THIRD AMENDMENT TO
CREDIT AGREEMENT
Dated as of February 25, 1999
THIRD AMENDMENT, dated as of February 25, 1999 (the "Third Amendment"), to
Credit Agreement, dated as of May 11, 1998 (as heretofore amended and as may be
from time to time supplemented and amended, the "Credit Agreement"), between THE
TOPPS COMPANY, INC., a Delaware corporation (the "Borrower"), and THE CHASE
MANHATTAN BANK, in its capacity as lender (in such capacity, the "Lender") and
as Agent (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, on May 11, 1998, the Borrower, the Lender and the Agent entered
into the Credit Agreement;
WHEREAS, the Borrower has requested that the Lender agree to modify certain
terms of the Credit Agreement, and the Lender has agreed to do so on the terms
and conditions set forth herein;
WHEREAS, unless otherwise defined herein, capitalized terms defined in the
Credit Agreement and used herein are used herein as therein defined.
NOW THEREFORE, the parties to this Third Amendment, for valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
hereto agree as follows:
I. . AMENDMENT TO INITIAL "WHEREAS" CLAUSE. The Initial "WHEREAS" clause of
the Credit Agreement is hereby amended by deleting the dollar amount
"$9,450,000" where it appears therein and replacing in lieu thereof the amount
"$12,450,000".
I. . AMENDMENTS TO SECTION 1.01. Section 1.01 of the Credit Agreement is
hereby amended (a) by amending the definition of "Revolving Commitment" by
deleting the dollar amount "$9,450,000" where it appears therein and replacing
in lieu thereof the amount"12,450,000;" (b) by amending the definition of "Loan
Documents" by inserting the words "the Topps Enterprises Guaranty," prior to the
words "the Security Documents" where such words appear therein; and (c) by
inserting the following definitions in the appropriate alphabetical order:
"Guarantor" means Topps Enterprises.
"Third Amendment" means that certain Third Amendment to Credit
Agreement, dated as of the Third Amendment Effective Date, between the
Borrower and the Agent.
"Third Amendment Effective Date" means the date on which all of the
conditions to the effectiveness of the Third Amendment are either satisfied
or waived.
"Topps Enterprises" means Topps Enterprises, Inc., a Delaware
corporation.
"Topps Enterprises Guaranty" means that certain guaranty, dated as of
the Third Amendment Effective Date made by Topps Enterprises in favor of
the Agent and the Lenders, as the same may be amended, supplemented or
otherwise modified from time to time.
I. . AMENDMENT TO SECTION 2.05. Section 2.05 of the Credit Agreement is
hereby amended by (a) deleting the dollar amount "$4,500,000" in subparagraph
(b)(i) thereof and replacing in lieu thereof the amount "$7,500,000" and (b) by
deleting the dollar amount "$2,000,000" in subparagraph (b)(iii) thereof and
replacing in lieu thereof the amount "$3,500,000."
I. . AMENDMENT TO SECTION 6.04. Section 6.04 of the Credit Agreement is
hereby amended by deleting the dollar amount "$15,000,000" in paragraph (e)
thereof and replacing in lieu thereof the amount "$17,000,000."
I. . AMENDMENT TO SECTION 9.01. Section 9.01 of the Credit Agreement is
hereby amended by deleting the name and address of Xxxxxx, Xxxxx & Xxxxxxx LLP
in paragraph (b) thereof and replacing in lieu thereof the following:
Xxxxxx, Xxxxx & Bockius LLP,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxx, Esq. (Telecopy No. 212-309-6273)
I. . AMENDMENT TO SCHEDULES. Schedule 2.01 of the Credit Agreement is
hereby amended and replaced in its entirety by Exhibit A hereto and Schedule
3.06 of the Credit Agreement is hereby amended and replaced in its entirety by
Exhibit B hereto.
I. . REPRESENTATIONS AND WARRANTIES. The Borrower and the Guarantor hereby
represent and warrant that:
1. each of the representations and warranties contained in Article III
of the Credit Agreement and in each of the other Loan Documents is true and
correct (provided that any representations and warranties which speak to a
specific date shall remain true and correct as of such specific date);
1. after giving effect to this Third Amendment, there does not exist a
Default or an Event of Default as of the date hereof;
1. the execution, delivery and performance by the Borrower of this
Third Amendment (i) are within the corporate powers of the Borrower, (ii)
have been duly authorized by all necessary corporate and, if required,
stockholder action, and (iii) (A) do not require any consent or approval
of, registration or filing with, or any other action by, any Governmental
Authority, except such as have been obtained or made and are in full force
and effect and except filings necessary to perfect Liens created under the
Loan Documents, (B) will not violate any applicable law or regulation or
the charter, by-laws or other organizational documents of the Borrower or
any of its Subsidiaries or any order of any Governmental Authority, (C)
will not violate or result in a default under any indenture, agreement or
other instrument binding upon the Borrower or any of its Subsidiaries or
its assets, or give rise to a right thereunder to require any payment to be
made by the Borrower or any of its Subsidiaries, and (D) will not result in
the creation or imposition of any Lien on any asset of the Borrower or any
of its Subsidiaries, except Liens created under the Loan Documents.
1. This Third Amendment has been duly executed and delivered by the
Borrower.
1. This Third Amendment is the legal, valid and binding obligation of
the Borrower, enforceable against the Borrower in accordance with its
terms.
I. . CONDITIONS PRECEDENT. This Third Amendment shall become effective on
the date (the "Third Amendment Effective Date") on which each of the following
conditions is satisfied or waived:
1. The Agent (or its counsel) shall have received from each party
hereto either (i) a counterpart of this Third Amendment signed on behalf of
such party or (ii) written evidence satisfactory to the Agent (which may
include telecopy transmission of a signed signature page of this Third
Amendment) that such party has signed a counterpart of this Third
Amendment;
1. The Agent (or its counsel) shall have received an original executed
Amended and Restated Revolving Credit Note, dated the Third Amendment
Effective Date, made by the Borrower in favor of the Agent, in the amount
of $12,450,000;
1. The Agent (or its counsel) shall have received signed counterparts
of the Topps Enterprises Guaranty substantially in the form of Exhibit C
hereto and a Trademark Security Agreement Supplement, substantially in the
form of Exhibit A to the Trademark Security Agreement, with respect to any
additional Trademark Collateral acquired since the date of the Trademark
Security Agreement;
1. The Agent (or its counsel) shall have received such documents and
certificates as the Agent or its counsel may reasonably request relating to
the organization, existence or good standing of the Borrower and the
Guarantor, the authorization of the transactions contemplated hereby and
any other legal matters relating to the Borrower, the Guarantor, the Loan
Documents or the transactions contemplated hereby, all in form and
substance satisfactory to the Agent and its counsel.
1. The Agent (or its counsel) shall have received a certificate, dated
the Effective Date and signed by the President, Vice President or Financial
Officer of the Borrower, concerning compliance with the conditions set
forth in paragraphs (a) and (b) of Section 4.02 of the Credit Agreement.
1. The Agent (or its counsel) shall have received a favorable written
opinion (addressed to the Agent and the Lenders and dated the Effective
Date) of Xxxxxxx Xxxx & Xxxxxxxxx, counsel for the Borrower and the
Guarantor, covering such matters relating to the Borrower, Guarantor, the
Loan Documents or the transactions contemplated hereby as the Agent shall
reasonably request.
1. The Agent (or its counsel) shall have received signed counterparts
of a Fee Reduction Consent Letter, dated the Effective Date, which sets
forth the consent of the Agent to the reduction of a certain fee as
provided for in that certain Fee Letter, dated April 2, 1998.
1. All consents and approvals required to be obtained by any
Governmental Authority or any other Person as shall be required to
consummate the transactions contemplated hereby, shall have been obtained
and all approvals shall have expired in each case, without the imposition
of any burdensome conditions.
1. The Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or repaid
by the Borrower and the Guarantor hereunder or under any other Loan
Documents.
1. The Agent shall have received such other documents, instruments,
certificates and opinions as are customary for transactions of this type or
as the Agent may reasonably request, and shall be satisfied with such other
conditions as it may reasonably require.
I. . CONTINUOUS EFFECT. The terms of this Third Amendment shall not operate
as a waiver by the Agent or the Lenders, or otherwise prejudice the rights,
remedies or powers of the Agent or the Lenders under the Loan Documents or under
applicable law. Except as expressly provided herein: (x) no terms and provisions
of the Loan Documents are modified or changed by this Third Amendment; and (y)
the terms and provisions of the Loan Documents shall continue in full force and
effect.
I. . SEVERABILITY. The provisions of this Third Amendment are intended to
be severable. If for any reason any provision of this Third Amendment shall be
held invalid or unenforceable in whole or in part in any jurisdiction, such
provision shall, as to such jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
I. . COUNTERPARTS. This Third Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Third Amendment by signing any
such counterpart.
I. . INTEGRATION. This Third Amendment sets forth the entire agreement
among the parties hereto relating to the transactions contemplated hereby and
supersedes any prior oral or written statements or agreements with respect to
such transactions.
I. . GOVERNING LAW. THIS THIRD AMENDMENT SHALL IN ALL RESPECTS BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be duly executed as of the day and the year first written.
THE TOPPS COMPANY, INC.
By:_________________________ Name:
Title:
THE CHASE MANHATTAN BANK,
individually and as Agent,
By:_________________________ Name:
Title:
EXHIBIT A
TO
THIRD AMENDMENT
SCHEDULE 2.01
COMMITMENTS
Term Loan Commitment
The Chase Manhattan Bank $24,950,000
Revolving Commitment
The Chase Manhattan Bank $12,450,000
EXHIBIT B
SCHEDULE 3.06 - DISCLOSED MATTERS
In August 1996, the Company was named a defendant in a class action in the
United States District Court for the Eastern District of New York (the "New York
Court") entitled Xxxxxxxx et al. v. The Topps Company, Inc., No. CV 96 3779
(E.D.N.Y.) (the "Action"). The Action alleged, among other things, that the
Company violated the federal Racketeer Influenced and Corrupt Organizations Act
("RICO") by its practice of selling sports and entertainment trading cards with
randomly-inserted "insert" cards, allegedly in violation of state and federal
anti-gambling laws. During the last two and a half years, the Company's
principal competitors and principal licensors were separately sued in various
federal courts for employing, or participating in, the same or similar
practices. The Action sought treble damages and attorneys' fees on behalf of all
purchasers of packs of cards potentially including "insert" cards over a
four-year period. The New York Court granted the Company's motion to dismiss the
Action with prejudice in August 1997. The New York Court later denied motions by
plaintiffs to alter, amend or vacate the judgment, and for leave to file an
amended complaint. Plaintiffs' time to appeal all of these rulings has expired,
and the judgment for the Company dismissing the Action is now final and
nonappealable.
In September 1998, the Company filed an action in the New York Court
seeking declaratory and injunctive relief against a class of all original
end-use purchasers of trading cards marketed within the four years prior to the
filing of the complaint in packages that may contain randomly-inserted "insert"
cards, entitled The Topps Company, Inc. x. Xxxxxxxx xx xx., Xx. XX 00 0000 (XXX)
(E.D.N.Y.) (the "Declaratory Judgment Action") The Declaratory Judgment Action
seeks a declaratory judgment that the defendant class of card purchasers did not
suffer any injury cognizable under RICO by this practice, and an injunction
enjoining the defendant class from filing or pursuing any further RICO actions
against the Company relating to the purchase of trading cards. Two similar
declaratory judgment actions have been filed by several of the Company's
principal licensors in the New York Court. On December 14, 1998 defendants in
all of the declaratory judgment actions moved to dismiss the complaints, and the
New York Court will hear oral argument on the motion on February 26, 1999.
In November 1998, the Company was named a defendant in a purported class
action commenced in the United States District Court for the Southern District
of California (the "California Court") entitled Xxxxxxxxx et al. v. The Topps
Company, Inc., No. CV 2121-B (AJB) (S.D. Cal.) (the "Class Action"). The Class
Action alleged that the Company violated RICO, and the California Unfair
Business Practices Act, by its practice of selling sports and entertainment
trading cards with randomly-inserted "insert" cards, allegedly in violation of
state and federal anti-gambling laws. The Class Action seeks treble damages and
attorneys' fees on behalf of all individuals who purchased packs of cards at
least in part to obtain an "insert" card over a four-year period. On January 25,
1999, the Company moved to dismiss the complaint, and the California Court will
hear oral argument on the motion on March 1, 1999. On January 22, 1999,
plaintiffs moved to consolidate the Class Action with similar class actions
pending against several of the Company's principal competitors and principal
licensors in the California Court. The Company opposed this motion.
EXHIBIT C
TO
THIRD AMENDMENT
TOPPS ENTERPRISES GUARANTY
TOPPS ENTERPRISES GUARANTY, dated as of February 25, 1999 (together
with any amendments, restatements, modifications and supplements, the
"Guaranty") made by TOPPS ENTERPRISES, 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 and The Topps Company, Inc. (the
"Obligor") entered into a Credit Agreement dated as of May 11, 1998 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
WHEREAS, contemporaneously with the execution and delivery of this
Guaranty, the Agent, the Lenders and the Obligor are entering into a Third
Amendment to the Credit Agreement (the "Third Amendment").
WHEREAS, in consideration for the Agent's and the Lenders' agreement
to enter into the Third Amendment and the transactions contemplated thereby, the
Guarantor has agreed to guaranty the payment of the obligations owing under the
Credit Agreement.
WHEREAS, it is a condition precedent to the effectiveness of the Third
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, (iii) any
Collateral held for payment of the Obligations or to any balance of any deposit
account or credit on the books 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 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 the Loan Documents, or
to 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 the Loan Documents,
including, but not limited to, an increase or decrease in the
Obligations;
(iii) any taking and holding of Collateral or any other collateral or
additional guaranties for all or any of the Obligations, or any
amendment, alteration, exchange, substitution, transfer, enforcement,
waiver, subordination, termination, or release of any collateral
securing the Obligations, if any (the "Collateral") or any other
collateral or such guaranties, or any non-perfection of any collateral
or any consent to departure from any such guaranty;
(iv) any manner of application of Collateral or any other collateral,
or proceeds thereof, to all or any of the Obligations, or the manner
of sale of any Collateral or any other collateral;
(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 affiliate thereof 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 the Obligations or the
liability of the Obligor and any other guarantor, or of the
Collateral or any other collateral, in whole or in part, and 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
of any agreement, covenant, term or condition to be performed by
it;
(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 of, or other similar
application or proceeding affecting the Obligor or any of its
assets;
(ix) the release of the Obligor from the performance or
observance of any agreements, covenants, terms or conditions
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
collateral. 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 the
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 person or any Collateral or any other collateral.
SECTION 5. Covenants. The Guarantor hereby waives any right to require
the Lenders to proceed against the Obligor, any other guarantor or any person or
proceed against any Collateral or any other 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
defeasible 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
Grantor, at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention of
Xx. Xxxxxxx X. Xxxxxx (Telecopy No. 302-427-2323) with a copy to Xxxxxxx Xxxx &
Xxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (Telecopy No.
212-728-8111), Attention of Xxxxxxx Xxxxxx, 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. (a) 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 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
its 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.
[Signature on Following Page]
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 ENTERPRISES, INC.
By:
Name:
Title:
EXHIBIT E
TRADEMARK SECURITY AGREEMENT SUPPLEMENT
TRADEMARK SECURITY AGREEMENT SUPPLEMENT, dated as of February 25, 1999
(this "Supplement"), made by THE TOPPS COMPANY, INC., a Delaware corporation
(the "Grantor") to The Chase Manhattan Bank, with an office at Four Xxxxxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, as agent (the "Agent") for the benefit of each
of the lenders (the "Lenders") signatory to the Credit Agreement dated as of May
11, 1998 (as may have been or may be amended, supplemented or otherwise modified
from time to time, the "Credit Agreement") among the Grantor, the Agent and the
Lenders.
WHEREAS, all terms used herein and not otherwise defined herein shall,
unless the context specifically requires otherwise, have the respective meanings
ascribed to them in, or pursuant to the provisions of, the Trademark Security
Agreement (as hereinafter defined);
WHEREAS, pursuant to the terms of the Credit Agreement and the other
Loan Documents, the Lenders agreed to make Loans to the Borrower upon the terms
and subject to the conditions set forth therein to be evidenced by the Notes
issued by the Borrower and to be guarantied by the Guarantors thereunder;
WHEREAS, the Trademark Security Agreement dated as of May 11, 1998
(the "Trademark Security Agreement") and recorded on May 15, 1998 in Reel 1727,
Frame 0397 in the United States Patent and Trademark Office was delivered by the
Grantor in favor of the Agent to secure its obligations under the Credit
Agreement and the other Loan Documents; and
WHEREAS, the Grantor and the Agent mutually desire to supplement the
Trademark Security Agreement to add certain additional Trademarks as collateral
for the respective obligations of Grantor under the Credit Agreement.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree that
Schedule I to the Trademark Security Agreement is hereby supplemented to add the
Trademark(s) set forth on Schedule A hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
THE TOPPS COMPANY, INC.
By:_____________________________________________
Name:
Title:
AGENT:
THE CHASE MANHATTAN BANK
By:_____________________________________________
Name:
Title:
By:_____________________________________________
Name:
Title:
SCHEDULE A
TO TRADEMARK SECURITY
AGREEMENT SUPPLEMENT
ADDITIONAL TRADEMARKS
Trademark Class Serial Number Filing Date
Xxxxxx Rookie Card 16 75/578771 10/28/98
Precious Piggies & Pals 28 75/578377 10/23/98
