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PROMISSORY NOTE
$4,750,000 August 17, 2000
FOR VALUE RECEIVED, Marketing Specialists Corporation, a
Delaware corporation (the "Borrower"), hereby promises to pay on demand
(subject to paragraph 2 below) to the order of Richmont Capital Partners I,
L.P., a Delaware limited partnership (the "Lender") or its assigns, in U.S.
dollars, in immediately available funds, the sum principal amount of FOUR
MILLION SEVEN HUNDRED AND FIFTY THOUSAND DOLLARS ($4,750,000.00), with
interest thereon as provided below, at such location as the Lender may
designate.
1. INTEREST.
(a) The unpaid principal balance of this Note, along
with any accrued and unpaid interest, will bear interest at a fluctuating
rate equal to the "Floating Rate" (as hereinafter defined). The Floating Rate
will be equal to the sum of (i) 2.75% (the "Interest Margin") plus (ii) the
interest rate quoted as the "Prime Rate" in the Money Rates Section of the
WALL STREET JOURNAL on the last business day of the immediately preceding
calendar quarter. The Floating Rate will change at 12:01 a.m. on the first
day of each calendar quarter to reflect any changes in the interest rate
quoted as the Prime Rate in the Money Rates Section of the WALL STREET
JOURNAL. If more than one Prime Rate is published, the Prime Rate to be used
in calculating the Floating Rate will be the lowest published Prime Rate. If
the Prime Rate is no longer published in the WALL STREET JOURNAL, Lender will
choose a new comparable, independently published interest rate index based
upon a comparable survey of bank published rates and will provide Borrower
with notice of this choice. For the purpose of computing interest on the debt
evidenced hereby, interest shall be calculated on the basis of a year
consisting of three hundred sixty-five (365) days and shall be charged on the
basis of the actual number of calendar days elapsed.
(b) Subject to the terms of Section 9 of this Note,
interest shall be payable in arrears quarterly, commencing on September 30,
2000 and continuing on the final day of each successive calendar quarter
until all amounts due hereunder shall have been repaid in full.
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(c) Following the occurrence and during the
continuance of any period during which default rates of interest are being
charged under the First Union Facility and the Chase Facility (as each is
defined below), the Lender may, at its discretion, increase the Interest
Margin by two percentage points if Borrower fails to pay any interest payable
hereunder when due or fails to comply with all covenants and requirements set
forth in (i) the Second Amended and Restated Credit Agreement, dated as of
March 30, 2000, by and among the Borrower, the Lenders named therein and
First Union National Bank, as Agent for the Lenders (as the same may be
amended, restated, refinanced, supplemented or otherwise modified from time
to time, the "First Union Facility"); (ii) the Credit Agreement, dated as of
March 30, 2000, by and among the Borrower, certain of its subsidiaries, the
lenders named therein and The Chase Manhattan Bank, as Agent (as the same may
be amended, restated, refinanced, supplemented or otherwise modified from
time to time, the "Chase Facility"); and (iii) the Indenture, dated as of
December 19, 1997, among the Borrower (as successor by merger to Richmont
Marketing Specialists, Inc.), the subsidiaries of the Borrower party thereto
as Guarantors and Chase Bank of Texas, N.A. (as successor-in-interest to
Texas Commerce Bank National Association) as trustee (as the same may be
amended, restated, refinanced, supplemented or otherwise modified from time
to time, the "Indenture"). The covenants and requirements set forth in the
First Union Facility, the Chase Facility and the Indenture will be referred
to herein as the "Loan Covenants". Borrower's issuance to Lender of a
certificate indicating compliance with such provisions will be prima facie
evidence of Borrower's compliance with the Loan Covenants. Borrower will
provide Lender with a certificate of compliance within 45 days following the
last business day of each calendar quarter during the year and within 120
days following the last business day of the calendar year.
(d) Notwithstanding anything in this Note to the
contrary, the Floating Rate will never exceed the maximum nonusurious
interest rate allowed by applicable law.
2. REPAYMENT.
(a) Subject to the provisions of paragraph 9 hereof,
the principal amount (or so much as may be outstanding) and all accrued and
unpaid interest thereon, shall be due and payable in full, without any
offset, reduction, counterclaim, or recoupment whatsoever, in immediately
available U.S. Dollars, on demand by Lender; PROVIDED, however, Borrower
shall not be permitted to (i) repay the principal amount hereof on demand
unless, at the time of such demand for repayment, and after giving effect
thereto, (A) the Aggregate Borrowing Availability under the Chase Facility for
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the thirty (30) day period prior to the payment (calculated as if such
payment had been made on the first day of such period) is equal to or greater
than the greater of (1) $10,000,000 and (2) the quotient obtained by dividing
by four (4) the aggregate sum of Borrowers' (as defined in the Chase
Facility) payroll (including payroll taxes) paid over the last four (4) pay
periods occurring immediately prior to the payment (the requirement set forth
in this clause (A) being referred to herein as the "Required Availability
Test") and (B) no default or event of default under the terms of any Senior
Debt (as defined in paragraph 9(b) hereof) of the Borrower has occurred and
is continuing or (ii) repay any accrued and unpaid interest on demand unless,
at the time of such demand for repayment, and after giving effect thereto, no
default or event of default under the terms of any Senior Debt of the
Borrower has occurred and is continuing; PROVIDED, FURTHER, that failure by
the Borrower to repay upon demand any amount hereunder by reason of the
previous proviso shall not relieve Borrower of its obligations to repay
amounts owing hereunder.
(b) Notwithstanding the provisos contained in the
final sentence of paragraph (a), but subject to the provisions of paragraph 9
hereof, all unpaid principal and interest on this Note shall become
immediately due and payable, without presentment, demand or notice of any
kind (x) upon the commencement of any bankruptcy, reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency
or liquidation or similar proceeding of any jurisdiction relating to the
Borrower or (y) on the second anniversary of the date of this Note.
(c) Prepayment of all or part of this Note may be made
at any time without penalty; PROVIDED, however, Borrower shall not be
permitted to prepay any amount owing hereunder unless, at the time of such
prepayment, and after giving effect thereto, (i) the Required Availability
Test shall have been satisfied by the Borrower, and (ii) no default or event
of default under the terms of any Senior Debt of the Borrower has occurred
and is continuing.
3. COSTS OF COLLECTION. In the event counsel is employed by
the Lender to enforce the provisions of this Note, or any of the Documents,
Borrower shall pay upon demand all reasonable attorneys' fees so incurred by
Lender, and all other costs and expenses connected with such enforcement.
4. APPLICATION OF PAYMENTS. All payments received shall be
applied as follows: first, to the Lender's costs of collection (including,
without limitation, reasonable attorneys' fees and expenses), if any; second,
to accrued and unpaid interest; and third, to the reduction of principal.
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5. NOTICES. All notices and demands for payment hereunder
shall be given in writing and shall be effective (a) when personally
delivered or when transmitted by telecopy; (b) three (3) days after being
mailed by first class or certified or registered mail, with proper postage
prepaid or (c) one (1) business day after being delivered to an established
overnight delivery service, with costs for "next day" delivery prepaid,
addressed in any such case, if to the Borrower at 17855 North Dallas Parkway,
Dallas, Texas 75287, and if addressed to the Lender at Richmont Capital
Partners I, L.P., 16251 Dallas Parkway, 7th Floor, Addison, Texas 75001, or
in either case to such other address as such party may from time to time
designate to the other by like written notice given at least ten (10) days
prior to the date such change becomes effective.
6. SUCCESSORS AND ASSIGNS. This Note shall apply to and bind
the Borrower and the Lender and each of their respective successors and
assigns.
7. ENTIRE AGREEMENT. This Note represents the entire agreement
between Borrower and Lender as to this matter and may not be contradicted by
evidence of prior, contemporaneous, or subsequent oral agreements of the
parties. There are no unwritten oral agreements between Borrower and Lender
related to the subject matter of this Note.
8. GOVERNING LAW. For convenience, notwithstanding any forum
in which this Note may be considered, the parties agree that the validity and
construction of this Note and all matters pertaining thereto are to be
determined and construed according to the laws of the State of Texas and the
Borrower consents to the jurisdiction of the courts of competent jurisdiction
sitting in Dallas County, Texas.
9. SUBORDINATION.
(a) This Note is and at all times hereafter will be
junior and subordinate in right of payment and exercise of remedies to the
indefeasible prior payment in full in cash of all obligations owed in respect
of the Senior Debt (as defined below). The subordination of the obligations
under this Note is for the benefit of all holders of Senior Debt from time to
time, whether such Senior Debt is outstanding on the date hereof or incurred,
created or arising hereafter. Upon the occurrence and during the continuance
of any default or event of default under any Senior Debt, Borrower will have
no obligation to make, and the Lender will not accept or receive or take any
action to collect, any payment of any portion of the obligations under this
Note until all obligations with respect to such Senior Debt have been
indefeasibly discharged in full in cash. Borrower shall have no obligation to
make, and the Lender will not accept or receive or take any action to
collect, any portion of the principal amount of the
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obligations under this Note unless at the time such amount is paid to the
Lender, and after giving effect thereto, the Borrower shall have satisfied
the Required Availability Test. Should any payment, distribution, security,
or proceeds thereof be received by the Lender contrary to the terms hereof,
the Lender shall immediately deliver the same to the holders of the Senior
Debt in precisely the form received (except for endorsement or assignment of
such Lender where necessary), for application on or to secure the Senior
Debt, whether it is due or not due, and until so delivered the same shall be
held in trust by the Lender as property of the holders of the Senior Debt.
Nothing in this section shall prohibit the Lender from receiving and
retaining (i) principal amounts due to the Lender hereunder, PROVIDED, that
at the time of such payment, and after giving effect thereto, (A) the
Borrower shall have satisfied the Required Availability Test and (B) no
default or event of default under the terms of any Senior Debt (as defined in
paragraph 9(b) hereof) of the Borrower shall have occurred and be continuing;
or (ii) interest amounts paid to the Lender hereunder, PROVIDED, that at the
time of such payment, and after giving effect thereto, no default or event of
default under the terms of any Senior Debt of the Borrower shall have
occurred and be continuing.
(b) For purposes hereof, "Senior Debt" means (i) all
indebtedness and obligations of the Borrower in favor of any bank, trust
company, insurance company or other institutional lender providing financing
to the Borrower under the First Union Facility and all Senior Obligations as
defined in the First Union Facility and (ii) all indebtedness and obligations
of the Borrower in favor of any bank, trust company, insurance company or
other institutional lender providing financing to the Borrower under the
Chase Facility.
10. LIMITATIONS ON INTEREST. It is the intention of the parties
hereto to comply with all applicable usury laws, whether now existing or
hereinafter enacted. Accordingly, notwithstanding any provision to the
contrary in this Note or any other document evidencing, securing,
guaranteeing or otherwise pertaining to indebtedness of the Borrower to the
Lender, in no contingency or event whatsoever, whether by acceleration of the
maturity of the indebtedness of the Borrower to the Lender or otherwise,
shall the interest contracted for, charged or received by the Lender exceed
the maximum amount permissible under applicable law. If from any
circumstances whatsoever fulfillment of any provision of this Note or any
other document evidencing, securing, guaranteeing or otherwise pertaining to
indebtedness of the Borrower to the Lender, at the time performance of such
provision shall be due, shall involve transcending the limit of validity
prescribed by law, then, ipso facto, the obligation to be fulfilled shall be
reduced to the limit of such validity, and if from any such circumstances the
Lender shall ever receive anything of value as interest or deemed interest by
applicable law
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under this Note or any other document evidencing, securing, guaranteeing or
otherwise pertaining to indebtedness of the Borrower to the Lender or
otherwise in an amount that would exceed the highest lawful amount, such
amount that would be excessive interest shall be applied to the reduction of
the principal amount owing in connection with this Note or on account of any
other indebtedness of the Borrower to the Lender, and not to the payment of
interest, or if such excessive interest exceeds the unpaid balance of
principal owing in connection with this Note and such indebtedness, such
excess shall be refunded to the Borrower. In determining whether or not the
interest paid or payable with respect to indebtedness of the Borrower to the
Lender, under any specific contingency, exceeds the maximum nonusurious rate
permitted under applicable law, the Borrower and the Lender shall, to the
maximum extent permitted by applicable law, (a) characterize any
non-principal payment as an expense, fee or premium rather than interest, (b)
exclude voluntary prepayments and the effects thereof, (c) amortize, prorate,
allocate and spread the total amount of interest throughout the full term of
such indebtedness so that the actual rate of interest on account of such
indebtedness does not exceed the maximum amount permitted by applicable law,
and/or (d) allocate interest between portions of such indebtedness, to the
end that no such portion shall bear interest at a rate greater than that
permitted by law. The terms and provisions of this paragraph shall control
and supersede any other conflicting provision of this Note.
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IN WITNESS WHEREOF, the Borrower has executed this Note on
the date first written above.
MARKETING SPECIALISTS CORPORATION
By:
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Name:
Title:
Witness:
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Name:
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