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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 6, 1995
THE TOPPS COMPANY, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-15817 11-2849283
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
One Whitehall Street, New York, New York 10004
(Address of principal executive offices); (Zip Code)
Registrant's telephone number, including area code: 212-376-0300
Not Applicable
(Former name or former address, if changed from last report)
Page 1 of a total of_____ pages. Exhibit index appears on page _.
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Item 7. Financial Statements and Exhibits
(a) Exhibits:
Exhibit 1 Cash Collateral Agreement, dated June 30, 1995,
between The Topps Company, Inc. and NationsBank, N.A.
(Carolinas)*
_________________
* This exhibit replaces the agreement previously filed as Exhibit 5
to the Registrant's Current Report on Form 8-K, filed on July 10, 1995.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE TOPPS COMPANY, INC.
By: /s/ John Perillo
Name: John Perillo
Title: Vice President - Operations
July 10, 1995
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Page No.
In Sequentially
Exhibit No. Description Numbered Schedule
<S> <C> <C>
1 Cash Collateral Agreement, dated June 30, 1995,
between The Topps Company, Inc. and NationsBank, N.A.
(Carolinas)*
</TABLE>
_____________________
* This exhibit replaces the agreement previously filed as Exhibit 5
to the Registrant's Current Report on Form 8-K, filed on July 10, 1995.
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CASH COLLATERAL AGREEMENT
This CASH COLLATERAL AGREEMENT (this "Agreement") dated as of June 30,
1995, is made by and among THE TOPPS COMPANY, INC., a Delaware corporation
(the "Pledgor"), and NATIONSBANK, NATIONAL ASSOCIATION (CAROLINAS), a national
banking association, as Agent (the "Agent") for each of the lenders (the
"Lenders" and collectively with the Agent, the "Secured Parties") now or
hereafter party to the Credit Agreement (as defined below). All capitalized
terms used but not otherwise defined herein shall have the respective meanings
assigned thereto in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Pledgor, the Agent and the Lenders have entered into a
Credit Agreement dated as of the date hereof (as from time to time amended,
restated, supplemented or otherwise modified the "Credit Agreement") pursuant
to which the Lenders have agreed to make certain credit facilities available
to the Borrower and to issue certain Letters of Credit;
WHEREAS, Section 2.7 of the Credit Agreement provides that the Borrower
may deposit with the Agent the amount of certain mandatory prepayments under
the Credit Agreement as cash collateral for the Borrower's Obligations in
order to avoid certain prepayment costs associated with Eurodollar Rate Loans
(the "Prepayment Cash Collateral");
WHEREAS, Section 11.1 of the Credit Agreement provides, under certain
circumstances, that the Agent may require the deposit of cash collateral as
security for future drawings and Reimbursement Obligations under outstanding
Letters of Credit (the "LC Cash Collateral");
WHEREAS, as a condition precedent to the Lenders' obligations to make
Advances and to issue or purchase participations in Letters of Credit under
the Credit Agreement, Pledgor is required to execute and deliver to the Agent
a copy of this Agreement on or before the Closing Date;
NOW, THEREFORE, in consideration of the foregoing and the agreements,
provisions and covenants contained herein, Pledgor and the Agent hereby agree
as follows:
Section 1. The following capitalized terms used in this Agreement shall
have the following meanings notwithstanding any definition thereof in the
Credit Agreement:
"Collateral" means (a) all funds consisting of Prepayment Cash Collateral
or LC Cash Collateral from time to time on deposit in
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the Cash Collateral Account; (b) all Investments and all certificates
and instruments from time to time representing or evidencing such
Investments; (c) all notes, certificates of deposit, checks and other
instruments from time to time hereafter delivered to or otherwise
possessed by the Agent for or on behalf of Pledgor in substitution
for or in addition to any or all of the Collateral described in
clause (a) or (b) above; (d) all interest, dividends, cash, instruments
and other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the
Collateral described in clause (a), (b) or (c) above; and (e) to
the extent not covered by clauses (a) through (d) above, all
proceeds of any or all of the foregoing Collateral.
"Investments" means those investments, if any, of cash held in the Cash
Collateral made by the Agent pursuant to Section 5 hereof.
"Cash Collateral Account" means the cash collateral account
established and maintained pursuant to Section 2 hereof.
"Secured Obligations" means (i) all Obligations of Pledgor now existing
or hereafter arising under or in respect of the Credit Agreement, any Letter
of Credit, the other Loan Documents or any Hedging Agreements among the
Borrower and any Lender and (ii) without duplication, all obligations of
Pledgor now or hereafter existing under or in respect of this Agreement,
including, without limitation, with respect to all charges, fees, expenses,
commissions, reimbursements, indemnities and other payments related to or in
respect of the obligations contained in this Agreement.
Section 2. Cash Collateral Account.
(i) Agent has established and shall maintain at the offices of the
Agent at 100 North Tryon Street, Charlotte, North Carolina, in the name
of the Agent and under the sole dominion and control of the Agent, a cash
collateral account designated as NationsBank/Topps Cash Collateral
Account, Account No. 001117803 (the "Cash Collateral Account").
(ii) Funds shall be deposited into the Cash Collateral Account (a)
with respect to Prepayment Cash Collateral, at the sole election of the
Pledgor from time to time on or before the due date of any mandatory
prepayment under the Credit Agreement and (b) with respect to LC Cash
Collateral, upon the direction of the Agent in accordance with Section
11.1 of the Credit Agreement.
(iii) Interest and other income (but not any principal) received in
respect of Investments of any amounts deposited in the Cash Collateral
Account pursuant to clause (ii) of this Section 2 shall be delivered by
the Agent to Pledgor on the
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last Business Day of each calendar month; provided, however, that the Agent
shall not deliver to Pledgor any such interest or other income if an Event of
Default has occurred and is continuing or, with respect to LC Cash Collateral
only, there remain outstanding any Secured Obligations which have not been
indefeasibly paid in full in cash.
(iv) The principal portion of any Prepayment Cash Collateral shall
be paid out of the Cash Collateral Account without notice to or
instruction from the Borrower in amounts equal to and at the times
corresponding to the end of an Interest Period for each Eurodollar
Segment of the Term Loan in respect of which such deposit was made
occurring after the date of deposit of such Collateral. Such amounts so
disbursed from the Cash Collateral Account shall be automatically applied
by the Agent on behalf of the Borrower to repay each applicable
Eurodollar Segment of the Term Loan having its Interest Period expire on
such date.
(v) Upon a drawing under any Letter of Credit in respect of LC
Cash Collateral that has been delivered to the Agent pursuant hereto, the
Agent shall apply such amounts to reimburse the Issuing Bank for the
amount of such drawing. The Pledgor shall not have the right to receive
any principal portion of the LC Cash Collateral except in accordance with
Section 17 below.
Section 3. Pledge; Security for Secured Obligations. Pledgor hereby
pledges to the Agent for the benefit of the Lenders a first priority lien and
security interest in the Collateral, as collateral security for the prompt
payment in full when due, whether at stated maturity, by acceleration or
otherwise (including, without limitation, the payment of interest and other
amounts which would accrue and become due but for the filing of a petition in
bankruptcy or the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code), of all Secured Obligations.
Section 4. Delivery of Collateral. The Collateral shall be delivered to
the Agent, for the benefit of the Lenders, in the form of immediately
available funds.
Section 5. Investing of Amounts in the Cash Collateral Account; Amounts
held by the Agent. Cash held by the Agent in the Cash Collateral Account
shall be invested only as provided in this Section 5.
(i) Except as otherwise provided in Section 12 hereof, any funds on
deposit in the Cash Collateral Account shall be invested by the Agent so
long as no Event of Default shall have occurred and be continuing, in
Eligible Securities,
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provided that the Agent shall maintain at all times a perfected
security interest in such Collateral.
(ii) The Agent is hereby authorized to sell or otherwise dispose of,
and shall sell or otherwise dispose of, all or any designated part of the
Collateral if such sale or disposition is necessary to permit the Agent
to exercise its rights or perform its duties hereunder or under the
Credit Agreement. The Agent shall have no responsibility for any loss in
the value of the Collateral resulting from a fluctuation in interest
rates or otherwise. Any interest, dividends or other distribution, yield
or return received or paid on securities constituting part of the
Collateral and the net proceeds of the sale or payment of any such
securities shall be held in the Cash Collateral Account by the Agent.
Section 6. Representations and Warranties. In addition to its
representations and warranties made pursuant to the Credit Agreement, Pledgor
represents and warrants to the Agent that the following statements are true,
correct and complete:
(i) Pledgor is the legal and beneficial owner of the Collateral
free and clear of any Lien except for the lien and security interest
created by this Agreement;
(ii) The pledge and assignment of the Collateral pursuant to this
Agreement creates a valid and perfected first priority security interest
in the Collateral, securing the payment of the Secured Obligations.
Section 7. Further Assurances. Pledgor agrees that at any time and from
time to time, at its expense, it will promptly execute and deliver to the
Agent any further instruments and documents, and take any further actions,
that may be necessary or that the Agent may reasonably request, in order to
perfect and protect any security interest granted or purported to be granted
hereby or to enable the Agent to exercise and enforce its rights and remedies
hereunder with respect to any Collateral.
Section 8. Transfers and Other Liens. Pledgor agrees that it will not
(a) sell or otherwise dispose of any of the Collateral or any interest
therein, or (b) create or permit to exist any Lien upon or with respect to any
of the Collateral, except for the lien and security interest created by this
Agreement.
Section 9. The Agent Appointed Attorney-in Fact. Pledgor hereby
appoints the Agent as its attorney-in-fact, with full authority in the place
and stead of Pledgor and in the name of Pledgor or otherwise, from time to
time in the Agent's reasonable discretion to take any action and to execute
any instrument which the Agent may reasonably deem necessary or advisable to
accomplish
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the purposes of the Agreement, including, without limitation, to receive,
endorse and collect all instruments made payable to Pledgor representing any
payment, dividend, or other distribution, yield or return in respect of the
Collateral or any part thereof and to give full discharge for the same. In
performing its functions and duties under this Agreement, the Agent shall act
solely for the Lenders, and the Agent has not assumed nor shall be deemed to
have assumed any obligation towards or relationship of agency or trust with or
for Pledgor.
Section 10. The Agent May Perform. If Pledgor fails to perform any
agreement contained herein, after notice to Pledgor, the Agent may itself
perform, or cause performance of, such agreement, and the expenses of the
Agent incurred in connection therewith shall be payable by Pledgor under
Section 13 hereof.
Section 11. Standard of Care; No Responsibility For Certain Matters. In
dealing with the Collateral in its possession, the Agent shall exercise the
same care which it would exercise in dealing with its own property of a
similar nature, but it shall not be responsible for (a) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Collateral, whether or not the Agent has or is
deemed to have knowledge of such matters, (b) taking any steps to preserve
rights against any parties with respect to any Collateral (other than steps
taken in accordance with the standard of care set forth above to maintain
possession of the Collateral), (c) the collection of any proceeds, (d) any
loss resulting from Investments made pursuant to Section 5 hereof, or (e)
determining (x) the correctness of any statement or calculation made by
Pledgor in any written or telex (tested or otherwise) instructions, or (y)
whether any deposit in the Cash Collateral Account is proper.
Section 12. Remedies upon Event of Default; Application of Proceeds. If
any Event of Default shall have occurred and be continuing:
(i) The Agent may and shall at the request of the Required Lenders
exercise in respect of the Collateral, in addition to other rights and
remedies provided for herein or in the Credit Agreement or otherwise
available to it, all the rights and remedies of a secured party on
default under the Uniform Commercial Code (the "Code") as in effect in
the State of North Carolina at that time, and the Agent may, without
notice except as specified below, sell the Collateral or any part thereof
in one or more parcels at public or private sale, at any exchange or
broker's board or at any of the Agent's offices or elsewhere, for cash,
on credit or for future delivery, and at such price or prices, and upon
such other terms as the Agent may deem commercially reasonable. Pledgor
agrees that, to the extent notice of sale shall be required by
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law, at least ten (10) days' notice to Pledgor of the time and place of
any public sale or the time after which any private sale is to be
made shall constitute reasonable notification. The Agent shall not be
obligated to make any sale of the Collateral regardless of notice of
sale having been given. The Agent may adjourn any public or private
sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned.
(ii) Any cash held by the Agent as Collateral and all cash proceeds
received by the Agent in respect of any sale of, collection from, or
other realization upon all or part of the Collateral shall be applied
(after payment of any amounts payable to the Agent pursuant to Section 13
hereof) by the Agent in accordance with Section 11.5 of the Credit
Agreement.
Section 13. Expenses. In addition to any payments of expenses of the
Agent pursuant to the Credit Agreement or the other Loan Documents, Pledgor
agrees to pay promptly to the Agent all the costs and reasonable expenses,
including reasonable attorneys fees and expenses, which the Agent may incur in
connection with (a) the custody or preservation of, or the sale of, collection
from, or other realization upon, any of the Collateral, (b) the exercise or
enforcement of any of the rights of the Agent hereunder, or (c) the failure by
Pledgor to perform or observe any of the provisions hereof.
Section 14. No Delay's Waiver, etc. No delay or failure on the part of
the Agent in exercising, and no course of dealing with respect to, any power
or right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise by the Agent of any power or right hereunder preclude other
or further exercise thereof or the exercise of any other power or right. The
remedies herein provided are to the fullest extent permitted by law cumulative
and are not exclusive of any remedies provided by law.
Section 15. Amendments, Etc. No amendment, modification, termination or
waiver of any provision of this Agreement, or consent to any departure by
Pledgor therefrom, shall in any event be effective without the written
concurrence of the Agent.
Section 16. Notices. Except as otherwise specifically provided herein,
all notices which are to be sent to Pledgor or the Agent shall be given in
accordance with the Credit Agreement.
Section 17. Continuing Security Interest; Termination. This Agreement
shall create a continuing security interest in the Collateral and shall remain
in full force and effect until all Secured Obligations (other than Secured
Obligations in the nature of continuing indemnities or expense reimbursement
obligations not
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yet due and payable) shall have been indefeasibly paid in full in cash, and
the Credit Agreement shall have terminated. Upon the indefeasible payment in
full in cash of the Secured Obligations and all other payments required under
Section 13.10 of the Credit Agreement and the cancellation or expiration of
all Letters of Credit and termination or expiration of all commitments and
other obligations of the Issuing Bank to issue any Letters of Credit, Pledgor
shall be entitled, subject to the provisions of Section 12 hereof, to the
return, upon its request and at its expense, of such of the Collateral as
shall not have been sold or otherwise applied pursuant to the terms hereof.
Section 18. Governing Law; Waivers of Trial by Jury, Etc.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
(b) EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND CONSENTS
THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN
ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF NEW YORK, STATE OF
NEW YORK, UNITED STATES OF AMERICA AND, BY THE EXECUTION AND DELIVERY OF
THIS AGREEMENT, EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY HAVE NOW OR
HEREAFTER TO THE LAYING OF THE VENUE OR TO THE JURISDICTION OF ANY SUCH
SUIT, ACTION OR PROCEEDING, AND IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT,
ACTION OR PROCEEDING.
(c) EACH PARTY AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF SUCH PARTY PROVIDED IN
SECTION 13.3 OF THE CREDIT AGREEMENT OR BY ANY OTHER METHOD OF SERVICE
PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW
YORK.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL
PRECLUDE ANY PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS IN THE
COURTS OF ANY PLACE WHERE ANY OTHER PARTY OR ANY OF SUCH PARTY'S PROPERTY
OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY THE
APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH PARTY HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY WAIVES, IN
RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, THE JURISDICTION OF ANY
OTHER COURT OR COURTS WHICH NOW OR
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HEREAFTER, BY REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE,
MAY BE AVAILABLE TO IT.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR
REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN
CONNECTION WITH THE FOREGOING, EACH PARTY HEREBY AGREES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY AND EACH PARTY HEREBY WAIVES,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY HAVE
THAT EACH ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section 19. Successors and Assigns. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party and all covenants, promises, and
agreements by or on behalf of Pledgor or by and on behalf of the Agent shall
bind and inure to the benefit of the successors and assigns of Pledgor and the
Agent.
Section 20. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by the different parties on separate
counterparts and each such counterpart shall for all purposes be deemed an
original, but all such counterparts shall together constitute but one and the
same Agreement. Pledgor and the Agent hereby acknowledge receipt of a true,
correct, and complete counterpart of this Agreement.
Section 21. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such provision
and such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction.
Section 22. Headings. This section headings in this Agreement are
inserted for convenience of reference and shall not be considered a part of
this Agreement or used in its interpretation.
[signatures on following page]
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IN WITNESS WHEREOF, Pledgor and the Agent have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
THE TOPPS COMPANY, INC.
By: /s/ John Perillo
Name: John Perillo
Title: Vice President - Operations
NATIONSBANK, NATIONAL ASSOCIATION
(CAROLINAS), as Agent for the Lenders
By: /s/ Christopher C. Browder
Name: Christopher C. Browder
Title: Senior Vice President
