FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "AMENDMENT"), dated as
of April 13, 2000, is among MARKETING SPECIALISTS CORPORATION, MARKETING
SPECIALISTS SALES COMPANY, XXXX XXXXX ASSOCIATES, INC., AND BROMAR, INC.
("BORROWERS"), each of the banks or other lending institutions which is a
party hereto (individually a "BANK" and collectively the "BANKS") and THE
CHASE MANHATTAN BANK, individually as a Bank and as agent for itself and the
other Banks ( in its capacity as agent, the "AGENT").
RECITALS:
Borrowers, the Agent, and the banks listed on the signature pages
thereto have entered into that certain Credit Agreement dated as of March 30,
2000 (as the same may hereafter be amended or otherwise modified, the
"AGREEMENT"). Borrowers, Agent and the Banks now desire to amend the
Agreement as herein set forth.
NOW, THEREFORE, in consideration of the premises herein contained
and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows effective
as of the date hereof unless otherwise indicated:
ARTICLE 1
DEFINITIONS
Section 1.1 DEFINITIONS. Capitalized terms used in this Amendment, to
the extent not otherwise defined herein, shall have the same meanings as in the
Agreement, as amended hereby.
ARTICLE 2
AMENDMENTS
Section 2.1 AMENDMENT TO SCHEDULE 9.1. Schedule 9.1 of the Agreement is
hereby amended by adding the language set forth on Schedule 9.1 of this
Amendment.
AMENDMENT TO CREDIT AGREEMENT - Page 1
ARTICLE 3
CONDITIONS PRECEDENT
Section 3.1 CONDITIONS. The effectiveness of this Amendment is subject
to the satisfaction of the following conditions precedent:
(a) The representations and warranties contained herein and in
all other Loan Documents, as amended hereby, shall be true and correct
in all material respects as of the date hereof as if made on the date
hereof, except for such representations and warranties limited by their
terms to a specific date;
(b) No Default or Event of Default shall have occurred and be
continuing; and
(c) All proceedings taken in connection with the transactions
contemplated by this Amendment and all documentation and other legal
matters incident thereto shall be satisfactory to Agent and its legal
counsel, Jenkens & Xxxxxxxxx, a Professional Corporation.
ARTICLE 4
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
Section 4.1 RATIFICATIONS. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Agreement and except as expressly modified and superseded by this
Amendment, the terms and provisions of the Agreement and the other Loan
Documents are ratified and confirmed and shall continue in full force and
effect. Borrowers, the Agent, and the Banks party hereto agree that the
Agreement as amended hereby and the other Loan Documents shall continue to be
legal, valid, binding and enforceable in accordance with their respective terms.
Section 4.2 REPRESENTATIONS AND WARRANTIES. Borrowers hereby represent
and warrant to Agent and the Banks as follows: (a) after giving effect to this
Amendment, no Default or Event of Default has occurred and is continuing; (b)
after giving effect to this Amendment, the representations and warranties set
forth in the Loan Documents are true and correct in all material respects on and
as of the date hereof with the same effect as though made on and as of such date
except with respect to any representations and warranties limited by their terms
to a specific date; (c) the execution, delivery and performance of this
Amendment has been duly authorized by all necessary action on the part of
Borrowers and does not and will not: (1) violate any provision of law applicable
to Borrowers, the certificate of incorporation, bylaws, partnership agreement,
membership agreement, or other applicable governing document of Borrowers or any
order, judgment, or decree of any court or agency of government binding upon
Borrowers, (2) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any material contractual
obligation of Borrowers; (3) result in or require the creation or imposition
AMENDMENT TO CREDIT AGREEMENT - Page 2
of any material lien upon any of the assets of Borrowers; or (4) require any
approval or consent of any Person under any material contractual obligation
of Borrowers; and (d) the articles of incorporation, bylaws, partnership
agreement, certificate of limited partnership, membership agreement, articles
of organization or other applicable governing document of the Borrowers and
the resolutions of the Borrowers attached as exhibits to the Certificate of
Secretary of Borrowers dated March 30, 2000 have not been modified or
rescinded and remain in full force and effect.
ARTICLE 5
MISCELLANEOUS
Section 5.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in this Amendment or any other Loan Document
including any Loan Document furnished in connection with this Amendment shall
survive the execution and delivery of this Amendment and the other Loan
Documents, and no investigation by Agent or any Bank or any closing shall affect
the representations and warranties or the right of Agent or any Bank to rely
upon them.
Section 5.2 REFERENCE TO AGREEMENT. Each of the Loan Documents,
including the 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 Agreement as amended hereby, are hereby amended
so that any reference in such Loan Documents to the Agreement shall mean a
reference to the Agreement as amended hereby.
Section 5.3 EXPENSES OF BANK. As provided in the Agreement, Borrowers
agree to pay on demand all costs and expenses incurred by Agent or any Bank in
connection with the preparation, negotiation, and execution of this Amendment
and the other Loan Documents executed pursuant hereto, including without
limitation, the costs and fees of Agent's and each Banks' legal counsel.
Section 5.4 SEVERABILITY. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 5.5 APPLICABLE LAW. This Amendment and all other Loan Documents
executed pursuant hereto shall be governed by and construed in accordance with
the laws of the State of New York and the applicable laws of the United States
of America.
Section 5.6 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and
shall inure to the benefit of Agent, each Bank and each Borrower and its
respective successors and assigns, except Borrowers may not assign or transfer
any of their rights or obligations hereunder without the prior written consent
of the Banks.
AMENDMENT TO CREDIT AGREEMENT - Page 3
Section 5.7 COUNTERPARTS. This 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.
Section 5.8 EFFECT OF WAIVER. No consent or waiver, express or
implied, by Agent or any Bank to or for any breach of or deviation from any
covenant, condition or duty by Borrowers shall be deemed a consent or waiver
to or of any other breach of the same or any other covenant, condition or
duty.
Section 5.9 HEADINGS. The headings, captions, and arrangements used
in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
Section 5.10 ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER
INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION
WITH THIS 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
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.
Section 5.11 REQUIRED BANKS. Pursuant to Section 13.11 of the
Agreement, the Agreement may be modified as provided in this Amendment with
the agreement of the Required Banks which means Banks having (a) sixty-six
and two-thirds percent (66 2/3%) or more of the Commitments or (b) if the
Commitments have been terminated, sixty-six and two-thirds percent (66 2/3%)
or more of the outstanding principal amount of the Loans and participations
or other interests in the Letter of Credit Liabilities (such percentage
applicable to a Bank, herein such Bank's "REQUIRED BANK PERCENTAGE"). For
purposes of determining the effectiveness of this Amendment, each Bank's
Required Bank Percentage is set forth on Schedule 5.11 hereto.
Executed as of the date first written above.
BORROWERS:
MARKETING SPECIALISTS CORPORATION
By:
----------------------------------
Name:
-----------------------
Title:
----------------------
MARKETING SPECIALISTS SALES COMPANY
AMENDMENT TO CREDIT AGREEMENT - Page 4
By:
-----------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
XXXX XXXXX ASSOCIATES, INC.
By:
-----------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
BROMAR, INC.
By:
-----------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
AGENT AND BANKS:
THE CHASE MANHATTAN BANK,
individually as a Bank and as the Agent
By:
-----------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
CREDIT SUISSE/FIRST BOSTON
By:
-----------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
FLEET CAPITAL CORPORATION
By:
-----------------------------------------------
Name:
-------------------------------------
AMENDMENT TO CREDIT AGREEMENT - Page 5
Title:
------------------------------------
AMENDMENT TO CREDIT AGREEMENT - Page 6
Schedule 5.11
to the
First Amendment to the Credit Agreement
REQUIRED BANK PERCENTAGE
================================================================================================================
Banks Agreeing to Amendment
(insert % from prior column if Bank signs
Required Bank this Amendment then total %'s in this
Bank Percentage Held column)
================================================================================================================
The Chase Manhattan Bank 33.333% 33.333%
----------------------------------------------------------------------------------------------------------------
Fleet Capital Corporation 33.333% 33.333%
----------------------------------------------------------------------------------------------------------------
Credit Suisse/First Boston 33.333% 33.333%
================================================================================================================
TOTAL 100% 100%
================================================================================================================
AMENDMENT TO
CREDIT AGREEMENT - Solo Page
Schedule 9.1
to the
First Amendment to the Credit Agreement
7. Please see attached Schedule 9.1(a).
AMENDMENT TO
CREDIT AGREEMENT - Solo Page
Schedule 9.1(a)
to
Marketing Specialists Corporation
Credit Agreement
EXISTING DEBT TO BE ASSUMED BY MARKETING SPECIALISTS IN RELATION TO THE
SALES FORCE ACQUISITION
(LONG TERM OBLIGATION BALANCES AS OF FEBRUARY 29, 2000)
Note payable to Oklahoma City dated_____________ with terms of ________ and a
current balance of $92,734.98.
Notes payable to former ESOP participants (68) with various dates and terms of 5
years and an aggregate current balance of $1,058,841.51.
Xxxxxx Plan II obligation dated ______________ with a current balance of
$7,980.50.
Xxxxx Plan II obligation dated ______________ with a current balance of
$6,673.46.
Sparks Plan II obligation dated ______________ with a current balance of
$1,653.87.
Xxxxx Plan II obligation dated ______________ with a current balance of
$10,113.36.
Xxxxxx Plan II obligation dated ______________ with a current balance of
$7,959.45.
Deferred compensation - Individual Plans dated _______ with a current balance
of $2,051.11.
Booth Obligation dated _______________ with a current balance of $19,166.21.
Xxxxx Deferred Commission obligation dated _______________ with current
balance of $54,886.41.
Note Payable to St. Louis - Fanger dated _______________ with current balance
of $602.19.
Note Payable to St. Xxxxx - Xxxxxx dated _______________ with current balance
of $1,795.80.
Note Payable to St. Xxxxx - Xxxxx dated _______________ with current balance
of $45,982.11.
Deferred Salary obligation - X. Xxxxx dated ______________ with a current
balance of $67,076.35.
AMENDMENT TO
CREDIT AGREEMENT - Solo Page
Stock Purchase Note to X. Xxxxx dated _______________ with terms of
_______________ with a current balance of $839,024.93.
Stock Note to X. XxXxxxxx dated ____________ with terms of ________________
with a current balance of $1,081,600.00.
Note Payable to Xxxxx Xxxxxx dated ________________ with terms of
_________________ and a current balance of $73,125.00.
NEW DEBT TO BE ISSUED BY MARKETING SPECIALISTS
IN RELATION TO THE SALES FORCE ACQUISITION
Subordinated Notes Payable to the former stockholders of The Sales Force
Companies, Inc. dated April 14, 2000 in the aggregate amount of $7,459,920 as
set forth below:
NO. NAME AMOUNT
--- ---- ---------------
1 Xxxx Xxxxxx $ 49,213.33
2 Xxx Xxxxxx $ 24,606.66
3 Xxxxxx Xxxx $ 328,088.84
4 Xxxx Xxxx $ 98,426.65
5 Xxxxxx X. Xxxxxx $ 262,471.07
6 Xxxx Xxxxx $ 98,426.65
7 Xxxxxx Xxxx $ 147,639.98
8 Xxxxxx X. Xxxxxxxxx $ 762,806.55
9 Xxxxx Xxxxxxxx $ 411,751.49
10 Xxx Xxxxxxxxx $ 49,213.33
11 Xxxxxxx Xxxxx $ 8,202.22
00 Xxxx Xxxxx $ 276,906.98
13 Xxx Xxxxxxx $ 111,550.21
14 Xxxxx Xxxxxxx $ 49,213.33
15 Xxxxxx X. Xxxxx, Xx. $ 131,235.54
16 Xxxxxxx X. Xxx $ 853,030.98
17 Xxxxx XxXxxxxx $ 98,426.65
18 Xxxxx XxXxxxxxx $ 49,213.33
19 Xxxx X. Xxxxx $ 590,559.91
20 Xxxx Xxxxxx $ 98,426.65
21 Xxxxx Xxxxxx $ 24,606.66
22 Xxxxx X. Xxxxxx $ 196,853.30
23 Xxxxx Xxxxxx $ 98,426.65
24 Xxxxx X'Xxxx $ 49,213.33
25 Xxxxxx Xxxxxxxx $ 114,831.09
26 Xxxx Xxxxxx $ 111,550.21
AMENDMENT TO
CREDIT AGREEMENT - Solo Page
27 Xxx Xxxxxxxxx $ 164,044.42
00 Xxxxx Xxxxxx $ 49,213.33
29 Xxxx X. Xxxxxxx $1,246,737.60
30 Xxxx X. Scissors $ 39,698.75
31 Xxxxx Xxxxxxxx $ 49,213.33
32 Xxxxxx X. Xxxx $ 180,448.86
33 Xxxxxxx X. Xxxxx $ 426,515.49
34 Xxxx Xxxxxxxx $ 98,426.65
35 Xxxxxxx Xxxxxx $ 4,101.11
00 Xxxx Xxxxxxx $ 98,426.65
37 Xxxxxxxx X. Xxxxxx $ 8,202.22
AMENDMENT TO
CREDIT AGREEMENT - Solo Page
