party thereto. All rights of the Secured Party under this Agreement shall be
exercised by the Administrative Agent, acting with the consent of those Lenders
required by the Loan Agreement.
2. Security Agreement. For valuable consideration, Grantors, and each of them
hereby, jointly and severally grant and assign to Secured Party a security
interest, to secure the prompt and indefeasible payment and performance of the
Secured Obligations, and each of them, in and to all of the presently existing
and hereafter acquired Collateral. This Agreement is a continuing and
irrevocable agreement and all the rights, powers, privileges and remedies
hereunder shall apply to any and all Secured Obligations, including those
arising under successive transactions which shall either continue the Secured
Obligations, increase or decrease them and notwithstanding the bankruptcy of any
Grantor or any other event or
proceeding affecting any Grantor.
3. Representations, Warranties and Covenants. Grantors, and each of them,
represent, warrant and agree that:
(a) To Grantors' knowledge, all of the existing Collateral is valid and
subsisting and in full force and effect, and Grantors own the sole, full, and
clear title thereto, and the right and power to grant the security interests
granted hereunder. Grantors will, at their expense, perform all acts and execute
all documents necessary to maintain the existence of the Collateral as valid,
subsisting, and registered trademarks, including, without limitation, the filing
of any renewal affidavits and applications provided that Grantors may abandon or
not maintain or renew such trademark if in its good faith judgment, the
particular xxxx is not material to its business. The Collateral is not subject
to any Liens, claims, mortgages, assignments or licenses of any nature
whatsoever, whether recorded or unrecorded, except as permitted by the Loan
Agreement.
(b) To Grantors' knowledge, as of the date hereof, none of Grantors or their
Subsidiaries has any Trademarks registered, or subject to pending applications,
in the USPTO, or any similar office or agency in the United States, other than
those described in Schedule 1.
(c) No Grantor nor any Subsidiary of any Grantor shall file any application for
the registration of a trademark with the USPTO or any similar office or agency
in the United States, or State therein, unless such Grantor or Subsidiary has
informed Secured Party of such action in advance or informs Secured Party
promptly thereafter. Upon request of Secured Party, Grantors shall execute and
deliver to Secured Party any and all agreements, instruments, documents, and
such other papers as may be reasonably requested by Secured Party to evidence
the grant and assignment of a security interest to Secured Party of such
trademark (other than mere "intent to use" filings). Each Grantor authorizes
Secured Party to modify this Agreement by amending Schedule 1 to include any new
trademark or service xxxx, and any trademark or service xxxx renewal of any
Grantor applied for and obtained hereafter.
(d) Except to the extent permitted by this Agreement, no Grantor nor any
Subsidiary of any Grantor has abandoned any of the Trademarks, and no Grantor
nor any Subsidiary of any Grantor will do any act, or omit to do any act,
whereby the Trademarks may become abandoned, canceled, invalidated,
unenforceable, avoided, or avoidable. Each Grantor shall notify Secured Party
promptly if it knows, or has reason to know, of any reason why any application,
registration, or recording may become abandoned, canceled, invalidated, or
unenforceable.
(e) Grantors will render any assistance, as Secured Party may reasonably
determine is necessary, to Secured Party in any proceeding before the USPTO, any
federal or state court, or any similar office or agency in the United States, or
any State therein, to protect Secured Party's security interest in the
Trademarks.
(f) Grantors assume all responsibility and liability arising from the use of the
Trademarks, and each Grantor hereby indemnifies and holds the Administrative
Agent and each of the Lenders harmless from and against any claim, suit, loss,
damage, or expense (including reasonable attorneys'
fees) arising out of any alleged defect in any product manufactured, promoted,
or sold by any Grantor (or any Affiliate or Subsidiary thereof) in connection
with any Trademark or out of the manufacture, promotion, labeling, sale, or
advertisement of any such product by any Grantor or any Affiliate or Subsidiary
thereof.
(g) Grantors shall promptly notify Secured Party in writing of any adverse
determination in any proceeding in the USPTO or domestic Governmental Agency,
court or body, regarding any Grantor's ownership of any of the Trademarks. In
the event of any material infringement of any of the Trademarks by a third
party, Grantors shall promptly notify Secured Party of such infringement and
shall diligently pursue damages or an injunction for such infringement provided
that Grantors have no obligation to take any such action with respect to a
Trademark if, in its good faith judgement, such Trademark is not material to its
business..
(h) Each Grantor shall, at its sole expense, do, make, execute and deliver all
such additional and further acts, things, assurances, and instruments, in each
case in form and substance reasonably satisfactory to Secured Party, relating to
the creation, validity, or perfection of the security interests provided for in
this Agreement under 35 U.S.C. Section 261, 15 U.S.C. Section 1051 et seq., the
Uniform Commercial Code or other Law of the United States, the State of
California, or of any other States as Secured Party may from time to time
reasonably request, and shall take all such other action as the Secured Party
may reasonably require to more completely vest in and assure to Secured Party
its security interest in any of the Collateral, and each Grantor hereby
irrevocably authorizes Secured Party or its designee, at such Grantor's expense,
to execute such documents, and file such financing statements with respect
thereto with or without such Grantor's signature, as Secured Party may
reasonably deem appropriate. In the event that any recording or refiling (or the
filing of any statement of continuation or assignment of any financing
statement) or any other action, is required at any time to protect and preserve
such security interest, Grantors shall, at their sole cost and expense, cause
the same to be done or taken at such time and in such manner as may be necessary
and as may be reasonably requested by Secured Party. Each Grantor further
authorizes Secured Party to have this or any other similar security agreement
recorded or filed with the Commissioner of Patents and Trademarks or other
appropriate federal, state or government office.
(i) Secured Party is hereby irrevocably appointed by each Grantor as its lawful
attorney and agent, with full power of substitution to execute and deliver on
behalf of and in the name of any or all Grantors, such financing statements and
other documents and agreements, and to take such other action as Secured Party
may deem necessary for the purpose of perfecting, protecting or effecting the
security interests granted herein and effected hereby, and any mortgages or
Liens necessary or desirable to implement or effectuate the same, under any
applicable Law, and Secured Party is hereby authorized to file on behalf of and
in the name of any or all Grantors, at Grantors' sole expense, such financing
statements, documents and agreements in any appropriate governmental office.
(j) Secured Party may, in its sole discretion, pay any amount, or do any act
which Grantors fail to pay or do as reasonably required hereunder to preserve,
defend, protect, maintain, record, amend, or enforce the Secured Obligations,
the Collateral, or the security interest granted hereunder, including, but not
limited to, all filing or recording fees, court costs,
collection charges, and reasonable attorneys' fees. Grantors will be liable to
Secured Party for any such payment, and any amount so paid shall be an expense
reimbursable by the Borrowers under Section 11.3 of the Loan Agreement (or, in
the proper case, by each other Grantor under the expense provisions of its
Guaranty).
4. Events of Default. Any "Event of Default" as defined in the Loan Agreement
shall constitute an Event of Default hereunder.
5. Rights and Remedies. Upon the occurrence and during the continuance of any
such Event of Default, in addition to all other rights and remedies of Secured
Party, whether provided under Law, the Loan Agreement or otherwise, Secured
Party may enforce its security interest hereunder which may be exercised without
notice to, or consent by, any Grantor, except as such notice or consent is
expressly provided for hereunder. Upon such enforcement:
(a) Secured Party may use any of the Trademarks for the sale of goods,
completion of work in process, or rendering of services in connection with
enforcing any security interest granted to Secured Party by Grantors or any
Subsidiary of any Grantor.
(b) Secured Party may grant such license or licenses relating to the Collateral
for such term or terms, on such conditions and in such manner, as Secured Party
shall, in its sole discretion, deem appropriate. Such license or licenses may be
general, special, or otherwise, and may be granted on an exclusive or
nonexclusive basis throughout all or part of the United States of America and
its territories and possessions.
(c) Secured Party may assign, sell, or otherwise dispose of the Collateral, or
any part thereof, either with or without special conditions or stipulations,
except that Secured Party agrees to provide Grantors with ten (10) days' prior
written notice of any proposed disposition of the Collateral. Each Grantor
hereby irrevocably appoints each Borrower as its agent for the purpose of
receiving notice of sale hereunder, and agrees that such Grantor conclusively
shall be deemed to have received notice of sale when notice of sale has been
given to each Borrower. Each Grantor expressly waives any right to receive
notice of any public or private sale of any Collateral or other security for the
Secured Obligations except as expressly provided in this Section 5(c). Secured
Party shall have the power to buy the Collateral, or any part thereof, and
Secured Party shall also have the power to execute assurances and perform all
other acts which Secured Party may, in Secured Party's sole discretion, deem
appropriate or proper to complete such assignment, sale, or disposition. In any
such event, Grantors shall be liable for any deficiency.
(d) In addition to the foregoing, in order to implement the assignment, sale or
other disposition of any of the Collateral pursuant to Section 5(c) hereof,
Secured Party may, at any time, execute and deliver, on behalf of Grantors, and
each of them, pursuant to the authority granted in powers of attorney, one or
more instruments of assignment of the Trademarks (or any application,
registration, or recording relating thereto), in form suitable for filing,
recording, or registration. Grantors agree to pay Secured Party, on demand, all
costs incurred in any such transfer of the Collateral, including, but not
limited to any taxes, fees, and reasonable attorneys' fees.
(e) Secured Party may first apply the proceeds actually received from any such
use, license, assignment, sale, or other disposition of Collateral
first to the reasonable costs and expenses thereof, including, without
limitation, reasonable attorneys' fees and all reasonable legal, travel, and
other expenses which may be incurred by Secured Party. Thereafter, Secured Party
may apply any remaining proceeds to such of the Secured Obligations as provided
in the Loan Agreement. Grantors shall remain liable to Secured Party for any
expenses or Secured Obligations remaining unpaid after the application of such
proceeds, and Grantors will pay Secured Party, on demand, any such unpaid
amount, together with interest at the rate(s) set forth in the Loan Agreement.
(f) Upon request of Secured Party, Grantors shall supply to Secured Party, or
Secured Party's designee, Grantors' knowledge and expertise relating to the
manufacture and sale of the products and services bearing the Trademarks and
Grantors' customer lists and other records relating to the Trademarks and the
distribution hereof.
Nothing contained herein shall be construed as requiring Secured Party
to take any such action at any time. All of Secured Party's rights and remedies,
whether provided under Law, the Loan Agreement, this Agreement, or otherwise
shall be cumulative, and none is exclusive of any right or remedy otherwise
provided herein or in any of the other Loan Documents, at law or in equity. Such
rights and remedies may be enforced alternatively, successively, or
concurrently.
Secured Party or Designee will keep such confidential information, lists
or records provided hereunder in confidence in accordance with Section 11.16 of
the Loan Agreement.
6. Waivers.
(a) Each Grantor hereby waives any and all rights that it may have to a
judicial hearing, if any, in advance of the enforcement of any of Secured
Party's rights hereunder, including, without limitation, its rights following
any Event of Default and during the continuance thereof to take immediate
possession of the Collateral and exercise its rights with respect thereto.
(b) Secured Party shall not be required to marshal any present or future
security for (including, but not limited to, this Agreement and the Collateral
subject to a security interest hereunder), or guaranties of, the Secured
Obligations or any of them, or to resort to such security or guaranties in any
particular order. Each Grantor hereby agrees that it will not invoke any Law
relating to the marshaling of collateral which might cause delay in or impede
the enforcement of Secured Party's rights under this Agreement or any other
instrument evidencing any of the Secured Obligations or by which any of such
Secured Obligations is secured or guaranteed, and each Grantor hereby
irrevocably waives the benefits of all such Laws.
(c) Except for notices specifically provided for herein, each Grantor
hereby expressly waives demand, notice, protest, notice of acceptance of this
Agreement, notice of loans made, credit extended, collateral received or
delivered or other action taken in reliance hereon and all other demands and
notices of any description. With respect both to Secured Obligations and any
collateral therefor, each Grantor assents to any extension or postponement of
the time of payment or any other indulgence, to any substitution, of any Person
primarily or secondarily liable, to the acceptance of partial payment thereon
and the settlement, compromising or adjusting of any thereof, all in such manner
and at such time or times as
Secured Party may deem advisable. Secured Party shall have no duty as to the
protection of the Collateral or any income thereon, nor as to the preservation
of rights against prior parties, nor as to the preservation of any rights
pertaining thereto except as otherwise required by Law. Secured Party may
exercise its rights with respect to the Collateral without resorting or regard
to other collateral or sources of reimbursement for liability. Secured Party
shall not be deemed to have waived any of its rights upon or under the Loan
Agreement or the Collateral unless such waiver be in writing and signed by the
Secured Party. The exercise of the rights under this Agreement are not intended
by the parties to constitute an "action" within the meaning of Sections 580a,
580d, or 726 of the California Code of Civil Procedure. No delay or omission on
the part of the Secured Party in exercising any right shall operate as a waiver
of any right on any future occasion. All rights and remedies of the Secured
Party under the Loan Agreement or on the Collateral, whether evidenced hereby or
by any other instrument or papers, shall be cumulative and may be exercised
singularly or concurrently.
7. Costs and Expenses. Grantors will pay any and all charges, costs and taxes
incurred in implementing or subsequently amending this Agreement, including,
without limitation, recording and filing fees, appraisal fees, stamp taxes, and
reasonable fees and disbursements of Secured Party's counsel incurred by Secured
Party, and the allocated cost of in-house counsel to Secured Party, in
connection with this Agreement, and in the enforcement of this Agreement and in
the enforcement or foreclosure of any Liens, security interests or other rights
of the Secured Party under this Agreement, or under any other documentation
heretofore, now, or hereafter given to Secured Party in furtherance of the
transactions contemplated hereby.
8. Continuing Effect. This Agreement shall remain in full force and effect and
continue to be effective should any petition be filed by or against any Grantor
for liquidation or reorganization, should any Grantor become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of any Grantor's assets.
9. Joinder. Any other Person may become a Grantor hereunder and become bound by
the terms and conditions of this Agreement by executing and delivering to
Administrative Agent an Instrument of Joinder substantially in the form attached
hereto as Exhibit A, accompanied by such documentation as Administrative Agent
may require to establish the due organization, valid existence and good standing
of such Person, its qualification to engage in business in each material
jurisdiction in which it is required to be so qualified, its authority to
execute, deliver and perform this Agreement, and the identity, authority and
capacity of each Responsible Official thereof authorized to act on its behalf.
10. Release of Grantors. This Agreement and all Secured Obligations of Grantors
hereunder shall be released when all Secured Obligations have been paid in full
in cash or otherwise performed in full and when no portion of the Commitments
remain outstanding. Upon such release of Grantors' Secured Obligations
hereunder, Secured Party shall return and reassign any Collateral to Grantors,
or to the Person or Persons legally entitled thereto, and shall endorse,
execute, deliver, record and file all instruments and documents, and do all
other acts and things, reasonably required for the return of the Collateral to
Grantors, or to the Person or Persons legally entitled thereto, and to evidence
or document the release of Secured Party's interests arising under this
Agreement, all as reasonably requested by, and at the reasonable expense of,
Grantors.
11. Additional Powers and Authorization. Secured Party shall be entitled to the
benefits accruing to it as Administrative Agent under the Loan Agreement and the
other Loan Documents. Notwithstanding anything contained herein to the contrary,
Secured Party may employ agents, trustees, or attorneys-in-fact and may vest any
of them with any Property (including, without limitation, any Collateral
assigned hereunder), title, right or power deemed necessary for the purposes of
such appointment.
12. WAIVER OF JURY TRIAL. EACH GRANTOR AND SECURED PARTY EXPRESSLY WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE LOAN
AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE 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 NOW EXISTING OR
HEREAFTER ARISING AND WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR
OTHERWISE. EACH GRANTOR AND SECURED PARTY AGREE THAT ANY SUCH CLAIM, DEMAND,
ACTION 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
RIGHTS TO A TRIAL BY JURY ARE 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, THE LOAN 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, THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS. ANY PARTY
HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT
AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH AND GOVERNED BY THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA AND THE
LAWS OF THE STATE OF CALIFORNIA.
14. Miscellaneous.
(a) Grantors and Secured Party may from time to time agree in writing to the
release of certain of the Collateral from the security interest created hereby.
(b) Any notice, request, demand or other communication required or permitted
under this Agreement shall be in writing and shall be deemed to be properly
given if done in accordance with Section 11.6 of the Loan Agreement.
(c) Except as otherwise set forth in the Loan Agreement, the provisions of this
Agreement may not be modified, amended, restated or supplemented, whether or not
the modification, amendment, restatement or supplement is supported by new
consideration, except by a written instrument duly executed and delivered by
Secured Party and Grantors.
(d) Except as otherwise set forth in the Loan Agreement or this Agreement, any
waiver of the terms and conditions of this Agreement, or any Event of Default
and its consequences hereunder or thereunder, and any consent or approval
required or permitted by this Agreement to be given, may be made or given with,
but only with, the written consent of Secured Party on such terms and conditions
as specified in the written instrument
granting such waiver, consent or approval.
(e) Any failure or delay by Secured Party to require strict performance by
Grantors of any of the provisions, warranties, terms, and conditions contained
herein, or in any other agreement, document, or instrument, shall not affect
Secured Party's right to demand strict compliance and performance therewith, and
any waiver of any default shall not waive or affect any other default, whether
prior or subsequent thereto, and whether of the same or of a different type.
None of the warranties, conditions, provisions, and terms contained herein, or
in any other agreement, document, or instrument, shall be deemed to have been
waived by any act or knowledge of Secured Party, its agents, officers, or
employees, but only by an instrument in writing, signed by an officer of Secured
Party and directed to Grantors, specifying such waiver.
(f) If any term or provision of this Agreement conflicts with any term or
provision of the Loan Agreement, the term or provision of the Loan Agreement
shall control.
(g) If any provision hereof shall be deemed to be invalid by any court, such
invalidity shall not affect the remainder of this Agreement.
(h) This Agreement supersedes all prior oral and written assignments and
agreements between the parties hereto on the subject matter hereof.
(i) This Agreement shall be binding upon, and for the benefit of, the parties
hereto and their respective legal representatives, successors, and assigns.
(j) This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and all of which, taken together, shall constitute
one and the same agreement.
IN WITNESS WHEREOF, each Grantor has executed this Agreement by its duly
authorized officer as of the date first written above.
"Grantors"
JAKKS PACIFIC, INC.
FLYING COLORS TOYS, INC.
ROAD CHAMPS, INC.
PENTECH INTERNATIONAL INC.
By: /s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
Title: Exec. V.P./C.F.O.
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of each of the foregoing
ACCEPTED AND AGREED
AS OF THE DATE FIRST
ABOVE WRITTEN:
"Secured Party"
BANK OF AMERICA, N.A.,
as Administrative Agent, and
for and on behalf of the Lenders
By: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
Title:Assistant Vice President
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SCHEDULE 1
TO
TRADEMARK SECURITY AGREEMENT
Existing and Pending Trademarks
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Application No./ Application Date/
Owner Trademark Registration No. Registration Date
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EXHIBIT A
TO
TRADEMARK SECURITY AGREEMENT
INSTRUMENT OF JOINDER
THIS INSTRUMENT OF JOINDER (this "Joinder") is executed as of
_________________, _____, by ______________________________, a
___________________________ ("Joining Party"), and delivered to Bank of America
N.A., as Administrative Agent, pursuant to the Trademark Security Agreement
dated as of ___________, 2001 made by JAKKS Pacific, Inc., a Delaware
corporation, Flying Colors Toys, Inc., a Michigan corporation, Road Champs,
Inc., a Delaware corporation, and Pentech International Inc., a Delaware
corporation (and, with other parties that may be added from time to time, the
"Grantors"), in favor of the Administrative Agent and the Lenders referred to in
the Loan Agreement referred to below (the "Agreement"). Terms used but not
defined in this Joinder shall have the meanings defined for those terms in the
Agreement.
RECITALS
1. The Agreement was made by the Grantors in favor of the Administrative Agent
for the benefit of the Lenders that are parties to that certain Loan Agreement
dated as of October 12, 2001 by and among the Borrowers which are parties
thereto, the Lenders which are parties thereto, and Bank of America, N.A., as
the Administrative Agent for the Lenders (the "Loan Agreement).
2. Joining Party is required pursuant to the Loan Agreement to become a Grantor.
3. Joining Party expects to realize direct and indirect benefits as a result of
the availability of the credit facilities under the Loan Agreement to the
Borrowers.
NOW THEREFORE, Joining Party agrees as follows:
AGREEMENT
(2) By this Joinder, Joining Party becomes a "Grantor" under and pursuant to
Section 9 of the Agreement. Joining Party agrees that, upon its execution
hereof, it will become a Grantor under the Agreement with respect to all
Obligations of the Borrowers heretofore or hereafter incurred under the Loan
Documents, and will be bound by all terms, conditions, and duties applicable to
a Grantor under the Agreement.
(3) The effective date of this Joinder is _________, _____.
"Joining Party"
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a
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By:
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Name:
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Title:
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ACKNOWLEDGED:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
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Name:
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Title:
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