FIRST AMENDMENT dated as of April 11, 2001 (this "Amendment") by and among
the parties to the Credit Agreement (defined below) and Finance (defined
below), amending the CREDIT AGREEMENT ("Credit Agreement") dated as of June
26, 2000, among THE TOPPS COMPANY, INC., a Delaware corporation (the
"Borrower"), TOPPS ENTERPRISES, INC., a Delaware corporation ("Topps
Enterprises"), the Lenders party hereto, (the "Lenders") and THE CHASE
MANHATTAN BANK, as Agent (in such capacity the "Agent")
RECITALS
The Borrower, Topps Enterprises, the Lenders and the Agent have entered into the
Credit Agreement providing for Loans (as defined in the Credit Agreement) and
Letters of Credit (as defined in the Credit Agreement) from time to time. The
Borrower has created a new Subsidiary (as defined in the Credit Agreement), a
Delaware corporation named Topps Finance, Inc ("Finance"), which Subsidiary is
engaged in business related or incidental to the business conducted by the
Borrower, as required under the Credit Agreement. Under Section 5.14 of the
Credit Agreement Finance is required to become a Guarantor (as defined in the
Credit Agreement). In connection with the foregoing, the Borrower has requested
certain amendments to the Credit Agreement, and the Agent and the Lenders have
agreed, subject to the terms and conditions of this Amendment, to such
amendments.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and in consideration of the agreements herein,
the party signatories hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically defined
herein, each term used herein which is defined in the Credit Agreement, shall
have the meaning assigned to such term in the Credit Agreement.
SECTION 2. Representations and Warranties. The Borrower represents and warrants
to the Lenders that all of the representations and warranties made by it in the
Credit Agreement remain true and correct in all material respects except as set
forth on Schedule 1 annexed to this Amendment. The Borrower, Topps Enterprises
and Finance make the following additional representations and warranties:
(a) Good Standing; Power and Business. Finance is duly organized,
validly existing and in good standing under the laws of the State of
Delaware. Finance is engaged in a business related or incidental to the
business of the Borrower including cash management and investments.
(b) Corporate Authority. The Borrower, Topps Enterprises, and Finance
have full corporate power and authority to execute, deliver and perform
this Amendment and the Credit Agreement as hereby amended, and to incur the
obligations provided for herein and therein, all of which have been duly
authorized by all proper and necessary corporate action. No consent or
approval of stockholders of any of the Borrower, Topps Enterprises or
Finance is required as a condition to the validity or performance or the
exercise by the Agent or any Lender of any of its respective rights or
remedies under this Amendment or under the Credit Agreement as hereby
amended.
(c) Authorizations. All authorizations, consents, approvals,
registrations, notices, exemptions and licenses with or from Governmental
Authorities and other Persons, if any, which are necessary for the
execution and delivery of this Amendment, the performance by the Borrower,
Topps Enterprises or Finance of its respective obligations hereunder and
under the Credit Agreement as hereby amended, and the exercise by the Agent
or any Lender of its rights and remedies hereunder and thereunder, have
been effected or obtained and are in full force and effect.
(d) Binding Agreement. This Amendment and the Credit Agreement as
hereby amended constitute the valid and legally binding obligations of each
of the Borrower, Topps Enterprises and Finance enforceable in accordance
with their terms subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors rights and to general equity principles.
(e) No Conflicts. There is no statute, regulation, rule, order or
judgment, and no provision of any agreement or instrument binding on the
Borrower, Topps Enterprises or Finance or affecting any of their respective
properties, and no provision of the certificate or articles of
incorporation or by-laws of any of them which would prohibit, conflict with
or in any way prevent the execution, delivery or performance of the terms
of this Amendment or the Credit Agreement as hereby amended or the
incurrence of the obligations provided for herein and therein, or result in
or require the creation or imposition of any Lien, (other than in favor of
the Agent) on any of the Borrower's, Topps Enterprises' or Finance's
properties as a consequence of the execution, delivery and performance of
this Amendment or the Credit Agreement as hereby amended or the
transactions contemplated hereby and thereby.
(f) No Default. As of the date hereof, and after giving effect to this
Amendment, there does not exist any Default or Event of Default.
SECTION 3. Amendments. The Borrower, Topps Enterprises, Finance, the Lenders and
the Agent agree that the following amendments to the Credit Agreement shall
become effective on the First Amendment Effective Date (as defined below):
(a) Additional Definitions. The following definitions are added to
Section 1.01 of the Credit Agreement in their proper alphabetical order:
"Borrower Note means any promissory note issued by the Borrower
to Finance in payment of the purchase price for Finance's issued
and outstanding preferred stock (including the promissory note in
the principal amount of $160,000,000 issued by the Borrower to
Finance in payment of the purchase price for Finance's issued and
outstanding preferred stock having an initial liquidation
preference equal to $160,000,000 or alternatively the promissory
note for the difference between (i) the initial liquidation
preference of Finance's preferred stock and (ii) the par value of
Finance's preferred stock).
"Finance Capitalization means the contribution from time to time
by the Borrower to the capital of Topps Enterprises, followed by
the contribution of an equal amount by Topps Enterprises to the
capital of Finance in exchange for Finance's common stock."
"First Amendment Effective Date means the date on or as of which
the (this) First Amendment to this Agreement shall have become
effective pursuant to its terms thereof (i.e., April 11, 2001)."
(b) Amended and Restated Definitions.
(i) The definition of "Guarantor" is hereby amended and restated in
its entirety to read as follows:
"Guarantor" means (i) Topps Enterprises and any domestic
Subsidiary organized or acquired after the date hereof (including
Finance) other than an Approved Internet Subsidiary, or (ii) any
other existing domestic Subsidiary which ceases to be inactive
(in any material respect) at any time after the Effective Date;
all of whom shall jointly and severally guaranty payment of the
Borrower's Obligations.
(ii)The definition of "Material Indebtedness" is hereby amended and
restated in its entirety to read as follows:
"Material Indebtedness" means Indebtedness (other than the Loans,
Letters of Credit and the Borrower Note), or obligations in
respect of one or more Hedging Agreements, of any one or more of
the Borrower and its Subsidiaries, in each case with a principal
amount outstanding of at least $1,000,000. For purposes of
determining Material Indebtedness, the "principal amount" of the
obligations of the Borrower or any Subsidiary in respect of any
Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary would be required to pay if such
Hedging Agreement were terminated at such time.
(iii)The definition of "Restricted Payment" is hereby amended and
restated in its entirety to read as follows:
"Restricted Payment" means (i) any dividend or other distribution
(whether in cash, securities or other property) with respect to
any shares of any class of capital stock of the Borrower or any
Subsidiary, or (ii) any payment (whether in cash, securities or
other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of capital stock
of the Borrower or any Subsidiary by the Borrower or such
Subsidiary, respectively, or any option, warrant or other right
to acquire any such shares of capital stock of the Borrower or
any Subsidiary (excluding any of the foregoing in respect of
common stock or preferred stock of Finance owned by the Borrower
or Topps Enterprises)."
(c) Article VI is hereby amended to add the following sentence at the
beginning of the preamble thereto: "Finance covenants and agrees with the
Lenders as set forth in Section 6.01." In addition, Section 6.01 is hereby
inserted in Article VI (in lieu of the "intentionally omitted" language),
and it shall read as follows:
"Section 6.01. Indebtedness. Finance will not incur, create, assume or
permit to exist any Indebtedness."
(d) Section 6.03 (b) is hereby amended and restated in its entirety to
read as follows:
"(b) The Borrower will not, and will not permit any of its
Subsidiaries to engage to any material extent in business other
than businesses of the type conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and
businesses reasonably related thereto. For purpose of this
Agreement, Finance is engaged in a business reasonably related to
the business of the Borrower."
(e) Section 6.04(a)(D) is hereby amended and restated in its entirety
to read as follows:
"(D) the Borrower will not and will not permit any Subsidiary to
purchase, hold or acquire (including pursuant to any merger with
any Person that was not a wholly-owned Subsidiary prior to such
merger) any capital stock, evidence of Indebtedness or other
equity or securities (including any option, warrant or other
right to acquire any of the foregoing) of any Person other than
Finance or a Subsidiary which was a Subsidiary prior to such
event, or make or permit to exist any investment or any other
interest in any Person other than a Subsidiary which was a
Subsidiary prior to such event, or purchase or otherwise acquire
(in one transaction or a series of transactions) any assets of
any other Person constituting a business unit, except (in any
case contemplated by this clause (D) Permitted Investments,
Permitted Acquisitions, and investments by Finance in
Indebtedness of the Borrower (including any Borrower Note). "
(f) Section 6.04(c) is hereby amended and restated in its
entirety to read as follows:
"(c) The Borrower will not and will not permit any Guarantor to
(i) purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly-owned Subsidiary prior to
such merger) any capital stock, evidence of Indebtedness or other
equity or securities (including any option, warrant or other
right to acquire any of the foregoing) of any Person (other than
a Subsidiary which was a Subsidiary prior to such event) which is
either not organized in the United States or not in the same or a
related line of business as the Borrower (or a business related
or incidental to the business of the Borrower) or a Subsidiary
which is not an Approved Internet Subsidiary, or (ii) make or
permit to exist any investment or any other interest in any such
Person, or (iii) purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any such
Person constituting a business unit unless the assets to be
acquired are intended to be utilized in the same or a related
line of business as the Borrower (or a business related or
incidental to the business of the Borrower) or a Subsidiary which
is not an Approved Internet Subsidiary."
(g) Section 6.05 is hereby amended and restated in its entirety
to read as follows:
"SECTION 6.05. Asset Sales. At any time when any principal or
interest on account of any Loan is outstanding in whole or in
part, the Borrower will not, and will not permit any of its
Subsidiaries to, sell, transfer, lease or otherwise dispose of
any asset, including any capital stock, nor will the Borrower
permit any of its Subsidiaries to issue any additional shares of
its capital stock or other ownership interest in such Subsidiary,
except:
(a) sales of inventory, used, surplus or obsolete equipment and
Permitted Investments in the ordinary course of business;
(b) the granting of licenses in trademarks or other intellectual
property owned by the Borrower or any of its Subsidiaries;
(c) sales, transfers and dispositions to the Borrower or a
Subsidiary; provided that any such sales, transfers or
dispositions made in compliance with Section 6.08 (other than
Section 6.08(d));
(d) Permitted Asset Sales; and
(e) issuance of capital stock by Finance to either Topps
Enterprises or the Borrower; provided that all sales, transfers,
leases and other dispositions permitted by clauses (a) through
(d) above shall be made for fair value."
(h) Section 6.08 is hereby amended and restated in its entirety
to read as follows:
SECTION 6.08. Transactions with Subsidiaries. The Borrower will
not, and will not permit any Subsidiary to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease
or otherwise acquire any property or assets from, or otherwise
engage in any other transactions with, any of its Subsidiaries,
except (a) transactions in the ordinary course of business that
are at prices and on terms and conditions not less favorable to
the Borrower or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties, (b) any
Restricted Payment not prohibited by Section 6.07, (c) the
transactions described in Section 6.04, when not prohibited under
Section 6.04, (d) the transactions described in Section 6.05 when
not prohibited under Section 6.05, and (e) the transactions
contemplated by the issuance of any Borrower Note, Indebtedness
incurred by the Borrower to Finance and the Finance
Capitalization."
(i) Section 9.14 is hereby amended and restated in its
entirety to read as follows:
"Topps Enterprises and Finance. (a) Topps Enterprises has joined
in this Agreement, as a Subsidiary and a Guarantor, in order to
provide its confirmation of all representations and warranties
made herein by the Borrower with respect to Topps Enterprises,
(in its capacity as a Subsidiary, a Guarantor or otherwise) and
to set forth its agreement to perform all of the things required
herein to be "caused" by the Borrower with respect to Topps
Enterprises (in its capacity as a Subsidiary, a Guarantor or
otherwise).
(b) Finance has joined in this Agreement as a Subsidiary and a
Guarantor in order to provide its confirmation of all of the
representations and warranties made herein by the Borrower with
respect to Finance (in its capacity as a Subsidiary, a Guarantor
or otherwise), and to set forth its agreement (in addition to its
covenant under Section 6.01) to perform all of the things
required herein to be "caused" by the Borrower with respect to
Finance (in its capacity as a Subsidiary, a Guarantor or
otherwise)."
SECTION 4. Effectiveness. This Amendment shall become effective on the First
Amendment Effective Date (as defined above), provided that all of the following
conditions precedent shall have been satisfied:
(i) The Agent shall have received (A) original counterparts
of this Amendment signed by the Borrower, Topps Enterprises,
Finance, the Lenders and the Agent; (B) a fully executed Guaranty
from Finance to the Agent dated as of the First Amendment
Effective Date, in the form attached hereto as Exhibit A (the
"Guaranty"); and (C) certificates of resolutions, incumbency and
corporate documents for the Borrower, Topps Enterprises and
Finance, in form acceptable to the Agent, and a good standing
certificate for Finance, in form acceptable to the Agent;
(ii) The Agent shall have approved the initial Borrower Note
and any other documentation associated with the Finance
Capitalization and any other matter reasonably related thereto
(the Agent's signature below to constitute conclusive evidence of
such approval);
(iii) The Agent shall have received an opinion of counsel to
the Borrower, Topps Enterprises and Finance with respect to this
Amendment, in form acceptable to the Agent; provided, however,
that (A) such opinion shall be limited to the due authorization
by the Borrower, Topps Enterprises and Finance with respect to,
and the validity, binding nature and enforceability of this
Amendment, the Credit Agreement as amended hereby and the
Guaranty (as to Finance only), and (B) such opinion may contain
assumptions and qualifications that are substantially the same as
those contained in the opinion letter delivered in connection
with the execution and delivery of the Credit Agreement;
(iv) The Agent's counsel shall have been paid the fees and
disbursements incurred in connection with the Credit Agreement
and this Amendment since June 26, 2000 (including fees and
disbursements incurred in respect of this Amendment); and
(v) The Agent shall have been paid a $5000 amendment fee
(for pro rata distribution to the Lenders) on account of this
Amendment
In the event any of the foregoing conditions precedent is not satisfied on or
before May 25, 2001, the provisions of this Amendment shall automatically become
null and void and shall have no further force or effect. The Borrower shall
promptly after the date hereof supply the Agent with the evidence of the
corporate action taken by the Borrower; Topps Enterprises and Finance in
connection with this Amendment.
SECTION 5. Continuing Effectiveness. The Credit Agreement shall remain in full
force and effect in accordance with its original terms, as expressly modified by
this Amendment. The Borrower and Topps Enterprises hereby ratify, affirm,
acknowledge and agree that the Credit Agreement as amended hereby, and all of
the other Loan Documents to which either or both of them is a party, represent
the valid and binding obligations of the Borrower and Topps Enterprises
enforceable in accordance with their respective terms.
SECTION 6. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 8. Incorporation by Reference. Sections 9.07, 9.10 and 9.11 of the
Credit Agreement are hereby incorporated by reference into this Amendment, and
shall apply, mutatis mutandis, to this Amendment.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date written above.
THE CHASE MANHATTAN BANK THE TOPPS COMPANY, INC.
as lender and Agent
By:____________________________ By: ____________________
Name: Name:
Title: Title:
LASALLE BANK NATIONAL TOPPS FINANCE, INC.
ASSOCIATION
By: ___________________________ By: ____________________
Name: Name:
Title: Title:
TOPPS ENTERPRISES, INC.
By: _____________________
Name:
Title:
EXHIBIT A
GUARANTY
AGREEMENT
Follows this page
TOPPS FINANCE GUARANTY
----------------------
THIS GUARANTY, dated as of April 11, 2001 (together with any amendments,
restatements, modifications and supplements, this "Guaranty ") made by TOPPS
FINANCE, INC., a Delaware corporation (the "Guarantor"), in favor of THE CHASE
MANHATTAN BANK, as agent (the "Agent") for the lenders (the "Lenders") party to
the Credit Agreement (as hereinafter defined). Capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement.
WHEREAS, the Agent, the Lenders, The Topps Company, Inc. (the "Obligor"),
and Topps Enterprises, Inc. entered into a Credit Agreement dated as of June 26,
2000, which Credit Agreement is being amended by a First Amendment (the "First
Amendment") of even date herewith (as amended by the First Amendment and as
hereafter amended, supplemented or otherwise modified from time to time, the
"Credit Agreement").
WHEREAS, in consideration for the Agent's and the Lenders' agreement to
enter into the First Amendment and the transactions contemplated thereby, the
Guarantor has joined in the Credit Agreement and agreed to guaranty the payment
of the obligations owing under the Credit Agreement; and
WHEREAS, it is a condition precedent to the effectiveness of the First
Amendment that the Guarantor shall have executed and delivered to the Agent and
the Lenders this Guaranty;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the Guarantor, the Guarantor agrees with Agent and the Lenders
as follows:
SECTION 1. Guaranty. (a) The Guarantor hereby unconditionally guarantees
the punctual payment when due, of all obligations of every kind or character now
or hereafter existing, whether matured or unmatured, contingent or liquidated,
of the Obligor to each of the Agent and the Lenders under the Credit Agreement,
whether for principal, interest, fees, expenses or otherwise and whether in
United States dollars or other currencies, and any and all reasonable expenses
(including reasonable counsel fees and expenses) incurred by the Agent and the
Lenders in enforcing any of their respective rights under this Guaranty (all
such obligations being collectively referred to as the "Obligations").
SECTION 2. Guaranty of Payment. The Guarantor further agrees that its
guarantee hereunder constitutes a guarantee of payment and performance when due
and not of collection, and waives any right to require that any resort be had by
any of the Lenders to (i) the Obligor, (ii) any other guarantor of any of the
Obligations, (iii) any collateral of any kind, any balance of any deposit
account or credit on the books of any of the Lenders in favor of the Obligor or
any other Person, or (iv) recourse against any other party.
SECTION 3. Guaranty Absolute. The Guarantor guarantees that the Obligations
will be performed and paid strictly in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any of the
Lenders with respect thereto; and such guarantee is not subject to any setoff,
counterclaim or defense. The Obligations of the Guarantor hereunder are
independent of the obligations of other Persons under any other related
document, and a separate action or actions may be brought and prosecuted
hereunder whether the action is brought against any such Person or whether any
such Person is joined in any such action or actions. The liability of the
Guarantor under this Guaranty shall be absolute and unconditional, and shall not
be affected or released in any way, irrespective of:
(i) any lack of validity or enforceability of any or all of the Loan
Documents or of any or all of the Obligations;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment
or waiver of or any consent to departure from any document evidencing
or relating to any of the Obligations or of any or all of the Loan
Documents, including, but not limited to, an increase or decrease in
the Obligations;
(iii) any taking and holding of any collateral or any additional or
other guaranty for all or any of the Obligations, or any amendment,
alteration, exchange, substitution, transfer, enforcement, waiver,
subordination, termination, or release of any collateral securing any
or all of the Obligations, or such additional or other guaranty, or
any non-perfection of any collateral or any consent to departure from
any such guaranty;
(iv) any manner of application of collateral, or proceeds thereof, to
all or any of the Obligations, or the manner of sale of any collateral
securing any of the Obligations;
(v) any consent by one or more of the Lenders to the change,
restructuring or termination of the corporate structure or existence
of the Obligor, or any other guarantor of any of the Obligations, or
any Affiliate of any of them, and any corresponding restructuring of
the Obligations, or any other restructuring or refinancing of the
Obligations or any portion thereof;
(vi) any modification, compromise, settlement or release by one or
more of the Lenders, by operation of law or otherwise, collection or
other liquidation of any or all of the Obligations or any liability of
the Obligor and/or any other guarantor, or of any collateral, in whole
or in part, or any refusal of payment by one or more of the Lenders,
in whole or in part, from the Obligor or any guarantor in connection
with any of the Obligations, whether or not with notice to, or further
assent by, or any reservation of rights against, the Guarantor;
(vii) the waiver of the performance or observance by the Obligor or
any other guarantor of any of the Obligations of any agreement,
covenant, term or condition to be performed by any of them;
(viii) the voluntary or involuntary liquidation, dissolution, sale of
all or substantially all of the property, marshaling of assets and
liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment, or other similar application or proceeding affecting the
Obligor or any other guarantor or any of their respective assets;
(ix) the release of the Obligor or any other guarantor of any of the
Obligations from the performance or observance of any agreement,
covenant, term or condition contained in any agreement or document
evidencing or relating to the Obligations or the Loan Documents by
operation of law; or
(x) any other circumstance (including, but not limited to, any statute
of limitations) which might otherwise constitute a defense available
to, or a discharge of, the Guarantor.
Without limiting the generality of the foregoing, the Guarantor hereby
consents, and hereby agrees, that the rights of the Lenders hereunder, and the
liability of the Guarantor hereunder, shall not be affected by any and all
releases of any collateral or any other guaranty of any of the Obligations. This
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment of any of the Obligations is rescinded or must otherwise
be returned by any Lender upon the insolvency, bankruptcy or reorganization of
the Obligor or otherwise, all as though such payment had not been made.
SECTION 4. Waivers. The Guarantor waives presentment to, demand of payment
from and protest to the Obligor, or any other guarantor of any of the
Obligations, and also waives notice of acceptance of its guarantee and notice of
protest for non-payment. The Guarantor hereby further waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations and this Guaranty and any requirement that the Lenders protect,
secure, perfect or insure any security interest or lien or any property subject
thereto or exhaust any right or take any action against the Obligor, or any
other guarantor of any of the Obligations or any other Person or any collateral.
SECTION 5. Other Waivers. The Guarantor hereby waives any right to require
the Agent or the Lenders to proceed against the Obligor, any other guarantor or
any other Person, or to proceed against any collateral, or pursue any other
remedy in the power of the Agent or the Lenders.
SECTION 6. Subrogation. Upon payment by the Guarantor of any sums to the
Lenders hereunder, all rights of the Guarantor against the Obligor arising as a
result thereof by way of right of subrogation or otherwise, shall in all
respects be subordinate and junior in right of payment to the prior final and
indefeasible payment in full of all the Obligations. If any amount shall be paid
to the Guarantor for the account of the Obligor, such amount shall be held in
trust for the benefit of the Lenders and shall forthwith be paid to the Lenders
to be credited and applied to the Obligations, whether matured or unmatured.
SECTION 7. Amendments, Etc. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by the Guarantor herefrom shall in any
event be effective unless the same shall be in writing and signed by the Lenders
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
SECTION 8. Notices, Etc. All notices and other communications to any party
provided for hereunder shall be in writing (including telegraphic, telecopy,
telex or cable communication) and mailed, telegraphed, telecopied, telexed,
cabled or delivered, addressed to such party, in the case of the Guarantor, at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇. ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ (Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇ ) with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (Telecopy No. 212-728-8111),
Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq., in the case of the Agent, at the address of
the Agent referred to in Section 9.01(b) of the Credit Agreement, or as to any
party at such other address as shall be designated by such party in a written
notice to each other party complying as to delivery with the terms of this
Section. All such notices and other communications shall be effective (a) when
received, if mailed or delivered, or (b) when delivered to the telegraph
company, transmitted by telecopier, confirmed by telex answerback or delivered
to the cable company, respectively, addressed as aforesaid.
SECTION 9. No Waiver, Remedies. No failure on the part of any of the
Lenders to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law, the Credit Agreement or any other
agreement relating to the Obligations.
SECTION 10. Right of Set-off Upon the occurrence and during the continuance
of any Event of Default, the Lenders are hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by the Agent or the
Lenders to or for the credit or the account of the Guarantor against any and all
of the Obligations of the Guarantor now or hereafter existing under this
Guaranty, irrespective of whether the Lenders shall have made any demand under
this Guaranty and although such Obligations may be contingent and unmatured. The
rights of the Lenders under this Section 10 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the
Lenders may have.
SECTION 11. Continuing Guaranty. Transfer of Note; Release of Guaranty.
This Guaranty is a continuing guaranty and shall (i) remain in full force and
effect until the payment in full of all of the Obligations and all other amounts
payable under this Guaranty, (ii) be binding upon the Guarantor, its successors
and assigns, and (iii) inure to the benefit of and be enforceable by the Lenders
and their respective successors, transferees and assigns. Without limiting the
generality of the foregoing clause (iii), each Lender may assign or otherwise
transfer any instrument of indebtedness of the Obligor held by it, or any
interest therein, or grant any participation in its rights or Obligations under
any agreement relating to the Obligations and the Loan Documents, subject to the
provisions of such agreement, to any other Person, and such other Person shall
thereupon become vested with all the rights in respect thereof granted to the
Lender.
SECTION 12. Jurisdiction, Waiver of Jury Trial. THE GUARANTOR HEREBY
IRREVOCABLY SUBMITS ITSELF TO THE EXCLUSIVE JURISDICTION OF BOTH THE SUPREME
COURT OF THE STATE OF NEW YORK, NEW YORK COUNTY AND THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPEAL THEREFROM, FOR THE
PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO
THIS GUARANTY, AND HEREBY WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS
A DEFENSE OR OTHERWISE, IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS
NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE ABOVE-NAMED COURTS FOR ANY
REASON WHATSOEVER, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM OR THAT THIS GUARANTY MAY NOT BE ENFORCED IN OR BY SUCH
COURTS. NEITHER THE GUARANTOR NOR THE LENDER WILL SEEK TO CONSOLIDATE SUCH
PROCEEDING INTO ANY ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED. SECTION 9.10 OF THE CREDIT AGREEMENT SHALL APPLY TO THIS GUARANTY.
SECTION 13. Applicable Law. THIS GUARANTY SHALL IN ALL RESPECTS BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
SECTION 14. Expenses of the Agent and the Lenders. The Guarantor agrees to
pay all reasonable and necessary out-of-pocket expenses incurred by the Agent
and the Lenders in connection with the enforcement or protection of any of their
rights or the rights of the Agent and the Lenders generally in connection with
the Guaranty including, but not limited to, the reasonable fees and
disbursements of counsel for the Agent and the Lenders.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
TOPPS FINANCE, INC.
By:_________________________________
Name:
Title:
SCHEDULE 1
(Change in Representations and Warranties)
None.