FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First
Amendment") is made as of November 17, 2000, by and among MARKETING SPECIALISTS
CORPORATION ("Borrower"), the Lenders under the Credit Agreement described
below, and FIRST UNION NATIONAL BANK, as Agent ("Agent") and as sole Lender
thereunder ("First Union").
BACKGROUND
A. Pursuant to a Second Amended and Restated Credit Agreement dated as
of March 30, 2000 (as the same may be modified and amended from time to time,
including by this First Amendment, the "Credit Agreement"), First Union amended
and restated credit previously extended to Borrower in the form of a $35,000,000
term loan.
B. Borrower has requested modifications to certain terms and provisions
of the Credit Agreement and waiver of certain Events of Default, to which Lender
is willing to agree on the terms and subject to the condition set forth herein.
C. The Borrower and the Guarantors signatory hereto (each a "Company,"
and collectively, the "Companies") are party to that certain Credit Agreement
dated Xxxxx 00, 0000 (xx amended from time to time, the "Revolver") with the
lenders identified therein ("Revolver Lenders") and The Chase Manhattan Bank, as
agent (the "Revolver Agent").
D. The Companies have advised the Revolver Agent and the Revolver
Lenders that "Events of Default" have occurred under Section 11.1(c) of the
Revolver as a result of the Borrower's failure to comply with the covenants set
forth in Sections 10.2 through 10.5 of the Revolver, in each case as of
September 30, 2000, and for the four quarter period then ending, and as a result
of the Borrower's failure to comply with the covenants set forth in Section 9.11
of the Revolver in connection with the issuance of 12,397 shares of the
Borrower's Series B Convertible Paid-In-Kind Preferred Stock to MS Acquisition
Limited ("MS Limited") and MS Limited's cancellation of the amounts owing in
connection with certain Notes described in that certain Consent Agreement dated
August 16, 2000 and that certain Consent Agreement dated August 30, 2000
(collectively the "Revolver Covenant Defaults" and the covenants described in
this clause E., herein the "Violated Revolver Covenants"). In accordance with
the Revolver, the Companies have requested that the Revolver Agent and the
Revolver Lenders waive the Revolver Covenant Defaults.
E. The Revolver Covenant Defaults constitute an existing Event of
Default under Section 7.1(c) of the Credit Agreement. The Revolver Covenant
Defaults, together with any cross defaults under the Revolver arising out of
Defaults under the Credit Agreement, are herein referred to as the "Existing
Revolver Defaults."
F. The Borrower has advised the Agent that "Events of Default" have
occurred under Section 7.1(d) of the Credit Agreement as a result of the
Borrower's failure to comply with the covenants set forth in Sections 5.14
through 5.18 of the Credit Agreement (the "Violated Term Covenants"), in each
case as of September 30, 2000 and for the four quarter period then ending (which
defaults, together with the existing Events of Default under Section 7.1(c) of
the Credit Agreement, are herein referred to as the
"Term Defaults").
G. The Companies have requested that the Revolver Lenders: (a) waive
the Existing Revolver Defaults; (b) increase the existing amount of the
Permitted Revolver Financing by $10,000,000 to $60,000,000 (the "Increase"); (c)
amend the method of calculating the Borrowing Base and the advance percentage
under the Revolver (the "Borrowing Base Amendment"); (d) make certain other
amendments to the Revolver (together with the Increase and the Borrowing Base
Amendment, the "Revolver Amendments"); and (e) permit the Borrower to repay, on
December 13, 2000, its Indebtedness owing under its Note dated November 9, 2000
in favor of MS Acquistion in the original principal amount of $2,500,000
provided certain conditions are met (the "Permitted Note Repayment"), all
pursuant to a Second Amendment to Credit Agreement dated as of the date hereof
(the "Second Revolver Amendment"), in order that the Companies may make
additional borrowings under the Revolver and will be in compliance with the
terms and covenants of the Revolver.
H. The Increase, taken together with the other Revolver Amendments,
represents an amendment to the Permitted Revolver Financing which has a
detrimental effect on the position of the Lenders, the approval of the Lenders
therefore being required to enact the Increase.
I. Pursuant to Section 2.20(a) of the Intercreditor Agreement dated as
of March 30, 2000 (the "Intercreditor Agreement"), among the Companies, the
Revolver Agent and the Agent, the approval of the Required Lenders (as defined
in the Intercreditor Agreement) is required to adopt the Borrowing Base
Amendment.
J. The Permitted Note Repayment, if made, would result in a violation
of the restriction on prepayment of Indebtedness set forth in Paragraph 6.6(b)
of the Credit Agreement.
K. The Borrower has requested that the Lender: (a) consent to the
Increase and the Borrowing Base Amendment; (b) amend the Credit Agreement to
reflect the terms of the Revolver Amendments; (c) waive the Term Defaults; and
(d) to the extent permitted by the Revolver Lenders, permit the Permitted Note
Repayment.
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows.
1. DEFINITIONS
(a) GENERAL RULE. Unless otherwise defined herein, terms used
herein which are defined in the Credit Agreement shall have the respective
meanings assigned to them in the Credit Agreement.
(b) AMENDED DEFINITIONS. The following definitions contained
in Section 1.1 of the Credit Agreement are hereby amended and restated to read
in their entireties, respectively, as follows:
"EBITDA" means, for any period and any Person, the total of the
following, each calculated without duplication for such Person on a
consolidated basis for such period: (a) Net Income; PLUS (b) any
provision for (or less any benefit from) income or franchise taxes
included in determining Net Income; PLUS (c) interest expense deducted
in determining Net Income; PLUS (d) amortization
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and depreciation expense deducted in determining Net Income.
"FIXED CHARGES" means, for any period, the total of the following for
Borrower calculated on a consolidated basis without duplication: (a)
scheduled amortization of Indebtedness plus (b) interest expense
(excluding non-cash amortization of capitalized credit costs) plus (c)
cash taxes.
"INDEBTEDNESS" means as to any Person at any time (without
duplication): (a) all obligations of such Person for borrowed money,
including, without limitation, any notes payable to the seller in
connection with any acquisition and the Loans; (b) all obligations of
such Person evidenced by bonds, notes, debentures, or other similar
instruments; (c) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable
of such Person arising in the ordinary course of business that are not
past due by more than ninety (90) days or that are being contested in
good faith by appropriate proceedings diligently pursued and for which
adequate reserves have been established; (d) all Capital Lease
Obligations of such Person; (e) all Indebtedness or other obligations
of others Guaranteed by such Person; (f) all obligations secured by a
Lien existing on property owned by such Person, whether or not the
obligations secured thereby have been assumed by such Person or are
non-recourse to the credit of such Person; (g) all reimbursement
obligations of such Person (whether contingent or otherwise) in respect
of letters of credit, bankers' acceptances, surety or other bonds and
similar instruments; (h) all liabilities of such Person in respect of
unfunded vested benefits under any Plan; (i) all liabilities of such
Person under any interest rate swap, interest rate caps, interest rate
collars or other similar agreements, or any foreign exchange, currency
hedging, commodity hedging or other similar agreement; (j) all
obligations of such Person, contingent or otherwise, for the payment of
money under any noncompete, consulting or any other similar
arrangements providing for the deferred payment of the purchase price
for an acquisition, including, without limitation, or in addition, such
items of the type included in "restructure charges" on Borrower's
consolidated balance sheet from time to time; and (k) all obligations
for severance costs payable; and (l) all other amounts which are, in
accordance with GAAP, required to be reflected as liabilities on a
consolidated balance sheet of such Person other than accruals and
deferred taxes.
"NET INCOME" means, for any period and any Person, such Person's
consolidated net income (or loss), but excluding: (a) the income of any
other Person (other than its subsidiaries) in which such Person or any
of it subsidiaries has an ownership interest, unless received by such
Person or its subsidiary in a cash distribution; (b) any after-tax
gains attributable to asset disposition; (c) to the extent not included
in clauses (a) and (b) above, any after-tax extraordinary, non-cash or
nonrecurring gains; and (d) non-cash or nonrecurring charges due to
changes in accounting principles required by GAAP.
2. AMENDMENT TO PARAGRAPH 5.2. The following clauses (c) and
(d) are hereby added to Paragraph 5.2 of the Credit Agreement to read as
follows:
(c) BORROWING BASE REPORT. (i) On each Tuesday (unless Tuesday is not a
Business Day, then on the following Wednesday), a Borrowing Base Report
together with a receivables aging report for each Company and all
prepared as of the immediately preceding Friday, provided that the
contra accounts and amounts due from affiliates need not be adjusted
more than once each month in the Borrowing Base Reports delivered under
this clause (c), such adjustments to occur simultaneously with the
adjusted amounts thereof set forth in the monthly Borrowing Base
Reports required to be
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delivered under clause (ii) below; (ii) within fifteen (15) days after
the last day of each month, or within one (1) Business Day of any other
date the Agent may select in its discretion by written notice to the
Borrower (each such day or date a "REPORT DATE"), a Borrowing Base
Report together with a receivable aging report for each Company as of
the applicable Report Date, and (iii) within fifteen (15) days after
the last day of each month, a report in form and substance acceptable
to the Agent showing a calculation of the amount of each Company's
reserves established under clause (c) of the definition of the term
"Borrowing Base." For the purposes of this clause, "Borrowing Base
Report" shall have the meaning given to it in the Revolver.
(d) CASH FLOW FORECAST. On each Tuesday of each week (unless Tuesday is
not a Business Day, then on the next preceding Business Day) beginning
November 21, 2000, a cash flow forecast for the Companies prepared on a
consolidated and consolidating basis for the then current week and the
next 12 weeks, in reasonable detail and otherwise in form and substance
acceptable to the Agent.
3. AMENDMENT TO SECTION 5. Paragraphs 5.14 through 5.18 of the
Credit Agreement are amended in their respective entireties to read as follows
5.14 MAXIMUM DEBT TO EBITDA RATIO. As of the last day of each of the
below listed Fiscal Quarters, Borrower shall not permit the ratio of
(a) the principal amount of all Indebtedness of the Companies
outstanding as of such date determined on a consolidated basis to (b)
EBITDA calculated for the four (4) Fiscal Quarter period ending on the
last day of such Fiscal Quarter to be more than: (i) 7.75 to 1.00 as of
the Fiscal Quarter ending September 30, 2001, and (ii) 6.75 to 1.00 as
of the Fiscal Quarter ending December 31, 2001.
5.15 CAPITAL EXPENDITURE LIMITS. The Borrower shall not, and shall not
permit any Subsidiary to, make or incur Capital Expenditures during an
Fiscal Year in excess of an aggregate amount for the Borrower and all
Subsidiaries equal to Three Million Dollars ($3,000,000).
5.16 MINIMUM EBITDA. As of each date set forth in the table below,
Borrower shall cause its EBITDA calculated for the four (4) Fiscal
Quarters then ended (or, if as of such date less than four (4) Fiscal
Quarters have elapsed since September 30, 2000, then for the Fiscal
Quarters that have completely elapsed since September 30, 2000), to be
not less than the amount set forth below opposite the applicable date:
Date Amount
==================================================== ======================================
December 31, 2000 $9,000,000
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March 31, 2001 $15,500,000
---------------------------------------------------- --------------------------------------
June 30, 2001 $25,400,000
---------------------------------------------------- --------------------------------------
September 30, 2001 $34,000,000
---------------------------------------------------- --------------------------------------
December 31, 2001 $39,000,000
==================================================== ======================================
5.17 MINIMUM INTEREST COVERAGE RATIO. As of each date set forth in the
table below, Borrower shall not permit the ratio of its EBITDA to its
consolidated interest expense
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(excluding non-cash amortization of capitalized credit costs) both
calculated for the four (4) Fiscal Quarters then ended (or, if as of
such date less than four (4) Fiscal Quarters have elapsed since
September 30, 2000, then for the Fiscal Quarters that have completely
elapsed since September 30, 2000), to be less than the ratio set forth
below opposite the applicable date:
Date Ratio
==================================================== ======================================
December 31, 2000 1.20 to 1.00
---------------------------------------------------- --------------------------------------
March 31, 2001 1.05 to 1.00
---------------------------------------------------- --------------------------------------
June 30, 2001 1.15 to 1.00
---------------------------------------------------- --------------------------------------
September 30, 2001 1.20 to 1.00
---------------------------------------------------- --------------------------------------
December 31, 2001 1.35 to 1.00
==================================================== ======================================
5.18 MINIMUM FIXED CHARGES COVERAGE RATIO. As of each date set forth in
the table below, Borrower shall not permit the ratio of its Modified
EBITDA to its Fixed Charges, both calculated for the four (4) Fiscal
Quarters the ended (or, if as of such date less than four (4) Fiscal
Quarters have elapsed since September 30, 2000, then for the Fiscal
Quarters that have completely elapsed since September 30, 2000), to be
less than the ratio set forth below opposite the applicable date:
Date Ratio
==================================================== ======================================
December 31, 2000 .60 to 1.00
---------------------------------------------------- --------------------------------------
March 31, 2001 .65 to 1.00
---------------------------------------------------- --------------------------------------
June 30, 2001 .65 to 1.00
---------------------------------------------------- --------------------------------------
September 30, 2001 .70 to 1.00
---------------------------------------------------- --------------------------------------
December 31, 2001 .85 to 1.00
==================================================== ======================================
As used in this Paragraph 5.18 "Modified EBITDA" means, for any period,
the total of the following for Borrower calculated on a consolidated basis
without duplication: (a) EBITDA minus (b) Capital Expenditures.
4. CONDITIONS. The effectiveness of this First Amendment is
subject to the conditions precedent that no Default or Event of Default (other
than the Term Defaults) and no event or condition that would have a Material
Adverse Effect shall exist as of the effective date hereof and the Agent shall
have received all of the following, all in form and substance acceptable to the
Agent and dated (unless other indicated or not applicable) the date hereof, all
on or before November 17, 2000:
(a) RESOLUTIONS; AUTHORITY. Resolutions of the Board of
Directors of each Company, J.R. Investments Corp. ("J.R."), as the general
partner of Richmont Capital Partners I, L.P. ("Richmont"), Richmont, MSSC
Acquisition Corp ("MSSC"), as the general partner of MS Limited and MS Limited,
each herein the "Transaction Parties") certified by its Secretary or an
Assistant Secretary which authorize its or, as applicable Richmont's and MS
Limited's, execution, delivery, and performance of this First Amendment and the
Amended and Restated Intercreditor Agreement executed pursuant hereto dated as
of the date hereof to be among the Lenders, the Revolver Lenders, the Agent, the
Revolver Agent, the Companies, Richmont and MS Limited, which amends and
restates the Intercreditor Agreement (the
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"Amended and Restated Intercreditor Agreement," and together with this First
Amendment and the Second Revolver Amendment, the "Transaction Documents") to
which it is or is to be a party.
(b) INCUMBENCY CERTIFICATE. A certificate of incumbency
certified by the Secretary or an Assistant Secretary of each Transaction Party
certifying the names of its officers (i) who are authorized to sign the
Transaction Documents to which it is or is to be a party (including the
certificates contemplated herein) or, as applicable, with respect J.R. and MSSC,
to which Richmont and MS Limited is or is to be a party, together with specimen
signatures of each such officer (unless specimen signatures of such officer have
previously been delivered) and (ii) who will, until replaced by other officers
duly authorized for that purpose, act as its representative for the purposes of
signing documentation and giving notices and other communications in connection
with the Credit Agreement and the transactions contemplated hereby.
(c) ORGANIZATIONAL DOCUMENTS. The articles of incorporation or
certificates of limited partnership, as applicable, of each Transaction Party
other than the Companies, certified by the Secretary of State of the state of
its incorporation or organization and dated a current date. The Companies
certify that the copies of their articles of incorporation previously delivered
to the Agent remain in full force and effect, without amendment or modification
since the date of such delivery.
(d) BYLAWS; PARTNERSHIP AGREEMENTS. The bylaws or partnership
agreements, as applicable, of each Transaction Party other than the Companies,
certified by its Secretary or an Assistant Secretary. The Companies certify that
the copies of their bylaws previously delivered to the Agent remain in full
force and effect, without amendment or modification since the date of such
delivery.
(e) GOVERNMENTAL CERTIFICATES. Certificates of the appropriate
government officials of the state of incorporation or organization of each
Transaction Party as to its existence and, to the extent applicable, good
standing, each dated a current date.
(f) AMENDED AND RESTATED INTERCREDITOR AGREEMENT. The Amended
and Restated Intercreditor Agreement executed by all parties thereto.
(g) MASTER PARTICIPATION AGREEMENT. The Master Participation
Agreement dated the date hereof to be among the Revolver Lenders and MS Limited.
(h) OPINIONS OF COUNSEL. A favorable opinion of legal counsel
to the Companies as to such matters as the Agent may reasonably request.
(i) SECOND REVOLVER AMENDMENT. The Second Revolver Agreement
executed by all parties thereto.
(j) INDENTURE. A certificate executed by an officer of the
Borrower certifying (i) that this First Amendment and the transactions
contemplated hereby (including, without limitation, the Second Revolver
Amendment) are permitted by the Indenture and (ii) as to the section of the
Indenture under which the Increase is permitted and attaching a schedule of the
calculation(s) necessary to determine that there is sufficient space available
in any Indenture basket which the Increase is required to fit into.
(k) ATTORNEYS' FEES AND EXPENSES. Evidence that the costs and
expenses (including attorneys' fees) referred to in Paragraph 5.11 of the Credit
Agreement, to the extent incurred and invoiced, have been paid in full.
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(l) COUNSEL REVIEW. Evidence that all proceedings taken in
connection with the transactions contemplated by this First Amendment and all
documentation and other legal matters incident thereto are satisfactory to Agent
and its legal counsel, Xxxxxx Xxxxxxxx LLP.
(m) BROMAR MERGER. Copies of the documentation evidencing and
governing the merger of Bromar, Inc. with and into Marketing Specialists Sales
Company.
(n) RICHMONT FINANCIAL STATEMENTS. Financial statements of
Richmont dated as of a date acceptable to the Agent and certified by a financial
officer of Richmont to have been prepared in accordance with GAAP and to fairly
and accurately present the financial condition and results of operation of
Richmont at the date and for the periods indicated therein.
5. CONSENTS; WAIVERS OF THE TERM DEFAULTS. The Lender hereby
consents to the Revolver Amendments and, to the extent permitted by the Revolver
Lenders, the Permitted Note Prepayment, and waives the Term Defaults and agrees
not to exercise any rights or remedies available as a result of the occurrence
thereof. To induce the Lender to agree to the foregoing, the Borrower agrees
that this consent and waiver shall not constitute and shall not be deemed a
consent of any other amendment to the Revolver or a waiver of any other Default
or Event of Default, whether arising as a result of any further violation of the
Violated Term Covenants or otherwise, or a waiver of any rights or remedies
arising as a result of other Default or Event of Default. The failure to comply
with the Violated Term Covenants for any date, or any period ending on any date,
other than as described above in the definition of Term Defaults shall
constitute an Event of Default.
6. RATIFICATIONS. Except as expressly modified and superseded
by this First Amendment, the terms and provisions of the Credit Agreement and
the other Loan Documents are ratified and confirmed and shall continue in full
force and effect. Borrower, the Agent and the Companies party hereto agree that
the Credit Agreement as amended hereby and the other Loan Documents shall
continue to be legal, valid, binding and enforceable in accordance with their
respective terms, subject to the terms and conditions of the Amended and
Restated Intercreditor Agreement.
7. REPRESENTATIONS AND WARRANTIES. Each Company represents and
warrants to Lenders and Agent that:
(a) The information supplied to Lenders and Agent
with respect to the Revolver Amendments, the Existing Revolver Defaults and the
Term Defaults is true and correct in all material respects, and does not contain
any untrue statement of material fact or omit to state a material fact necessary
in order to make the statements contained in such information not misleading.
(b) Except to the extent such violation, Default or
Event of Default is expressly waived or consented to by this First Amendment,
the entering into of the Second Revolver Amendment and the Amended and Restated
Intercreditor Agreement, on the terms set forth herein have not and will not
violate any term or provision of the Credit Agreement or result in any Default
or Event of Default thereunder.
(c) The representations and warranties set forth in
the Credit Agreement, the Amended and Restated Intercreditor Agreement, and each
of the Loan Documents are true and correct in all material respects as of the
date hereof, after giving effect to the Second Revolver Amendment, the Amended
and Restated Intercreditor Agreement, and this First Amendment.
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(d) No term or provision of the Indenture will be
violated by, and no redemption or other rights of the holders of the Richmont
Subordinated Notes will be triggered by, the entering into of the Second
Revolver Amendment, the Amended and Restated Intercreditor Agreement or any
related transactions, including the incurrence of Indebtedness (as defined in
the Indenture) pursuant
(e) Except as effectively consented to or waived in
writing by the Revolver Lenders and/or Revolver Agent, no term or provision of
the Revolver will be violated by the entering into of the Second Revolver
Amendment, the Amended and Restated Intercreditor Agreement or any related
transactions.
8. REFERENCE TO CREDIT AGREEMENT. Each of the Loan Documents,
including the Credit Agreement and any and all other agreements, documents, or
instruments now or hereafter executed and delivered pursuant to the terms hereof
or pursuant to the terms of the Credit Agreement as amended hereby, are hereby
amended so that any reference in such Loan Documents to the Credit Agreement
shall mean a reference to the Credit Agreement as amended hereby.
9. EXPENSES OF AGENT. Borrower agrees to pay on demand all
costs and expenses incurred by Agent in connection with the preparation,
negotiation, and execution of this First Amendment and the other Loan Documents
executed pursuant hereto, including without limitation, the costs and fees of
Agent's legal counsel.
10. SEVERABILITY. Any provision of this First Amendment held
by a court of competent jurisdiction to be invalid or unenforceable shall not
impair or invalidate the remainder of this First Amendment and the effect
thereof shall be confined to the provision so held to be invalid or
unenforceable.
11. APPLICABLE LAW. This First Amendment and all other Loan
Documents executed pursuant hereto shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania and the applicable
laws of the United States of America.
12. SUCCESSORS AND ASSIGNS. This First Amendment is binding
upon and shall inure to the benefit of Agent, each Lender and the Borrower and
its respective successors and assigns, except Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the Agent.
13. SECTION COUNTERPARTS. This First Amendment may be executed
in one or more counterparts and on telecopy counterparts, each of which when so
executed shall be deemed to be an original, but all of which when taken together
shall constitute one and the same agreement.
14. EFFECT OF WAIVER. No consent or waiver, express or
implied, by Agent or any Lender to or for any breach of or deviation from any
covenant, condition or duty by Borrower shall be deemed a consent or waiver to
or of any other breach of the same or any other covenant, condition or duty.
15. HEADINGS. The headings, captions, and arrangements used in
this First Amendment are for convenience only and shall not affect the
interpretation of this First Amendment.
16. WAIVER AND RELEASE. IN ADDITION, TO INDUCE THE AGENT AND
THE LENDERS TO AGREE TO THE TERMS OF THIS FIRST AMENDMENT, THE BORROWER AND
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EACH GUARANTOR REPRESENTS AND WARRANTS THAT AS OF THE DATE OF ITS EXECUTION OF
THIS FIRST AMENDMENT THERE ARE NO CLAIMS OR OFFSETS AGAINST OR DEFENSES OR
COUNTERCLAIMS TO ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS AND IN ACCORDANCE
THEREWITH IT:
(i) WAIVER. WAIVES ANY AND ALL SUCH CLAIMS, OFFSETS, DEFENSES OR
COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE OF
ITS EXECUTION OF THIS FIRST AMENDMENT AND
(ii) RELEASE. RELEASES AND DISCHARGES THE AGENT AND THE LENDERS, AND
THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS,
AFFILIATES AND ATTORNEYS (COLLECTIVELY THE "RELEASED PARTIES") FROM ANY
AND ALL OBLIGATIONS, INDEBTEDNESS, LIABILITIES, CLAIMS, RIGHTS, CAUSES
OF ACTION OR DEMANDS WHATSOEVER, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR
UNSUSPECTED, IN LAW OR EQUITY, WHICH THE BORROWER OR ANY GUARANTOR EVER
HAD, NOW HAS, CLAIMS TO HAVE OR MAY HAVE AGAINST ANY RELEASED PARTY
ARISING PRIOR TO THE DATE HEREOF AND FROM OR IN CONNECTION WITH THE
LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
17. ENTIRE AGREEMENT. THIS FIRST AMENDMENT AND ALL OTHER
INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH
THIS FIRST AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO
AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS FIRST AMENDMENT, AND
MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO
ORAL AGREEMENTS AMONG THE PARTIES HERETO.
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IN WITNESS WHEREOF, the undersigned have executed this First
Amendment to Credit Agreement the day and year first above written.
Attest: MARKETING SPECIALISTS CORPORATION
By:_________________________ By:____________________________
Name: Name:
Title: Title:
FIRST UNION NATIONAL BANK, as sole Lender and
as Agent
By:____________________________
Name:
Title:
Each of the undersigned Guarantors, intending to be legally
bound hereby, does hereby acknowledge and agree (i) to the terms of the
foregoing First Amendment to Credit Agreement (the "First Amendment"); (ii) that
the First Amendment shall not in any way adversely affect or impair the
obligations of the undersigned to Lenders under that certain Second Amended and
Restated Guaranty Agreement from the Guarantors to First Union National Bank
dated as of March 30, 2000, as amended (the "Guaranty"), or under any documents
in connection therewith or collateral thereto; (iii) all sums advanced under the
Notes referenced in the Credit Agreement and all accrued and unpaid interest
thereon constitute "Guaranteed Obligations" under the Guaranty; and (iv) the
Guaranty and all such other Loan Documents are hereby ratified, confirmed and
continued, all as of this 17th day of November, 2000.
Attest: MARKETING SPECIALISTS SALES COMPANY
By:_________________________ By:_________________________
Name: Name:
Title: Title:
Attest: XXXX XXXXX ASSOCIATES, INC.
By:_________________________ By:__________________________
Name: Name:
Title: Title:
Attest: THE SALES FORCE COMPANIES, INC.
By:_________________________ By:_________________________
Name: Name:
Title: Title:
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