EXHIBIT 10.37
WAIVER NUMBER 1 AND FIFTH AMENDMENT
WAIVER NUMBER 1 AND FIFTH AMENDMENT, dated as of November 25, 1996
(this "Amendment"), to the Amended and Restated Credit and Guarantee Agreement,
dated as of August 30, 1994 (as amended, supplemented or otherwise modified,
the "Fleer Credit Agreement"), among Marvel Entertainment Group, Inc. (the
"Company"), Fleer Corp. ("Fleer"), the banks and other financial institutions
from time to time parties thereto (the "Fleer Banks"), the Co-Agents named
therein and The Chase Manhattan Bank (formerly known as Chemical Bank), as
administrative agent (in such capacity, the "Administrative Agent") for the
Fleer Banks.
W I T N E S S E T H:
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WHEREAS, the Company, Fleer, the Fleer Banks and the Administrative
Agent are parties to the Fleer Credit Agreement;
WHEREAS, the Company and Fleer have requested that the Administrative
Agent and the Fleer Banks consent to certain transactions and amend certain
provisions of the Fleer Credit Agreement, as set forth herein; and
WHEREAS, the Administrative Agent and the Fleer Banks are willing to
grant such consents and to effect such amendments, but only upon the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the Company, Fleer, the Fleer
Banks and the Administrative Agent hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Fleer Credit Agreement shall have such meanings when used herein.
2. Waiver of Subsection 8.1. The Administrative Agent and the Fleer
Banks hereby waive compliance with the provisions of subsection 8.1 of the
Fleer Credit Agreement for all periods ending during the period from September
30, 1996 through March 30, 1997.
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3. Amendment of Subsection 1.1. Subsection 1.1 of the Fleer Credit
Agreement hereby is amended by:
(a) deleting in their entirety the definition of the terms "Applicable Margin",
"Exposure" and "Participation Agreement" contained therein;
(b) inserting therein in proper alphabetical order the following definitions:
"Applicable Margin" shall mean (a) for each Alternate Base Rate
Loan, 2% per annum and (b) for each Eurodollar Loan, 3% per annum.
"Exposure" shall mean, at any date, the sum of the Aggregate
Commitment at such date and the aggregate amount of participating
interests in the Italian L/C then held by the Fleer Banks parties to
the Participation Agreement;
"Italian L/C" shall mean the letter of credit issued by The Chase
Manhattan Bank for the account of Panini which secures the obligations
owing by Panini to the Local Lender on account of the Local Loan;
"Participation Agreement" shall mean the Participation Agreement,
dated as of November 30, 1996, among the Participants named therein
and The Chase Manhattan Bank, as the same may be amended, supplemented
or otherwise modified from time to time;
(c) deleting from the parenthetical contained in clause (c) of the definition
of the term "Net Proceeds Event" contained therein the phrase "as in effect
as of the Second Amendment Effective Date" and substituting therefor the
phrase "as in effect from time to time".
4. Amendment of Subsection 5.10. Subsection 5.10 of the Fleer Credit
Agreement hereby is amended by deleting the date "December 31, 1993" contained
therein and by substituting therefor the date "November 25, 1996".
5. Amendment of Subsection 8.2. Subsection 8.2 of the Fleer Credit
Agreement hereby is amended by:
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(a) deleting clause (j) thereof in its entirety and substituting therefor the
following:
(j) Indebtedness in respect of lines of credit for Panini and its
Subsidiaries in an aggregate principal amount not to exceed Italian
Lira 75,000,000,000 at any one time outstanding; provided that the
proceeds of any borrowings under such lines of credit are used for
working capital purposes of the Company and its Subsidiaries;
(b) deleting from clause (n) thereof the word "and" which appears immediately
following the semi-colon at the end thereof;
(c) deleting from clause (o) thereof (i) the date "December 31, 1996" and
substituting therefor the date "March 30, 1997" and (ii) the period which
appears at the end thereof and substituting therefor a semi-colon followed
by the word "and"; and
(d) inserting therein as new clause (p) thereof the following:
(p) Indebtedness of Panini in respect of the Italian L/C.
6. Amendment of Subsection 8.6. Subsection 8.6 of the Fleer Credit
Agreement hereby is amended by:
(a) deleting from clause (g) thereof the word "and" which appears immediately
following the semi-colon at the end thereof;
(b) deleting from clause (h) thereof the period which appears at the end
thereof by substituting therefor a semi-colon followed by the word "and";
and
(c) inserting therein as a new clause (i) thereof the following:
(i) the sale to Affiliates of the Company or other third parties
of accounts receivable and other assets of the Company and its
Subsidiaries upon terms approved by the Majority Banks; provided that
(1) the sum of (A) the aggregate fair market value of assets (other
than accounts receivable) sold and (B) the
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amount equal to (i) the aggregate purchase price paid for all accounts
receivable sold minus (ii) payments received from account debtors in
respect of accounts receivable previously sold, does not exceed
$50,000,000 in the aggregate and (2) the proceeds thereof shall be
used by the Company and its Subsidiaries for working capital purposes
in the ordinary course of business.
7. Amendment of Subsection 8.10. Subsection 8.10 of the Fleer Credit
Agreement hereby is amended by (a) deleting the word "and" which appears at the
end of clause (iii) of the proviso thereto and substituting a comma therefor
and (b) inserting immediately before the period at the end thereof the
following:
and (v) sales, transfers and other dispositions permitted by subsection
8.6(i)
8. Amendment of Subsection 12.12(b). Subsection 12.12 of the Fleer
Credit Agreement hereby is amended by deleting clause (b) thereof in its
entirety and by substituting therefor the following:
(b) any collateral and/or guarantee obligations provided for in any
Security Document to the extent necessary to permit the consummation of any
transaction permitted by subsection 8.5 or 8.6 of this Agreement; provided
that any Net Proceeds resulting from such transaction (other than
transactions contemplated by subsection 8.6(i) and any other transactions
permitted by subsection 8.5 or 8.6 as in effect as of November 26, 1996)
are applied in the manner contemplated by subsection 4.3 of this Agreement.
9. Consent. The Administrative Agent and the Banks hereby consent that
either:
(a) the Term Loan and Guarantee Agreement, dated as of August 30, 1994
(as amended, supplemented or otherwise modified from time to time, the
"Existing Italian Agreement"), among the Company, Panini S.p.A. (formerly
known as Marvel Comics Italia S.r.l.) and Istituto Bancario San Paolo di
Torino, S.p.A., may be amended in order to (i) decrease the "Applicable
Margin" set forth therein, (ii) loosen or eliminate certain covenants and
defaults contained
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therein and/or (iii) permit the Lender thereunder (and as defined therein)
to assign its rights and obligations thereunder to another lender
reasonably acceptable to the Administrative Agent; provided that the terms
of such amendment are approved by the Majority Banks; or
(b) Panini S.p.A. may enter into a term loan agreement (the
"Substitute Italian Agreement") with a lender approved by the Majority
Banks in an aggregate principal amount not to exceed the amount presently
outstanding under the Existing Italian Agreement, bearing interest at a
rate not in excess of that applicable to amounts under the Existing Italian
Agreement, having a final maturity and amortization which is identical to
that contained in the Existing Italian Agreement and otherwise having terms
which are approved by the Majority Banks; provided that the proceeds of the
Substitute Italian Agreement are applied to pay all amounts outstanding
under the Existing Italian Agreement.
In the event that Panini S.p.A. does enter into the Substitute Italian
Agreement, all references to the term (i) "Local Lender" contained in the Fleer
Credit Agreement shall be deemed to be references to the lender party to the
Local Loan Agreement, (ii) "Local Loan Agreement" contained in the Fleer Credit
Agreement shall be deemed to be references to such amended and restated
agreement and (iii) "Local Loan" contained in the Fleer Credit Agreement shall
be deemed to be references to the loan under the Local Loan Agreement.
10. Representations and Warranties. Each of the Company and Fleer
hereby confirms, reaffirms and restates the representations and warranties made
by it in Section 5 of the Fleer Credit Agreement, provided that each reference
to the Fleer Credit Agreement therein shall be deemed to be a reference to the
Fleer Credit Agreement after giving effect to this Amendment and to each other
amendment, supplement and other modification executed and delivered by the
Company or any of its Subsidiaries on the date hereof. The Company represents
and warrants that, after giving effect to this Amendment and to each other
amendment, supplement and other modification executed and delivered by the
Company or any of its Subsidiaries on the date hereof, no Default or Event of
Default has occurred and is continuing.
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11. Continuing Effect of Fleer Credit Agreement. This Amendment shall
not constitute a waiver, amendment or modification of any other provision of
the Fleer Credit Agreement not expressly referred to herein and shall not be
construed as a waiver or consent to any further or future action on the part of
the Company or Fleer that would require a waiver or consent of the Fleer Banks
or the Administrative Agent. Except as expressly amended or modified herein,
the provisions of the Fleer Credit Agreement are and shall remain in full force
and effect.
12. Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts and all such counterparts
shall be deemed to be one and the same instrument. Each party hereto confirms
that any facsimile copy of such party's executed counterpart of this Amendment
(or its signature page thereof) shall be deemed to be an executed original
thereof.
13. Effectiveness. This Amendment shall be effective upon receipt by
the Administrative Agent of:
(a) counterparts hereof, duly executed and delivered by the Company, Fleer and
the Majority Banks; provided that (i) the amendment of the definition of
the term "Net Proceeds Event" contained in Section 3(c) hereof shall be
effective only upon receipt of counterparts hereof, duly executed and
delivered by the Company, Fleer and the Required Banks and (ii) the
amendment of the terms "Exposure", "Italian L/C" and "Participation
Agreement" shall become effective only upon the issuance of the Italian
L/C; and
(b) an amendment fee, for the account of each Fleer Bank who executes and
delivers the Amendment prior to November 26, 1996, in the amount equal to
12.5 b.p. on the Revolving Credit Commitment of such Fleer Bank.
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14. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
MARVEL ENTERTAINEMENT GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
FLEER CORP.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK (formerly
known as Chemical Bank and as
successor by merger to The Chase
Manhattan Bank, N.A.), as
Administrative Agent and as a Bank
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Deputy General Manager
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XXX XXXX XX XXX XXXX
By: /s/ Xxxxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Assistant Vice President
CIBC, INC.
By: /s/ illegible
--------------------------------
Name:
Title: Director CIBC Xxxx
Xxxxx Securities Corp.,
as agent
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Senior Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By: /s/ Xxxxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Authorized Signature
NATIONSBANK, N.A.
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Associate
CORESTATES BANK, N.A.
By: /s/ illegible
--------------------------------
Name:
Title:
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THE TORONTO-DOMINION BANK
By: /s/ illegible
--------------------------------
Name:
Title:
THE NIPPON CREDIT BANK, LTD.
By: /s/ Xxxxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
and Manager
BANK OF AMERICA ILLINOIS
By: /s/ L. Xxxxxx Xxxxxxx
--------------------------------
Name: L. Xxxxxx Xxxxxxx
Title: Managing Director
BANK OF HAWAII
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxxxxx X. Xxxx, Xx.
--------------------------------
Name: Xxxxxxx X. Xxxx, Xx.
Title: Director
FLEET BANK
By: /s/ Xxxx Xxxx
--------------------------------
Name: Xxxx Xxxx
Title: Senior Vice President
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XXX XXXXXXXX XXXX, XXXXXXX, XXX XXXX
BRANCH
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Joint General Manager
UNION BANK
By: /s/ B. Xxxx Xxxxx
--------------------------------
Name: B. Xxxx Xxxxx
Title: Assistant Vice President
THE FUJI BANK, LTD. - NEW YORK
BRANCH
By: /s/ Xxxx Xxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
and Manager
CITIBANK, N.A.
By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Attorney-in-Fact
IBJ XXXXXXXX BANK & TRUST COMPANY
By: /s/ Xxxx XxXxxxxxxx
--------------------------------
Name: Xxxx XxXxxxxxxx
Title: Vice President
ISTITUTO BANCARIO SAN PAOLO DI
TORINO, S.P.A., NEW YORK LIMITED
BRANCH
By:
--------------------------------
Name:
Title:
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FIRST HAWAIIAN BANK
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
