GUARANTEE
THIS GUARANTEE (this "Guarantee"), dated October 3, 2003, is by Delta
Apparel, Inc., a Georgia corporation ("Delta"), with its chief executive office
at 2750 Premiere Parkway, Duluth, Georgia 30097, and SAIM, LLC, a North Carolina
corporation ("SAIM", and together with Delta, each individually, a "Guarantor"
and collectively, "Guarantors"), with its chief executive office at One Soffe
Drive, Fayetteville, North Carolina 28302, in favor of Congress Financial
Corporation (Southern), a Georgia corporation, as agent for Lenders (as defined
below) ("Agent"), having an office at 200 Galleria Parkway, Suite 1500, Atlanta,
Georgia 30339.
W I T N E S S E T H :
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WHEREAS, Agent, the financial institutions party thereto as lenders
(collectively, "Lenders") and MJS Acquisition Company, a North Carolina
corporation ("Borrower"), are parties to that certain Loan and Security
Agreement, dated the date hereof (as the same now exists and as the same may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, the "Loan Agreement") and other notes, guarantees, agreements,
documents and instruments referred to therein or at any time executed and/or
delivered in connection therewith or related thereto, including, but not limited
to, this Guarantee (all of the foregoing, together with the Loan Agreement, as
the same now exist or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced, being collectively referred to herein
as the "Financing Agreements") pursuant to which Lenders may make loans and
advances and provide other financial accommodations to Borrower as set forth
therein; and
WHEREAS, due to the close business and financial relationships between
Borrower and each Guarantor, in consideration of the benefits which will accrue
to each Guarantor and as an inducement for and in consideration of Lenders
making loans and advances and providing other financial accommodations to
Borrower pursuant to the Loan Agreement and the other Financing Agreements, each
Guarantor has agreed to guarantee the Guaranteed Obligations (as hereinafter
defined) to the extent and on the terms and conditions set forth in this
Guarantee, and such guarantee will be secured by a security interest in and lien
upon substantially all of such Guarantor's now owned or hereafter acquired real
and personal property pursuant to certain of the Financing Agreements to which
such Guarantor is a party;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Guarantor hereby jointly and severally agrees in favor of
Agent, for the benefit of Agent and Lenders, as follows:
1. Guarantee.
(a) Each Guarantor absolutely and unconditionally, jointly and severally,
guarantees and agrees to be liable for the full and indefeasible payment and
performance when due of the following (all of which are collectively referred to
herein as the "Guaranteed Obligations"): all obligations, liabilities and
indebtedness of any kind, nature and description of Borrower and each other
Guarantor to Agent, Lenders and/or their respective Affiliates, including
principal, interest, charges, fees, costs and expenses, however evidenced,
whether as principal, surety, endorser, guarantor or otherwise, whether arising
under the Loan Agreement or the other Financing Agreements, whether now existing
or hereafter arising, whether arising before, during or after the initial or any
renewal term of the Loan Agreement or after the commencement of any case with
respect to Borrower and each other Guarantor under the United States Bankruptcy
Code or any similar statute (including, without limitation, the payment of
interest and other amounts which would accrue and become due but for the
commencement of such case, whether or not such amounts are allowed or allowable
in whole or in part in any such case and including loans, interest, fees,
charges and expenses related thereto and all other obligations of Borrower and
each other Guarantor or their respective successors to Agent and Lenders arising
after the commencement of such case), whether direct or indirect, absolute or
contingent, joint or several, due or not due, primary or secondary, liquidated
or unliquidated, secured or unsecured, and however acquired and all expenses
(including, without limitation, reasonable attorneys' fees actually incurred and
legal expenses) incurred by Agent, Lenders, or any of them, in connection with
the preparation, execution, delivery, recording, administration, collection,
liquidation, enforcement and defense of Borrower's and each other Guarantor's
obligations, liabilities and indebtedness under the Loan Agreement or the other
Financing Agreements as aforesaid to Agent and Lenders, the rights of Agent,
Lenders, or any of them, in any collateral pledged under the Financing
Agreements or under this Guarantee and all other Financing Agreements or in any
way involving claims by or against Agent, Lenders, or any of them, directly or
indirectly arising out of or related to the relationships between Borrower, any
Guarantor or any other Obligor (as hereinafter defined) and Agent or such Lender
or Lenders under the Loan Agreement or the Financing Agreements, whether such
expenses are incurred before, during or after the initial or any renewal term of
the Loan Agreement and the other Financing Agreements or after the commencement
of any case with respect to Borrower or any Guarantor under the United States
Bankruptcy Code or any similar statute.
(b) This Guarantee is a guaranty of payment and not of collection. Each
Guarantor agrees that Agent need not attempt to collect any Guaranteed
Obligations from Borrower, any one Guarantor or any other Obligor or to realize
upon any collateral, but may require any one Guarantor to make immediate payment
of all of the Guaranteed Obligations to Agent when due, whether by maturity,
acceleration or otherwise, or at any time thereafter. Agent shall apply any
amounts received in respect of the Guaranteed Obligations to any of the
Guaranteed Obligations, in whole or in part (including reasonable attorneys'
fees actually incurred and legal expenses incurred by Agent and Lenders with
respect thereto or otherwise chargeable to Borrower or Guarantors) in the order
of application set forth in the Loan Agreement.
(c) Payment by Guarantors shall be made to Agent at the office of Agent
from time to time on demand as Guaranteed Obligations become due. Guarantors
shall make all payments to Agent on the Guaranteed Obligations free and clear
of, and without deduction or withholding for or on account of, any setoff,
counterclaim, defense, duties, taxes, levies, imposts, fees, deductions,
withholding, restrictions or conditions of any kind. One or more successive or
concurrent actions may be brought hereon against any Guarantor either in the
same action in which Borrower or any other Guarantor or any other Obligor is
sued or in separate actions. In the event any claim or action, or action on any
judgment, based on this Guarantee is brought against any Guarantor, each
Guarantor agrees not to deduct, set-off, or seek any counterclaim for or recoup
any amounts which are or may be owed by Agent, Lenders, or any of them, to any
Guarantor.
(d) Notwithstanding anything to the contrary contained herein, the amount
of the obligations payable by any Guarantor under this Guarantee shall be the
aggregate amount of the Guaranteed Obligations unless a court of competent
jurisdiction adjudicates Guarantor's obligations to be invalid, avoidable or
unenforceable for any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or
transfers), in which case the amount of the Guaranteed Obligations payable by
Guarantor hereunder shall be limited to the maximum amount that could be
guaranteed by Guarantor without rendering such Guarantor's Guaranteed
Obligations under this Guarantee invalid, avoidable or unenforceable under such
applicable law.
2. Waivers and Consents.
(a) Notice of acceptance of this Guarantee, the making of loans and
advances and providing other financial accommodations to Borrower and
presentment, demand, protest, notice of protest, notice of nonpayment or default
and all other notices to which Borrower or any Guarantor are entitled are hereby
waived by each Guarantor. Each Guarantor also waives notice of and hereby
consents to, (i) any amendment, modification, supplement, extension, renewal, or
restatement of the Loan Agreement and any of the other Financing Agreements,
including, without limitation, extensions of time of payment of or increase or
decrease in the amount of any of the Guaranteed Obligations, the interest rate,
fees, other charges, or any collateral, and the guarantee made herein shall
apply to the Loan Agreement and the other Financing Agreements and the
Guaranteed Obligations as so amended, modified, supplemented, renewed, restated
or extended, increased or decreased, (ii) the taking, exchange, surrender and
releasing of collateral or guarantees now or at any time held by or available to
Agent for the obligations of Borrower or any other party at any time liable on
or in respect of the Guaranteed Obligations or who is the owner of any property
which is security for the Guaranteed Obligations (individually, an "Obligor" and
collectively, the "Obligors"), including, without limitation, the surrender or
release by Agent of any one Guarantor hereunder, (iii) the exercise of, or
refraining from the exercise of, any rights against Borrower, any Guarantor or
any other Obligor or any collateral, (iv) the settlement, compromise or release
of, or the waiver of any default with respect to, any of the Guaranteed
Obligations and (v) any financing by Agent, Lenders, or any of them, of Borrower
under Section 364 of the United States Bankruptcy Code or consent to the use of
cash collateral by Agent, Lenders or any of them, under Section 363 of the
United States Bankruptcy Code. Each Guarantor agrees that the amount of the
Guaranteed Obligations shall not be diminished and the liability of Guarantors
hereunder shall not be otherwise impaired or affected by any of the foregoing.
(b) No invalidity, irregularity or unenforceability of all or any part of
the Guaranteed Obligations shall affect, impair or be a defense to this
Guarantee, nor shall any other circumstance which might otherwise constitute a
defense available to or legal or equitable discharge of Borrower in respect of
any of the Guaranteed Obligations, or any one Guarantor in respect of this
Guarantee, affect, impair or be a defense to this Guarantee. Without limitation
of the foregoing, the liability of Guarantors hereunder shall not be discharged
or impaired in any respect by reason of any failure by Agent to perfect or
continue perfection of any lien or security interest in any collateral or any
delay by Agent in perfecting any such lien or security interest. As to interest,
fees and expenses that constitute Guaranteed Obligations, whether arising before
or after the commencement of any case with respect to Borrower or any Guarantor
under the United States Bankruptcy Code or any similar statute, Guarantors shall
be liable therefor, even if Borrower's or such Guarantor's liability for such
amounts does not, or ceases to, exist by operation of law. Each Guarantor
acknowledges that none of Agent and Lenders have made any representations to any
Guarantor with respect to Borrower, any other Obligor or otherwise in connection
with the execution and delivery by Guarantors of this Guarantee and Guarantors
are not in any respect relying upon Agent, Lenders, or any of them, or any
statements by Lender in connection with this Guarantee.
(c) Unless and until the indefeasible payment and satisfaction in full of
all of the Guaranteed Obligations in immediately available funds and the
termination of the financing arrangements of Agent and Lenders with Borrower,
each Guarantor hereby irrevocably and unconditionally waives and relinquishes
(i) all statutory, contractual, common law, equitable and all other claims
against Borrower, (ii) any collateral for the Guaranteed Obligations or other
assets of Borrower or any other Obligor, (iii) all rights of subrogation,
reimbursement, exoneration, contribution, indemnification, setoff or other
recourse in respect to sums paid or payable to Agent, Lenders, or any of them,
by any Guarantor hereunder and (iv) any and all other benefits which any
Guarantor might otherwise directly or indirectly receive or be entitled to
receive by reason of any amounts paid by or collected or due from Guarantors,
Borrower or any other Obligor upon the Guaranteed Obligations or realized from
their property.
3. Subordination. Payment of all amounts now or hereafter owed to any
Guarantor by Borrower or any other Obligor is hereby subordinated in right of
payment to the indefeasible payment in full to Agent and Lenders of the
Guaranteed Obligations and all such amounts and any security and guarantees
therefor are hereby assigned to Agent, for the benefit of Agent and Lenders, as
security for the Guaranteed Obligations.
4. Acceleration. Notwithstanding anything to the contrary contained herein
or any of the terms of any of the other Financing Agreements, the liability of
Guarantors for the entire Guaranteed Obligations shall mature and become
immediately due and payable, even if the liability of Borrower or any other
Obligor therefor does not, upon the occurrence of any act, condition or event
which constitutes an Event of Default as such term is defined in the Loan
Agreement.
5. Account Stated. The books and records of Agent showing the account
between Agent and Lenders and Borrower shall be admissible in evidence in any
action or proceeding against or involving Guarantors as prima facie proof of the
items therein set forth, and the monthly statements of Agent rendered to
Borrower, to the extent to which no written objection is made within thirty (30)
days from the date of sending thereof to Borrower, shall be deemed conclusively
correct and constitute an account stated between Agent and Lenders and Borrower
and be binding on Guarantors.
6. Termination. This Guarantee is continuing, unlimited, absolute and
unconditional. All Guaranteed Obligations shall be conclusively presumed to have
been created in reliance on this Guarantee. Each Guarantor shall continue to be
liable hereunder until one of Agent's officers actually receives a written
termination notice from a Guarantor sent to Agent at its address set forth above
by certified mail, return receipt requested, and thereafter as set forth below.
Such notice received by Agent from any one Guarantor shall not constitute a
revocation or termination of this Guarantee as to any other Guarantor.
Revocation or termination hereof by any Guarantor shall not affect, in any
manner, the rights of Agent or any obligations or duties of any Guarantor
(including the Guarantor which may have sent such notice) under this Guarantee
with respect to (i) Guaranteed Obligations which have been created, contracted,
assumed or incurred prior to the receipt by Agent of such written notice of
revocation or termination as provided herein, including, without limitation, (A)
all amendments, extensions, renewals and modifications of such Guaranteed
Obligations (whether or not evidenced by new or additional agreements, documents
or instruments executed on or after such notice of revocation or termination),
(B) all interest, fees and similar charges accruing or due on and after
revocation or termination, and (C) all attorneys' fees actually incurred and
legal expenses, costs and other expenses paid or incurred on or after such
notice of revocation or termination in attempting to collect or enforce any of
the Guaranteed Obligations against Borrower, Guarantors or any other Obligor
(whether or not suit be brought), and (ii) Guaranteed Obligations which have
been created, contracted, assumed or incurred after the receipt by Agent of such
written notice of revocation or termination as provided herein pursuant to any
contract entered into by Agent prior to receipt of such notice. The sole effect
of such revocation or termination by any Guarantor shall be to exclude from this
Guarantee the liability of such Guarantor for those Guaranteed Obligations
arising after the date of receipt by Agent of such written notice which are
unrelated to Guaranteed Obligations arising or transactions entered into prior
to such date. Without limiting the foregoing, this Guarantee may not otherwise
be terminated and shall continue so long as the Loan Agreement shall be in
effect (whether during its original term or any renewal, substitution or
extension thereof).
7. Reinstatement. If after receipt of any payment of, or proceeds of
collateral applied to the payment of, any of the Guaranteed Obligations, Agent,
Lenders, or any of them, are required to disgorge or return such payment or
proceeds to any Person for any reason, then the Guaranteed Obligations intended
to be satisfied by such payment or proceeds shall be reinstated and continue and
this Guarantee shall continue in full force and effect as if such payment or
proceeds had not been received by such person. Each Guarantor shall be liable to
pay to Agent, Lenders, or any of them, and does indemnify and hold such persons
harmless for, the amount of any payments or proceeds surrendered or returned.
This Section 7 shall remain effective notwithstanding any contrary action which
may be taken by Agent, Lenders, or any of them, in reliance upon such payment or
proceeds. This Section 7 shall survive the termination or revocation of this
Guarantee.
8. Amendments and Waivers. Neither this Guarantee nor any provision hereof
shall be amended, modified, waived or discharged orally or by course of conduct,
but only by a written agreement signed by an authorized officer of each
Guarantor and Agent. Agent shall not by any act, delay, omission or otherwise be
deemed to have expressly or impliedly waived any of its rights, powers and/or
remedies unless such waiver shall be in writing and signed by an authorized
officer of Agent. Any such waiver shall be enforceable only to the extent
specifically set forth therein. A waiver by Agent of any right, power and/or
remedy on any one occasion shall not be construed as a bar to or waiver of any
such right, power and/or remedy which Agent would otherwise have on any future
occasion, whether similar in kind or otherwise.
9. Representations and Warranties; Covenants.
(a) Each Guarantor is a corporation or limited liability company duly
organized and in good standing under the laws of its state or other jurisdiction
of incorporation or organization and is duly qualified as a foreign corporation
and in good standing in all states or other jurisdictions where the nature and
extent of the business transacted by it or the ownership of assets makes such
qualification necessary, except for those jurisdictions in which the failure to
so qualify would not have a material adverse effect on the financial condition,
results of operation or businesses of Borrower and its Subsidiaries, taken as a
whole, or the rights of Agent, Lenders, or any of them, hereunder or under any
of the other Financing Agreements. The execution, delivery and performance of
this Guarantee are within the corporate or company powers of each Guarantor,
have been duly authorized and are not in contravention of law or the terms of
the certificates or articles of incorporation or organization, by-laws or
operating agreement, or other organizational documentation of any Guarantor, or
any indenture, agreement or undertaking to which any Guarantor is a party or by
which any Guarantor or its property are bound. This Guarantee constitutes the
legal, valid and binding obligation of each Guarantor, enforceable in accordance
with its terms. Any one Guarantor signing this Guarantee shall be bound hereby
whether or not any other Guarantor or any other person signs this Guarantee at
any time.
(b) Upon the termination of the Parent Revolving Loan Agreement (as defined
in the Loan Agreement), Delta agrees that, for purposes of this Guarantee, (a)
all of the representations, warranties and covenants made by Borrower on behalf
of or relating to each "Subsidiary" (as if Delta was a Subsidiary of Borrower)
(other than Section 9.17 of the Loan Agreement) or any "Guarantor" in the Loan
Agreement shall be deemed incorporated by reference into and made an express
part of this Guarantee, as fully and completely as if set forth expressly
herein, and Delta shall comply herewith and be bound thereby and (b) all
references to the "Collateral" in such representations, warranties and covenants
shall be deemed to include the "Collateral" as defined in that certain Security
Agreement dated the date hereof by Guarantors in favor of Agent, for the benefit
of Agent and Lenders.
(c) SAIM agrees that, for purposes of this Guarantee, all references to the
"Collateral" in the representations, warranties and covenants of the Loan
Agreement shall be deemed to include the "Collateral" as defined in that certain
Security Agreement dated the date hereof by Guarantors in favor of Agent, for
the benefit of Agent and Lenders.
(d) Each Guarantor ratifies and affirms each representation and warranty
made with respect to it or on its behalf by Borrower in the Loan Agreement.
(e) Notwithstanding any provision of the Loan Agreement or this Guarantee
to the contrary, SAIM hereby (i) represents and warrants that it has no assets
other than a fifty percent (50%) interest in Agencias 7000, S.A., a Costa Rica
corporation, and a fifty percent (50%) interest in Soha Textiles, S.A., a Costa
Rica corporation (such interests, collectively, the "Costa Rica Assets"), and
(b) covenants that it shall not own or have an interest in any asset other than
the Costa Rica Assets.
10. Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver.
(a) The validity, interpretation and enforcement of this Guarantee and any
dispute arising out of the relationship between any Guarantor and Agent, whether
in contract, tort, equity or otherwise, shall be governed by the internal laws
of the State of Georgia but excluding any principles of conflicts of law or
other rule of law that would result in the application of the law of any
jurisdiction other than the laws of the State of Georgia.
(b) Each Guarantor hereby irrevocably consents and submits to the
non-exclusive jurisdiction of the State of Georgia and the United States
District Court for the Northern District of Georgia, whichever Agent elects and
waives any objection based on venue or forum non conveniens with respect to any
action instituted therein arising under this Guarantee or any of the other
Financing Agreements or in any way connected with or related or incidental to
the dealings of any Guarantor and Agent, Lenders, or any of them, in respect of
this Guarantee or any of the other Financing Agreements or the transactions
related hereto or thereto, in each case whether now existing or hereafter
arising and whether in contract, tort, equity or otherwise, and agrees that any
dispute arising out of the relationship between any Guarantor or Borrower and
Agent, Lenders, or any of them, or the conduct of any such persons in connection
with this Guarantee, the other Financing Agreements or otherwise shall be heard
only in the courts described above (except that Agent and Lenders shall have the
right to bring any action or proceeding against any Guarantor or its property in
the courts of any other jurisdiction which Agent deems necessary or appropriate
in order to realize on collateral at any time granted by Borrower or any
Guarantor to Agent, for the benefit of Agent and Lenders, or to otherwise
enforce its rights against any Guarantor or its property).
(c) Each Guarantor hereby waives personal service of any and all process
upon it and consents that all such service of process may be made by certified
mail (return receipt requested) directed to its address set forth on the
signature pages hereof and service so made shall be deemed to be completed five
(5) days after the same shall have been so deposited in the U.S. mails, or, at
Agent's option, by service upon any Guarantor in any other manner provided under
the rules of any such courts. Within thirty (30) days after such service, any
Guarantor so served shall appear in answer to such process, failing which such
Guarantor shall be deemed in default and judgment may be entered by Agent
against such Guarantor for the amount of the claim and other relief requested.
(d) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR HEREBY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
ARISING UNDER THIS GUARANTEE OR ANY OF THE OTHER FINANCING AGREEMENTS OR IN ANY
WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF ANY OF
GUARANTORS, AGENT AND ANY OF LENDERS IN RESPECT OF THIS GUARANTEE OR ANY OF THE
OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT,
TORT, EQUITY OR OTHERWISE. EACH GUARANTOR HEREBY AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY OF GUARANTORS, AGENT OR ANY OF LENDERS MAY FILE AN
ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF GUARANTORS, AGENT AND LENDERS TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
(e) Neither Agent nor Lenders shall have any liability to Guarantors
(whether in tort, contract, equity or otherwise) for losses suffered by
Guarantors in connection with, arising out of, or in any way related to the
transactions or relationships contemplated by this Guarantee, or any act,
omission or event occurring in connection herewith, unless it is determined by a
final and non-appealable judgment or court order binding on Agent and Lenders
that the losses were the result of acts or omissions constituting gross
negligence or willful misconduct. In any such litigation, Agent and Lenders
shall be entitled to the benefit of the rebuttable presumption that it acted in
good faith and with the exercise of ordinary care in the performance by it of
the terms of the Loan Agreement and the other Financing Agreements.
11. Notices. All notices, requests and demands hereunder shall be in
writing and (a) made to Agent at its address set forth above and to each
Guarantor at its chief executive office set forth above, or to such other
address as either party may designate by written notice to the other in
accordance with this provision, and (b) deemed to have been given or made: if
delivered in person, immediately upon delivery; if by telex, telegram or
facsimile transmission, immediately upon sending and upon confirmation of
receipt; if by nationally recognized overnight courier service with instructions
to deliver the next Business Day (as defined in the Loan Agreement), one (1)
Business Day after sending; and if by certified mail, return receipt requested,
five (5) days after mailing.
12. Partial Invalidity. If any provision of this Guarantee is held to be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate this Guarantee as a whole, but this Guarantee shall be construed as
though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be construed
and enforced only to such extent as shall be permitted by applicable law.
13. Entire Agreement. This Guarantee and any instruments or documents
delivered or to be delivered in connection herewith represent the entire
agreement and understanding of the parties concerning the subject matter hereof,
and supersedes all other prior agreements, understandings, negotiations and
discussions, representations, warranties, commitments, proposals, offers and
contracts concerning the subject matter hereof, whether oral or written.
14. Successors and Assigns. This Guarantee shall be binding upon Guarantors
and their respective successors and assigns and shall inure to the benefit of
Agent, Lenders and their respective successors, endorsees, transferees and
assigns, except that no Guarantor may assign its rights under this Guaranty and
any other Financing Agreement without the prior written consent of Secured
Party. The liquidation, dissolution or termination of any Guarantor shall not
terminate this Guarantee as to such entity or as to any of the other Guarantors.
15. Construction. All references to the term "Guarantors" wherever used
herein shall mean each and all of Guarantors and their respective successors and
assigns, individually and collectively, jointly and severally (including,
without limitation, any receiver, trustee or custodian for any of Guarantors or
any of their respective assets or any of Guarantors in their respective capacity
as debtor or debtor-in-possession under the United States Bankruptcy Code). All
references to the term "Agent" wherever used herein shall mean Agent and its
successors and assigns and all references to the term "Lenders" wherever and
herein shall mean each and all of Lenders and their respective successors and
assigns. All references to the term "Borrower" wherever used herein shall mean
Borrower and its successors and assigns (including, without limitation, any
receiver, trustee or custodian for Borrower or any of its assets or Borrower in
its capacity as debtor or debtor-in-possession under the United States
Bankruptcy Code). All references to the term "Person" or "person" wherever used
herein shall mean any individual, sole proprietorship, partnership, corporation
(including, without limitation, any corporation which elects subchapter S status
under the Internal Revenue Code of 1986, as amended), limited liability company,
limited liability partnership, business trust, unincorporated association, joint
stock corporation, trust, joint venture or other entity or any government or any
agency or instrumentality of political subdivision thereof. All references to
the plural shall also mean the singular and to the singular shall also mean the
plural.
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IN WITNESS WHEREOF, each Guarantor has executed and delivered this
Guarantee as of the day and year first above written.
MJS ACQUISITION COMPANY
By: /s/ Herbert M. Mueller
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Title: Vice President
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SAIM, LLC
By: MJS Acquisition Company, its sole member
/s/ Herbert M. Mueller
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Title: Vice President and CFO
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