GUARANTY AGREEMENT
WHEREAS, MARKETING SPECIALISTS CORPORATION, a Delaware corporation,
and certain of its Subsidiaries (each individually, a "Borrower", and
collectively, the "BORROWERS") have entered into that certain Credit
Agreement dated as of March 30, 2000, among the Borrowers, the banks party
thereto (each individually, a "Bank" and collectively, the "BANKS") and THE
CHASE MANHATTAN BANK as agent for the Banks (the "AGENT") (such Credit
Agreement, as it may hereafter be amended or otherwise modified from time to
time, being hereinafter referred to as the "CREDIT AGREEMENT" and capitalized
terms not otherwise defined herein shall have the same meaning as set forth
in the Credit Agreement);
WHEREAS, the execution of this Guaranty Agreement is a condition to
the Agent's and each Bank's obligations under the Credit Agreement;
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, RICHMONT CAPITAL PARTNERS I, L.P., a
Delaware limited partnership (the "GUARANTOR"), hereby irrevocably and
unconditionally guarantees to each Bank the full and prompt payment and
performance of the Guaranteed Indebtedness (hereinafter defined), this
Guaranty Agreement being upon the following terms:
1. The term "GUARANTEED INDEBTEDNESS" means all of the Obligations,
as defined in the Credit Agreement, and any and all post-petition interest
and expenses (including attorneys' fees) whether or not allowed under any
bankruptcy, insolvency, or other similar law; provided, however Guarantor's
obligation hereunder shall be limited to Ten Million Dollars ($10,000,000).
2. This instrument shall be an absolute, continuing, irrevocable and
unconditional guaranty of payment and performance, and not a guaranty of
collection, and Guarantor shall remain liable on its obligations hereunder
until the payment and performance in full of the Guaranteed Indebtedness. No
set-off, counterclaim, recoupment, reduction, or diminution of any
obligation, or any defense of any kind or nature which the Borrowers may have
against Agent, any Bank or any other party, or which Guarantor may have
against the Borrowers, Agent, any Bank or any other party, shall be available
to, or shall be asserted by, Guarantor against Agent, any Bank or any
subsequent holder of the Guaranteed Indebtedness or any part thereof or
against payment of the Guaranteed Indebtedness or any part thereof (other
than, in each case, the defense of complete payment and performance of the
Guaranteed Indebtedness and except, with respect to a Bank, for such defenses
as the Borrowers may have against such Bank under the Guaranteed Indebtedness
and such defenses the Guarantor may have against such Bank under this
Guaranty Agreement).
3. If Guarantor becomes liable for any indebtedness owing by the
Borrowers to Agent or any Bank by endorsement or otherwise, other than under
this Guaranty Agreement, such liability shall not be in any manner impaired
or affected hereby, and the rights of Agent and the Banks hereunder shall be
cumulative of any and all other rights that Agent and the Banks may ever have
against Guarantor. The exercise by Agent and the Banks of any right or remedy
hereunder or under any other instrument, or at law or in equity, shall not
preclude the concurrent or subsequent exercise of any other right or remedy.
4. In the event of default by any Borrower in payment or performance
of the Guaranteed Indebtedness, or any part thereof, when such Guaranteed
Indebtedness becomes due, whether by its
Guaranty Agreement, Page 1
terms, by acceleration, or otherwise, the Guarantor shall within five (5)
days after written demand by Agent or any Bank, to promptly pay the amount
due thereon to Agent, without further notice or demand, and in lawful
currency of the United States of America, and it shall not be necessary for
Agent or any Bank, in order to enforce such payment by Guarantor, first to
institute suit or exhaust its remedies against the Borrowers or others liable
on such Guaranteed Indebtedness, or to enforce any rights against any
collateral which shall ever have been given to secure such Guaranteed
Indebtedness. In the event such payment is made by Guarantor, then Guarantor
shall be subrogated to the rights then held by the Agent and the Banks with
respect to the Guaranteed Indebtedness to the extent to which the Guaranteed
Indebtedness was discharged by Guarantor and, in addition, upon payment by
Guarantor of any sums to Agent hereunder, all rights of Guarantor against the
Borrowers, any other guarantor or any collateral arising as a result
therefrom by way of right of subrogation, reimbursement, or otherwise shall
in all respects be subordinate and junior in right of payment to the prior
indefeasible payment in full of the Guaranteed Indebtedness.
5. The Guarantor's liability under this Guaranty Agreement will be
released on the first date after which the financial statements delivered to
Agent pursuant to Section 8.1(c) of the Credit Agreement accurately show
that: (i) the consolidated EBITDA of Parent (as such terms are defined in the
Credit Agreement) calculated for the nine-month period ended December 31,
2000, equals or exceeds Forty Million Dollars ($40,000,000); or (ii) the
consolidated EBITDA of Parent calculated for any consecutive twelve month
period beginning on or after April 1, 2000, equals or exceeds Fifty Million
Dollars ($50,000,000).
6. If acceleration of the time for payment of any amount payable by
any Borrower under the Guaranteed Indebtedness is stayed upon the insolvency,
bankruptcy, or reorganization of any Borrowers, all such amounts otherwise
subject to acceleration under the terms of the Guaranteed Indebtedness shall
nonetheless be payable by the Guarantor hereunder forthwith on demand by
Agent or any Bank.
7. Guarantor hereby agrees that its obligations under this Guaranty
Agreement shall not be released, discharged, diminished, impaired, reduced,
or affected for any reason or by the occurrence of any event (other than as
may be reduced by payments made by the Borrowers on the Guaranteed
Indebtedness or by collections realized by Agent or any Bank on any
collateral taken as security on the Guaranteed Indebtedness), including,
without limitation, one or more of the following events, whether or not with
notice to or the consent of Guarantor: (a) the taking or accepting of
collateral as security for any or all of the Guaranteed Indebtedness or the
release, surrender, exchange, or subordination of any collateral now or
hereafter securing any or all of the Guaranteed Indebtedness; (b) any partial
release of the liability of Guarantor hereunder, or the full or partial
release of any other guarantor from liability for any or all of the
Guaranteed Indebtedness; (c) any disability of a Borrower, or the
dissolution, insolvency, or bankruptcy of any Borrower, Guarantor, or any
other party at any time liable for the payment of any or all of the
Guaranteed Indebtedness; (d) any extension, modification, waiver, amendment,
or rearrangement of any or all of the Guaranteed Indebtedness or any
instrument, document, or agreement evidencing, securing, or otherwise
relating to any or all of the Guaranteed Indebtedness; (e) any adjustment,
indulgence, forbearance, waiver, or compromise that may be granted or given
by a Bank to any Borrower, Guarantor, or any other party ever liable for any
or all of the Guaranteed Indebtedness; (f) except for the expiration of any
applicable statute of limitations, any neglect, delay, omission, failure, or
refusal of Agent or any Bank to take or prosecute any action for the
collection of any of the Guaranteed Indebtedness or to foreclose or take or
prosecute any action in connection with any instrument, document, or
agreement evidencing, securing, or otherwise relating to any or all of the
Guaranteed Indebtedness; (g) the unenforceability or invalidity of any or all
of the
Guaranty Agreement, Page 2
Guaranteed Indebtedness or of any instrument, document, or agreement
evidencing, securing, or otherwise relating to any or all of the Guaranteed
Indebtedness; (h) any payment by the Borrowers or any other party to Agent or
any Bank is held to constitute a preference under applicable bankruptcy or
insolvency law or if for any other reason Agent or any Bank is required to
refund any payment or pay the amount thereof to someone else; (i) the
settlement or compromise of any of the Guaranteed Indebtedness; (j) the
non-perfection of any security interest or lien securing any or all of the
Guaranteed Indebtedness; (k) any impairment of any collateral securing any or
all of the Guaranteed Indebtedness; (l) the failure of Agent or any Bank to
sell any collateral securing any or all of the Guaranteed Indebtedness in a
commercially reasonable manner or as otherwise required by law; (m) any
change in the corporate existence, structure, or ownership of any Borrower;
or (n) any other circumstance which might otherwise constitute a defense
available to, or discharge of, any Borrower (other than payment and
performance of the Guaranteed Indebtedness in full).
8. Guarantor represents and warrants to Agent and each Bank as
follows:
(a) Guarantor is a limited partnership duly formed,
validly existing and in good standing under the laws of
Delaware, is qualified to do business in all jurisdictions in
which the nature of the business conducted by it makes such
qualification necessary and where failure to so qualify would
have a material adverse effect on its business, financial
condition, or operations.
(b) Guarantor has the power and authority and legal
right to execute, deliver, and perform its obligations under
this Guaranty Agreement and this Guaranty Agreement
constitutes its legal, valid, and binding obligation,
enforceable against it in accordance with its terms, except as
limited by bankruptcy, insolvency, or other laws of general
application relating to the enforcement of creditor's rights.
(c) The execution, delivery, and performance by
Guarantor of this Guaranty Agreement have been duly authorized
by all requisite action on the part of Guarantor (and its
general partners) and do not and will not violate or conflict
with the Agreement of Limited Partnership (the "PARTNERSHIP
AGREEMENT") or the Certificate of Limited Partnership of
Guarantor or any law, rule, or regulation or any order, writ,
injunction, or decree of any court, governmental authority or
agency, or arbitrator and do not and will not conflict with,
result in a breach of, or constitute a default under, or
result in the imposition of any lien upon any assets of
Guarantor pursuant to the provisions of any indenture,
mortgage, deed of trust, security agreement, franchise,
permit, license, or other instrument or agreement to which
Guarantor or its properties is bound.
(d) No authorization, approval, or consent of, and no
filing or registration with, any court, governmental
authority, or third party is necessary for the execution,
delivery or performance by Guarantor of this Guaranty
Agreement or the validity or enforceability thereof. No
Partner (as such term is defined in the Partnership Agreement)
is a Xxxxxx Controlled Entity (as such term is defined in the
Partnership Agreement). New Arrow Corporation, as the
"Non-Managing General Partner" under the Partnership
Agreement, has consented to the execution, delivery and
performance of this Guaranty Agreement by Guarantor.
Guaranty Agreement, Page 3
(e) It has, independently and without reliance upon
Agent or any Bank and based upon such documents and
information as it has deemed appropriate, made its own
analysis and decision to enter into this Guaranty Agreement.
(f) It has adequate means to obtain from the
Borrowers on a continuing basis information concerning the
financial condition and assets of the Borrowers and it is not
relying upon Agent or any Bank to provide (and neither Agent
nor any Bank shall have any duty to provide) any such
information to it either now or in the future.
(g) The value of the consideration received and to be
received by Guarantor as a result of Agent and the Banks
making extensions of credit to the Borrowers and Guarantor
executing and delivering this Guaranty Agreement is reasonably
worth at least as much as the liability and obligation of
Guarantor hereunder, and such liability and obligation have
benefitted and may reasonably be expected to benefit Guarantor
directly or indirectly.
9. Guarantor covenants and agrees that, as long as the Guaranteed
Indebtedness or any part thereof is outstanding or Agent or any Bank has any
commitment to the Borrowers it will:
(a) As soon as available, and in any event within
forty-five (45) days after the end of each of the first three
(3) quarters of each fiscal year of Guarantor and within
ninety (90) days after the end of the last quarter of each
fiscal year of Guarantor, deliver to Agent and each Bank a
copy of an unaudited financial report of Guarantor and its
subsidiaries as of the end of such fiscal quarter and for the
portion of the fiscal year then ended, containing, on a
consolidated basis, balance sheets, statements of income,
statements of retained earnings, statements of changes in
financial position, and cash flows, in each case setting forth
in comparative form the figures for the corresponding period
of the preceding fiscal year, all in reasonable detail
certified by the chief financial officer of Guarantor to have
been prepared in accordance with generally accepted accounting
principles applied on a consistent basis and to fairly and
accurately present (subject to year-end audit adjustments) the
financial condition and results of operations of Guarantor and
its subsidiaries, on a consolidated basis, at the date and for
the periods indicated therein.
(b) Concurrently with the delivery of each of the
financial statements referred to in subsections (a), Guarantor
shall provide to Agent and each Bank a certificate of the
chief executive officer of Guarantor (i) stating that to the
best of such officer's knowledge, no event of default under
the terms of the documentation evidencing and governing the
Guaranteed Indebtedness (an "EVENT OF DEFAULT") and no event
which with notice or lapse of time or both would be an Event
of Default has occurred and is continuing, or if an Event of
Default or such an event has occurred and is continuing, a
statement as to the nature thereof and the action which is
proposed to be taken with respect thereto, and (ii) showing in
reasonable detail the calculations demonstrating compliance
with the following clause (c).
(c) Guarantor will at all times maintain Consolidated
Net Worth in an amount not less than Fifty Million Dollars
($50,000,000). As used herein "CONSOLIDATED NET WORTH" means,
at any particular time, all amounts which, in
Guaranty Agreement, Page 4
conformity with generally accepted accounting principals,
would be included as stockholders' equity on a consolidated
balance sheet of Guarantor and its subsidiaries.
(d) Guarantor will maintain its existence.
(e) Guarantor will furnish to Agent or any Bank
promptly, such additional information concerning it as Agent
or any Bank may request.
10. When an Event of Default (as defined above) exists, Agent and each
Bank shall have the right to set-off and apply against this Guaranty Agreement
or the Guaranteed Indebtedness or both, at any time and without notice to
Guarantor (except as set forth below), any and all deposits (general or special,
time or demand, provisional or final, but excluding any account established by
Guarantor as a fiduciary for another party) or other sums at any time credited
by or owing from Agent or any Bank to Guarantor whether or not the Guaranteed
Indebtedness is then due and irrespective of whether or not Agent or such Bank
shall have made any demand under this Guaranty Agreement. Agent or any Bank
exercising the right of setoff agrees promptly to notify the Guarantor on the
date of and simultaneously with any such setoff and application, provided that
the failure to give such notice shall not affect the validity of such setoff and
application. The rights and remedies of Agent and the Banks hereunder are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which they may have.
11. (a) Guarantor hereby agrees that the Subordinated Indebtedness
(as defined below) shall be subordinate and junior in right of payment to the
prior payment in full of all Guaranteed Indebtedness as herein provided. The
Subordinated Indebtedness shall not be payable, and no payment of principal,
interest or other amounts on account thereof, and no property or guarantee of
any nature to secure or pay the Subordinated Indebtedness shall be made or
given, directly or indirectly by or on behalf of the Borrowers or received,
accepted, retained or applied by Guarantor unless and until the Guaranteed
Indebtedness shall have been paid in full in cash; EXCEPT THAT prior to
occurrence and continuance of an Event of Default (as defined above),
Guarantor shall have the right to receive payments on the Subordinated
Indebtedness made in the ordinary course of business and otherwise permitted
under the Credit Agreement. After the occurrence and during the continuance
of an Event of Default (as defined above), no payments of principal or
interest may be made or given, directly or indirectly, by or on behalf of the
Borrowers or received, accepted, retained or applied by Guarantor unless and
until the Guaranteed Indebtedness shall have been paid in full in cash. If
any sums shall be paid to Guarantor by the Borrowers or any other party on
account of the Subordinated Indebtedness when such payment is not permitted
hereunder, such sums shall be held in trust by Guarantor for the benefit of
Agent and the Banks and shall forthwith be paid to Agent without affecting
the liability of Guarantor under this Guaranty Agreement and may be applied
by Agent against the Guaranteed Indebtedness. Upon the request of Agent or a
Bank, Guarantor shall execute, deliver, and endorse to such Bank such
documentation as such Bank may request to perfect, preserve, and enforce its
rights hereunder. For purposes of this Guaranty Agreement, the term
"SUBORDINATED INDEBTEDNESS" means all indebtedness, liabilities, and
obligations of the Borrowers to Guarantor, whether such indebtedness,
liabilities, and obligations now exist or are hereafter incurred or arise, or
are direct, indirect, contingent, primary, secondary, several, joint and
several, or otherwise, and irrespective of whether such indebtedness,
liabilities, or obligations are evidenced by a note, contract, open account,
or otherwise, and irrespective of the party or parties in whose favor such
indebtedness, obligations, or liabilities may, at their inception, have been,
or may hereafter be created, or the manner in which they have been or may
hereafter be acquired by Guarantor.
Guaranty Agreement, Page 5
(b) Guarantor agrees that any and all liens (including any
judgment liens), upon any Borrower's assets securing payment of any
Subordinated Indebtedness shall be and remain inferior and subordinate to any
and all liens upon any Borrower's assets securing payment of the Guaranteed
Indebtedness or any part thereof, regardless of whether such liens in favor
of Guarantor or Agent or any Bank presently exist or are hereafter created or
attached. Without the prior written consent of Agent and each Bank, Guarantor
shall not (i) file suit against any Borrower or exercise or enforce any other
creditor's right it may have against any Borrower, or (ii) foreclose,
repossess, sequester, or otherwise take steps or institute any action or
proceedings (judicial or otherwise, including without limitation the
commencement of, or joinder in, any liquidation, bankruptcy, rearrangement,
debtor's relief or insolvency proceeding) to enforce any obligations of any
Borrower to Guarantor or any liens held by Guarantor on assets of any
Borrower.
(c) In the event of any receivership, bankruptcy,
reorganization, rearrangement, debtor's relief, or other insolvency
proceeding involving any Borrower as a debtor, Agent and the Banks shall have
the right to prove and vote any claim under the Subordinated Indebtedness and
to receive directly from the receiver, trustee or other court custodian all
dividends, distributions, and payments made in respect of the Subordinated
Indebtedness until the Guaranteed Indebtedness has been paid in full in cash.
Agent and the Banks shall apply any such dividends, distributions, and
payments against the Guaranteed Indebtedness.
(d) Guarantor agrees that all promissory notes, accounts
receivable, ledgers, records, or any other evidence of Subordinated
Indebtedness shall contain a specific written notice thereon that the
indebtedness evidenced thereby is subordinated under the terms of this
Guaranty Agreement.
12. No amendment or waiver of any provision of this Guaranty
Agreement or consent to any departure by the Guarantor therefrom shall in any
event be effective unless the same shall be in writing and signed by Agent.
No failure on the part of Agent or any Bank to exercise, and no delay in
exercising, any right, power, or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power,
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
13. To the extent permitted by law, any acknowledgment or new
promise, whether by payment of principal or interest or otherwise and whether
by the Borrowers or others (including any guarantor), with respect to any of
the Guaranteed Indebtedness shall, if the statute of limitations in favor of
Guarantor against Agent or any Bank shall have commenced to run, toll the
running of such statute of limitations and, if the period of such statute of
limitations shall have expired, restart a new such statute of limitation
period with respect thereto.
14. This Guaranty Agreement is for the benefit of Agent and the
Banks and their successors, assigns and participants, and in the event of an
assignment of the Guaranteed Indebtedness, or any part thereof, the rights
and benefits hereunder, to the extent applicable to the indebtedness so
assigned, may be transferred with such indebtedness. This Guaranty Agreement
is binding not only on Guarantor, but on Guarantor's successors and assigns.
15. Guarantor recognizes that Agent and each Bank is relying upon
this Guaranty Agreement and the undertakings of Guarantor hereunder in making
extensions of credit to the Borrowers and further recognizes that the
execution and delivery of this Guaranty Agreement is a
Guaranty Agreement, Page 6
material inducement to Agent and each Bank in extending credit to the
Borrowers. Guarantor hereby acknowledges that there are no conditions to the
full effectiveness of this Guaranty Agreement.
16. All notices and other communications provided for in this
Guaranty Agreement shall be given or made in writing and telecopied, mailed
by certified mail return receipt requested, or delivered to Guarantor at the
"Address for Notices" specified below its name on the signature pages hereof;
or at such other address as shall be designated by such party in a notice
given in accordance with this Section. All such communications shall be
deemed to have been duly given when transmitted by telecopy, subject to
telephone confirmation of receipt, or when personally delivered or, in the
case of a mailed notice, when duly deposited in the mails, in each case given
or addressed as aforesaid.
17. The Guarantor agrees to pay on demand all reasonable attorneys'
fees and all other reasonable costs and expenses incurred by Agent and each
Bank in connection with the preparation, negotiation, administration,
enforcement, or collection of this Guaranty Agreement.
18. Guarantor hereby waives promptness, diligence, notice of any
default under the Guaranteed Indebtedness, demand of payment, notice of
acceptance of this Guaranty Agreement, presentment, notice of protest, notice
of dishonor, notice of the incurring by any Borrower of additional
indebtedness, and all other notices and demands with respect to the
Guaranteed Indebtedness and this Guaranty Agreement.
19. The documentation evidencing and governing the Guaranteed
Indebtedness and all of the terms thereof, are incorporated herein by
reference, the same as if stated verbatim herein, and Guarantor agrees that
Agent or any Bank may exercise any and all rights granted to it thereunder
without affecting the validity or enforceability of this Guaranty Agreement.
20. THIS GUARANTY AGREEMENT EMBODIES THE FINAL, ENTIRE AGREEMENT OF
GUARANTOR AND THE BANKS WITH RESPECT TO GUARANTOR'S GUARANTY OF THE
GUARANTEED INDEBTEDNESS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY AGREEMENT IS INTENDED BY
GUARANTOR, AGENT AND THE BANKS AS A FINAL AND COMPLETE EXPRESSION OF THE
TERMS OF THE GUARANTY AGREEMENT, AND NO COURSE OF DEALING BETWEEN GUARANTOR,
AGENT OR ANY BANK, NO COURSE OF PERFORMANCE, NO TRADE PRACTICES, AND NO
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR
DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY NATURE SHALL BE USED TO
CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY AGREEMENT.
THERE ARE NO ORAL AGREEMENTS BETWEEN OR AMONG GUARANTOR AND AGENT AND/OR ANY
BANK.
21. This Guaranty Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas and applicable laws of the
United States of America. This Guaranty Agreement shall be performable for
all purposes in Dallas County, Texas. Any action or proceeding against
Guarantor under or in connection with this Guaranty Agreement may be brought
in any state or federal court in Dallas County, Texas. Guarantor irrevocably
(a) submits to the nonexclusive jurisdiction of such courts, and (b) waives
any objection it may now or hereafter have as to the venue of any such action
or proceeding brought in any such court or that any such court is an
inconvenient forum. Guarantor agrees that service of process upon it may be
made by certified or registered mail,
Guaranty Agreement, Page 7
return receipt requested, at its address specified or determined in
accordance with the provisions of paragraph 16 of this Guaranty Agreement.
Nothing herein shall affect the right of Agent or any Bank to serve process
in any other manner permitted by law or shall limit the right of Agent or any
Bank to bring any action or proceeding against Guarantor or its property in
courts in other jurisdictions. Any action or proceeding by Guarantor against
Agent or any Bank shall be brought only in a court located in Dallas County,
Texas.
Guaranty Agreement, Page 8
EXECUTED as of the 30th day of March 2000
GUARANTOR:
RICHMONT CAPITAL PARTNERS I, L.P.,
a Delaware limited partnership
By: J.R. INVESTMENTS CORP.,
its Managing General Partner
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
ADDRESS FOR NOTICES:
00000 Xxxxxx Xxxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Fax: 000-000-0000
Guaranty Agreement, Page 9
