as the Lead Borrower
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
as Canadian Agent
GENERAL ELECTRIC CAPITAL CORPORATION
as Co-Collateral Agents,
as Syndication Agent
GE CAPITAL MARKETS, INC.
as Joint Lead Arrangers
and Joint Bookrunners
Page | ||||
Section | ||||
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS | 1 | |||
1.01 Defined Terms | 1 | |||
1.02 Other Interpretive Provisions | 63 | |||
1.03 Accounting Terms; Currency Equivalents | 64 | |||
1.04 Rounding | 64 | |||
1.05 Times of Day | 64 | |||
1.06 Letter of Credit Amounts | 64 | |||
1.07 Certifications | 65 | |||
1.08 Currency Equivalents Generally | 65 | |||
1.09 Québec Matters | 65 | |||
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS | 65 | |||
2.01 Committed Loans; Reserves | 65 | |||
2.02 Committed Borrowings, Conversions and Continuations of Committed Loans | 67 | |||
2.03 Letters of Credit | 70 | |||
2.04 Swing Line Loans | 78 | |||
2.05 Prepayments | 82 | |||
2.06 Termination or Reduction of Commitments | 83 | |||
2.07 Repayment of Loans | 84 | |||
2.08 Interest | 84 | |||
2.09 Fees | 85 | |||
2.10 Computation of Interest and Fees | 86 | |||
2.11 Evidence of Debt | 87 | |||
2.12 Payments Generally; Administrative Agent’s Clawback | 88 | |||
2.13 Sharing of Payments by Lenders | 89 | |||
2.14 Settlement Amongst Lenders | 90 | |||
2.15 Increase in Commitments | 91 | |||
2.16 CFC Payments | 93 | |||
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY; APPOINTMENT OF LEAD BORROWER | 93 | |||
3.01 Taxes | 93 | |||
3.02 Illegality | 95 | |||
3.03 Inability to Determine Rates | 95 | |||
3.04 Increased Costs; Reserves on LIBO Rate Loans | 96 | |||
3.05 Compensation for Losses | 97 | |||
3.06 Mitigation Obligations; Replacement of Lenders | 98 | |||
3.07 Survival | 98 | |||
3.08 Designation of Lead Borrower as Borrowers’ Agent | 98 | |||
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS | 99 | |||
4.01 Conditions of Initial Credit Extension | 99 | |||
4.02 Conditions to all Credit Extensions | 102 | |||
ARTICLE V REPRESENTATIONS AND WARRANTIES | 103 | |||
5.01 Existence, Qualification and Power | 103 |
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Page | ||||
5.02 Authorization; No Contravention | 103 | |||
5.03 Governmental Authorization; Other Consents | 104 | |||
5.04 Binding Effect | 104 | |||
5.05 Financial Statements; No Material Adverse Effect | 104 | |||
5.06 Litigation | 105 | |||
5.07 No Default | 105 | |||
5.08 Ownership of Property; Liens | 105 | |||
5.09 Environmental Compliance | 105 | |||
5.10 Insurance | 106 | |||
5.11 Taxes | 106 | |||
5.12 Plans | 106 | |||
5.13 Subsidiaries; Equity Interests | 107 | |||
5.14 Margin Regulations; Investment Company Act | 107 | |||
5.15 Disclosure | 107 | |||
5.16 Compliance with Laws | 107 | |||
5.17 Intellectual Property; Licenses, Etc | 108 | |||
5.18 Labor Matters | 108 | |||
5.19 Security Documents | 108 | |||
5.20 Solvency | 109 | |||
5.21 Deposit Accounts; Credit Card Arrangements | 109 | |||
5.22 Brokers | 109 | |||
5.23 Customer and Trade Relations | 109 | |||
5.24 Material Contracts | 109 | |||
5.25 Casualty | 110 | |||
ARTICLE VI AFFIRMATIVE COVENANTS | 110 | |||
6.01 Financial Statements | 110 | |||
6.02 Certificates; Other Information | 111 | |||
6.03 Notices | 113 | |||
6.04 Payment of Obligations | 114 | |||
6.05 Preservation of Existence, Etc | 115 | |||
6.06 Maintenance of Properties | 115 | |||
6.07 Maintenance of Insurance | 115 | |||
6.08 Compliance with Laws | 116 | |||
6.09 Books and Records | 116 | |||
6.10 Inspection Rights | 116 | |||
6.11 Use of Proceeds | 117 | |||
6.12 Additional Loan Parties | 117 | |||
6.13 Cash Management | 118 | |||
6.14 Information Regarding the Collateral | 120 | |||
6.15 Physical Inventories | 120 | |||
6.16 Environmental Laws | 121 | |||
6.17 Further Assurances | 121 | |||
6.18 Intentionally Omitted | 122 | |||
6.19 Material Contracts | 122 | |||
6.20 Canadian Pension Benefit Plans | 122 | |||
ARTICLE VII NEGATIVE COVENANTS | 122 | |||
7.01 Liens | 123 | |||
7.02 Investments | 123 | |||
7.03 Indebtedness | 123 |
(ii)
Page | ||||
7.04 Fundamental Changes | 123 | |||
7.05 Dispositions | 124 | |||
7.06 Restricted Payments | 124 | |||
7.07 Prepayments of Indebtedness | 125 | |||
7.08 Change in Nature of Business | 125 | |||
7.09 Transactions with Affiliates | 125 | |||
7.10 Burdensome Agreements | 125 | |||
7.11 Use of Proceeds | 126 | |||
7.12 Amendment of Material Documents | 126 | |||
7.13 Fiscal Year | 126 | |||
7.14 Deposit Accounts; Credit Card Processors | 126 | |||
7.15 Financial Covenants | 126 | |||
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES | 127 | |||
8.01 Events of Default | 127 | |||
8.02 Remedies Upon Event of Default | 130 | |||
8.03 Application of Funds | 130 | |||
8.04 Waivers By Loan Parties | 134 | |||
ARTICLE IX AGENTS AND LENDERS | 135 | |||
9.01 Appointment and Authority | 135 | |||
9.02 Rights as a Lender | 136 | |||
9.03 Exculpatory Provisions | 136 | |||
9.04 Reliance by Agents | 137 | |||
9.05 Delegation of Duties | 137 | |||
9.06 Resignation of Agents | 138 | |||
9.07 Non-Reliance on Agents, Canadian Agent and Other Lenders | 139 | |||
9.08 No Other Duties, Etc | 139 | |||
9.09 Administrative Agent May File Proofs of Claim | 139 | |||
9.10 Collateral and Guaranty Matters | 140 | |||
9.11 Notice of Transfer | 141 | |||
9.12 Reports and Financial Statements | 141 | |||
9.13 Agency for Perfection | 142 | |||
9.14 Indemnification of Agents and Canadian Agent | 142 | |||
9.15 Relation among Lenders | 142 | |||
9.16 Defaulting Lender | 142 | |||
9.17 Actions In Concert | 143 | |||
9.18 Collateral Issues | 143 | |||
ARTICLE X MISCELLANEOUS | 144 | |||
10.01 Amendments, Etc | 144 | |||
10.02 Notices; Effectiveness; Electronic Communications | 145 | |||
10.03 No Waiver; Cumulative Remedies | 147 | |||
10.04 Expenses; Indemnity; Damage Waiver | 147 | |||
10.05 Reinstatement; Payments Set Aside | 148 | |||
10.06 Successors and Assigns | 149 | |||
10.07 Treatment of Certain Information; Confidentiality | 152 | |||
10.08 Right of Setoff | 153 | |||
10.09 Interest Rate Limitation | 153 | |||
10.10 Counterparts; Integration; Effectiveness | 154 | |||
10.11 Survival | 154 |
(iii)
Page | ||||
10.12 Severability | 154 | |||
10.13 Replacement of Lenders | 154 | |||
10.14 Governing Law; Jurisdiction; Etc | 155 | |||
10.15 Waiver of Jury Trial | 156 | |||
10.16 No Advisory or Fiduciary Responsibility | 156 | |||
10.17 USA PATRIOT Act Notice; Proceeds of Crime Act | 157 | |||
10.18 Foreign Asset Control Regulations | 157 | |||
10.19 | 157 | |||
10.20 Time of the Essence | 157 | |||
10.21 Foreign Subsidiaries | 157 | |||
10.22 Press Releases | 158 | |||
10.23 Additional Waivers | 158 | |||
10.24 Judgment Currency | 160 | |||
10.25 No Strict Construction | 160 | |||
10.26 Attachments | 160 | |||
10.27 Conflict of Terms | 160 | |||
[SIGNATURE PAGES FOLLOW] | 160 | |||
SIGNATURES | S-1 |
(iv)
SCHEDULES | ||||||
1.01 | Domestic Borrowers | |||||
1.02 | Guarantors | |||||
2.01 | Commitments and Applicable Percentages | |||||
4.01 | (a)(x) | Security Documents | ||||
4.01 | (a)(xi) | Other Loan Documents | ||||
5.01 | Loan Parties’ Organizational Information | |||||
5.05 | Material Indebtedness | |||||
5.08 | (b)(1) | Owned Real Estate | ||||
5.08 | (b)(2) | Leased Real Estate | ||||
5.10 | Insurance | |||||
5.13 | Subsidiaries, including Immaterial Subsidiaries; Other Equity Investments | |||||
5.21 | (a) | DDAs | ||||
5.21 | (b) | Credit Card Arrangements | ||||
5.22 | Brokers | |||||
5.24 | Material Contracts | |||||
6.02 | Financial and Collateral Reporting | |||||
7.01 | Existing Liens | |||||
7.02 | Existing Investments | |||||
7.03 | Existing Indebtedness | |||||
7.10 | Existing Restrictions | |||||
10.02 | Administrative Agent’s Office; Canadian Agent’s Office; Certain Addresses for Notices |
EXHIBITS | ||||
Form of | ||||
A-1 | Domestic Committed Loan Notice |
(v)
A-2 | Canadian Committed Loan Notice | |||
B-1 | Domestic Swing Line Loan Notice | |||
B-2 | Canadian Swing Line Loan Notice | |||
C-1 | Canadian Note | |||
C-2 | Domestic Note | |||
C-3 | Canadian Swing Line Note | |||
C-4 | Domestic Swing Line Note | |||
D | Compliance Certificate | |||
E-1 | Assignment and Assumption (Domestic Lenders) | |||
E-2 | Assignment and Assumption (Canadian Lenders) | |||
F-1 | Joinder Agreement — Domestic Loan Parties | |||
F-2 | Joinder Agreement — Canadian Loan Parties | |||
G | Borrowing Base Certificate | |||
H | Credit Card Processor Notification | |||
I-1 | Collateral Access Agreement — Domestic Loan Parties | |||
I-2 | Collateral Access Agreement — Canadian Loan Parties | |||
J-1 | Customs Broker Agent Agreement (Domestic Loan Parties) | |||
J-2 | Customs Broker Agent Agreement (Canadian Loan Parties) | |||
K-1 | Domestic Guarantee | |||
K-2 | Canadian Guarantee |
(vi)
DEFINITIONS AND ACCOUNTING TERMS
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Average Daily Domestic | LIBOR | Domestic Prime | Canadian Prime | BA Rate | ||||||||||||||||
Level | Availability | Margin | Rate Margin | Rate Margin | Margin | |||||||||||||||
I | Equal to or greater than 66% of the Total Loan Cap | 4.00 | % | 3.00 | % | 3.50 | % | 4.00 | % | |||||||||||
II | Less than 66%, but equal to or greater than 33%, of the Total Loan Cap | 4.25 | % | 3.25 | % | 3.75 | % | 4.25 | % | |||||||||||
III | Less than 33% of the Total Loan Cap | 4.50 | % | 3.50 | % | 4.00 | % | 4.50 | % |
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THE COMMITMENTS AND CREDIT EXTENSIONS
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Average Daily Total Domestic Outstandings | Domestic Commitment Fee | |||
Less than 33% of Aggregate Domestic Commitments | 1.00 | % | ||
Greater than or equal to 33% but less than 66% of Aggregate Domestic Commitments | 0.75 | % | ||
Greater than or equal to 66% of Aggregate Domestic Commitments | 0.50 | % |
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Average Daily Total Canadian Outstandings | Canadian Commitment Fee | |||
Less than 33% of Aggregate Canadian Commitments | 1.00 | % | ||
Greater than or equal to 33% but less than 66% of Aggregate Canadian Commitments | 0.75 | % | ||
Greater than or equal to 66% of Aggregate Canadian Commitments | 0.50 | % |
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TAXES, YIELD PROTECTION AND ILLEGALITY;
APPOINTMENT OF LEAD BORROWER
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CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
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REPRESENTATIONS AND WARRANTIES
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AFFIRMATIVE COVENANTS
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NEGATIVE COVENANTS
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EVENTS OF DEFAULT AND REMEDIES
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AGENTS AND LENDERS
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MISCELLANEOUS
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QUIKSILVER AMERICAS, INC., a California corporation, as the Lead Borrower | ||||
By: | /s/ Bradley Sell | |||
Name: | Bradley Sell | |||
Title: | Chief Financial Officer | |||
DC SHOES, INC., a California corporation, as a Domestic Borrower | ||||
By: | /s/ Bradley Sell | |||
Name: | Bradley Sell | |||
Title: | Chief Financial Officer | |||
HAWK DESIGNS, INC., a California corporation, as a Domestic Borrower | ||||
By: | /s/ Charles S. Exon | |||
Name: | Charles S. Exon | |||
Title: | President & Secretary | |||
MERVIN MANUFACTURING, INC., a California corporation, as a Domestic Borrower | ||||
By: | /s/ Charles S. Exon | |||
Name: | Charles S. Exon | |||
Title: | President & Secretary | |||
QS WHOLESALE, INC., a California corporation, as a Domestic Borrower | ||||
By: | /s/ Charles S. Exon | |||
Name: | Charles S. Exon | |||
Title: | President & Secretary |
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QS RETAIL, INC., a California corporation, as a Domestic Borrower | ||||
By: | /s/ Charles S. Exon | |||
Name: | Charles S. Exon | |||
Title: | President & Secretary | |||
QUIKSILVER, INC., Delaware corporation, as a Guarantor | ||||
By: | /s/ Joseph Scirocco | |||
Name: | Joseph Scirocco | |||
Title: | Chief Financial Officer | |||
QUIKSILVER CANADA CORP., a Nova Scotia unlimited liability company, as the Canadian Borrower | ||||
By: | /s/ Charles S. Exon | |||
Name: | Charles S. Exon | |||
Title: | President & Secretary | |||
QS RETAIL CANADA CORP., a Nova Scotia unlimited liability company, as a Guarantor | ||||
By: | /s/ Charles S. Exon | |||
Name: | Charles S. Exon | |||
Title: | President | |||
BANK OF AMERICA, N.A., as Administrative Agent and as a Co-Collateral Agent | ||||
By: | /s/ Roger Malouf | |||
Name: | Roger Malouf | |||
Title: | Vice President | |||
BANK OF AMERICA, N.A.(acting through its Canada branch), as Canadian Agent | ||||
By: | /s/ Medina Sales de Andrade | |||
Name: | Medina Sales de Andrade | |||
Title: | Vice President |
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BANK OF AMERICA, N.A., as a Domestic Lender, L/C Issuer and Swing Line Lender | ||||
By: | /s/ Roger Malouf | |||
Name: | Roger Malouf | |||
Title: | Vice President | |||
BANK OF AMERICA, N.A.(acting through its Canada branch), as a Canadian Lender, L/C Issuer and Swing Line Lender | ||||
By: | /s/ Medina Sales de Andrade | |||
Name: | Medina Sales de Andrade | |||
Title: | Vice President | |||
GENERAL ELECTRIC CAPITAL CORPORATION,as Co-Collateral Agent | ||||
By: | /s/ Mark J. Forti | |||
Name: | Mark J. Forti | |||
Title: | Duly Authorized Signatory | |||
GENERAL ELECTRIC CAPITAL CORPORATION,as a Domestic Lender | ||||
By: | /s/ Mark J. Forti | |||
Name: | Mark J. Forti | |||
Title: | Duly Authorized Signatory | |||
GENERAL ELECTRIC CAPITAL CORPORATION,as a Canadian Lender | ||||
By: | /s/ Mark J. Forti | |||
Name: | Mark J. Forti | |||
Title: | Duly Authorized Signatory | |||
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to Credit Agreement
1. | Quiksilver Americas, Inc. | |
2. | DC Shoes, Inc. | |
3. | Hawk Designs, Inc. | |
4. | Mervin Manufacturing, Inc. | |
5. | QS Wholesale, Inc. | |
6. | QS Retail, Inc. |
to Credit Agreement
1. | Quiksilver, Inc. |
1. | QS Retail Canada Corp. |
to Credit Agreement
Domestic Lender | Commitment | Applicable Percentage | ||||||
Bank of America, N.A. | $ | 92,500,000 | 50 | % | ||||
General Electric Capital Corporation | $ | 92,500,000 | 50 | % | ||||
Total: | $ | 185,000,000 | 100 | % |
Canadian Lender | Commitment | Applicable Percentage | ||||||
Bank of America, N.A. (acting through its Canada branch) | $ | 7,500,000 | 50 | % | ||||
General Electric Capital Corporation | $ | 7,500,000 | 50 | % | ||||
Total: | $ | 15,000,000 | 100 | % |
to Credit Agreement
to Credit Agreement
to Credit Agreement
Organizational ID | ||||||||
Jurisdiction of | Number / Registry | FEIN / Corporate | ||||||
Name | Organization | Type of Organization | Number | Tax Number | ||||
Quiksilver, Inc. | Delaware | Corporation | 2105452 | 33-0199426 | ||||
Quiksilver Americas, Inc. | California | Corporation | C2670927 | 14-1914126 | ||||
DC Shoes, Inc. | California | Corporation | C1844922 | 33-0610965 | ||||
Hawk Designs, Inc. | California | Corporation | C2119497 | 33-0831121 | ||||
Mervin Manufacturing, Inc. | California | Corporation | C1685430 | 33-0461211 | ||||
QS Wholesale, Inc. | California | Corporation | C2670928 | 80-0118795 | ||||
QS Retail, Inc. | California | Corporation | C2000264 | 33-0740505 | ||||
Quiksilver Canada Corp. | Nova Scotia | Unlimited Liability | 3096129 | 86029 6037 RC0001 | ||||
Company | ||||||||
QS Retail Canada Corp. | Nova Scotia | Unlimited Liability | 3192873 | 834615569--RC0001 | ||||
Company |
to Credit Agreement
to Credit Agreement
Loan Party | Property Address | Lien / Mortgage Holders | ||
QS Retail, Inc. | 59-176 Kamehameha Highway Sunset Beach, HI 96712 | N/A |
to Credit Agreement
Loan Party / Lessee | Address | Type of Property | ||
Quiksilver, Inc. | c/o Quiksilver, Inc. | Chief Executive Office | ||
Quiksilver Americas, Inc. | 15202 Graham Street | |||
Huntington Beach, CA 92649 | ||||
DC Shoes, Inc. | DC Shoes, Inc. | Chief Executive Office | ||
1255 & 1333 Keystone Way | ||||
Vista, CA 92081 | ||||
Mervin Manufacturing, Inc. | 155 Business Park Loop | Chief Executive Office | ||
Sequim, WA 98382 | ||||
DC Shoes, Inc. | 1496 West Red Hawk Trail | Marketing Facility / Office | ||
Park City, UT 84098 | ||||
Quiksilver, Inc. | c/o Quiksilver, Inc. | Books and Records | ||
15362 Graham Street | ||||
Huntington Beach, CA 92649 | ||||
Quiksilver, Inc. | 5600 Argosy Circle | Books and Records | ||
Suite 100 - 300 | ||||
Huntington Beach, CA 92649 | ||||
Quiksilver Canada Corp. | c/o Quiksilver Canada | Books and Records | ||
140-890 Harbourside Drive | ||||
North Vancouver, BC V7P 3T7 | ||||
Canada | ||||
Quiksilver Canada Corp. | Quiksilver Toronto | Regional Office | ||
67 Mowat Ave., Suite 249 | ||||
Toronto, Ontario | ||||
M6K3E3 | ||||
Canada | ||||
Quiksilver Canada Corp. | Econo Moving & Storage | Storage Facility | ||
991 West 1st St | ||||
North Vancouver, BC V7P 1A4 | ||||
Canada | ||||
QS Wholesale, Inc. | c/o Quiksilver Wholesale | Inventory | ||
11310 Cantu Galleano Ranch Rd. | ||||
Mira Loma, CA 91752 | ||||
Quiksilver, Inc. | 530 Seventh Avenue | Inventory | ||
Unit 1201 | ||||
New York, NY 10018 | ||||
Mervin Manufacturing, Inc. | 169 Business Park Loop | Inventory | ||
Sequim, WA 98382 | ||||
Mervin Manufacturing, Inc. | 71 Ruths Place, Unit 2 & 3 | Inventory | ||
Sequim, WA 98382 | ||||
Quiksilver Canada Corp. | 174 Spadina Avenue | Regional Office | ||
Suite 600 | ||||
Toronto, Ontario, Canada | ||||
Quiksilver Canada Corp. | 15 Notre-Dame St. East, 2nd floor | Regional Office | ||
Montreal, Canada | ||||
QS Retail, Inc. | #22 QUIKSILVER - MAUI | Retail Store | ||
851 Front Street | ||||
Lahaina, HI 96761 |
Loan Party / Lessee | Address | Type of Property | ||
QS Retail, Inc. | #23 QS YOUTH - PARK CITY | Retail Store | ||
577 Main Street Suite B | ||||
Park City, UT 84060 | ||||
QS Retail, Inc. | #24 DC - SOHO | Retail Store | ||
109-111 Spring Street | ||||
New York, NY 10012 | ||||
QS Retail, Inc. | #26 QUIKSILVER - MIAMI | Retail Store | ||
750 Collins Ave. | ||||
Miami Beach, FL 33139 | ||||
QS Retail, Inc. | #27 QUIKSILVER- UNIVERSAL CITYWALK | Retail Store | ||
1000 Universal Studios Blvd. | ||||
Space V114 | ||||
Universal City, CA 91608 | ||||
QS Retail, Inc. | #28 QUIKSILVER - SEATTLE | Retail Store | ||
409 Pike Street | ||||
Seattle, WA 98101 | ||||
QS Retail, Inc. | #29 ROXY - SOUTH COAST PLAZA | Retail Store | ||
3333 Bristol Street | ||||
Space 2031 | ||||
Costa Mesa, CA 92626 | ||||
QS Retail, Inc. | #30 ROXY - GARDEN STATE PLAZA | Retail Store | ||
1 Garden State Plaza | ||||
Space 2210 | ||||
Routes 4 & 17 | ||||
Paramus, NJ 07652 | ||||
QS Retail, Inc. | #30 QUIKSILVER - GARDEN STATE PLAZA | Retail Store | ||
1 Garden State Plaza | ||||
Space 2210 | ||||
Routes 4 & 17 | ||||
Paramus, NJ 07652 | ||||
QS Retail, Inc. | #32 QUIKSILVER - WAIKIKI (IMP) | Retail Store | ||
2330 Kalakaua Ave. | ||||
Honolulu, HI 96815 | ||||
QS Retail, Inc. | #35 QUIKSILVER - ARDEN FAIR | Retail Store | ||
1689 Arden Way | ||||
Space 2182 | ||||
Sacramento, CA 95815 | ||||
QS Retail, Inc. | #38 QUIKSILVER - THE GATEWAY | Retail Store | ||
136 S. Rio Grande | ||||
Salt Lake City, UT 84101 | ||||
QS Retail, Inc. | #39 QUIKSILVER - THE GATEWAY | Retail Store | ||
136 S. Rio Grande | ||||
Salt Lake City, UT 84101 | ||||
QS Retail, Inc. | #40 QUIKSILVER - CHANDLER FASHION SQUARE | Retail Store | ||
3111 W. Chandler Blvd. | ||||
Space 2192 | ||||
Chandler, AZ 85226 | ||||
QS Retail, Inc. | #41 QUIKSILVER - MALL OF AMERICA | Retail Store | ||
60 E. Broadway | ||||
Space N-144 | ||||
Bloomington, MN 55425 |
Loan Party / Lessee | Address | Type of Property | ||
QS Retail, Inc. | #42 QUIKSILVER - THE GROVE | Retail Store | ||
189 The Grove Drive | ||||
Space G-80 | ||||
Los Angeles, CA 90036 | ||||
QS Retail, Inc. | #43 QS YOUTH - THE GROVE | Retail Store | ||
189 The Grove Drive | ||||
Space O-20 | ||||
Los Angeles, CA 90036 | ||||
QS Retail, Inc. | #44 QUIKSILVER - STONERIDGE MALL | Retail Store | ||
2221 Stoneridge Mall Rd. | ||||
Pleasanton, CA 94588 | ||||
QS Retail, Inc. | #48 QUIKSILVER - THE MALL AT MILLENIA | Retail Store | ||
4200 Conroy Road | ||||
Suite 213 | ||||
Orlando, FL 32839 | ||||
QS Retail, Inc. | #49 QUIKSILVER - THE AVENUES MALL | Retail Store | ||
10300 South Side Blvd. #249 | ||||
Jacksonville, FL 32256 | ||||
QS Retail, Inc. | #50 QUIKSILVER - TIMES SQUARE | Retail Store | ||
3 Times Square | ||||
New York, NY 10036 | ||||
QS Retail, Inc. | #51 QUIKSILVER - VALLEY FAIR | Retail Store | ||
2855 Stevens Creek Blvd., #2505 | ||||
Santa Clara, CA 95050 | ||||
QS Retail, Inc. | #52 QUIKSILVER - CHARLESTON | Retail Store | ||
299 King Street | ||||
Charleston, SC 29401 | ||||
QS Retail, Inc. | #53 QUIKSILVER - WHALERS VILLAGE MAUI | Retail Store | ||
2435 Kaanapali Parkway, #K1 | ||||
Maui, HI 96761 | ||||
QS Retail, Inc. | #53 ROXY - WHALERS VILLAGE MAUI | Retail Store | ||
2435 Kaanapali Parkway, #K1 | ||||
Maui, HI 96761 | ||||
QS Retail, Inc. | #54 QUIKSILVER - LAS VEGAS | Retail Store | ||
3200 Las Vegas Blvd. South #1250 | ||||
Las Vegas, NV 89109 | ||||
QS Retail, Inc. | #55 QUIKSILVER - LINCOLN ROAD | Retail Store | ||
1023 Lincoln Road | ||||
Miami Beach, FL 33139 | ||||
QS Retail, Inc. | #56 QUIKSILVER - GASLAMP | Retail Store | ||
402 5th Ave | ||||
San Diego, CA 92101 | ||||
QS Retail, Inc. | # 57 QUIKSILVER - DOWNTOWN DISNEY | Retail Store | ||
1570 South Disneyland Drive # 103 | ||||
Anaheim, CA 92802 |
Loan Party / Lessee | Address | Type of Property | ||
QS Retail, Inc. | # 58 QUIKSILVER - HOLLYWOOD, FL | Retail Store | ||
5780 Seminole Way | ||||
Hollywood, FL 33314 | ||||
QS Retail, Inc. | # 59 QUIKSILVER - SANTA MONICA | Retail Store | ||
1422 3rd Street Promenade | ||||
Santa Monica, CA 90401 | ||||
QS Retail, Inc. | #60 QUIKSILVER - TAMPA | Retail Store | ||
2223 N. Westshore # 182 | ||||
Tampa, FL 33607 | ||||
QS Retail, Inc. | #62 QUIKSILVER - BROADWAY | Retail Store | ||
519 Broadway | ||||
New York, NY 10012 | ||||
QS Retail, Inc. | #64 QUIKSILVER - ASPEN | Retail Store | ||
428 East Hyman | ||||
Aspen, CO 81611 | ||||
QS Retail, Inc. | #65 QS YOUNG MENS - SOUTH COAST PLAZA | Retail Store | ||
3333 Bristol Street Space #2007 | ||||
Costa Mesa, CA 92626 | ||||
QS Retail, Inc. | #67 QUIKSILVER - POWELL | Retail Store | ||
207 Powell Street | ||||
San Francisco, CA 94102 | ||||
QS Retail, Inc. | #68 QUIKSILVER - ATLANTIC CITY | Retail Store | ||
1 Atlantic Ocean Space BW218 | ||||
Atlantic City, NJ 08401 | ||||
QS Retail, Inc. | #69 QUIKSILVER - MIRACLE MILE SHOPS | Retail Store | ||
3663 Las Vegas Blvd South Space H-123 | ||||
Las Vegas, NV 89109 | ||||
QS Retail, Inc. | #70 QUIKSILVER - WAIKIKI BEACH WALK | Retail Store | ||
270 Lewers St. suite 101 | ||||
Honolulu, HI 96815 | ||||
QS Retail, Inc. | #72 QUIKSILVER - PALM DESERT | Retail Store | ||
73-595 El Paseo Suite 1216 | ||||
Palm Desert, CA 92260 | ||||
QS Retail, Inc. | #73 QUIKSILVER - CITY PLACE | Retail Store | ||
550 S Rosemary Ave. Suite 164 | ||||
West Palm Beach, FL 33401 | ||||
QS Retail, Inc. | #74 QUIKSILVER - TYLER MALL | Retail Store | ||
2279 Galleria @ Tyler Space EU11 | ||||
Riverside, CA 92503 | ||||
QS Retail, Inc. | #75 ROXY - SCOTTSDALE | Retail Store | ||
7014-590 E. Camelback Rd | ||||
Scottsdale, AZ 85251 | ||||
QS Retail, Inc. | #76 DC - PARK CITY | Retail Store | ||
577 Main St. Suite C | ||||
Park City UT 84060 | ||||
QS Retail, Inc. | #77 QUIKSILVER - BRANDON MALL | Retail Store | ||
459 Brandon Town Ctr. Space 925 | ||||
Brandon, FL 33511 | ||||
QS Retail Canada Corp. | #78 QUIKSILVER - ST. CATHERINE | Retail Store | ||
1192 Rue Ste-Catherine Ouest | ||||
Montreal, Quebec H3Z-2P9 Canada |
Loan Party / Lessee | Address | Type of Property | ||
QS Retail, Inc. | #80 QUIKSILVER - VINTAGE FAIR | Retail Store | ||
3401 Dale Road #T09 | ||||
Modesto, CA 95356 | ||||
QS Retail, Inc. | #81 QUIKSILVER - BOULDER | Retail Store | ||
1122 Pearl St. | ||||
Boulder, CO 80302 | ||||
QS Retail, Inc. | #82 ROXY/QUIKSILVER - LA JOLLA | Retail Store | ||
1111 Prospect St. | ||||
La Jolla, CA 92037 | ||||
QS Retail, Inc. | #83 QUIKSILVER - TEMPE MARKET PLACE | Retail Store | ||
2000 E. Rio Salado Pkwy Suite 1124 | ||||
Tempe, AZ 85281 | ||||
QS Retail, Inc. | #84 QUIKSILVER - QUEEN'S MARKET PLACE | Retail Store | ||
201 Waikoloa Beach Dr. Suite F14-16 | ||||
Waikoloa, HI 96738 | ||||
QS Retail, Inc. | #85 ROXY/QUIKSILVER - FLORIDA MALL | Retail Store | ||
8001 S. Orange Blossom Trail Space 306B | ||||
Orlando, FL 32809 | ||||
QS Retail Canada Corp. | #86 QUIKSILVER - TORONTO | Retail Store | ||
339 Queen St. West | ||||
Toronto, Ontario M5V2A4 Canada | ||||
QS Retail, Inc. | #87 ROXY/QUIKSILVER - TROY | Retail Store | ||
2800 W. Big Beaver Space W 314 & W 312 | ||||
Troy, Michigan 48084 | ||||
QS Retail Canada Corp. | #88 QUIKSILVER - VANCOUVER | Retail Store | ||
820 Granville St. | ||||
Vancouver, British Columbia V6Z1K3 Canada | ||||
QS Retail, Inc. | #89 QUIKSILVER - FRESNO FASHION FAIRE | Retail Store | ||
645 E. Shaw Ave. #101 Space E - 08 | ||||
Fresno, CA 93710 | ||||
QS Retail, Inc. | #90 ROXY - WAILEA | Retail Store | ||
3750 Wailea Alanui Space B - 3 | ||||
Wailea, HI 96753 | ||||
QS Retail, Inc. | #91 QUIKSILVER - PASADENA | Retail Store | ||
380 E. Colorado Blvd Suite 149 | ||||
Pasadena, CA 91101 | ||||
QS Retail, Inc. | #92 QUIKSILVER - PARK CITY | Retail Store | ||
570 Main St | ||||
Park City, UT 84060 | ||||
QS Retail, Inc. | #93 ROXY/QUIKSILVER - TOWN SQUARE | Retail Store | ||
6611 Las Vegas Blvd. South Bldg. G A-157 | ||||
Las Vegas, NV 89119 | ||||
QS Retail, Inc. | #94 QUIKSILVER - ANNAPOLIS | Retail Store | ||
2002 Annapolis Mall | ||||
Annapolis, MD 21401 | ||||
QS Retail, Inc. | #95 DC- MELROSE | Retail Store | ||
8025 Melrose Ave | ||||
Los Angeles, CA 90046 |
Loan Party / Lessee | Address | Type of Property | ||
QS Retail, Inc. | #96 QUIKSILVER - WAILEA | Retail Store | ||
3750 Wailea Alanui Space B- 45 | ||||
Wailea, Hawaii 96753 | ||||
QS Retail, Inc. | #97 QUIKSILVER - WESTGATE | Retail Store | ||
6770 Sunrise Blvd Suite G-101 | ||||
Glendale, AZ 85305 | ||||
QS Retail, Inc. | #98 QUIKSILVER - KAI KANE | Retail Store | ||
5-5088 Kuhio Highway | ||||
Hanalei, Hawaii 96714 | ||||
QS Retail Canada Corp. | #99 QUIKSILVER - OAKRIDGE CENTER | Retail Store | ||
650 West 41st Ave Ste 272A | ||||
Vancouver, British Columbia V5Z 2M9 Canada | ||||
QS Retail Canada Corp. | #100 QUIKSILVER - BANFF | Retail Store | ||
114 Banff Ave | ||||
Banff, Alberta, Canada T1L 1A1 | ||||
QS Retail Canada Corp. | #101 QUIKSILVER - LAVAL | Retail Store | ||
3003 Blvd le Carrefour, #T030B | ||||
Chomedey, Quebec, Canada H7T 1C7 | ||||
QS Retail, Inc. | #102 QUIKSILVER - SCOTTSDALE | Retail Store | ||
7014 E Camelback Rd Ste 2117 | ||||
Scottsdale, AZ 85251 | ||||
QS Retail, Inc. | #103 DC - IRVINE SPECTRUM | Retail Store | ||
71 Fortune Dr. Suite 824 | ||||
Irvine, CA 92618 | ||||
QS Retail, Inc. | #104 QUIKSILVER - FIFTH AVENUE | Retail Store | ||
587 Fifth Ave. | ||||
New York, NY 10017 | ||||
QS Retail, Inc. | #105 QUIKSILVER YOUTH - THE OAKS MALL | Retail Store | ||
196 West Hillcrest Drive Suite #95 | ||||
Thousand Oaks, CA 91360 | ||||
QS Retail, Inc. | #106 QUIKSILVER - AVENTURA MALL | Retail Store | ||
19501 Biscayne Blvd. #1265 | ||||
Aventura, FL 33180 | ||||
QS Retail Canada Corp. | #107 QUIKSILVER - POLO PARK | Retail Store | ||
1485 Portage Ave Space 0240 A | ||||
Winnipeg, Manitoba R3G 0W4 | ||||
QS Retail, Inc. | #109 DC - MIRACLE MILE | Retail Store | ||
3663 Las Vegas Blvd. South #D4 | ||||
Las Vegas, NV 89109 | ||||
QS Retail, Inc. | #801 QUIKSILVER FACTORY STORE - SAWGRASS | Factory Store | ||
12801 West Sunrise Blvd., #811 | ||||
Sunrise, FL 33323 | ||||
QS Retail, Inc. | #802 QUIKSILVER FACTORY STORE - ARUNDEL | Factory Store | ||
7000 Arundel Mills Circle, #423 | ||||
Hanover, MD 21076 | ||||
QS Retail, Inc. | #803 QUIKSILVER FACTORY STORE - CORONA | Factory Store | ||
530 Hidden Valley Parkway #101 | ||||
Corona, CA 92879 |
Loan Party / Lessee | Address | Type of Property | ||
QS Retail, Inc. | #805 QUIKSILVER FACTORY STORE - PROVO | Factory Store | ||
2255 North University Parkway, #22 | ||||
Provo, UT 84604 | ||||
QS Retail, Inc. | #806 QUIKSILVER FACTORY STORE - CENTRALIA | Factory Store | ||
1324 Lum Road | ||||
Centrailia, WA 98531 | ||||
QS Retail, Inc. | #807 QUIKSILVER FACTORY STORE - PHOENIX | Factory Store | ||
4250 West Anthem Way, #715 | ||||
Phoenix, AZ 85086 | ||||
QS Retail, Inc. | #808 QUIKSILVER FACTORY STORE - LINCOLN CITY | Factory Store | ||
1500 SE Devils Lake Road, #114 | ||||
Lincoln City, OR 97367 | ||||
QS Retail, Inc. | #810 QUIKSILVER FACTORY STORE - BARSTOW | Factory Store | ||
2796 Tanger Way Suite204 | ||||
Barstow, CA 92311 | ||||
QS Retail, Inc. | #811 QUIKSILVER FACTORY STORE - SAN MARCOS | Factory Store | ||
4015 Interstate 35 South Suite 880 | ||||
San Marcos, TX 78666 | ||||
QS Retail, Inc. | #815 QUIKSILVER FACTORY STORE - CABAZON | Factory Store | ||
48650 Seminole Drive, #236 | ||||
Cabazon, CA 92230 | ||||
QS Retail, Inc. | #817 QUIKSILVER FACTORY STORE - DAWSONVILLE | Factory Store | ||
800 Highway 400 South, #850 | ||||
Dawsonville, GA 30534 | ||||
QS Retail, Inc. | #818 QUIKSILVER FACTORY STORE - QUEENSTOWN | Factory Store | ||
407 Outlet Center Drive | ||||
Queenstown, MD 21658 | ||||
QS Retail, Inc. | #821 QUIKSILVER FACTORY STORE - WRENTHAM | Factory Store | ||
1 Premium Outlets Blvd., #475 | ||||
Wrentham, MA 02093 | ||||
QS Retail, Inc. | #822 QUIKSILVER FACTORY STORE - PRIMM | Factory Store | ||
32100 Las Vegas Blvd., #306 | ||||
Primm, NV 89019 | ||||
QS Retail, Inc. | #823 QUIKSILVER FACTORY STORE - COMMERCE | Factory Store | ||
100 Citadel Drive, #434 | ||||
Commerce, CA 90040 | ||||
QS Retail, Inc. | #825 QUIKSILVER FACTORY STORE - ELLENTON | Factory Store | ||
5131 Factory Shops Blvd. | ||||
Ellenton, FL 34222 |
Loan Party / Lessee | Address | Type of Property | ||
QS Retail, Inc. | #826 QUIKSILVER FACTORY STORE - CENTRAL VALLEY | Factory Store | ||
954 Grapevine Court | ||||
Central Valley, NY 10917 | ||||
QS Retail, Inc. | #828 QUIKSILVER FACTORY STORE - ELIZABETH | Factory Store | ||
651 Kapkowski Road, #2222 | ||||
Elizabeth, NJ 07201 | ||||
QS Retail, Inc. | #829 QUIKSILVER FACTORY STORE - CLINTON | Factory Store | ||
20 Killingworth Turnpike, #160 | ||||
Clinton, CT 06413 | ||||
QS Retail, Inc. | #830 QUIKSILVER FACTORY STORE - MIAMI | Factory Store | ||
11401 NW 12 Street, #289 | ||||
Miami, FL 33172 | ||||
QS Retail, Inc. | #831 QUIKSILVER FACTORY STORE - LAS VEGAS | Factory Store | ||
605 South Grand Central Parkway, #1247 | ||||
Las Vegas, NV 89106 | ||||
QS Retail, Inc. | #833 QUIKSILVER FACTORY STORE - GILROY | Factory Store | ||
681 Leavesley Road, Space C110 | ||||
Gilroy, CA 95020 | ||||
QS Retail, Inc. | #834 QUIKSILVER FACTORY STORE - LAKEWOOD | Factory Store | ||
14500 West Colfax Avenue Space #447 | ||||
Lakewood, CO 80401 | ||||
QS Retail, Inc. | #835 QUIKSILVER FACTORY STORE - TULALIP | Factory Store | ||
10600 Quil Ceda Blvd. Suite #359 | ||||
Tulalip, WA 98271 | ||||
QS Retail, Inc. | #836 QUIKSILVER FACTORY STORE - ONTARIO | Factory Store | ||
1 East Mills Circle Suite 123 | ||||
Ontario, CA 91764 | ||||
QS Retail, Inc. | #837 QUIKSILVER FACTORY STORE - BELZ | Factory Store | ||
7400 Las Vegas Blvd S Space #B32 | ||||
Las Vegas, NV 89123 | ||||
QS Retail, Inc. | #838 DC FACTORY STORE - PISMO | Factory Store | ||
333 Five cities Drive Suite 126 | ||||
Pismo Beach, CA 93449 | ||||
QS Retail, Inc. | #839 QUIKSILVER FACTORY STORE - WOODBURN | Factory Store | ||
1001 Arney Rd Suite 422 | ||||
Woodburn, OR 97071 | ||||
QS Retail, Inc. | #840 DC FACTORY STORE - TULALIP | Factory Store | ||
10600 Quil Ceda Blvd #316 | ||||
Tulalip, WA 98271 | ||||
QS Retail, Inc. | #841 QUIKSILVER FACTORY STORE - LAUGHLIN | Factory Store | ||
1955 S. Casino Dr. Space 202 | ||||
Laughlin, NV 89029 |
Loan Party / Lessee | Address | Type of Property | ||
QS Retail, Inc. | #842 QUIKSILVER FACTORY STORE - ROUND ROCK | Factory Store | ||
4401 North & I-35 #824 | ||||
Round Rock, TX 78664 | ||||
QS Retail, Inc. | #843 DC FACTORY STORE- CAMARILLO | Factory Store | ||
610 E. Ventura Blvd Suite 1317 | ||||
Camarillo, CA 93010 | ||||
QS Retail, Inc. | #844 DC FACTORY STORE - VEGAS | Factory Store | ||
705 Grand Central Pkwy Suite 1043 | ||||
Las Vegas, NV 89106 | ||||
QS Retail, Inc. | #845 DC FACTORY STORE - PRIMM | Factory Store | ||
32100 Las Vegas Blvd South Suite 416 | ||||
Primm, NV 89019 | ||||
QS Retail, Inc. | #846 DC FACTORY STORE - TULARE | Factory Store | ||
1549 Rethford Suite C-75 | ||||
Tulare, CA 93274 | ||||
QS Retail, Inc. | #847 DC FACTORY STORE - COMMERCE | Factory Store | ||
100 Citadel Drive South Suite 432 | ||||
Commerce City, CA 90040 | ||||
QS Retail, Inc. | #848 QUIKSILVER FACTORY STORE - FOLSOM | Factory Store | ||
13000 Folsom Blvd. Ste 302/303 | ||||
Folsom, CA 95630 | ||||
QS Retail, Inc. | #848 DC FACTORY STORE - FOLSOM | Factory Store | ||
13000 Folsom Blvd. Ste 302, 303 | ||||
Folsom, CA 95630 | ||||
QS Retail Canada Corp. | #849 QUIKSILVER FACTORY STORE - NEW | Factory Store | ||
WESTMINSTER | ||||
805 Boyd Street Unit D120 | ||||
Queensborough Shopping Centre | ||||
New Westminster, BC V3M5X2 | ||||
QS Retail, Inc. | #850 DC FACTORY STORE - EL PASO | Factory Store | ||
7051 South Desert Blvd Suite D 425 | ||||
Canutillo, TX 79835 | ||||
QS Retail, Inc. | #851 DC FACTORY STORE - SAN MARCOS | Factory Store | ||
4015 I-35, Suite 1020 | ||||
San Marcos, TX 78666 | ||||
QS Retail, Inc. | #852 DC FACTORY STORE - GILROY | Factory Store | ||
681 Leavesley Rd Ste 270 | ||||
Gilroy, CA 95020 | ||||
QS Retail, Inc. | #853 QUIKSILVER FACTORY STORE - EL PASO | Factory Store | ||
Sun Valley Factory Shoppes | ||||
7051 South Desert Blvd. STE A 137 | ||||
Canutillo, TX 79835 | ||||
QS Retail, Inc. | #854 BOARDRIDERS - OAKVIEW | Factory Store | ||
3001 South 144th St. Space F-04 | ||||
Omaha, NE 68144 | ||||
QS Retail, Inc. | #855 BOARDRIDERS - HAMILTON PLACE | Factory Store | ||
2100 Hamilton Place Space 125B | ||||
Chattanooga, TN 37421 |
Loan Party / Lessee | Address | Type of Property | ||
QS Retail, Inc. | #856 BOARDRIDERS - THE AVENUES MALL | Factory Store | ||
2615 Medical Center Pkwy Ste 1355 | ||||
Murfreesboro, TN 37129 | ||||
QS Retail, Inc. | #857 QUIKSILVER FACTORY STORE - RIO GRANDE | Factory Store | ||
5001 E. Expressway 83 Suite 319 | ||||
Mercedes, TX 78570 | ||||
QS Retail, Inc. | #858 QUIKSILVER FACTORY STORE - POTOMAC MILLS | Factory Store | ||
2700 Potomac Mills Cir. Suite 242 | ||||
Prince Williams County, VA 22192 | ||||
QS Retail, Inc. | #859 DC FACTORY STORE - LAUGHLIN | Factory Store | ||
1955 South Casino Dr Suite 248 | ||||
Laughlin, NV 89029 | ||||
QS Retail, Inc. | #860 QUIKSILVER FACTORY STORE - HOUSTON | Factory Store | ||
29300 Hempstead Road Suite 610 | ||||
Cypress, TX 77433 | ||||
QS Retail, Inc. | #861 DC FACTORY STORE - DOLPHIN MALL | Factory Store | ||
11401 N. W. 12th Street #289 | ||||
Miami, Florida 33172 | ||||
QS Retail Canada Corp. | #862 DC FACTORY STORE - NEW WESTMINSTER | Factory Store | ||
805 Boyd St. #F180 | ||||
New Westminster, BC V3M5X2 | ||||
Quiksilver Canada Corp. | 6455 Macleod Trail | Retail Store | ||
South Calgary, Alberta, Canada | ||||
DC Shoes, Inc. | 2620 Progress Street | Other | ||
Vista, California 92010 |
to Credit Agreement
Limit | ||||||||
Insurance | Broker | Insurer | Coverage Definition | Deductible | ||||
Global | ||||||||
Foreign Liability | Willis | Chubb | Global Difference in Conditions/ Difference in Limits general, auto, product, operations liability | Limit: $1M Ded: $0 | ||||
Umbrella Liability | Willis | Chubb, Liberty Mutual | Third party general, auto, product, operations liability | Limit: $40M Ded: $0 | ||||
Athlete AD&D | Willis | ACE | Athlete accidental death and dismemberment | Limit: $250K/$150K Ded: $0 | ||||
D&O / Fiduciary | Willis | Chubb primary, various excess carriers | Directors and officers management and fiduciary liability | Limit: $50M Ded: $1M ($0 for Side-A) | ||||
U.S. and Canada | ||||||||
Property | Willis | FM Global | First party building, tenant improvement, business interruption | Limit: $200M Ded: $10K | ||||
General Liability | Willis | Chubb | Third party general and product liability | Limit: $1M Ded: $25K, $100K/$350K | ||||
Auto | Willis | Chubb | Third party auto bodily and property damage liability, and first party auto damage | Limit: $1M Ded: $1K | ||||
Computer and Information Security Liability | Willis | Lloyd’s of London | Third party loss or compromise of sensitive customer data | Limit: $5M Ded: $100K | ||||
Marine Cargo | Expeditors | First party product marine cargo loss | Limit: $2M Ded: $1K | |||||
Work Comp | Willis | ACE | Statutory employee work injury | Limit: Statutory Ded: $500K |
to Credit Agreement
Authorized | Issued | |||||||||||
Equity | Equity | Ownership | ||||||||||
Direct Parent | Subsidiary | Jurisdiction | Interests | Interests | Percentage | |||||||
Quiksilver, Inc. | Quiksilver Americas, Inc. | California | 1,000 | 1,000 | 100 | % | ||||||
Quiksilver, Inc. | Mountain & Wave S.à r.l. | Luxembourg | N/A | 2,739,552 | 100 | % | ||||||
Quiksilver, Inc. | Quiksilver Greater China Ltd. | Hong Kong | 10,000 | 10,000 | 100 | % | ||||||
Quiksilver Americas, Inc. | Q.S. Optics, Inc.* | California | 7,000 | 800 | 100 | % | ||||||
Quiksilver Americas, Inc. | Quiksilver Wetsuits, Inc.* | California | 1,000,000 | 660 | 100 | % | ||||||
Quiksilver Americas, Inc. | Mt. Waimea, Inc.* | California | 100,000 | 1,000 | 100 | % | ||||||
Quiksilver Americas, Inc. | Quiksilver Entertainment, Inc.* | California | 1,000 | 1,000 | 100 | % | ||||||
Quiksilver Americas, Inc. | DC Shoes, Inc. | California | 100,000,000 | 6,000,000 | 100 | % | ||||||
Quiksilver Americas, Inc. | Fidra, Inc.* | California | 1,000 | 100 | 100 | % | ||||||
Quiksilver Americas, Inc. | Hawk Designs, Inc. | California | 100 | 100 | 100 | % | ||||||
Quiksilver Americas, Inc. | Mervin Manufacturing, Inc. | California | 100,000 | 10,000 | 100 | % | ||||||
Quiksilver Americas, Inc. | QS Wholesale, Inc. | California | 1,000 | 1,000 | 100 | % | ||||||
Quiksilver Americas, Inc. | QS Retail, Inc. | California | 1,000 | 100 | 100 | % | ||||||
Quiksilver Americas, Inc. | QS Mexico Holdings | Delaware | N/A | N/A | 60 | % | ||||||
DC Shoes, Inc. | DC Direct, Inc.* | California | 100,000 | N/A | 100 | % | ||||||
Quiksilver Canada Corp. | QS Retail Canada Corp. | Nova Scotia | 100,000,000 | 100 | 100 | % |
* | Indicates Immaterial Subsidiary as of the Closing Date | |
(b) | Equity Investments: |
Authorized | Issued | |||||||||||
Equity | Equity | Ownership | ||||||||||
Holder | Issuer | Jurisdiction | Interests | Interests | Percentage | |||||||
Quiksilver Americas, Inc. | QS Mexico Holdings | Delaware | N/A | N/A | 60%1 |
1 | 40% held by PBM International, LLC, a Delaware limited liability company. |
Direct | Ownership | |||||
Loan Party | Parent | Percentage | ||||
Quiksilver Americas, Inc. | Quiksilver, Inc. | 100 | % | |||
QS Retail, Inc. | Quiksilver Americas, Inc. | 100 | % | |||
QS Wholesale, Inc. | Quiksilver Americas, Inc. | 100 | % | |||
DC Shoes, Inc. | Quiksilver Americas, Inc. | 100 | % | |||
Hawk Designs, Inc. | Quiksilver Americas, Inc. | 100 | % | |||
Mervin Manufacturing, Inc. | Quiksilver Americas, Inc. | 100 | % | |||
Quiksilver Canada Corp. | Quiksilver Deluxe S.à r.l. | 100 | % | |||
QS Retail Canada Corp. | Quiksilver Canada Corp. | 100 | % |
to Credit Agreement
Name of Bank or Financial | ||||||||||||
Loan Party | Institution | Account Number | Type of Account | |||||||||
Quiksilver, Inc. | * | **** | * | **** | * | **** | ||||||
Quiksilver Americas, Inc. | * | **** | * | **** | * | **** | ||||||
QS Retail, Inc. | * | **** | * | **** | * | **** | ||||||
QS Wholesale, Inc. | * | **** | * | **** | * | **** | ||||||
DC Shoes, Inc. | * | **** | * | **** | * | **** | ||||||
Hawk Designs, Inc. | * | **** | * | **** | * | **** | ||||||
Mervin Manufacturing, Inc. | * | **** | * | **** | * | **** | ||||||
QS Retail, Inc. | * | **** | * | **** | * | **** | ||||||
QS Retail, Inc. | * | **** | * | **** | * | **** | ||||||
QS Retail, Inc. | * | **** | * | **** | * | **** | ||||||
QS Retail, Inc. | * | **** | * | **** | * | **** | ||||||
QS Retail, Inc. | * | **** | * | **** | * | **** | ||||||
QS Retail, Inc. | * | **** | * | **** | * | **** | ||||||
QS Retail, Inc. | * | **** | * | **** | * | **** | ||||||
Quiksilver Americas, Inc. | * | **** | * | **** | * | **** | ||||||
QS Retail, Inc. | * | **** | * | **** | * | **** | ||||||
QS Wholesale, Inc. | * | **** | * | **** | * | **** | ||||||
DC Shoes, Inc. | * | **** | * | **** | * | **** | ||||||
Hawk Designs, Inc. | * | **** | * | **** | * | **** | ||||||
Mervin Manufacturing, Inc. | * | **** | * | **** | * | **** | ||||||
Quiksilver, Inc. | * | **** | * | **** | * | **** | ||||||
Quiksilver Americas, Inc. | * | **** | * | **** | * | **** | ||||||
QS Retail, Inc. | * | **** | * | **** | * | **** | ||||||
QS Wholesale, Inc. | * | **** | * | **** | * | **** | ||||||
DC Shoes, Inc. | * | **** | * | **** | * | **** | ||||||
Hawk Designs, Inc. | * | **** | * | **** | * | **** | ||||||
Mervin Manufacturing, Inc. | * | **** | * | **** | * | **** |
Name of Bank or Financial | ||||||||||||
Loan Party | Institution | Account Number | Type of Account | |||||||||
Quiksilver Canada Corp. | * | **** | * | **** | * | **** | ||||||
QS Retail Canada Corp. | * | **** | * | **** | * | **** | ||||||
QS Retail Canada Corp. | * | **** | * | **** | * | **** | ||||||
Quiksilver Canada Corp. | * | **** | * | **** | * | **** | ||||||
Quiksilver Canada Corp. | * | **** | * | **** | * | **** | ||||||
QS Retail Canada Corp. | * | **** | * | **** | * | **** |
* | Blocked Account Bank |
to Credit Agreement
1. | First Data Corporation (QS Retail, Inc.)1 | |
2. | Elavon, Inc. (QS Wholesale, Inc. and DC Shoes, Inc.) |
1 | Agreement between First Data and QS Retail, Inc. has on one-year term with automatic renewal on March 15. |
to Credit Agreement
1. | Banc of America Securities LLC | |
2. | GE Capital Markets, Inc. | |
3. | Rhône Group L.L.C. | |
4. | Peter J. Solomon Company | |
5. | Lazard Ltd. |
to Credit Agreement
Financial and Collateral Reporting
DATE | (X) | |||||
Monthly (due on 15th day of each Fiscal Month (or, if such day is not a Business Day, on the next succeeding Business Day) until delivery of Fiscal 2009 10-K of the Parent, and due on the 10th day of each Fiscal Month thereafter (or, if such day is not a Business Day, on the next succeeding Business Day)), or if required under the Credit Agreement, weekly, (due on Wednesday of each week (or, if such Wednesday is not a Business Day, on the next succeeding Business Day) provided that, if Borrowing Base Certificates are required to be delivered weekly, updated inventory reports shall only be required in connection therewith to the extent then available): | ||||||
• | Borrowing Base Certificate (BBC) | |||||
Borrowing Base backup to be received with BBC: | ||||||
• | Accounts Receivable Aging Summary | |||||
• | Schedule Detailing Extended Terms Customers | |||||
• | Schedule Detailing Cross-Age Customers | |||||
• | Schedule of Foreign Receivables | |||||
• | Schedule of Government Receivables | |||||
• | Schedule of Intercompany Receivables | |||||
• | Schedule of Employee Receivables | |||||
• | Schedule of Accounts due from Bankrupt Customers | |||||
• | Schedule of Chargebacks on Aging | |||||
• | Schedule of Finance Charges/Interest on Aging | |||||
• | Schedule Detailing Calculation of Contra Accounts | |||||
• | Schedule Detailing Customers Exceeding 15% of Eligible A/R | |||||
• | Eligible Credit Card Receivables Summary | |||||
• | Inventory Perpetual/Stock Ledger Summary | |||||
• | Schedule of Irregulars/Seconds (Season “W” Inventory) | |||||
• | Schedule of Off-Price Styles (Season “O” Inventory) | |||||
• | Schedule of Drop-Ship Inventory (QDS Warehouse) | |||||
• | Schedule of Hawaii Virtual Warehouse Inventory | |||||
• | Schedule of Inventory in Foreign Locations (incl. Hong Kong) | |||||
• | Schedule of Inventory Located at Outside Processors | |||||
• | Schedule of Supplies & Packaging Inventory | |||||
• | Schedule of Samples Inventory | |||||
• | Raw Materials Summary – Fabric & Trim | |||||
• | Raw Materials Summary – Specialty (Season “Y”) | |||||
• | Raw Materials Summary – Mervin Raw Materials | |||||
• | Work-in-Process Inventory Summary | |||||
• | Schedule of Inventory In-Transit Between Retail Stores | |||||
• | Schedule of Inventory In-Transit From Warehouse to Stores | |||||
• | Schedule of Inventory In-Transit From U.S. to Canada | |||||
• | Detail of Any Unreconciled Variance Between Perpetual and G/L | |||||
• | Monthly Cycle Count Results on a Trailing 12 Month Basis |
DATE | (X) | |||||
• | Eligible Import In-Transit Inventory Summary | |||||
• | Eligible Import Letter of Credit Inventory Summary | |||||
• | Backup to Support Gift Certificates and Merchandise Credits | |||||
• | Backup to Support Customer Deposits | |||||
• | Rent Reserve Detail | |||||
• | Monthly Self-Funded Insurance Claims on Trailing 12 Mo. Basis | |||||
• | Schedule of additional (since date of prior BBC) registered or applied-for Intellectual Property | |||||
• | Schedule of new (since date of prior BBC) contracts with any Governmental Authority |
DATE | (X) | |||||
Monthly (within thirty (30) days after the end of each Fiscal Month of each Fiscal Year of the Parent, commencing with the first such Fiscal Month which occurs after the first full six (6) months following the Closing Date): | ||||||
• | Monthly Financial Statements with MD&A | |||||
• | Compliance Certificate |
Quarterly (within 45 days after Fiscal Quarter end): | ||||||
• | Quarterly Financial Statements with MD&A (Form 10-Q) | |||||
• | Compliance Certificate |
Annually (within 90 days after Fiscal Year end): | ||||||
• | Audited Financial Statements with MD&A (Form 10-K) | |||||
• | Compliance Certificate |
Annually (within 30 days after Fiscal Year end): | ||||||
• | Forecast for Immediately Following Fiscal Year |
Email / Mail to: | Theresa Espinola | |
Bank of America | ||
100 Federal Street | ||
MA5-100-09-09 Boston, MA 02110 | ||
theresa.m.espinola@bankofamerica.com |
to Credit Agreement
Collateral | ||||||||
Debtor(S) | Jurisdiction | Secured Party | File No./ File Date | Description | ||||
QS Retail, Inc. | CA SOS | Vestar TM-OPCO, L.L.C. | 06-7089343858 10/20/2006 | Fixtures, improvements and additions to Suite F-5 Tempe Marketplace, Tempe, AZ | ||||
Quiksilver Canada Corp. | British Columbia | The Royal Bank of Canada | 793112C 1/17/2006 Amended: 104218F 7/30/2009 | Guaranteed Investment Certificate No. 00920153700 in the amount of $300,000 and all extensions, renewals and replacements thereof |
to Credit Agreement
Authorized | Issued | |||||||||||
Holder | Issuer | Jurisdiction | Equity Interests | Equity Interests | Ownership Percentage | |||||||
Quiksilver Americas, Inc. | QS Mexico Holdings LP | Delaware | N/A | N/A | 60 | % | ||||||
Quiksilver, Inc. | Kelly Slater Wave Company, LLC | Delaware | N/A | N/A | 8.5 | % |
to Credit Agreement
to Credit Agreement
to Credit Agreement
Party | Notice Information | |
Loan Parties: | c/o Quiksilver, Inc. | |
Quiksilver, Inc. | 15202 Graham Street | |
Quiksilver Americas, Inc. | Huntington Beach, CA 92649 | |
DC Shoes, Inc. | Attention: Chief Financial Officer | |
Hawk Designs, Inc. | Telephone: (714) 889-2200 | |
Mervin Manufacturing, Inc. | Telecopier: (714) 889-2322 | |
QS Wholesale, Inc. | Email: Joe.scirocco@quiksilver.com | |
QS Retail, Inc. | with a copy to: | |
Quiksilver Canada Corp. | Skadden, Arps, Slate, Meagher & Flom LLP | |
QS Retail Canada Corp. | 300 South Grand Avenue | |
Los Angeles, California 90071-3144 | ||
Attention: K. Kristine Dunn, Esq. | ||
Telephone: (213) 687-5493 | ||
Facsimile: (213) 621-5493 | ||
Email: kristine.dunn@skadden.com | ||
Lead Borrower’s Website: www.quiksilverinc.com | ||
Administrative Agent, Co-Collateral | Bank of America, N.A. | |
Agent, L/C Issuer & Swing Line | 100 Federal Street, 9th Floor | |
Lender: | Boston, Massachusetts 02110 | |
Bank of America, N.A. | Attention: Stephen J. Garvin, Managing Director | |
Telephone: (617) 434-9399 | ||
Facsimile: (617) 434-6685 | ||
Email: stephen.garvin@bankofamerica.com | ||
with a copy to: | ||
Riemer & Braunstein LLP | ||
Three Center Plaza | ||
Boston, Massachusetts 02108 | ||
Attention: Jason S. DelMonico, Esquire | ||
Telephone: (617) 880-3496 | ||
Facsimile: (617) 880-3456 | ||
Email: jdelmonico@riemerlaw.com | ||
Administrative Agent’s Account: |
Party | Notice Information | |
Bank of America | ||
ABA: 026-009-593 | ||
Account Name: Bank of America Retail Group Collection | ||
Account Number: 0050252044 | ||
Ref: Quiksilver Americas, Inc. | ||
Co-Collateral Agent General Electric Capital Corporation | General Electric Capital Corporation 10 Riverview Drive Danbury, CT 06810 | |
Attention: Quiksilver Account Manager | ||
Telephone: (203) 749-6296 | ||
Facsimile: (203) 749-4666 | ||
Email: joshua.osher@ge.com | ||
with a copies to: | ||
Kilpatrick Stockton LLP | ||
Suite 2800 | ||
1100 Peachtree Street NE | ||
Atlanta, GA 30309-4530 | ||
Attention: Hilary P. Jordan, Esq. | ||
Telephone: (404) 815- 6362 | ||
Facsimile: (404) 541-3256 | ||
Email: hjordan@kilpatrickstockton.com | ||
and | ||
General Electric Capital Corporation | ||
201 Merritt 7 | ||
Norwalk, CT 06851 | ||
Attention: Corporate Counsel-Commercial Finance | ||
Telephone: (203) 956-4378 | ||
Facsimile: (203) 956-4001 | ||
Email: john.pistocchi@ge.com | ||
Canadian Agent: Bank of America, N.A. (acting through its Canada branch) | Bank of America, N.A. (acting through its Canada branch) 200 Front Street West Toronto, Ontario, Canada M5V 3L2 Attention: Medina Sales de Andrade, Vice President | |
Telephone: (416) 349-5433 | ||
Facsimile: (416) 349-4283 | ||
Email: medina.sales_de_andrade@bankofamerica.com | ||
with a copy to: | ||
Riemer & Braunstein LLP | ||
Three Center Plaza | ||
Boston, Massachusetts 02108 | ||
Attention: Jason S. DelMonico, Esquire | ||
Telephone: (617) 880-3496 | ||
Facsimile: (617) 880-3456 |
Party | Notice Information | |
Email: jdelmonico@riemerlaw.com | ||
and | ||
Ogilvy Renault LLP | ||
Suite 3800 | ||
Royal Bank Plaza, South Tower | ||
200 Bay Street | ||
P.O. Box 84 | ||
Toronto, Ontario M5J 2Z4 | ||
Attention: C. Nicole Sigouin, Esq. | ||
Telephone: (416) 216-3929 | ||
Facsimile: (416) 216-3930 | ||
Email: nsigouin@ogilvyrenault.com | ||
Canadian Agent’s Account for Canadian Loans (US Dollar): | ||
Bank America International New York | ||
335 Madison Avenue, New York, NY. 10017 | ||
Swift Code: BOFAUS3N ABA# 026009593 | ||
For the Account of: Bank of America, N.A., Canada Branch | ||
Account # 65502-01805 | ||
Swift Code: BOFACATT | ||
Ref: Quiksilver Canada Corp | ||
Canadian Agent’s Account for Canadian Loans (Canadian | ||
Dollar): | ||
LVTS — Large Value Transaction System | ||
Bank of America NA, Canada Branch | ||
200 Front Street West, Toronto | ||
Swift Code: BOFACATT | ||
A/C # 90083255 | ||
Attn: Loans Department | ||
Transit #: 024156792 | ||
Ref: Quiksilver Canada Corp |
To: | Bank of America, N.A., as Administrative Agent | |
100 Federal Street, 9th Floor | ||
Boston, Massachusetts 02110 |
1. | The Business Day of the Requested Action is , 20[ ]1. | ||
2. | The principal amount of the Requested Action2 is $ , which shall consist of the following Types: |
1 | Each such notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three (3) Business Days prior to the requested date of any Committed Borrowing of, conversion to or continuation of LIBO Rate Loans, or of any conversion of LIBO Rate Loans to Domestic Prime Rate Loans, and (ii) one (1) Business Day prior to the requested date of any Committed Borrowing of Domestic Prime Rate Loans. | |
2 | Each Committed Borrowing of, conversion to or continuation of LIBO Rate Loans shall be in a principal amount of $1,000,000.00 or a whole multiple of $1,000,000.00 in excess thereof, and, except as provided in Sections 2.03(c) and 2.04(c) of the Credit Agreement, each Committed Borrowing of or conversion to Domestic Prime Rate Loans shall be in a principal amount of $500,000.00 or a whole multiple of $100,000.00 in excess thereof. |
Type of Committed Domestic Loans (Domestic Prime Rate Loans | ||||||||
or | Interest Period for LIBO Rate | |||||||
LIBO Rate Loans)3 | Amount | Loans4 | ||||||
$__________ | [1] [2] [3] [6] months | |||||||
$__________ | [1] [2] [3] [6] months | |||||||
$__________ | [1] [2] [3] [6] months | |||||||
$__________ | [1] [2] [3] [6] months | |||||||
3. | [Proceeds of the requested Committed Domestic Borrowing are to be disbursed to the following account(s): |
[QUIKSILVER AMERICAS, INC., a California corporation, as Lead Borrower | ||||
By: | ||||
Name: | ||||
Title: | ] | |||
[QUIKSILVER, INC., a Delaware corporation | ||||
By: | ||||
Name: | ||||
Title: | ] | |||
3 | Type of Committed Domestic Loans to be borrowed or to which existing Committed Domestic Loans are to be converted. If no election of Type of Committed Domestic Loans is specified, such Committed Domestic Loans shall be made as Domestic Prime Rate Loans. | |
4 | If no election of Interest Period is specified, such notice shall be deemed a request for an Interest Period of one (1) month. |
To: | Bank of America, N.A. (acting through its Canada branch), as Canadian Agent 200 Front Street West Toronto, Ontario, Canada M5V 3L2 |
Re: Credit Agreement dated as of July 31, 2009 (as amended, amended and restated, modified, supplemented or restated and in effect from time to time, the “Credit Agreement”) by and among,inter alia(i) Quiksilver Americas, Inc., as the Lead Borrower, (ii) Quiksilver Canada Corp., as the Canadian Borrower, (iii) the other Borrowers from time to time party thereto, (iv) the Guarantors from time to time party thereto, (v) the Lenders from time to time party thereto, (vi) Bank of America, N.A., as Administrative Agent, Co-Collateral Agent, Swing Line Lender, L/C Issuer, and Syndication Agent, (vii) General Electric Capital Corporation, as Co-Collateral Agent, and (viii) Bank of America, N.A. (acting through its Canada branch), as Canadian Agent. Capitalized terms used but not defined herein shall have the meanings set forth in the Credit Agreement. |
1. | The Business Day of the Requested Action is , 20[___]1. |
2. | The principal amount of the Requested Action2 is CD$ , which shall consist of the following Types: |
1 | Each such notice must be received by the Canadian Agent not later than 11:00 a.m. (i) three (3) Business Days prior to the requested date of any Committed Borrowing of, conversion to or continuation of BA Equivalent Loans, or of any conversion of BA Equivalent Loans to Canadian Prime Rate Loans and (ii) one (1) Business Day prior to the requested date of any Committed Borrowing of Canadian Prime Rate Loans. | |
2 | Each Committed Borrowing of, conversion to or continuation of BA Equivalent Loans shall be in a principal amount of CD$[ ] or a whole multiple of CD$[ ] in excess thereof, and, except as provided in Sections 2.03(c) and 2.04(c) of the Credit Agreement, each Committed Borrowing of Canadian Prime Rate Loans shall be in a principal amount of CD$500,000.00 or a whole multiple of CD$100,000.00 in excess thereof. |
Type of Committed Canadian | ||||
Loan | ||||
(Canadian Prime Rate Loans or | ||||
BA Equivalent Loans)3 | Amount | Interest Period for BA Equivalent Loans4 | ||
CD$ | [1] [2] [3] [6] months | |||
CD$ | [1] [2] [3] [6] months | |||
CD$ | [1] [2] [3] [6] months | |||
CD$ | [1] [2] [3] [6] months |
3. | [Proceeds of the requested Committed Canadian Borrowing are to be disbursed to the following account(s): |
]
[QUIKSILVER CANADA CORP., a Nova Scotia unlimited liability company | ||||
By: | ||||
Name: | ||||
Title: ] | ||||
[QUIKSILVER AMERICAS, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: ] | ||||
[QUIKSILVER, INC., a Delaware corporation | ||||
By: | ||||
Name: | ||||
Title: ] | ||||
3 | Type of Committed Canadian Loans to be borrowed or to which existing Committed Canadian Loans are to be converted. If no election of Type of Committed Canadian Loans is specified, such Committed Canadian Loans shall be made as Canadian Prime Rate Loans. | |
4 | If no election of Interest Period is specified, such notice shall be deemed a request for an Interest Period of one (1) month. |
To: | Bank of America, N.A., as Administrative Agent and as Swing Line Lender 100 Federal Street, 9th Floor Boston, Massachusetts 02110 |
Re: Credit Agreement dated as of July 31, 2009 (as amended, amended and restated, modified, supplemented or restated and in effect from time to time, the “Credit Agreement”) by and among,inter alia(i) Quiksilver Americas, Inc., as the Lead Borrower, (ii) Quiksilver Canada Corp., as the Canadian Borrower, (iii) the other Borrowers from time to time party thereto, (iv) the Guarantors from time to time party thereto, (v) the Lenders from time to time party thereto, (vi) Bank of America, N.A., as Administrative Agent, Co-Collateral Agent, Swing Line Lender, L/C Issuer, and Syndication Agent, (vii) General Electric Capital Corporation, as Co-Collateral Agent, and (viii) Bank of America, N.A. (acting through its Canada branch), as Canadian Agent. Capitalized terms used but not defined herein shall have the meanings set forth in the Credit Agreement. |
1. | The Business Day of the requested Swing Line Borrowing is , 20[___].1 |
2. | The aggregate amount of the requested Swing Line Borrowing2 is $ , which Swing Line Borrowing shall consist of a Domestic Prime Rate Loan. |
3. | Proceeds of the requested Swing Line Borrowing are to be disbursed to the following account(s): |
1 | Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date. | |
2 | Each such Borrowing shall be in a principal amount of not less than $100,000.00. |
[QUIKSILVER AMERICAS, INC., a California corporation, as Lead Borrower | ||||
By: | ||||
Name: | ||||
Title: ] | ||||
[QUIKSILVER, INC., a Delaware corporation | ||||
By: | ||||
Name: | ||||
Title: ] |
To: | Bank of America, N.A. (acting through its Canada branch), as Canadian Agent and as Swing Line Lender 200 Front Street West Toronto, Ontario, Canada M5V 3L2 |
Re: Credit Agreement dated as of July 31, 2009 (as amended, amended and restated, modified, supplemented or restated and in effect from time to time, the “Credit Agreement”) by and among,inter alia(i) Quiksilver Americas, Inc., as the Lead Borrower, (ii) Quiksilver Canada Corp., as the Canadian Borrower, (iii) the other Borrowers from time to time party thereto, (iv) the Guarantors from time to time party thereto, (v) the Lenders from time to time party thereto, (vi) Bank of America, N.A., as Administrative Agent, Co-Collateral Agent, Swing Line Lender, L/C Issuer, and Syndication Agent, (vii) General Electric Capital Corporation, as Co-Collateral Agent, and (viii) Bank of America, N.A. (acting through its Canada branch), as Canadian Agent. Capitalized terms used but not defined herein shall have the meanings set forth in the Credit Agreement. |
1. | The Business Day of the requested Swing Line Borrowing is , 20[___].1 |
2. | The aggregate amount of the requested Swing Line Borrowing2 is CD$ , which Swing Line Borrowing shall consist of a Canadian Prime Rate Loan. |
3. | Proceeds of the requested Swing Line Borrowing are to be disbursed to the following account(s): |
1 | Each such notice must be received by the Swing Line Lender and the Canadian Agent not later than 1:00 p.m. on the requested borrowing date. | |
2 | Each such Borrowing shall be in a principal amount of not less than CD$100,000.00. |
[QUIKSILVER CANADA CORP., a Nova Scotia unlimited liability company | ||||
By: | ||||
Name: | ||||
Title: ] | ||||
[QUIKSILVER AMERICAS, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: ] | ||||
[QUIKSILVER, INC., a Delaware corporation | ||||
By: | ||||
Name: | ||||
Title: ] |
$[ ] | July [___], 2009 |
1
2
3
QUIKSILVER CANADA CORP., a Nova Scotia unlimited liability company | ||||
By: | ||||
Name: | ||||
Title: | ||||
$[ ] | July [___], 2009 |
1
2
3
QUIKSILVER AMERICAS, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: | ||||
DC SHOES, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: | ||||
HAWK DESIGNS, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: | ||||
MERVIN MANUFACTURING, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: | ||||
QS WHOLESALE, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: | ||||
QS RETAIL, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: | ||||
$[ ] | July [___], 2009 |
1
2
3
QUIKSILVER CANADA CORP., a Nova Scotia unlimited liability company | ||||
By: | ||||
Name: | ||||
Title: |
$[ ] | July [___], 2009 |
1
2
3
QUIKSILVER AMERICAS, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: | ||||
DC SHOES, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: |
HAWK DESIGNS, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: | ||||
MERVIN MANUFACTURING, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: |
QS WHOLESALE, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: | ||||
QS RETAIL, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: |
To: | Bank of America, N.A., as Administrative Agent | |
100 Federal Street, 9th Floor | ||
Boston, Massachusetts 02110 | ||
Attention: Mr. Stephen J. Garvin, Managing Director |
1. | Covenant Compliance Event. | |
As of the date hereof, there [is a/is no] continuing Covenant Compliance Event. | ||
2. | Consolidated Fixed Charge Coverage Ratio. | |
[Set forth inAppendix I, in reasonable detail, are calculations with respect to Consolidated Fixed Charge Coverage Ratio for the [four (4) Fiscal Quarters/twelve (12) Fiscal Months]1 ending [ ].] | ||
3. | No Material Accounting Changes, Etc. |
(a) | The financial statements furnished to the Administrative Agent for the [Fiscal Year/Fiscal Quarter/Fiscal Month] ending [ ] were prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements and the Americas Consolidated statements present fairly in all material respects the financial condition and |
1 | To be the most recently completed four (4) Fiscal Quarters of the Parent for which financial statements have been or were required to be delivered for any period prior to the end of the first Fiscal Month which occurs after the first full eighteen (18) months following the Closing Date and the twelve (12) Fiscal Months most recently ended for which financial statements are available all periods thereafter. |
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results of operations of the Parent and its Americas Subsidiaries, as of the end of the period(s) covered, subject to (i) with respect to the monthly and quarterly financial statements, normal year end audit adjustments and the absence of footnotes and (ii) any changes as disclosed onAppendix II hereto. | |||
(b) | Except as set forth inAppendix II, there has been no change in GAAP which has been applied in the most recent audited financial statements delivered by Lead Borrower since [ ] (the date of the most recent audited financial statements delivered by Lead Borrower), and if such a change has occurred, the effect of such change on the financial statements is detailed inAppendix II. |
4. | No Default or Event of Default. | |
[As of the date hereof, no Default or Event of Default has occurred and is continuing.][ No Default or Event of Default has occurred and is continuing, except as set forth onAppendix III. The Borrowers have taken or propose to take those actions with respect to such Default or Event of Default as described on saidAppendix III.] |
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[LEAD BORROWER] [PARENT]: [QUIKSILVER AMERICAS, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: ] | ||||
[QUIKSILVER, INC., a Delaware corporation | ||||
By: | ||||
Name: | ||||
Title: ] |
-3-
1. | Consolidated EBITDA For Such Measurement Period: | |||||
(a) | Consolidated Net Income of the Parent and the Americas Subsidiaries on an Americas Consolidated basis for the most recently completed Measurement Period: | |||||
Plus the following (to the extent deducted in calculating such Consolidated Net Income) (in each case of or by the Parent and the Americas Subsidiaries for such Measurement Period): | ||||||
(b) | Consolidated Interest Charges: | |||||
(c) | the provision for federal, state, local and foreign income Taxes: | |||||
(d) | depreciation and amortization expense: | |||||
(f) | other non-recurring expenses reducing such Consolidated Net Income which do not represent a cash item in such period or any future period: | |||||
(g) | costs, fees and expenses in connection with the Loan Documents, the Term Loan Documents and the other transactions occurring on or about the Closing Date: | |||||
(h) | costs, fees and expenses of business consultants, advisors and other outside professionals incurred prior to July 31, 2009, not to exceed $2,000,000: | |||||
(i) | impairment charges and asset write-offs pursuant to GAAP and any non-cash stock compensation expenses: | |||||
-4-
(j) | other non-cash restructuring, severance and integration charges reducing such Consolidated Net Income (provided that if any such non-cash charge represents an accrual or reserve for any potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent for such future period): | |||||
(k) | the sum of lines 1(a) through 1(j): | |||||
minus the sum of the following (to the extent included in calculating such Consolidated Net Income) (in each case of or by the Parent and the Americas Subsidiaries for such Measurement Period): | ||||||
(l) | federal, state, local and foreign income tax credits: | |||||
(m) | all non-cash items increasing Consolidated Net Income: | |||||
(n) | the sum of line 1(l) and Line 1(m): | |||||
(o) | Consolidated EBITDA [line 1(k)minus line 1(n)]: | |||||
2. | ||||||
(a) | Capital Expenditures for such period: | |||||
(b) | aggregate amount of federal, state, local, provincial, territorial, municipal and foreign income taxes paid in cash during such Measurement Period (net of federal, state, local, provincial, territorial, municipal and foreign income tax refunds received in cash during such Measurement Period: | |||||
(c) | the sum of lines 2(a) through 2(b): | |||||
-5-
3. | line 1(o) minus line 2(c): | |||||
4. | Debt Service Charges for such Measurement Period (in each case determined on an Americas Consolidated basis, in accordance with GAAP, as applicable): | |||||
(a) | Consolidated Interest Charges paid in cash or required to be paid in cash for such Measurement Period: | |||||
(b) | principal amount of all scheduled amortization payments made in cash or required to be made in cash by the Parent or the Americas Subsidiaries on account of Indebtedness (excluding the Obligations and any Synthetic Lease Obligations but including, without limitation, any Capital Lease Obligations) during such Measurement Period: | |||||
(c) | Debt Service Charges: [the sum of lines 4(a) and 4(b)]: | |||||
5. | The aggregate amount of all Restricted Payments Paid in cash by the Parent during such Measurement Period: | |||||
6. | the sum of line 5 and line 4(c): | |||||
7. | Consolidated Fixed Charge Coverage Ratio [line 3 divided by line 6]: | |||||
8. | In Compliance? | [N/A][Yes/No] |
-6-
-7-
-8-
1 | For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language. | |
2 | For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. | |
3 | �� | Select as appropriate. |
4 | Include bracketed language if there are either multiple Assignors or multiple Assignees. | |
5 | Include all applicable subfacilities, if any. |
1. | Assignor[s]: | |||||
2. | Assignee[s]: | |||||
[for each Assignee, indicate if [Affiliate][Approved Fund] of [identify Lender]] |
3. | Domestic Borrowers: Quiksilver Americas, Inc., as Lead Borrower, and the other Domestic Borrowers party to the Credit Agreement. | |
4. | Administrative Agent: Bank of America, N.A., as the Administrative Agent under the Credit Agreement. | |
5. | Credit Agreement: Credit Agreement dated as of July 31, 2009 (as amended, amended and restated, modified, supplemented or restated and in effect from time to time, the “Credit Agreement”) by and among,inter alia(i) Quiksilver Americas, Inc., as the Lead Borrower, (ii) Quiksilver Canada Corp., as the Canadian Borrower, (iii) the other Borrowers from time to time party thereto, (iv) the Guarantors from time to time party thereto, (v) the Lenders from time to time party thereto, (vi) Bank of America, N.A., as Administrative Agent, Co-Collateral Agent, Swing Line Lender, L/C Issuer, and Syndication Agent, (vii) General Electric Capital Corporation, as Co-Collateral Agent, and (viii) Bank of America, N.A. (acting through its Canada branch), as Canadian Agent. |
6. | Assigned Interest[s]: |
Amount of | Amount of | Percentage | ||||||||||||||||||||||||||
Assignor’s Domestic | Domestic | of Aggregate | Resulting Domestic | Resulting Domestic | ||||||||||||||||||||||||
Commitment | Commitment/Domestic | Domestic Commitment/ | Commitment/ | Commitment/ | ||||||||||||||||||||||||
/Domestic | Loans | Domestic Loans | Domestic Loans of | Domestic Loans of | CUSIP | |||||||||||||||||||||||
Assignor[s]6 | Assignee[s]7 | Loans | Assigned8 | Assigned9 | Assignor | Assignee | Number | |||||||||||||||||||||
$ | $ | % | $ | $ | ||||||||||||||||||||||||
$ | $ | % | $ | $ | ||||||||||||||||||||||||
$ | $ | % | $ | $ | ||||||||||||||||||||||||
6 | List each Assignor, as appropriate. | |
7 | List each Assignee, as appropriate. | |
8 | Subject to minimum amount requirements pursuant toSection 10.06(b)(i) of the Credit Agreement and subject to proportionate amount requirements pursuant toSection 10.06(b)(ii) of the Credit Agreement. | |
9 | Set forth, to at least 9 decimals, as a percentage of the Domestic Commitment/Domestic Loans of all Domestic Lenders thereunder. |
[7. | Trade Date: __________________]10 | |
Effective Date: ____________________, 20___[ TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.] | ||
The terms set forth in this Assignment and Assumption are hereby agreed to: |
ASSIGNOR [NAME OF ASSIGNOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
ASSIGNEE [NAME OF ASSIGNEE] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Administrative Agent
By: | ||||
Name: | ||||
Title: | ||||
10 | To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date. | |
11 | To the extent required underSection 10.06(b)(i)(B) orSection 10.06(b)(iii)(B) of the Credit Agreement. |
BANK OF AMERICA, N.A., as Swing Line Lender | ||||
By: | ||||
Name: | ||||
Title: | ||||
12 | To the extent required underSection 10.06(b)(iii)(D) of the Credit Agreement. |
BANK OF AMERICA, N.A., as L/C Issuer | ||||
By: | ||||
Name: | ||||
Title: | ||||
13 | To the extent required underSection 10.06(b)(iii)(C) of the Credit Agreement. |
QUIKSILVER AMERICAS, INC., as the Lead Borrower | ||||
By: | ||||
Name: | ||||
Title: | ||||
14 | To the extent required underSection 10.06(b)(i)(B) orSection 10.06(b)(iii)(A) of the Credit Agreement. |
1 | For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language. | |
2 | For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. | |
3 | Select as appropriate. | |
4 | Include bracketed language if there are either multiple Assignors or multiple Assignees. | |
5 | Include all applicable subfacilities, if any. |
1.Assignor[s]: | ||||
2.Assignee[s]: | ||||
[for each Assignee, indicate if [Affiliate][Approved Fund] of [identify Lender]] | ||
3. | Canadian Borrower: Quiksilver Canada Corp. | |
4. | Administrative Agent: Bank of America, N.A., as the Administrative Agent under the Credit Agreement. | |
5. | Canadian Agent: Bank of America, N.A. (acting through its Canada branch), as the Canadian Agent under the Credit Agreement. | |
6. | Credit Agreement: Credit Agreement dated as of July 31, 2009 (as amended, amended and restated, modified, supplemented or restated and in effect from time to time, the “Credit Agreement”) by and among,inter alia(i) Quiksilver Americas, Inc., as the Lead Borrower, (ii) Quiksilver Canada Corp., as the Canadian Borrower, (iii) the other Borrowers from time to time party thereto, (iv) the Guarantors from time to time party thereto, (v) the Lenders from time to time party thereto, (vi) Bank of America, N.A., as Administrative Agent, Co-Collateral Agent, Swing Line Lender, L/C Issuer, and Syndication Agent, (vii) General Electric Capital Corporation, as Co-Collateral Agent, and (viii) Bank of America, N.A. (acting through its Canada branch), as Canadian Agent. |
7. | Assigned Interest[s]: |
Amount of | Amount of | Percentage | Resulting Canadian | Resulting Canadian | ||||||||||
Assignor’s Canadian | Canadian | of Aggregate | Commitment/Canadian | Commitment/Canadian | ||||||||||
Commitment/ | Commitment/Canadian | Canadian Commitment/ | Loans of | Loans of | CUSIP | |||||||||
Assignor[s]6 | Assignee[s]7 | Canadian Loans | Loans Assigned8 | Canadian Loans Assigned9 | Assignor | Assignee | Number | |||||||
CD$___ | CD$___ | % | CD$___ | CD$___ | ||||||||||
CD$___ | CD$___ | % | CD$___ | CD$___ | ||||||||||
CD$___ | CD$___ | % | CD$___ | CD$___ |
[8. | Trade Date: ]10 |
ASSIGNOR [NAME OF ASSIGNOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
ASSIGNEE [NAME OF ASSIGNEE] | ||||
By: | ||||
Name: | ||||
Title: | ||||
6 | List each Assignor, as appropriate. | |
7 | List each Assignee, as appropriate. | |
8 | Subject to minimum amount requirements pursuant toSection 10.06(b)(i) of the Credit Agreement and subject to proportionate amount requirements pursuant toSection 10.06(b)(ii) of the Credit Agreement. | |
9 | Set forth, to at least 9 decimals, as a percentage of the Canadian Commitment/Canadian Loans of all Canadian Lenders thereunder. | |
10 | To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date. |
BANK OF AMERICA, N.A., as Administrative Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
11 | To the extent required underSection 10.06(b)(i)(B) orSection 10.06(b)(iii)(B) of the Credit Agreement. |
BANK OF AMERICA, N.A., as Swing Line Lender | ||||
By: | ||||
Name: | ||||
Title: | ||||
12 | To the extent required underSection 10.06(b)(iii)(D) of the Credit Agreement. |
BANK OF AMERICA, N.A., as L/C Issuer | ||||
By: | ||||
Name: | ||||
Title: | ||||
13 | To the extent required underSection 10.06(b)(iii)(C) of the Credit Agreement. |
QUIKSILVER AMERICAS, INC., as the Lead Borrower | ||||
By: | ||||
Name: | ||||
Title: | ||||
14 | To the extent required underSection 10.06(b)(i)(B) orSection 10.06(b)(iii)(A) of the Credit Agreement. |
1
1. | Joinder and Assumption of Obligations. Effective as of the date of this Joinder, the New [Borrower/Guarantor] hereby acknowledges that the New [Borrower/Guarantor] has received and reviewed a copy of the Credit Agreement, and hereby: |
(a) | joins in the execution of, and becomes a party to, the Credit Agreement as a [Domestic Borrower/Guarantor] thereunder, as indicated with its signature below; | ||
(b) | covenants and agrees to be bound by all covenants, agreements, liabilities and acknowledgments of a [Domestic Borrower/Guarantor] under the Credit Agreement as of the date hereof (other than covenants, agreements, liabilities and acknowledgments that relate solely to an earlier date), in each case, with the same force and effect as if such New [Borrower/Guarantor] was a signatory to the Credit Agreement and was expressly named as a [Domestic Borrower/Guarantor] therein; | ||
(c) | makes all representations, warranties, and other statements of a [Domestic Borrower/Guarantor] under the Credit Agreement as of the date hereof (other than representations, warranties and other statements that relate solely to an earlier date), in each case, with the same force and effect as if such New [Borrower/Guarantor] was a signatory to the Credit Agreement and was expressly named as a [Domestic Borrower/Guarantor] therein; and | ||
(d) | assumes and agrees to perform all applicable duties and obligations of the Existing Domestic [Borrowers/Guarantor] under the Credit Agreement. |
2. | Supplemental Schedules. To the extent that any representations, warranties, and covenants of the New [Borrower/Guarantor] require any amendments to the schedules to the Credit Agreement or any of the other Loan Documents, such schedules are hereby updated, as evidenced by any supplemental schedules (if any) annexed to this Joinder. |
2
3. | Ratification of Loan Documents. Except as specifically amended by this Joinder and the other documents executed and delivered in connection herewith, all of the terms and conditions of the Credit Agreement and of the other Loan Documents shall remain in full force and effect as in effect prior to the date hereof,without releasing any Loan Party thereunder or Collateral therefor. | |
4. | Conditions Precedent to Effectiveness. This Joinder shall not be effective until each of the following conditions precedent has been fulfilled to the reasonable satisfaction of the Agents: |
(a) | This Joinder shall have been duly executed and delivered by the respective parties hereto. | ||
(b) | The New [Borrower/Guarantor] shall have delivered the following to the Administrative Agent, in form and substance reasonably satisfactory to the Agents: |
(i) | Copies of the New [Borrower’s/Guarantor’s] Organization Documents. | ||
(ii) | Certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the New [Borrower/Guarantor] evidencing (A) the authority of the New [Borrower/Guarantor] to enter into this Joinder and the other Loan Documents to which New [Borrower/Guarantor] is a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Joinder and the other Loan Documents to which New [Borrower/Guarantor] is a party. | ||
(iii) | Certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from the New [Borrower/Guarantor]’s jurisdiction of organization. | ||
(iv) | Certificates of good standing (where applicable or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from each jurisdiction where the New [Borrower’s/Guarantor’s] ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not be reasonably expected to have a Material Adverse Effect. | ||
(v) | Execution and delivery by the New [Borrower/Guarantor] of the following Loan Documents: |
3
a) | [In the case of a New Borrower, Joinders to the Domestic Note and the Domestic Swing Line Note, as applicable]; | ||
b) | [Joinder Agreement to the Security Agreement]; | ||
c) | [If the New [Borrower/Guarantor] maintains Blocked Account(s), Blocked Account Agreement(s) with _________]; | ||
d) | [In the case of a New Guarantor, a Facility Guaranty]; and | ||
e) | To the extent required by the Loan Documents, such other documents and agreements as any of the Agents may reasonably require. |
(c) | Upon the request of Administrative Agent, the Administrative Agent shall have received a customary written legal opinion of the New [Borrower/Guarantor]’s counsel, addressed to the Administrative Agent and each Domestic Lender, covering such matters relating to the New [Borrower/Guarantor], the Loan Documents and/or the transactions contemplated thereby as the Administrative Agent may reasonably request. | ||
(d) | To the extent required by the Loan Documents, the Administrative Agent shall have received all documents and instruments, including UCC financing statements and Blocked Account Agreements, required by applicable Laws or reasonably requested by any Agent to create or perfect the Liens intended to be created under any Security Document and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agents. | ||
(e) | The New [Borrower/Guarantor] shall have paid in full all reasonable fees and documented out-of-pocket expenses incurred by the Agents (including, without limitation, the reasonable and documented fees and expenses of counsel to the Agents) in connection with the preparation, negotiation, execution and delivery of this Joinder and related documents. |
5. | Miscellaneous. |
(a) | This Joinder may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, and all of which together shall constitute one instrument. | ||
(b) | This Joinder and the other Loan Documents and instruments referred to herein express the entire understanding of the parties with respect to the transactions contemplated hereby. No prior negotiations or discussions shall limit, modify, or otherwise affect the provisions hereof. |
4
(c) | Any determination that any provision of this Joinder or any application hereof is invalid, illegal or unenforceable in any respect and in any instance shall not affect the validity, legality, or enforceability of such provision in any other instance, or the validity, legality or enforceability of any other provisions of this Joinder. | ||
(d) | The New [Borrower/Guarantor] warrants and represents that the New [Borrower/Guarantor] is not relying on any representations or warranties of any Agent or the other Credit Parties or their counsel in entering into this Joinder. | ||
(e) | THIS JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. |
5
NEW [BORROWER/GUARANTOR]: [ ] | ||||
By: | ||||
Name: | ||||
Title: | ||||
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A. | ||||
By: | ||||
Name: | ||||
Title: | ||||
Acknowledged and Agreed: | ||||
EXISTING DOMESTIC BORROWERS: | ||||
QUIKSILVER AMERICAS, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: | ||||
DC SHOES, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: | ||||
HAWK DESIGNS, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: | ||||
MERVIN MANUFACTURING, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: | ||||
QS WHOLESALE, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: | ||||
QS RETAIL, INC., a California corporation | ||||
By: | ||||
Name: | ||||
Title: | ||||
EXISTING DOMESTIC GUARANTOR: | ||||
QUIKSILVER, INC., a Delaware corporation | ||||
By: | ||||
Name: | ||||
Title: | ||||
1
1. | Joinder and Assumption of Obligations. Effective as of the date of this Joinder, the New [Borrower/Guarantor] hereby acknowledges that the New [Borrower/Guarantor] has received and reviewed a copy of the Credit Agreement, and hereby: |
(a) | joins in the execution of, and becomes a party to, the Credit Agreement as a [Canadian Borrower/Guarantor] thereunder, as indicated with its signature below; | ||
(b) | covenants and agrees to be bound by all covenants, agreements, liabilities and acknowledgments of a [Canadian Borrower/Guarantor] under the Credit Agreement as of the date hereof (other than covenants, agreements, liabilities and acknowledgments that relate solely to an earlier date), in each case, with the same force and effect as if such New [Borrower/Guarantor] was a signatory to the Credit Agreement and was expressly named as a [Canadian Borrower/Guarantor] therein; | ||
(c) | makes all representations, warranties, and other statements of a [Canadian Borrower/Guarantor] under the Credit Agreement as of the date hereof (other than representations, warranties and other statements that relate solely to an earlier date), in each case, with the same force and effect as if such New [Borrower/Guarantor] was a signatory to the Credit Agreement and was expressly named as a [Canadian Borrower/Guarantor] therein; and | ||
(d) | assumes and agrees to perform all applicable duties and obligations of the Existing Canadian [Borrowers/Guarantor] or under the Credit Agreement. |
2. | Supplemental Schedules. To the extent that any representations, warranties, and covenants of the New [Borrower/Guarantor] require any amendments to the schedules to the Credit Agreement or any of the other Loan Documents, such schedules are hereby updated, as evidenced by any supplemental schedules (if any) annexed to this Joinder. |
2
3. | Ratification of Loan Documents. Except as specifically amended by this Joinder and the other documents executed and delivered in connection herewith, all of the terms and conditions of the Credit Agreement and of the other Loan Documents shall remain in full force and effect as in effect prior to the date hereof,without releasing any Loan Party thereunder or Collateral therefor. | |
4. | Conditions Precedent to Effectiveness. This Joinder shall not be effective until each of the following conditions precedent has been fulfilled to the reasonable satisfaction of the Canadian Agent and the Agents: |
(a) | This Joinder shall have been duly executed and delivered by the respective parties hereto. | ||
(b) | The New [Borrower/Guarantor] shall have delivered the following to the Canadian Agent, in form and substance reasonably satisfactory to the Canadian Agent and the Agents: |
(i) | Copies of the New [Borrower’s/Guarantor’s] Organization Documents. | ||
(ii) | Certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the New [Borrower/Guarantor] evidencing (A) the authority of the New [Borrower/Guarantor] to enter into this Joinder and the other Loan Documents to which New [Borrower/Guarantor] is a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Joinder and the other Loan Documents to which New [Borrower/Guarantor] is a party. | ||
(iii) | Certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from the New [Borrower/Guarantor]’s jurisdiction of organization. | ||
(iv) | Certificates of good standing (where applicable or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from each jurisdiction where the New [Borrower’s/Guarantor’s] ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not be reasonably expected to have a Material Adverse Effect. | ||
(v) | A Perfection Certificate. |
3
(vi) | Execution and delivery by the New [Borrower/Guarantor] of the following Loan Documents: |
a) | [In the case of a New Borrower, Joinders to the Canadian Note and the Canadian Swing Line Note, as applicable]; | ||
b) | [A General Security Agreement, Deed of Hypothec (if applicable) and each of the other Canadian Security Documents]; | ||
c) | [If the New [Borrower/Guarantor] maintains Blocked Account(s), Blocked Account Agreement(s) with ]; | ||
d) | [In the case of a New Guarantor, a Facility Guaranty]; and | ||
e) | To the extent required by the Loan Documents, such other documents and agreements as the Canadian Agent or any of the Agents may reasonably require. |
(c) | Upon the request of the Canadian Agent, the Canadian Agent shall have received a customary written legal opinion of the New [Borrower/Guarantor]’s Canadian counsel, addressed to the Canadian Agent and each Canadian Lender, covering such matters relating to the New [Borrower/Guarantor], the Loan Documents and/or the transactions contemplated thereby as the Canadian Agent may reasonably request. | ||
(d) | To the extent required by the Loan Documents, the Canadian Agent shall have received all documents and instruments, including PPSA financing statements and other like filings and Blocked Account Agreements, required by applicable Laws or reasonably requested by the Canadian Agent or any Agent to create or perfect the Liens intended to be created under any Canadian Security Document and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Canadian Agent and the Agents. | ||
(e) | The New [Borrower/Guarantor] shall have paid in full all reasonable fees and documented out-of-pocket expenses incurred by the Canadian Agent and the Agents (including, without limitation, the reasonable and documented fees and expenses of counsel to the Canadian Agent and the Agents) in connection with the preparation, negotiation, execution and delivery of this Joinder and related documents. |
5. | Miscellaneous. |
4
(a) | This Joinder may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, and all of which together shall constitute one instrument. | ||
(b) | This Joinder and the other Loan Documents and instruments referred to herein express the entire understanding of the parties with respect to the transactions contemplated hereby. No prior negotiations or discussions shall limit, modify, or otherwise affect the provisions hereof. | ||
(c) | Any determination that any provision of this Joinder or any application hereof is invalid, illegal or unenforceable in any respect and in any instance shall not affect the validity, legality, or enforceability of such provision in any other instance, or the validity, legality or enforceability of any other provisions of this Joinder. | ||
(d) | The New [Borrower/Guarantor] warrants and represents that the New [Borrower/Guarantor] is not relying on any representations or warranties of any Agent or the other Credit Parties or their counsel in entering into this Joinder. | ||
(e) | THIS JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. |
5
NEW [BORROWER/GUARANTOR]: [ ] | ||||
By: | ||||
Name: | ||||
Title: | ||||
CANADIAN AGENT: BANK OF AMERICA, N.A. (acting through its Canada branch) | ||||
By: | ||||
Name: | ||||
Title: | ||||
QUIKSILVER CANADA CORP., a Nova Scotia unlimited liability company | ||||
By: | ||||
Name: | ||||
Title: | ||||
unlimited liability company
By: | ||||
Name: | ||||
Title: | ||||
Quiksilver Americas, Inc. | Certificate No. | |||
U.S. Borrowing Base Certificate | Certificate Date | |||
A/R as of: | Quiksilver | DC Shoes | QS Retail | Total US | ||||||||||||||||||||
lnventory as of: | US | US | US | Mervin | Company | |||||||||||||||||||
Trade accounts receivable per aging | — | |||||||||||||||||||||||
Less ineligibles: | ||||||||||||||||||||||||
Accounts > 60 days past due date | — | |||||||||||||||||||||||
Accounts > 90 days past invoice date | — | |||||||||||||||||||||||
Addback: extended terms 90-120 days past invoice | — | |||||||||||||||||||||||
Credit balances > 60 days past due date | — | |||||||||||||||||||||||
Credit balances > 90 days past invoice date | — | |||||||||||||||||||||||
Cross-age (50%) | — | |||||||||||||||||||||||
Foreign accounts | — | |||||||||||||||||||||||
Government accounts | — | |||||||||||||||||||||||
Intercompany accounts | — | |||||||||||||||||||||||
Employee accounts/Promo | — | |||||||||||||||||||||||
Accounts due from bankrupt customers | — | |||||||||||||||||||||||
Chargebacks | — | |||||||||||||||||||||||
Finance charges / interest charges | — | |||||||||||||||||||||||
Unapplied cash | — | |||||||||||||||||||||||
Contra accounts | — | |||||||||||||||||||||||
Credit memo lag reserve | — | |||||||||||||||||||||||
Excess concentration (15%) | — | |||||||||||||||||||||||
Total ineligibles | — | — | — | — | — | |||||||||||||||||||
Eligible trade accounts receivable | — | — | — | — | — | |||||||||||||||||||
Advance rate | ||||||||||||||||||||||||
Trade Accounts Receivable Availability | — | — | — | — | — | |||||||||||||||||||
Third party credit card receivables | — | |||||||||||||||||||||||
Less ineligibles | ||||||||||||||||||||||||
Amounts outstanding > 5 business days. | — | |||||||||||||||||||||||
DC Shoes credit card receivables | — | |||||||||||||||||||||||
Total ineligibles | — | |||||||||||||||||||||||
Eligible credit card receivables | — | |||||||||||||||||||||||
Advance Rate | ||||||||||||||||||||||||
Credit Card Receivable Availability | — | — | — | — | — | |||||||||||||||||||
Finished goods inventory per perpetual at cost | — | |||||||||||||||||||||||
Raw materials | — | |||||||||||||||||||||||
Less ineligibles | ||||||||||||||||||||||||
Irregulars / seconds (season “W”) | — | |||||||||||||||||||||||
Off-price styles (season “O”) | — | |||||||||||||||||||||||
Displays / brochures (product code “PP” / POP warehouse) | — | |||||||||||||||||||||||
Drop ship — QDS warehouse | — | |||||||||||||||||||||||
Virtual warehouse inventory (Hawaii and other) | — | |||||||||||||||||||||||
Inventory in foreign location (Hong Kong warehouse) | — | |||||||||||||||||||||||
Raw materials — fabric & trim | — | |||||||||||||||||||||||
Raw materials — specialty (season “Y”) | — | |||||||||||||||||||||||
Raw materials — Mervin | — | |||||||||||||||||||||||
Work in process inventory | — | |||||||||||||||||||||||
Goods at outside processors (including blank t-shirts) | — | |||||||||||||||||||||||
In-transit between stores & from warehouse to stores | — | |||||||||||||||||||||||
Supplies and packaging | — | |||||||||||||||||||||||
Samples | — | |||||||||||||||||||||||
Unreconciled variance (if perpetual is greater than G/L) | — | Retail Sales Since Last Physical Adj. | ||||||||||||||||||||||
Shrink | — | |||||||||||||||||||||||
Test count variance reserve | — | |||||||||||||||||||||||
Total ineligibles | — | — | — | — | — | |||||||||||||||||||
Eligible inventory | — | — | — | — | — | |||||||||||||||||||
Appraised NOLV | ||||||||||||||||||||||||
Advance Rate (85% x NOLV) | ||||||||||||||||||||||||
lnventory Availability | — | — | — | — | — | |||||||||||||||||||
Eligible import in-transit inventory | — | |||||||||||||||||||||||
Eligible import LIC inventory | — | |||||||||||||||||||||||
Appraised NOLV | ||||||||||||||||||||||||
Advance Rate (85% x NOLV) | ||||||||||||||||||||||||
In-transit and L/C Inventory Availability | — | — | — | — | — | |||||||||||||||||||
Total Available Collateral Before Reserves | — | — | — | — | — | |||||||||||||||||||
Less availability reserves: | ||||||||||||||||||||||||
Dilution reserve | — | — | — | — | — | |||||||||||||||||||
Gift certificates and merchandise credits (50%) | — | |||||||||||||||||||||||
Customer deposits (100%) | — | |||||||||||||||||||||||
Rent reserve (2 months rent in PA, VA and WA) | — | |||||||||||||||||||||||
Self funded insurance (avg monthly claims paid) | — | |||||||||||||||||||||||
Accrued royalties | ||||||||||||||||||||||||
In-transit short shipment reserve (5%) | — | |||||||||||||||||||||||
Landing costs (26% of eligible imports in-transit) | — | |||||||||||||||||||||||
Total availability reserves | — | — | — | — | — | |||||||||||||||||||
Total Domestic Borrowing Base (capped at $185MM) | — | — | — | — | — | |||||||||||||||||||
U.S. Borrowing Base Certificate
Availability Calculation | As of: | |||
Total Domestic Borrowing Base | — | |||
Beginning Principal Balance | — | |||
Add: Prior Day Advance | ||||
Add: Fees Charged Today | ||||
Less: Prior Day Pay Down | ||||
Ending Principal Balance | — | |||
Add: Standby Letters of Credit | ||||
Add: Documentary Letter of Credit | ||||
Total Obligations Prior to Today’s Advance Request | — | |||
Total Availability Prior to Advance Request | ||||
Pay Down Amount | ||||
Advance Request | ||||
Excess Availability | — | |||
Authorized Signer: | |||
Name: | |||
Title: | |||
Lead Borrower: | |||
Quiksilver Americas, Inc. | Exchange Rate as of Certificate Date | Certificate No. | ||
Canadian Borrowing Base Certificate | Certificate Date |
A/R as of: 6/30/09 | Quiksilver | DC Shoes | QS Retail | Total Canadian | US Dollar | |||||||||||||||||||
Inventory as of: 6/30/09 | Canada (CAD) | Canada (CAD) | Canada (CAD) | Company (CAD) | Equivalent | |||||||||||||||||||
Trade accounts receivable per aging | — | |||||||||||||||||||||||
Less ineligibles: | ||||||||||||||||||||||||
Accounts > 60 days past due date | — | |||||||||||||||||||||||
Accounts > 90 days past invoice date | — | |||||||||||||||||||||||
Addback: extended terms 90-120 days past invoice | — | |||||||||||||||||||||||
Credit balances > 60 days past due date | ||||||||||||||||||||||||
Credit balances > 90 days past invoice date | ||||||||||||||||||||||||
Cross-age (50%) | ||||||||||||||||||||||||
Foreign accounts | ||||||||||||||||||||||||
Government accounts | ||||||||||||||||||||||||
Intercompany accounts | ||||||||||||||||||||||||
Employee accounts/Promo | ||||||||||||||||||||||||
Accounts due from bankrupt customers | ||||||||||||||||||||||||
Chargebacks | ||||||||||||||||||||||||
Finance charges / interest charges | ||||||||||||||||||||||||
Unapplied cash | ||||||||||||||||||||||||
Contra accounts | ||||||||||||||||||||||||
Excess concentration (15%) | ||||||||||||||||||||||||
Total ineligibles | — | — | — | — | ||||||||||||||||||||
Eligible trade accounts receivable | — | — | — | — | ||||||||||||||||||||
Advance rate | ||||||||||||||||||||||||
Trade Accounts Receivable Availability | — | — | — | — | ||||||||||||||||||||
Third party credit card receivables | — | |||||||||||||||||||||||
Less ineligibles: | ||||||||||||||||||||||||
Amounts outstanding >5 days | — | |||||||||||||||||||||||
DC Shoes credit card receivables | — | |||||||||||||||||||||||
Total ineligibles | — | — | — | — | ||||||||||||||||||||
Eligible credit card receivables | — | — | — | — | ||||||||||||||||||||
Advance Rate | ||||||||||||||||||||||||
Credit Card Receivable Availability | — | — | — | — | ||||||||||||||||||||
Finished goods inventory per perpetual at cost | — | |||||||||||||||||||||||
Raw materials | — | |||||||||||||||||||||||
Less ineligibles: | ||||||||||||||||||||||||
Irregulars / seconds (season “W”) | ||||||||||||||||||||||||
Off-price styles (season “O”) | — | |||||||||||||||||||||||
Displays/brochures (product code “PP” / POP warehouse) | — | |||||||||||||||||||||||
Drop ship — QDS warehouse | — | |||||||||||||||||||||||
Virtual warehouse inventory (Hawaii and other) | — | |||||||||||||||||||||||
Inventory in foreign location (Hong Kong warehouse) | — | |||||||||||||||||||||||
Raw materials — fabric & trim | — | |||||||||||||||||||||||
Raw materials — specialty (season“Y”) | — | |||||||||||||||||||||||
Raw materials — Mervin | — | |||||||||||||||||||||||
Work in process inventory | — | |||||||||||||||||||||||
Goods at outside processors (including blank t-shirts) | — | |||||||||||||||||||||||
In-transit between stores & from warehouse to stores | — | |||||||||||||||||||||||
Supplies and packaging | — | |||||||||||||||||||||||
Samples | — | |||||||||||||||||||||||
Unreconciled variance (if perpetual is greater than G/L) | — | Retail Sales Since Last Physical Adj. | ||||||||||||||||||||||
Shrink | — | |||||||||||||||||||||||
Test count variance reserve | — | |||||||||||||||||||||||
Total ineligibles | — | — | — | — | ||||||||||||||||||||
Eligible inventory | — | — | — | — | ||||||||||||||||||||
Appraised NOLV | ||||||||||||||||||||||||
Advance Rate (85% x NOLV) | ||||||||||||||||||||||||
Inventory Availability | ||||||||||||||||||||||||
Eligible import in-transit inventory | — | |||||||||||||||||||||||
Eligible import L/C inventory | — | |||||||||||||||||||||||
Appraised NOLV | ||||||||||||||||||||||||
Advance Rate (85% x NOLV) | ||||||||||||||||||||||||
In-Transit and L/C Inventory Availability | ||||||||||||||||||||||||
Total Available Collateral Before Reserves | — | — | — | — | ||||||||||||||||||||
Less availability reserves: | ||||||||||||||||||||||||
Dilution reserve | — | — | — | — | ||||||||||||||||||||
Gift certificates and merchandise credits (50%) | ||||||||||||||||||||||||
Customer deposits (100%) | — | |||||||||||||||||||||||
GST tax reserve | — | |||||||||||||||||||||||
PST/QST tax reserve | — | |||||||||||||||||||||||
Payroll-related taxes and income taxes — Canada | — | |||||||||||||||||||||||
In-transit short shipment reserve (5%) | — | |||||||||||||||||||||||
Landing costs (26% of eligible imports in-transit) | — | |||||||||||||||||||||||
Total availability reserves | — | — | — | — | ||||||||||||||||||||
Total Canadian Borrowing Base | — | — | — | — | ||||||||||||||||||||
Total Canadian Line Limit | — | 15,000,000 | ||||||||||||||||||||||
Amount Available to Borrow — Lesser of Borrowing Base and Line Limit | — | |||||||||||||||||||||||
Quiksilver Americas, Inc. | Exchange Rate as of Certificate Date | Certificate No. | ||
Canadian Borrowing Base Certificate | Certificate Date |
A/R as of: 6/30/09 | Quiksilver | DC Shoes | QS Retail | Total Canadian | US Dollar | |||||||||||||||||||
Inventory as of: 6/30/09 | Canada (CAD) | Canada (CAD) | Canada (CAD) | Company (CAD) | Equivalent | |||||||||||||||||||
Trade accounts receivable per aging | — | |||||||||||||||||||||||
Less Ineligibles: | ||||||||||||||||||||||||
Accounts > 60 days past due date | — | |||||||||||||||||||||||
Accounts > 90 days past invoice date | — | |||||||||||||||||||||||
Addback: extended terms 90-120 days past invoice | — | |||||||||||||||||||||||
Credit balances > 60 days past due date | ||||||||||||||||||||||||
Credit balances > 90 days past invoice date | ||||||||||||||||||||||||
Cross-age (50%) | ||||||||||||||||||||||||
Foreign accounts | ||||||||||||||||||||||||
Government accounts | ||||||||||||||||||||||||
Intercompany accounts | ||||||||||||||||||||||||
Employee accounts/Promo | ||||||||||||||||||||||||
Accounts due from bankrupt customers | ||||||||||||||||||||||||
Chargebacks | ||||||||||||||||||||||||
Finance charges / interest charges | ||||||||||||||||||||||||
Unapplied cash | ||||||||||||||||||||||||
Contra accounts | ||||||||||||||||||||||||
Excess concentration (15%) | ||||||||||||||||||||||||
Total ineligibles | — | — | — | — | ||||||||||||||||||||
Eligible trade accounts receivable | — | — | — | — | ||||||||||||||||||||
Advance rate | ||||||||||||||||||||||||
Trade Accounts Receivable Availability | — | — | — | — | ||||||||||||||||||||
Third party credit card receivables | — | |||||||||||||||||||||||
Less ineligibles: | ||||||||||||||||||||||||
Amounts outstanding > 5 days | — | |||||||||||||||||||||||
DC Shoes credit card receivables | — | |||||||||||||||||||||||
Total ineligibles | — | — | — | — | ||||||||||||||||||||
Eligible credit card receivables | — | — | — | — | ||||||||||||||||||||
Advance Rate | ||||||||||||||||||||||||
Credit Card Receivable Availability | — | — | — | — | ||||||||||||||||||||
Finished goods inventory per perpetual at cost | — | |||||||||||||||||||||||
Raw materials | — | |||||||||||||||||||||||
Less ineligibles: | — | |||||||||||||||||||||||
Irregulars / seconds (season “W”) | — | |||||||||||||||||||||||
Off-price styles (season “O”) | — | |||||||||||||||||||||||
Displays / brochures (product code “ PP” / POP warehouse) | — | |||||||||||||||||||||||
Drop ship — QDS warehouse | — | |||||||||||||||||||||||
Virtual warehouse inventory (Hawaii and other) | — | |||||||||||||||||||||||
Inventory in foreign location (Hong Kong warehouse) | — | |||||||||||||||||||||||
Raw materials — fabric & trim | — | |||||||||||||||||||||||
Raw materials — specialty (season “Y”) | — | |||||||||||||||||||||||
Raw materials — Mervin | — | |||||||||||||||||||||||
Work in process inventory | — | |||||||||||||||||||||||
Goods at outside processors (including blank t-shirts) | — | |||||||||||||||||||||||
In-transit between stores & from warehouse to stores | — | |||||||||||||||||||||||
Supplies and packaging | — | |||||||||||||||||||||||
Samples | — | |||||||||||||||||||||||
Unreconciled variance (if perpetual is greater than G/L) | — | Retail Sales Since Last Physical Adj. | ||||||||||||||||||||||
Shrink | — | |||||||||||||||||||||||
Test count variance reserve | — | |||||||||||||||||||||||
Total ineligibles | — | — | — | — | ||||||||||||||||||||
Eligible inventory | — | — | — | — | ||||||||||||||||||||
Appraised NOLV | ||||||||||||||||||||||||
Advance Rate (85% x NOLV) | ||||||||||||||||||||||||
Inventory Availability | ||||||||||||||||||||||||
Eligible import in-transit inventory | — | |||||||||||||||||||||||
Eligible import L/C inventory | — | |||||||||||||||||||||||
Appraised NOLV | ||||||||||||||||||||||||
Advance Rate (85% x NOLV) | ||||||||||||||||||||||||
In-Transit and L/C Inventory Availability | ||||||||||||||||||||||||
Total Available Collateral Before Reserves | — | — | — | — | ||||||||||||||||||||
Less availablity reserves: | ||||||||||||||||||||||||
Dilution reserve | — | — | — | — | ||||||||||||||||||||
Gift certificates and merchandise credits (50%) | — | |||||||||||||||||||||||
Customer deposits (100%) | — | |||||||||||||||||||||||
GST tax reserve | — | |||||||||||||||||||||||
PST/QST tax reserve | — | |||||||||||||||||||||||
Payroll-related taxes and income taxes — Canada | — | |||||||||||||||||||||||
In-transit short shipment reserve (5%) | — | |||||||||||||||||||||||
Landing costs (26% of eligible imports in-transit) | — | |||||||||||||||||||||||
Total availability reserves | — | — | — | — | ||||||||||||||||||||
Total Canadian Borrowing Base | — | — | — | — | ||||||||||||||||||||
Total Canadian Line Limit | — | 15,000,000 | ||||||||||||||||||||||
Amount Available to Borrow-Lesser of Borrowing Base and Line Limit | — | |||||||||||||||||||||||
Quiksilver Americas, Inc. | ||
Canadian Borrowing Base Certificate | Exchange Rate as of Certificate Date |
As of: | ||||||||
Availability Calculation | CAD | USD | ||||||
Total Canadian Borrowing Base | — | |||||||
Beginning Principal Balance | ||||||||
Add: Prior Day Advance | ||||||||
Add: Fees Charged Today | ||||||||
Less: Prior Day Pay Down | ||||||||
Ending Principal Balance | — | |||||||
Add: Standby Letters of Credit | ||||||||
Add: Documentary Letter of Credit | ||||||||
Total Obligations Prior to Today’s Advance Request | — | |||||||
Total Availability Prior to Advance Request | — | |||||||
Pay Down Amount | �� | |||||||
Advance Request | ||||||||
Excess Availability | — | |||||||
Authorized Signer: | |||
Name: | |||
Title: | |||
Lead Borrower: | |||
To: | [First Data Corporation] [6200 South Quebec St. Greenwood Village, CO 80111] (the “Processor”)1 |
Re: | [QS Retail, Inc.] Merchant Account Number: |
1 | The identity of the Processor should be changed to the appropriate Processor as necessary. | |
2 | The identity of the Borrower should be changed to the appropriate Borrower as necessary. |
1
(a) | By ACH, Depository Transfer Check, or Electronic Depository Transfer to: |
ABA #[ ]
Account Name: [ ]
Account No.
(b) | As the Processor may be otherwise instructed from time to time in writing by an officer of the Administrative Agent. |
100 Federal Street, 9th Floor
Boston, Massachusetts 02110
Attention: Stephen J. Garvin, Managing Director
Re: Quiksilver
2
Very truly yours, [QS RETAIL, INC.] | ||||
By: | ||||
Name: | ||||
Title: | ||||
3
1. | To the best of the Landlord’s knowledge, the Tenant is not in default under the terms of its lease of the Leased Premises. |
1 | The identity of the Tenant should be changed to the appropriate Loan Party as necessary. |
1
2. | The Landlord hereby waives and releases in favor of the Administrative Agent and the Credit Parties: (a) any and all rights of distraint, levy, and execution which the Landlord may now or hereafter have against the Collateral; (b) any and all statutory liens, security interests, or other liens which the Landlord may now or hereafter have in the Collateral; and (c) any and all other interests or claims of every nature whatsoever which the Landlord may now or hereafter have in or against the Collateral for any rent, storage charges, or other sums due, or to become due, to the Landlord by the Tenant. The Landlord agrees not to exercise any of the Landlord’s rights, remedies, powers, privileges, or discretions with respect to the Collateral, or the Landlord’s liens or security interests in the Collateral, unless and until the Landlord receives written notice from an officer of the Administrative Agent that the Tenant’s obligations to the Administrative Agent and the Credit Parties have been paid in full, and that the commitment of the Administrative Agent and the Credit Parties to make loans or furnish other financial accommodations to the Tenant has been terminated. The foregoing waiver is for the benefit of the Administrative Agent and the Credit Parties only and does not affect the obligations of the Tenant to the Landlord. | |
3. | In the event of the exercise by the Administrative Agent of its rights upon default with respect to the Collateral, the Administrative Agent shall have a reasonable time in which to repossess and/or dispose of the Collateral from the Leased Premises;provided,however, that such period will be tolled during any period in which the Administrative Agent has been stayed from taking action to remove the Collateral in any bankruptcy, insolvency or similar proceeding, and the Administrative Agent shall have an additional period of time thereafter in which to repossess and/or dispose of the Collateral from the Leased Premises. In those circumstances, the Landlord will, upon reasonable prior written notice from the Administrative Agent, (a) cooperate with the Administrative Agent in gaining access to the Leased Premises for the purpose of repossessing said Collateral and (b) if requested by the Administrative Agent, permit the Administrative Agent, or its agents or nominees, to dispose of the Collateral on the Leased Premises in a manner reasonably designed to minimize any interference with any of the Landlord’s other tenants at the Leased Premises. The Administrative Agent shall promptly repair, at the Administrative Agent’s expense, any physical damage to the Leased Premises actually caused by removal of the Collateral, but shall not be liable for any diminution in value of the Leased Premises caused by the removal or absence of the Collateral. | |
4. | To the extent not paid or prepaid by the Tenant, the Administrative Agent shall pay the Landlord a sum for its use and occupancy of the Leased Premises on a per diem basis in an amount equal to the monthly base rent required to be paid by the Tenant under the lease between the Landlord and the Tenant from the date on which the Administrative Agent shall have taken possession of the Collateral on the Leased Premises until the date on which the Administrative Agent vacates the Leased Premises,it being understood, however, that the Administrative Agent shall not, thereby, have assumed any of the obligations of the Tenant to the Landlord, including, without limitation, any obligation to pay any past due rent owing by the Tenant. |
2
5. | Prior to the Landlord’s terminating its lease with the Tenant or evicting the Tenant from the Leased Premises for breach of the lease, the Landlord shall give the Administrative Agent not less than sixty (60) days written notice of such action at the address set forth below, and a reasonable opportunity to preserve, protect, liquidate, or remove any Collateral on the Leased Premises and, if the Administrative Agent so elects, to cure such breach of the lease. Notwithstanding the provisions of this paragraph, the Administrative Agent shall have no obligation to cure any such breach or default. The cure of any such breach or default by the Administrative Agent on any one occasion shall not obligate the Administrative Agent to cure any other breach or default or to cure such default on any other occasion. | |
6. | All notices under this waiver shall be made to the following addresses by recognized overnight courier, by hand delivery or by facsimile transmission: |
100 Federal Street, 9th Floor
Boston, Massachusetts 02110
Attention: Stephen J. Garvin, Managing Director
Re: Quiksilver
7. | This waiver shall inure to the benefit of the Administrative Agent and each of the Credit Parties, and their respective successors and assigns, and shall be binding upon the Landlord, its heirs, assigns, representatives, and successors. | |
8. | This waiver may not be amended or waived except by an instrument in writing signed by the Administrative Agent, the Landlord, and the Tenant. This waiver shall be governed by, and construed in accordance with, the laws of the State of New York. Delivery of an executed signature page of this waiver by facsimile transmission shall be binding on the Landlord as if the original of such facsimile had been delivered to the Administrative Agent. |
3
LANDLORD: | ||||
By: | ||||
Name: | ||||
Title: | ||||
Form of Collateral Access Agreement (Canadian Loan Parties)
1. | To the best of the Landlord’s knowledge, the Tenant is not in default under the terms of its lease of the Leased Premises. | |
2. | The Landlord hereby waives and releases in favor of the Agent and the Credit Parties: (a) any and all rights of distraint, levy, and execution which the Landlord may now or hereafter have against the Collateral; (b) any and all statutory liens, security interests, or |
1 | The identity of the Tenant should be changed to the appropriate Loan Party as necessary. |
1
other liens which the Landlord may now or hereafter have in the Collateral; and (c) any and all other interests or claims of every nature whatsoever which the Landlord may now or hereafter have in or against the Collateral for any rent, storage charges, or other sums due, or to become due, to the Landlord by the Tenant. The Landlord agrees not to exercise any of the Landlord’s rights, remedies, powers, privileges, or discretions with respect to the Collateral, or the Landlord’s liens or security interests in the Collateral, unless and until the Landlord receives written notice from an officer of the Agent that the Tenant’s obligations to the Agent and the Credit Parties have been paid in full, and that the commitment of the Agent and the Credit Parties to make loans or furnish other financial accommodations to the Tenant has been terminated. The foregoing waiver is for the benefit of the Agent and the Credit Parties only and does not affect the obligations of the Tenant to the Landlord. | ||
3. | In the event of the exercise by the Agent of its rights upon default with respect to the Collateral, the Agent shall have a reasonable time in which to repossess and/or dispose of the Collateral from the Leased Premises;provided,however, that such period will be tolled during any period in which the Agent has been stayed from taking action to remove the Collateral in any bankruptcy, insolvency or similar proceeding, and the Agent shall have an additional period of time thereafter in which to repossess and/or dispose of the Collateral from the Leased Premises. In those circumstances, the Landlord will, upon reasonable prior written notice from the Agent, (a) cooperate with the Agent in gaining access to the Leased Premises for the purpose of repossessing said Collateral and (b) if requested by the Agent, permit the Agent, or its agents or nominees, to dispose of the Collateral on the Leased Premises in a manner reasonably designed to minimize any interference with any of the Landlord’s other tenants at the Leased Premises. The Agent shall promptly repair, at the Agent’s expense, any physical damage to the Leased Premises actually caused by removal of the Collateral, but shall not be liable for any diminution in value of the Leased Premises caused by the removal or absence of the Collateral. | |
4. | To the extent not paid or prepaid by the Tenant, the Agent shall pay the Landlord a sum for its use and occupancy of the Leased Premises on a per diem basis in an amount equal to the monthly base rent required to be paid by the Tenant under the lease between the Landlord and the Tenant from the date on which the Agent shall have taken possession of the Collateral on the Leased Premises until the date on which the Agent vacates the Leased Premises,it being understood, however, that the Agent shall not, thereby, have assumed any of the obligations of the Tenant to the Landlord, including, without limitation, any obligation to pay any past due rent owing by the Tenant. | |
5. | Prior to the Landlord’s terminating its lease with the Tenant or evicting the Tenant from the Leased Premises for breach of the lease, the Landlord shall give the Agent not less than sixty (60) days written notice of such action at the address set forth below, and a reasonable opportunity to preserve, protect, liquidate, or remove any Collateral on the Leased Premises and, if the Agent so elects, to cure such breach of the lease. |
2
Notwithstanding the provisions of this paragraph, the Agent shall have no obligation to cure any such breach or default. The cure of any such breach or default by the Agent on any one occasion shall not obligate the Agent to cure any other breach or default or to cure such default on any other occasion. | ||
6. | All notices under this waiver shall be made to the following addresses by recognized overnight courier, by hand delivery or by facsimile transmission: |
200 Front Street West
Toronto, Ontario, Canada M5V 3L2
Attention: ___________________
Re: Quiksilver
7. | This waiver shall inure to the benefit of the Agent and each of the Credit Parties, and their respective successors and assigns, and shall be binding upon the Landlord, its heirs, assigns, representatives, and successors. | |
8. | This waiver may not be amended or waived except by an instrument in writing signed by the Agent, the Landlord, and the Tenant. This waiver shall be governed by, and construed in accordance with, the laws of the Province of Ontario, without giving effect to the conflict of laws principles thereof. Delivery of an executed signature page of this waiver by facsimile transmission shall be binding on the Landlord as if the original of such facsimile had been delivered to the Agent. |
3
LANDLORD: | ||||
By: | ||||
Name: | ||||
Title: | ||||
(Domestic Loan Parties)
Attention: | ||||
2
100 Federal Street, 9th Floor
Boston, Massachusetts 02110
Attention: Stephen J. Garvin, Managing Director
Re: Quiksilver
3
4
Very truly yours, COMPANY: [ ] | ||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
(Canadian Loan Parties)
2
200 Front Street West
Toronto, Ontario, Canada M5V 3L2
Attention:
Re: Quiksilver
3
4
Very truly yours, COMPANY: [ ] | ||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
(acting through its Canada branch)
By: | ||||
Name: | ||||
Title: | ||||
1
2
3
4
5
6
7
8
9
GUARANTOR: | QUIKSILVER, INC., a Delaware corporation | |||
By: | ||||
Name: | ||||
Title: | ||||
TO: | BANK OF AMERICA, N.A., a national banking association organized under the federal laws of the United States of America and carrying on business in Canada through its Canada branch, having an office at 200 Front Street West, Suite 2700, Toronto, Ontario, M5V 3L2, as Canadian Agent (in such capacity, the “Agent”) for its own benefit and the benefit of the other Canadian Credit Parties (as defined in the Credit Agreement (as hereinafter defined)), in consideration of the mutual covenants contained herein and benefits derived herefrom. | |
GRANTED BY: | QS RETAIL CANADA CORP., a Nova Scotia unlimited company, having its principal offices at 140-890 Harbourside Drive, North Vancouver, British Columbia, V7P 3T7, Canada. |
1. | For valuable consideration, the undersigned hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, the due and punctual payment when due (whether at the stated maturity, by required prepayment, by acceleration or otherwise) and performance by the Canadian Borrower of, and promises |
to pay, all Canadian Liabilities (collectively, the “Guaranteed Indebtedness”) to the Agent, for its own benefit and the benefit of the other Canadian Credit Parties. |
2. | The liability of the undersigned under this Guarantee shall be unlimited. Regardless of whether or not any proposed guarantor or any other Person has executed or shall execute this Guarantee or is or are or shall become in any other way responsible to the Agent and/or the other Canadian Credit Parties for the Guaranteed Indebtedness or any part thereof whether under this Guarantee or otherwise shall cease to be so liable, this shall be a continuing Guarantee relating to any Guaranteed Indebtedness, including that arising under successive transactions which shall either continue the Guaranteed Indebtedness or from time to time renew it after it has been satisfied and shall secure the ultimate repayment of all monies owing from the Canadian Borrower to the Agent and the other Canadian Credit Parties and shall be binding as a continuing security on the undersigned. Any payment by the undersigned shall not reduce the maximum obligation of the undersigned hereunder. | |
3. | The obligations hereunder are independent of the obligations of the Canadian Borrower and a separate action or actions may be brought and prosecuted against the undersigned whether action is brought against the Canadian Borrower or whether the Canadian Borrower be joined in any such action or actions; and the undersigned waives, to the extent permitted by applicable Law, the benefit of any statute of limitations affecting its liability. | |
4. | The undersigned authorizes the Agent, without notice or demand and without affecting its liability hereunder, from time to time, either before or after revocation hereof, to: |
(a) | renew, compromise, extend, accelerate or otherwise change the time for payment of, or otherwise change the terms of the Guaranteed Indebtedness or any part thereof, including increase or decrease of the rate of interest thereon; | ||
(b) | receive and hold security for the payment of this Guarantee or the Guaranteed Indebtedness guaranteed, and exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any such security; | ||
(c) | apply such security and direct the order or manner of sale thereof in accordance with Section 8.03 of the Credit Agreement; and | ||
(d) | release or substitute any guarantors. |
5. | The undersigned waives any right to require the Agent or the other Canadian Credit Parties to: |
(a) | proceed against the Canadian Borrower; | ||
(b) | proceed against or exhaust any security held from the Canadian Borrower or any other Person; or | ||
(c) | pursue any other remedy in the Agent’s or the other Canadian Credit Parties’ power whatsoever. |
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The undersigned waives any defense arising by reason of any disability or other defense of the Canadian Borrower, or the cessation from any cause whatsoever of the liability of the Canadian Borrower, or any claim that the undersigned’s obligations exceed or are more burdensome than those of the Canadian Borrower, the undersigned waives (until such time as the Aggregate Canadian Commitments have been terminated and the Guaranteed Indebtedness has been indefeasibly paid in full in cash) any right of subrogation, reimbursement, indemnification, and contribution (contractual, statutory or otherwise), arising from the existence or performance of this Guarantee and the undersigned waives any right to enforce any remedy which the Agent and/or the other Canadian Credit Parties now have or may hereafter have against the Canadian Borrower, and waives any benefit of, and any right to participate in, any security now or hereafter held by the Agent or the other Canadian Credit Parties. The Agent may foreclose, either by judicial foreclosure or by exercise of power of sale, or realize any deed of trust or other security securing the Guaranteed Indebtedness, and, even though the foreclosure or other realization may destroy or diminish the undersigned’s rights against the Canadian Borrower or may result in security being sold at an under value, the undersigned shall be liable to the Agent and the other Canadian Credit Parties for any part of the Guaranteed Indebtedness remaining unpaid after the foreclosure or other realization. The undersigned waives all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonour, and notices of acceptance of this Guarantee and of the existence, creation, or incurring of new or additional Guaranteed Indebtedness. |
6. | The undersigned acknowledges and agrees that it shall have the sole responsibility for obtaining from the Canadian Borrower such information concerning the Canadian Borrower’s financial conditions or business operations as the undersigned may require, and that neither the Agent nor the other Canadian Credit Parties have any duty at any time to disclose to the undersigned any information relating to the business operations or financial condition of the Canadian Borrower. | |
7. | To secure all of the undersigned’s obligations hereunder, the undersigned assigns and grants to the Agent for itself and on behalf of the other Canadian Credit Parties a security interest in all now owned or hereafter acquired moneys, securities and other property of the undersigned (other than Excluded Assets (as defined in the Security Agreement made by the undersigned in favour of the Agent)), and all deposit accounts of the undersigned maintained with the Agent and the other Canadian Credit Parties (or otherwise), and all proceeds thereof. Upon default or breach of any of the undersigned’s obligations to the Agent and the other Canadian Credit Parties, the Agent may apply any monies in any deposit account to reduce the Guaranteed Indebtedness, and may realize upon any collateral as provided by law and in any security agreements between the Agent and/or the other Canadian Credit Parties and the undersigned. | |
8. | Any obligations of the Canadian Borrower to the undersigned, now or hereafter existing, including but not limited to any obligations to the undersigned as subrogee of the Agent or the other Canadian Credit Parties or resulting from the undersigned’s performance under this Guarantee, are hereby assigned to the Agent and postponed and subordinated to the Guaranteed Indebtedness. Subject to the Credit Agreement and unless otherwise provided therein, any such obligations of the Canadian Borrower to the undersigned |
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received by the undersigned after the occurrence of an Event of Default that is continuing shall be received in trust for the Agent and the other Canadian Credit Parties and the proceeds thereof shall forthwith be paid over to the Agent on account of the Guaranteed Indebtedness of the Canadian Borrower to the Agent and the other Canadian Credit Parties, but without reducing or affecting in any manner the liability of the undersigned under the provisions of this Guarantee. This assignment and postponement is independent of and severable from this Guarantee and shall remain in full force and effect whether or not the undersigned is liable for any amount under this Guarantee. |
9. | Where the Canadian Borrower becomes bankrupt or makes an assignment for the benefit of creditors or if any circumstances arise necessitating the Agent and/or the other Canadian Credit Parties to file a claim against the Canadian Borrower and/or to value its securities, the Agent shall be entitled to place such valuation on its securities as the Agent may in its absolute discretion see fit and the filing of such claim and the valuing of securities shall not in any way prejudice or restrict the claim of the Agent and the other Canadian Credit Parties against the undersigned and in no way discharges the undersigned from its liability hereunder to the Agent and the other Canadian Credit Parties, either in whole or in part and until all Guaranteed Indebtedness of the Canadian Borrower to the Agent and the other Canadian Credit Parties has been fully paid, the Agent shall have the right to include in its claim the amount of all sums paid by the undersigned to the Agent under this Guarantee and to prove and rank for and receive dividends in respect of such claim, any and all rights to prove and rank for such sums paid for by the undersigned and receive the full amount of all dividends in respect thereto are hereby assigned and transferred to the Agent by the undersigned. | |
10. | Any account settled or stated by or between the Agent and/or the other Canadian Credit Parties and the Canadian Borrower, or, if any such account has not been so settled or stated immediately before demand for payment under this Guarantee, any account stated by the Agent, shall be accepted by the undersigned as conclusive evidence (absent manifest error) of the amount which at the date of the account so settled or stated is due by the Canadian Borrower to the Agent or remains unpaid by the Canadian Borrower to the Agent and/or the other Canadian Credit Parties. | |
11. | The undersigned shall make payment to the Agent of the amount of its liability to the Agent forthwith after demand therefor is made, in accordance with Section 10.02 of the Credit Agreement, in writing at its address or telecopier number last known to the Agent. All payments hereunder shall be made to the Agent pursuant to the terms of the Credit Agreement. | |
12. | Any and all payments by the undersigned to the Agent and/or the other Canadian Credit Parties under this Guarantee or the Credit Agreement shall be made free and clear of, and without deduction or withholding for any Indemnified Taxes unless the undersigned is required to withhold or deduct taxes in which case paragraph 13 shall apply. | |
13. |
(a) | Any and all payments by or on account of any obligation of the undersigned under this Guarantee shall be made free and clear of and without deduction or withholding for any Indemnified Taxes or Other Taxes, provided that if the |
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undersigned shall be required by applicable Law to deduct or withhold, or the Agent or any other Canadian Credit Party shall be required to remit, any Indemnified Taxes (including any Other Taxes) from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions, withholdings or remittances (including deductions, withholdings or remittances applicable to additional sums payable under this paragraph 13), the applicable Canadian Credit Party receives an amount equal to the sum it would have received had no such deductions, withholdings or remittances been made, (ii) the undersigned shall make such deductions or withholdings and (iii) the undersigned shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Law. |
(b) | The undersigned shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Law. | ||
(c) | The undersigned shall indemnify the Agent and each other Canadian Credit Party, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this paragraph 13) paid by such Canadian Credit Party and any penalties, interest and reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority and a certificate as to the amount of such payment or liability delivered to the undersigned by the Agent or any other Canadian Credit Party (with a copy to Agent), or by the Agent on its own behalf or on behalf of a Canadian Credit Party, shall be conclusive absent manifest error. | ||
(d) | As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the undersigned to a Governmental Authority, the undersigned shall deliver to the Agent, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Agent; |
14. | If any provision of this Guarantee is determined in any proceeding in a court of competent jurisdiction to be void or to be wholly or partly unenforceable, that provision shall for the purposes of such proceeding, be severed from this Guarantee at the Agent’s option and shall be treated as not forming a part hereof and all the remaining provisions of this Guarantee shall remain in full force and be unaffected thereby. | |
15. | This Guarantee shall not be subject to or affected by any promise or condition affecting or limiting the liability of the undersigned except as expressly set forth herein and no statement, representation, agreement or promise on the part of the Agent or any officer, employee or agent thereof, unless contained herein, forms any part of this contract or has induced the making thereof or shall be deemed in any way to affect the liability of the undersigned hereunder. |
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16. | This Guarantee shall extend to and enure to the benefit of the Agent and the other Canadian Credit Parties and its and their successors and assigns, and shall extend to and be binding upon the undersigned and its successors and permitted assigns. | |
17. | It is not necessary for the Agent or the other Canadian Credit Parties to inquire into the powers of the Canadian Borrower or the undersigned or of the officers, directors, partners, or agents acting or purporting to act on their behalf, and any Guaranteed Indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed hereunder. | |
18. | The Agent may, without notice to the undersigned and without affecting the undersigned’s obligations hereunder, assign the Guaranteed Indebtedness and this Guarantee, in whole or in part. The undersigned agrees that the Agent and the other Canadian Credit Parties may disclose to any assignee or purchaser, or any prospective assignee or purchaser, of all or part of the Guaranteed Indebtedness any and all information in the Agent’s or any other Canadian Lender’s possession concerning the undersigned, this Guarantee, and any security for this Guarantee. | |
19. | If, for the purposes of obtaining judgment in any court in any jurisdiction with respect to this Guarantee, it becomes necessary to convert into a particular currency (the “Judgment Currency”) any amount due under this Guarantee in any currency other than the Judgment Currency (the “Currency Due”), then conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which judgment is given. For this purpose “rate of exchange” means the rate at which the Agent is able, on the relevant date, to purchase the Currency Due with the Judgment Currency in accordance with its normal practice. In the event that there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment is given and the date of receipt by the Agent of the amount due, the Agent will, on the date of receipt by the Agent, pay such additional amounts, if any, or be entitled to receive reimbursement of such amount, if any, as may be necessary to ensure that the amount received by the Agent, on such date, is the amount in the Judgment Currency which, when converted at the rate of exchange prevailing on the date of receipt by the Agent, is the amount then due under this Guarantee in the Currency Due. If the amount of the Currency Due which the Agent is so able to purchase is less than the amount of the Currency Due originally due to it, the undersigned shall indemnify and save the Agent and the other Canadian Credit Parties harmless from and against all loss or damage arising as a result of such deficiency. This indemnity shall constitute an obligation separate and independent from the other obligations contained in this Guarantee, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by the Agent, from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due under this Guarantee or under any judgment or order. | |
20. | If the undersigned is a partnership, this Guarantee shall extend to each Person for the time being, and from time to time, carrying on the business now being carried on by the undersigned notwithstanding any change or changes in the name or membership of the partnership or the incorporation of a company for the purpose of acquiring the business of the partnership and where the undersigned is a corporation, this Guarantee shall extend to |
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any amalgamated or new company formed to take over the business of the undersigned and any reorganization thereof, whether the new company is the same or different in its objects, character and constitution. | ||
21. | The undersigned will pay on demand, and will indemnify and save the Agent and the Canadian Credit Parties harmless from, any and all Credit Party Expenses incurred by or on behalf of the Agent and the Canadian Credit Parties in connection with or relating to this Guarantee. | |
22. | All words used herein in the plural shall be deemed to have been used in the singular where the context and construction so require. | |
23. | This Guarantee shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. | |
24. | The undersigned acknowledges receipt of an executed copy of this Guarantee. |
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QS RETAIL CANADA CORP. | ||||
Per: | ||||
Name: | ||||
Title: | ||||
Per: | ||||
Name: | ||||
Title: | ||||