Exhibit 2(e)
GUARANTY AGREEMENT dated as of July 6, 2000, by Electronic
Retailing Systems International, Inc., a corporation duly organized
and validly existing under the laws of the State of Connecticut
(collectively, with each additional guarantor becoming a party
hereto in the manner hereinafter set forth, hereinafter referred to
as the "Subsidiary Guarantor") and wholly-owned subsidiary of
Electronic Retailing Systems International, Inc., a corporation
duly organized and validly existing under the laws of the State of
Delaware (hereinafter referred to as the "Maker"), for the benefit
of the holders of the Notes hereinafter identified (as such holders
may from time to time be constituted, hereinafter referred to as
the "Holders").
W I T N E S S E T H:
WHEREAS, the Holders have, respectively, acquired or hold the
Maker's 10% Guaranteed Secured Promissory Notes in the original
aggregate principal amount of approximately $5,000,000 (together
with all further promissory notes subsequently issued pursuant
thereto on account of interest thereunder, and any additional notes
executed and delivered by the Maker in exchange or replacement of
such notes, respectively, hereinafter referred to as the "10%
Notes"), and the Maker's 8% Guaranteed Secured Promissory Notes in
the original aggregate principal amount of approximately $5,000,000
(together with all further promissory notes subsequently issued
pursuant thereto on account of interest thereunder, and any
additional notes executed and delivered by the Maker in exchange or
replacement of such notes, respectively, hereinafter referred to as
the "8% Notes" and, together with the 10% Notes, hereinafter
referred to as the "Notes"); and
WHEREAS, the business of the Subsidiary Guarantor is a part of
an integrated and coordinated enterprise conducted through the
Maker and the Subsidiary Guarantor, for the convenience, economic
advantage and greater profit of the integrated and coordinated
enterprise represented by the Maker and the Subsidiary Guarantor;
and the Subsidiary Guarantor will derive substantial direct and
indirect economic benefit from the issuance and delivery of the
Notes;
NOW, THEREFORE, in order to induce the Holders to acquire the
Notes, and in exchange for other valuable consideration the receipt
and sufficiency of which are hereby acknowledged by the Subsidiary
Guarantor, the Subsidiary Guarantor does hereby covenant and agree
as follows:
SECTION 1. Guarantee of Obligations.
1.1 Effective from and after the date hereof, the Subsidiary
Guarantor hereby unconditionally guarantees (i) the due and
punctual payment of principal of and interest on, and all other
amounts pursuant to, the Notes, and each of them, when due, whether
at maturity, by acceleration, by notice of prepayment, by offer to
purchase or otherwise, and all other monetary obligations of the
Maker to the Holders, and each of them, incurred pursuant to the
Notes, and each of them, and (ii) due and punctual the performance
and observance of all other terms, covenants, conditions,
obligations and provisions to be performed, paid or observed by the
Maker to the Holders, and each of them, under the Notes and the
Security Agreement (as defined in the Notes), and each of them (all
the foregoing hereinafter, collectively, referred to as the
"Guaranteed Obligations"). To the fullest extent permitted by law,
the Subsidiary Guarantor further agrees that the Guaranteed
Obligations may be increased, modified, amended, extended or
renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon this Guaranty Agreement
notwithstanding any increase, modification, amendment, extension or
renewal of any Guaranteed Obligation.
1.2 To the fullest extent permitted by law, the Subsidiary
Guarantor waives (i) presentation to, demand of payment from, and
protest to, the Maker of any of the Guaranteed Obligations, (ii)
acceptance and notice of acceptance of this Guaranty Agreement,
(iii) notice of protest for non-payment or non-performance, or of
any demand for payment and notice of default or non-payment or non-
performance as to any Guaranteed Obligation, (iv) any present or
future duty of the Holders to disclose material information
regarding the Maker and/or the Guaranteed Obligations, (v) notice
of foreclosure by the Holders, or any of them, or any agent acting
on their behalf, on any security held for the Guaranteed
Obligations, or any of them, (vi) all other notices to which the
Subsidiary Guarantor might otherwise be entitled in connection with
this Guaranty Agreement and (vii) any right of subrogation,
reimbursement or indemnity whatsoever and any right of recourse to
or with respect to any assets or properties of the Maker even upon
payment in full of the Guaranteed Obligations. The obligations of
the Subsidiary Guarantor hereunder shall not be affected by (i) the
failure of the Holders, or any of them, to assert any claim or
demand or to enforce any right or remedy against the Maker under
the provisions of the Notes, the Security Agreement or any other
agreement or otherwise; (ii) any extension or renewal of any
thereof; (iii) any rescission, waiver, amendment or modification of
any of the terms or provisions of the Notes, the Security Agreement
or any other agreement; (iv) the creation, release of, or failure
to perfect any security held by the Holders, or any of them, or any
agent acting on their behalf, for the Guaranteed Obligations, or
any of them; (v) the failure of the Holders, or any of them, or any
agent acting on their behalf, to exercise any right or remedy
against any other guarantor or obligor in respect of any of the
Guaranteed Obligations; (vi) the failure of the Holders, or any of
them, or any agent acting on their behalf, to file a claim in any
bankruptcy or reorganization proceedings with respect to the Maker
or any other failure to collect the Guaranteed Obligations, or any
of them, from the Maker; (vii) the running of any applicable
statute of limitations with respect to the Guaranteed Obligations
or any portion thereof; or (viii) any other action or failure to
take action by the Holders, or any of them, or any agent acting on
their behalf, which under applicable law would act to release the
Maker or the Subsidiary Guarantor regarding the Guaranteed
Obligations.
1.3 The Subsidiary Guarantor further agrees that this
Guaranty Agreement constitutes a guarantee of payment when due and
not merely of collection, and, to the fullest extent permitted by
law, waives any right to require that any resort be had by the
Holders, or any of them, or any agent acting on their behalf, to
any security held for payment of the Guaranteed Obligations or to
any balance any deposit account or credit on the books of the
Holders, or any of them, or any agent acting on their behalf, in
favor of the Maker or any other person.
1.4 To the fullest extent permitted by law, the obligations
of the Subsidiary Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason,
including, without limitation, any claim of waiver, release,
discharge, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, discharge,
illegality or unenforceability of the Guaranteed Obligations or
otherwise. Without limiting the generality of the foregoing, the
obligations of the Subsidiary Guarantor hereunder, to the fullest
extent permitted by law, shall not be discharged or impaired or
otherwise affected by the failure of the Holders, or any of them,
to assert any claim or demand or to enforce any remedy under the
Notes or any other agreement, by any waiver or modification of any
thereof, by any default, failure or delay, wilful or otherwise, in
the performance of the Guaranteed Obligations, or by any other act
or thing or omission or delay to do any other act or thing which
may or might in any manner or to any extent vary the risk of the
Subsidiary Guarantor or would otherwise operate as a discharge of
the Subsidiary Guarantor as a matter of law or equity, including,
without limitation, any discharge of the Guaranteed Obligations
upon bankruptcy or reorganization of the Maker.
1.5 The Subsidiary Guarantor further agrees that this
Guaranty Agreement shall continue to be effective or be reinstated,
as the case may be, if at any time payment, or any part thereof, of
principal of or interest on any Guaranteed Obligation is rescinded
or must otherwise be restored by the Holders, or any of them, upon
the bankruptcy or reorganization of the Maker or otherwise.
1.6 In furtherance of the foregoing and not in limitation of
any other right which the Holders, or any of them, may have at law
or in equity against the Subsidiary Guarantor by virtue hereof,
upon the failure of the Maker to pay or perform any Guaranteed
Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment, after offer
to purchase (or failure to make a required offer to purchase) or
otherwise, the Subsidiary Guarantor hereby promises to and will
forthwith pay or perform, or cause to be paid or performed, to the
Holders, and each of them, in cash the amount of such unpaid or
unperformed Guaranteed Obligations.
SECTION 2. Consolidation, Merger or Disposition of Assets. The
Subsidiary Guarantor shall not consolidate with, merge into, or
sell or otherwise dispose of all or substantially all its
properties as an entirety to, any individual, corporation,
partnership, limited liability company, trust, unincorporated
organization or other entity unless:
(a) the successor formed by or resulting from such
consolidation or merger or to which such sale or other disposition
shall have been made shall be a corporation organized under the
laws of the United States of America or any State, district or
territory thereof;
(b) such successor corporation shall expressly assume
the due and punctual payment of all obligations of the Subsidiary
Guarantor under this Guaranty Agreement according to its tenor, and
the due and punctual performance and observance of all the
covenants, agreements and conditions of this Guaranty Agreement to
be performed or observed by the Subsidiary Guarantor to the same
extent as if such successor corporation had been the Subsidiary
Guarantor hereunder (and such assumption shall, upon the request of
any Holder, be evidenced by the endorsing of an appropriate legend
upon this Guaranty Agreement); and
(c) immediately after such consolidation, merger, sale
or other disposition, such successor corporation shall not be in
default in the performance of any of the covenants, agreements or
conditions contained in this Guaranty Agreement and no condition,
act or event (with the giving of notice, passage of time, or
otherwise) would result in such default.
Section 3. Amendments; Waivers.
3.1 This Guaranty Agreement shall be subject to amendment
without notice to any of the Holders but with the written consent
of the Subsidiary Guarantor and those Holders (hereinafter referred
to as "Super-Required Holders") representing (x) the Required
Holders (as defined under the 10% Notes) and (y) the Required
Holders (as defined under the 8% Notes); provided, however, that
without the consent of each Holder, an amendment may not:
(a) modify the definition of Super-Required Holders; or
(b) make any change in this Section 3.1.
It shall not be necessary for the consent of any Holder under this
Section 3.1 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent approves the
substance thereof. After an amendment under this Section 3.1
becomes effective, the Subsidiary Guarantor shall mail to the
Holders notice thereof. The failure to give such notice, or any
defect therein, shall not impair or affect the validity of an
amendment under this Section 3.1.
3.2 The Super-Required Holders may further waive any default
under this Guaranty Agreement, and the consequences of any such
default, except: (i) a default consisting of the payment of the
principal of or interest on any Note, without the consent of the
Holder thereof, or (ii) a default arising from a provision that
under Section 3.1 cannot be amended without the consent of each
Holder. When a default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other default or impair
any consequent right.
SECTION 4. Notices. All notices, requests or instructions
hereunder shall be in writing and delivered personally or sent by
registered or certified mail, postage prepaid as follows:
(1) if to the Subsidiary Guarantor:
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Attention: Chief Executive Officer
(2) if to any Holder, at its registered address set
forth in the register of the Maker required
under Section 9.1 of the Notes, and each of
them.
Any of the above addresses may be changed at any time by notice
given as provided above; provided, however, that any such notice of
change of address shall be effective only upon receipt.
SECTION 5. Captions. Captions and section titles contained
herein are inserted as a matter of convenience and for reference
only and are not intended to define, limit, extend or describe the
scope of this Guaranty Agreement or the intent of any provision
hereof.
SECTION 6. Severability. In the event that one or more of the
provisions of this Guaranty Agreement shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provisions of this Guaranty Agreement, but this Guaranty
Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
SECTION 7. Governing Law. This Guaranty Agreement shall be
governed by and construed in accordance with the laws of the State
of New York applicable to agreements made and to be performed
entirely within such state.
SECTION 8. SUBMISSION TO JURISDICTION. THE SUBSIDIARY
GUARANTOR HEREBY IRREVOCABLY SUBMITS AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED
WITHIN THE SOUTHERN DISTRICT OF THE STATE OF NEW YORK, BOROUGH OF
MANHATTAN, AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS
RELATED TO THIS GUARANTY AGREEMENT MAY BE LITIGATED IN SUCH COURTS,
AND UNCONDITIONALLY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED
UPON IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY
PROCEEDING IN ANY SUCH COURT AND WAIVES PERSONAL SERVICE OF ANY AND
ALL PROCESS UPON IT, AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS
BE MADE BY DELIVERY TO THE SUBSIDIARY GUARANTOR AS SET FORTH IN
SECTION 4 HEREOF, NOTHING CONTAINED IN THIS SECTION 8 SHALL AFFECT
THE RIGHT OF THE HOLDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO BRING ANY ACTION OR PROCEEDING IN THE COURTS
OF ANY JURISDICTION AGAINST THE MAKERS OR TO ENFORCE A JUDGMENT
OBTAINED IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 9. JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW,
THE SUBSIDIARY GUARANTOR HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY ACTION BROUGHT ON THIS GUARANTY AGREEMENT.
SECTION 10. Additional Guarantors. This Agreement shall, upon
compliance with the applicable provisions of the Notes, be deemed
amended to include such additional Subsidiary or Subsidiaries (as
defined in the Notes) of the Maker required to enter into or join
in this Agreement, as Subsidiary Guarantor, in accordance with the
Notes. Without limiting any other provision herein, the obligations
of each guarantor of the Guaranteed Obligations hereunder shall be
joint and several; and the granting of a release of liability to
any one such guarantor shall be effective solely with respect to
the guarantor so released and shall not in any manner affect the
liability of any other such guarantor. Any term or provision of
this Agreement to the contrary notwithstanding, the maximum amount
of the Guaranteed Obligations guaranteed hereunder by any
Subsidiary shall not exceed the maximum amount, if any, that can be
hereby guaranteed without rendering this Agreement, as it relates
to such Subsidiary, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
IN WITNESS WHEREOF, the Subsidiary Guarantor has executed
this Guaranty Agreement as of the date first-above written.
ELECTRONIC RETAILING SYSTEMS
INTERNATIONAL, INC., a
Connecticut corporation
By s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Vice President
Acknowledged by:
ELECTRONIC RETAILING SYSTEMS
INTERNATIONAL, INC., a
Delaware corporation
By s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Vice President