AMENDMENT NO. 7 TO SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
THIS AMENDMENT NO. 7 TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT ("Amendment No. 7") is dated as of May 23, 2005 by and among R&B,
INC., a Pennsylvania corporation (the "Borrower") and WACHOVIA BANK, NATIONAL
ASSOCIATION (formerly First Union National Bank), a national banking
association (the "Bank") for itself and as agent hereunder (the "Agent").
WHEREAS, the Borrower, the Bank and National City Bank of
Pennsylvania ("National City") are parties to a Second Amended and Restated
Credit Agreement dated as of August 21, 1998, as amended March 25, 1999, May 4,
2000, November 30, 2000, March 26, 2001, March 6, 2004 and August 2, 2004 (the
"Credit Agreement"); and
WHEREAS, National City has assigned all of its interest in
and to the Credit Agreement and related Loan Documents to the Bank; and
WHEREAS, the Borrower has requested certain modifications to
the Credit Agreement.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, the parties hereto, intending to be legally bound, hereby
agree that the Credit Agreement shall be amended as follows, effective on the
date first above written:
1. Credit Facilities. The definition of "Credit Facilities" in Section
1.01 of the Credit Agreement is hereby amended to read in its entirety as
follows:
"Credit Facilities' means the maximum aggregate
credit facilities of Twenty Million Dollars
($20,000,000) made available under this Agreement
pursuant to the Revolving Credit Facilities (as the
same may be reduced pursuant to Section 2.01(e)
herein)."
2. Revolving Credit Facilities. The definition of "Revolving Credit
Facilities" in Section 1.01 of the Credit Agreement is hereby amended to read
in its entirety as follows:
"Revolving Credit Facilities' means the maximum
aggregate revolving credit facilities of Twenty
Million Dollars ($20,000,000) (subject to reduction
under Section 2.01(e) hereof) made available under
this Agreement."
3. Revolving Credit Termination Date. The definition of "Revolving
Credit Termination Date" in Section 1.01 of the Credit Agreement is hereby
amended to read in its entirety as follows:
"Revolving Credit Termination Date' means June 30,
2007; or such other date to which the Revolving
Credit Facilities have been extended in the sole
discretion of the Bank or on which they have been
terminated in accordance with the terms of this
Agreement."
4. Banks and Ratable Shares. Exhibit 2.01 of the Credit Agreement is
hereby amended to read in its entirety as set forth on Exhibit 2.01 attached
hereto.
5. Amount and Nature of Revolving Credit Facilities. The first sentence
of Section 2.01(a) of the Credit Agreement is hereby amended to read in its
entirety as follows:
"(a) Subject to the terms and conditions of this
Agreement and in reliance upon the representations,
warranties and covenants herein contained, each Bank
severally (but not jointly) agrees to make a
revolving credit facility (the "Revolving Credit
Facilities") available to Borrower in an aggregate
principal amount not to exceed such Bank's Ratable
Share of Twenty Million Dollars ($20,000,000) (as
reduced pursuant to Section 2.01(e)) (the "Revolving
Credit Limit")."
6. Sixth Amended and Restated Revolving Credit Note. Exhibit 2.02 of
the Credit Agreement is hereby amended to read in its entirety as set forth on
Exhibit 2.02 attached hereto.
7. Applicable Margin. The definition and calculation of Applicable
Margin in Section 4.01 of the Credit Agreement are hereby amended to read in
their entirety as follows:
"Applicable Margin' shall be calculated as set forth
below and shall automatically change as the ratio of
Consolidated Funded Debt to Consolidated EDITDA
changes (Consolidated EBITDA shall be the sum of
quarterly EBITDA for the most recent four (4)
quarters):
Consolidated Funded
Debt/Consolidated EBITDA Applicable Margin
------------------------ -----------------
<.5x 65 bps
>=.5x<1.50x 85 bps
>=1.50x<2.00x 110 bps
>=2.00x 150 bps
For purposes of this calculation, Consolidated Funded
Debt shall be net of cash and cash equivalents shown
on Borrower's consolidated financial statements as of
the date of such calculation."
8. Unused Facility Fee. Section 6.01 of the Credit Agreement is hereby
amended to read in its entirety as follows:
"Section 6.01. Unused Facility Fee. Borrower shall pay to
the Agent, to be distributed by the Agent to each Bank
according to its Ratable Share, a nonrefundable unused
facility fee equal to .125% on the amount of any and all
unused Credit Facilities, payable quarterly in arrears,
with the first payment due on July 1, 2005 and thereafter,
on the first day of each October, January and April and
on the Revolving Credit Termination Date."
9. Consolidated Funded Debt to EBITDA. Section 10.01 of the Credit
Agreement is hereby amended to read in its entirety as follows:
"Section 10.01. Consolidated Funded Debt to EBITDA.
The ratio of Consolidated Funded Debt to EBITDA
(based on the rolling four quarters ending on the
test date) shall not exceed 2.50:1.00 for the quarter
ending June 30, 2005 and for each quarter thereafter.
For purposes of this calculation, Consolidated Funded
Debt shall be net of cash and cash equivalents shown
on Borrower's consolidated financial statements as of
the date of such calculation."
10. Maintenance of Consolidated Net Worth. Section 10.13 of the Credit
Agreement is hereby amended to read in its entirety as follows:
"Section 10.13. Maintenance of Consolidated Net
Worth. Borrower will not, at any time, permit
Consolidated Net Worth to be less than the sum of (a)
$100,000,000 for the quarter ending December 31, 2004
plus (b) an aggregate amount equal to fifty percent
(50%) of Borrower's consolidated cumulative quarterly
Consolidated Net Earnings (but, in each case, only if
a positive number) for each fiscal quarter completed
at such time, beginning with the fiscal quarter ended
June 30, 2005."
11. Conditions Precedent. As a condition precedent to effectiveness of
this Amendment No. 7, the Bank must receive (a) an original copy of this
Amendment No. 7 executed by Borrower, (b) an original executed Note from
Borrower in the form of Exhibit 2.02, (c) an original executed Surety Agreement
in the form attached hereto as Exhibit A executed by Dorman Products
Distribution, Ltd. (d) an original executed Officer's Certificate in the form
attached hereto as Exhibit B, (e) an original executed Secretary's Certificate
in the form attached hereto as Exhibit C; and (f) original executed
Ratifications of Surety Agreement (in the form attached hereto as Exhibit D)
from each Subsidiary.
12. Costs. Borrower shall pay (as and when incurred) all costs,
expenses and fees (including, without limitation, any appraisal, survey,
insurance, environmental assessment, engineering, inspections, searches,
recording and attorneys' fees) associated with the Credit Agreement and this
Amendment No. 7
13. Capitalized Terms. All capitalized terms used in this Amendment No.
7, unless otherwise defined herein, shall have the meanings ascribed thereto in
the Credit Agreement.
14. Representations and Covenants. Borrower certifies that all
representations and warranties contained in the Loan Documents, including
without limitation the exhibits thereto, are true, correct and complete on and
as of the date hereof, and that all covenants and agreements made in the Loan
Documents have been complied with and fulfilled, and that no Default or Event
of Default is in existence on the date hereof.
15. Ratification. Other than as specifically set forth herein, Borrower
hereby ratifies and confirms the Loan Documents and all instruments and
agreements relating thereto, and confirms that (a) all of the foregoing remain
in full force and effect, (b) each of the foregoing is enforceable against
Borrower in accordance with its terms, and (c) in furtherance and not
limitation of the foregoing, the security interests granted pursuant to the
Loan Documents and any other security agreement, surety agreement, mortgage,
assignment or other collateral agreement, remain in full force and effect and
secure all liabilities and obligations of Borrower and the Subsidiaries to the
Bank under the Credit Agreement, as amended hereby, or otherwise.
16. Miscellaneous. Article XIII of the Credit Agreement is incorporated
herein by this reference and shall apply to this Amendment No. 7. Execution of
this Amendment No. 7 shall not constitute an agreement by the Agent or the Bank
to execute any other amendment or modification of the Credit Agreement.
References to the Credit Agreement in any document relating thereto shall be
deemed to include this Amendment No. 7. This Amendment may be executed in
counterparts.
IN WITNESS WHEREOF, Borrower and the Bank have caused this
Amendment No. 7 to be duly executed and delivered as of the day and year first
above written.
WACHOVIA BANK,
NATIONAL ASSOCIATION
By:/s/ Carol Orellana
---------------------
Name:Carol Orellana
Title: Vice President
Address: 2240 Butler Pike
Plymouth Meeting, PA 19462
ATTEST: R&B, INC.
By:/s/ Thomas J. Knoblauch By:/s/Richard Berman
----------------------- ------------------
Name:Thomas J. Knoblauch Name:Richard Berman
Title:Assistant Secretary Title:President
Address: 3400 E. Walnut Street
Colmar, PA 18915
[Corporate Seal]
EXHIBIT 2.01
BANKS AND RATABLE SHARES
------------------------
Revolving
Credit Ratable
Facility Share
---------- --------
Wachovia Bank, National Association $20,000,000 100%
123 South Broad Street
Philadelphia, PA 19109
Exhibit 2.02
Sixth Amended and Restated Revolving Credit Note
------------------------------------------------
$20,000,000.00 May 23, 2005
For value received, the undersigned ("Borrower") promises to pay to
the order of Wachovia Bank, National Association (formerly First Union National
Bank) (the "Bank"), on or before the Revolving Credit Termination Date, the
lesser of Twenty Million Dollars ($20,000,000.00) or the unpaid principal
amount outstanding under the Revolving Credit Facility made available by the
Bank to Borrower pursuant to the Second Amended and Restated Credit Agreement,
as amended, referred to in paragraph 1 below, together with interest (computed
on the basis of a 360-day year for the actual number of days elapsed) on the
unpaid principal balance from time to time outstanding hereunder from the date
hereof until payment hereunder in full. Both principal and interest shall be
paid in federal funds or other immediately available lawful money of the United
States at the main office of the Agent at 2240 Butler Pike, Plymouth Meeting,
PA 19462, Attention: Harry Ellis (or such other address as may be designated by
the holder hereof in writing).
1. (a) This Note evidences the Revolving Credit Balance under, is
governed by, and is entitled to the benefits of a Second Amended and Restated
Credit Agreement dated as of August 21, 1998, as amended March 25, 1999, May 4,
2000, November 30, 2000, March 26, 2001, March 6, 2004, August 2, 2004, and the
date hereof and as it may be further amended (collectively referred to herein
as the "Agreement") among Borrower, the Bank, for itself and as Agent and the
other Banks parties thereto, including Bank, which Agreement, among other
matters, contains provisions for the acceleration of the maturity hereof upon
the occurrence and continuance of certain stated events. All capitalized terms
used herein shall have the same meanings as are assigned to such terms in the
Agreement.
(b) This Note amends, restates and consolidates in its entirety a
Fifth Amended and Restated Revolving Credit Note dated August 2, 2004 issued by
the Borrower to the Bank pursuant to the Agreement.
2. Borrower shall pay the principal hereof and all accrued interest on
or before the Revolving Credit Termination Date.
3. Borrower shall pay interest on the unpaid principal balance from
time to time outstanding hereunder from the date hereof until such unpaid
principal balance has been paid in full at the rate or rates, and at the times,
set forth in the Agreement. Any payment of principal, and, to the extent
permitted by law, interest, of or on this Note which is not paid in full when
due shall bear interest at the Default Rate.
4. The Bank's records as to the Revolving Credit Advances made by the
Bank to Borrower pursuant to the Agreement, the payments made on account of
principal hereof, the issuance of Letters of Credit and draws thereon and
reimbursement thereof, shall be presumed to be complete and correct absent
manifest error.
(Corporate Seal)
Attest: R & B, INC.
By:/s/ Thomas J. Knoblauch By:/s/ Richard Berman
----------------------- -------------------
Name:Thomas J. Knoblauch Name: Richard Berman
Title:Assistant Secretary Title: President
EXHIBIT A
SURETY AGREEMENT
----------------
SURETY AGREEMENT (the "Surety Agreement") dated as of the 23th
day of May, 2005, by DORMAN PRODUCTS DISTRIBUTION, LIMITED., a Kentucky limited
partnership, (hereinafter referred to as the "Surety"), of R & B, INC., a
Pennsylvania corporation ("R&B" or the "Debtor"), to and in favor of WACHOVIA
BANK, NATIONAL ASSOCIATION for itself and as agent for the Banks (collectively,
the "Creditor") under the Second Amended and Restated Credit Agreement dated
August 21, 1998 among Debtor, Creditor and such Banks (as amended, the "Credit
Agreement").
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Banks have
agreed to extend credit to R&B in an aggregate principal amount of not more
than $20,000,000 (the "Credit Facilities"); and
WHEREAS, the words and terms used herein which are defined in
the Credit Agreement shall have the meanings set forth therein, unless the
context hereof otherwise clearly requires; and
WHEREAS, the Banks are willing to make available the Credit
Facilities to R&B upon the condition that the Surety guaranties and becomes a
surety to the Banks for the payment and performance of the Obligations of R&B
under the Credit Agreement or under any of the other Loan Documents related
thereto, and R&B's performance of and compliance with all of the other terms,
covenants, conditions, stipulations and agreements contained in the Credit
Agreement or the other Loan Documents in the manner herein set forth; and
WHEREAS, the proceeds of the Credit Facilities are in
substantial part being made available to the Surety through R&B, and the Credit
Facilities constitute the primary working capital financing available to the
Surety; and
WHEREAS, the Credit Facilities are being made available in
the form of credit to R&B rather than as separate loans to the Surety at the
request of R&B and the Surety to facilitate the consolidated operation of their
financial affairs;
NOW, THEREFORE, for and in consideration of the credit
extended by the Banks to R&B under the Credit Agreement, a portion of which
will be available to the Surety, and intending to be legally bound hereby, the
Surety agrees as follows:
1. Surety Agreement.
(a) The Surety hereby guarantees and becomes an unconditional surety to
the Creditor, its successors, endorsees and assigns for the prompt payment and
performance when due (subject to applicable grace periods) of all Obligations
of the Debtor as defined in the Credit Agreement.
(b) The Surety agrees that from time to time hereafter at the request
of the Creditor, the Surety will promptly execute and deliver to the Creditor a
Ratification and Confirmation of this Surety Agreement in the form attached
hereto as Exhibit "A."
(c) This Surety Agreement shall be irrevocable, unconditional,
continuing, effective and binding upon the Surety as to all Obligations
regardless of whether they are incurred before, on or after the date hereof and
how long hereafter they are incurred or remain unpaid. This Surety Agreement
shall constitute a surety agreement as well as a guarantee, and the Creditor
shall have no obligation or requirement to make any demand or claim upon or
institute any action or pursue or enforce any right or remedy against the
Debtor or any of its assets or properties, before enforcing this Surety
Agreement against the Surety and its assets and properties. The Creditor may
make demand upon the Surety hereunder and enforce this Surety Agreement at any
time and from time to time as often as desired and without limit. The Surety's
liabilities hereunder shall be payable immediately upon demand during the
continuance of an Event of Default, and such liabilities due but unpaid shall
bear interest at the Default Rate (but without duplication of the Default Rate
payable by the Debtor).
(d) If a claim is made upon the Creditor for repayment or recovery of
any amount or amounts received by the Creditor which had the effect of reducing
the liability of the Surety hereunder and the Creditor repays all or part of
such amount or amounts by reason of a judgment, decree or order of any court or
administrative body having jurisdiction over the Creditor or any of its
property, then and in such event, the Surety agrees that any such judgment,
decree, order, settlement or compromise shall be binding upon the Surety,
whether or not this Surety Agreement shall have been terminated or canceled,
and the Surety shall be and continue to remain liable to the Creditor hereunder
to the same extent as if such amount had never originally been received by the
Creditor.
2. Unconditional Liability. The liability of the Surety hereunder is absolute
and unconditional and shall not be reduced, diminished or released in any way
by reason of:
(a) any failure by the Creditor to obtain, retain or preserve, or the
lack of enforcement of, any rights against or any other person or in any
property;
(b) the invalidity of any such rights which the Creditor may attempt to
obtain;
(c) any delay in enforcing or any failure to enforce any such rights
even if such rights are thereby lost;
(d) any delay in making demand on the Debtor for performance or payment
of the Obligations or any of them; or
(e) any non-perfection or any priority or lack thereof of any
collateral for the Obligations.
3. Consents. The Surety hereby:
(a) Consents to all agreements made or to be made between the Creditor
and any other person(s) liable, either absolutely or on a contingent basis, on
any Obligations, including the Debtor and any co-maker, endorser, surety or
guarantor with respect thereto (any such person being hereinafter referred to
as an "Obligor") except as provided herein, and further agrees that the
Surety's liability hereunder shall not be reduced, limited or diminished in any
way;
(b) Agrees that the Creditor may, at its sole option, without in any
way affecting the Surety's liability hereunder: (i) exchange, surrender or
release any or all collateral or any guaranty or surety held by the Creditor
for any of the Obligations; (ii) renew, extend, modify, supplement, amend,
release, alter or compromise the terms of any or all of the Obligations; (iii)
waive any of the Creditor's rights or remedies against the Debtor; and (iv)
apply any payment received on account of the Obligations to or on account of
such of the Obligations and in such order, as the Creditor in its sole
discretion may elect;
(c) Consents to the taking of, or failure to take, from time to time,
any action of any nature whatsoever with respect to the Obligations and with
respect to any rights against any person or persons (including without
limitation any Obligor) or in any property, including without limitation any
renewals, extensions, modifications, postponements, compromises, indulgences,
waivers, surrenders, exchanges and releases; and
(d) Agrees that the Surety shall remain fully liable hereunder
notwithstanding any of the foregoing.
4. Waivers. The Surety hereby waives:
(a) All notices of any character whatsoever with respect to this Surety
Agreement or the Obligations, including but not limited to, notice of: the
present existence or future incurring of any Obligations; the amount, terms and
conditions thereof; any defaults thereon; acceptance hereof; and any
presentment, demand, protest, dishonor, or notice of dishonor with respect
hereto;
(b) The benefit of all laws or defenses now or hereafter in effect in
any way limiting or restricting the liability of the Surety hereunder, except
the defense of payments made to the Creditor on account of the Obligations and
the liability of the Surety hereunder;
(c) All right to stay of execution and exemption of property in any
action to enforce the liability of the Surety hereunder; and
(d) Any right to be paid, in advance of full and final payment of all
Obligations, any amount arising from the Surety's rights of indemnification,
subrogation, contribution, or any and all other rights at law or in equity of a
surety and/or a guarantor to succeed to any of the rights of the Creditor,
including without limitation rights to any payment made on account of the
Obligations, regardless of the source of such payment.
5. Payment of Costs. In addition to all other liabilities of the Surety
hereunder, the Surety also agrees to pay to the Creditor on demand all costs
and expenses (including reasonable attorneys' fees and legal expenses) which
may be incurred in the enforcement, during the continuance of an Event of
Default, by the Creditor of any of its rights or remedies pursuant to this
Surety Agreement, the Credit Agreement or the other Loan Documents.
6. Acceleration of Obligations. During the continuance of any of the following
events (each an "Event of Default"), all of the Obligations shall, at the
Creditor's sole option, be deemed to be forthwith due and payable for the
purposes of this Surety Agreement, and the liabilities of the Surety hereunder
shall be immediately due and payable and may be enforced, whether or not the
Creditor elects to exercise any of its rights or remedies against any other
person or against any collateral, including without limitation any other
Obligor:
(a) If any event of default, default, breach or violation shall occur
under this Surety Agreement, the Credit Agreement, the Notes, or any other Loan
Documents;
(b) If the Surety or any Affiliate becomes insolvent or makes an
assignment for the benefit of creditors, or if any petition is filed by or
against the Surety or any Affiliate under any provision of any state or federal
law or statute alleging that the Surety or any Affiliate is insolvent or unable
to pay debts as they mature or under any provision of the Bankruptcy Reform Act
of 1978, so amended (the "Bankruptcy Code") which, in the case of an
involuntary proceeding, shall continue for sixty (60) days without being
stayed, set aside or vacated; or
(c) If a final judgment or judgments for the payment of money
(other than those which an insurance company has agreed in writing to pay) in
excess of an aggregate of $250,000 is entered against the Surety or any
Affiliate which remains unsatisfied for fifteen (15) days or any attachment,
levy or garnishment is issued against any property of the Surety or any
Affiliate; or
(d) If any financial statement, representation, warranty, or
certificate made or furnished by or on behalf of the Surety or Debtor to the
Creditor in connection with this Surety Agreement, the Credit Agreement or any
of the other Loan Documents, is materially false, incorrect, or incomplete in
any material respect on the date as of which made.
For purposes of this Section 6, "Affiliate" shall not include the
individual Berman family members.
7. Miscellaneous.
(a) The Creditor's rights and remedies hereunder shall be binding upon
the Surety and its successors, assigns and legal representatives, and shall
inure to the benefit of the Creditor, its endorsees, affiliates, successors
and assigns forever. If the Debtor consists of more than one person or entity,
such persons or entities shall be jointly and severally liable hereunder.
(b) No amendment or waiver of any provision of this Surety Agreement
nor consent to any departure by the Surety therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Creditor. Any
such waiver, consent or approval shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on the
Surety in any case shall entitle the Surety to any other or further notice or
demand in the same, similar or other circumstances.
(c) Any provision of this Surety Agreement prohibited by the laws of
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition, or modified to conform with such laws, without
invalidating the remaining provisions of this Surety Agreement, and any such
provision in any other jurisdiction. All rights, remedies and powers provided
in this Surety Agreement may be exercised only to the extent that the exercise
thereof does not violate any applicable provision of law, and all the
provisions of this Surety Agreement are intended to be subject to all
applicable mandatory provisions of law which may be controlling and to be
limited to the extent necessary so that they will not render this Surety
Agreement unenforceable, in whole or in part, or not entitled to be recorded,
registered, or filed under the provisions of any applicable law.
(d) No liability or obligation hereunder may be delegated by the
Surety, without the prior written approval of the Creditor. The Creditor may
assign its interests and rights hereunder or in connection with the
Obligations, in whole or in part, to any party whatsoever.
(e) This Surety Agreement shall be construed in accordance with and
governed by the laws, including equitable principles but without regard to
principles of conflict of laws, of the Commonwealth of Pennsylvania, in all
respects. The Surety hereby agrees to the jurisdiction and venue of any federal
or state court in the Eastern District of Pennsylvania.
(f) The Section headings in this Surety Agreement are for convenience
only and shall not affect the construction hereof.
(g) This Surety Agreement may be executed in two or more counterparts,
each of which shall constitute an original, but all of which, when taken
together shall constitute but one instrument.
8. THE SURETY AND THE CREDITOR (BY ACCEPTANCE HEREOF) HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY THE SURETY OR
THE CREDITOR MAY HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN
CONNECTION WITH THIS SURETY AGREEMENT OR THE TRANSACTIONS RELATED THERETO. THE
SURETY REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF THE CREDITOR
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE CREDITOR WILL NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THIS RIGHT TO JURY TRIAL WAIVER. THE
SURETY ACKNOWLEDGES THAT THE CREDITOR HAS BEEN INDUCED TO ACCEPT THIS AGREEMENT
BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION.
9. DURING THE CONTINUANCE OF A DEFAULT, THE SURETY HEREBY AUTHORIZES AND
EMPOWERS ANY ATTORNEY OR ATTORNEYS OR THE PROTHONOTARY OR CLERK OF ANY COURT OF
RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR ANY OTHER STATE UPON THE FAILURE
OF THE SURETY TO PAY WHEN DUE ANY SUM PAYABLE BY THE SURETY HEREUNDER TO APPEAR
FOR AND CONFESS JUDGMENT AGAINST THE SURETY FOR SUCH SUMS AS SHALL HAVE BECOME
DUE UNDER THIS SURETY AGREEMENT, IN EITHER CASE WITH OR WITHOUT DECLARATION,
WITH COSTS OF SUIT, WITHOUT STAY OF EXECUTION AND WITH AN AMOUNT NOT TO EXCEED
THE LESSER OF FIFTEEN PERCENT (15%) OF THE PRINCIPAL AMOUNT OF SUCH JUDGMENT OR
$5,000 ADDED FOR COLLECTION FEES. THE SURETY HEREBY WAIVES THE RIGHT OF
INQUISITION ON ANY REAL ESTATE LEVIED ON, VOLUNTARILY CONDEMNS THE SAME,
AUTHORIZES THE PROTHONOTARY OR CLERK TO ENTER UPON THE WRIT OF EXECUTION SAID
VOLUNTARY CONDEMNATION AND AGREES THAT SAID REAL ESTATE MAY BE SOLD ON A WRIT
OF EXECUTION; AND ALSO WAIVES AND RELEASES ALL RELIEF FROM ANY AND ALL
APPRAISEMENT, STAY OR EXEMPTION LAW OF ANY STATE NOW IN FORCE OR HEREAFTER
ENACTED. THE SURETY ALSO HEREBY WAIVES ITS RIGHT TO OBJECT TO AND RELEASES ALL
PROCEDURAL ERRORS IN SUCH PROCEEDINGS. IF A COPY OF THIS SURETY AGREEMENT,
VERIFIED BY AFFIDAVIT OF THE CREDITOR OR SOMEONE ON BEHALF OF THE CREDITOR,
SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE
ORIGINAL AGREEMENT AS A WARRANT OF ATTORNEY. SUCH AUTHORITY AND POWER TO APPEAR
FOR AND ENTER JUDGMENT AGAINST THE SURETY SHALL NOT BE EXHAUSTED BY ANY
EXERCISE THEREOF, AND JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME
AS OFTEN AS THERE IS OCCASION THEREFOR.
THE SURETY REPRESENTS AND ACKNOWLEDGES THAT IT HAS REVIEWED
ALL OF THE PROVISIONS OF THIS SURETY AGREEMENT WITH AN ATTORNEY, INCLUDING
WITHOUT LIMITATION PARAGRAPHS 8 AND 9. THE SURETY UNDERSTANDS THAT THE
PROVISIONS OF PARAGRAPHS 8 AND 9 INVOLVE THE WAIVER OF CERTAIN CONSTITUTIONAL
RIGHTS, AND ACKNOWLEDGES THAT THE SURETY HAS KNOWINGLY AND VOLUNTARILY WAIVED
SUCH RIGHTS AFTER REVIEWING THE PROVISIONS OF PARAGRAPHS 8 AND 9 WITH ITS
ATTORNEY.
IN WITNESS WHEREOF, the Surety has executed this Surety
Agreement as of the day and year first above written.
Attest: (SEAL) DORMAN PRODUCTS DISTRIBUTION, LTD.
as Surety
By: /s/Thomas J. Knoblauch By: Richard Berman
---------------------- ----------------
Name:Thomas J. Knoblauch Name:Richard Berman
Title:Assistant Secretary Title:President
The undersigned, intending to be legally bound, hereby:
(a) Acknowledges and confirms that it has received an executed
copy of this Surety Agreement and approves of and consents to it in all
respects;
(b) Agrees to be bound by and to observe in its capacity as Debtor
and as shareholder all provisions hereof and in particular will not cause or
permit any breach of any covenants contained herein; and
(c) Agrees to cause any newly formed or acquired Subsidiary to
sign and become a party to this Surety Agreement as a Surety, by execution and
delivery to the Creditor of a joinder in form and substance satisfactory to the
Creditor.
EXECUTED on the date first above written.
Attest: (Seal) R & B, INC.
as Debtor
By:/s/ Thomas J. Knoblauch By: /s/ Richard Berman
Name:Thomas J. Knoblauch Name: Richard Berman
Title: Assisatant Secretary Title: President
EXHIBIT B
OFFICER'S CERTIFICATE
---------------------
Pursuant to Amendment No. 7 to the
Second Amended and Restated Credit Agreement
The undersigned, Mathias J. Barton, Senior Vice President and
Chief Financial Officer of R&B, Inc., (the "Company"), in such capacity and on
behalf of such Company, hereby certifies, pursuant to Amendment No. 7
("Amendment No. 7") to the Second Amended and Restated Credit Agreement dated
as of August 21, 1998, as amended March 25, 1999, May 4, 2000, November 30,
2000, March 26, 2001, March 6, 2004, August 2, 2004, and the date hereof
(collectively, the "Credit Agreement"), among R&B, Inc. and Wachovia Bank,
National Association that:
(1) no Event of Default has occurred and is continuing;
(2) there has been no material adverse change in the Borrower's
consolidated business, operations, properties or condition, financial or
otherwise, since August 21, 1998, except as disclosed in Borrower's SEC filings
since that date; and
(3) all representations, warranties and covenants made by
Borrower in the Credit Agreement and/or Amendment No. 7 are true and correct in
all material respects, and all conditions precedent to the Bank's obligations
thereunder, have been satisfied or waived by the Agent in writing.
All capitalized terms herein shall have the meaning set forth in the Credit
Agreement, unless defined herein.
Dated: May 23, 2005
/s/ Mathias J. Barton
----------------------
Name:Mathias J. Barton
Title:Chief Finanical Officer
EXHIBIT C
SECRETARY'S CERTIFICATE - R&B, INC.
----------------------------------
Pursuant to Amendment No. 7 to
Second Amended and Restated Credit Agreement
The undersigned, Thomas J. Knoblauch, Assistant Secretary of
R&B, Inc. ("Company"), in such capacity and on behalf of such Company, hereby
certifies, pursuant to Amendment No. 7 ("Amendment" No. 7) to the Second
Amended and Restated Credit Agreement dated as of August 21, 1998, as amended
March 25, 1999, May 4, 2000, November 30, 2000, March 26, 2001, March 6, 2004,
August 2, 2004, and the date hereof (collectively, the "Credit Agreement"),
among R&B, Inc. and Wachovia Bank, National Association, that (i) the copies of
items (1), (2), (3) and (4) below as delivered pursuant to a Secretary's
Certificate dated August 21, 1998 and (ii) attached item (5) below are true and
correct copies of the following and are in full force and effect and have not
been amended, altered, or repealed as of the date hereof except as shown in
such attachments:
(1) certificate of incorporation, as certified by the
Secretary of State of the state of incorporation, of R&B,Inc.
(2) good standing certificates with respect to R&B, Inc. from
the Secretary of State of the state in which R&B, Inc. is incorporated or
formed, and in each state in which R&B, Inc. is required to qualify to do
business, except such states where the failure to so qualify would have no
material adverse effect on the financial condition of R&B, Inc.;
(3) the bylaws of R&B, Inc.;
(4) the names, incumbency and signatures of the officers of
R&B, Inc. authorized to execute and deliver Amendment No. 7, upon which the
Bank may conclusively rely until it shall receive a further certificate of
R&B, Inc. amending the prior certificate; and
(5) resolutions of the Board of Directors of R&B, Inc.,
authorizing the execution and delivery of Amendment No. 7 and all documents
related thereto.
Dated: May 23, 2005
/s/ Thomas J. Knoblauch
--------------------------
Name: Thomas J. Knoblauch
Title: Assistant Secretary, V.P. General Counsel
EXHIBIT D
RATIFICATION OF SURETY AGREEMENT
--------------------------------
RATIFICATION OF SURETY AGREEMENT given as of this 23th day of May,
2005, by RB Management, Inc., RB Distribution, Inc. RB Mark, Inc.,
RB Vest, Inc., Dorman Products of America, Ltd., Cosmos International, Inc.
Motor Power Industries, Inc. Allparts, Inc, and Dorman Products Distribution
Limited (collectively the "Sureties" and individually the "Surety") to and in
favor of WACHOVIA BANK, NATIONAL ASSOCIATION (formerly First Union National
Bank) for itself and as Agent for the Banks (the "Creditor").
Each Surety hereby (a) confirms and ratifies that certain Surety
Agreement dated as of (i) August 21, 1998 with respect to RB Management, Inc.,
RB Distribution, Inc. RB Mark, Inc., RB Vest, Inc., Dorman Products of America,
Ltd., Cosmos International, Inc., and Motor Power Industries, Inc., (ii) March
26, 2001 with respect to Allparts, Inc., and (iii) May 23, 2005 with respect to
Dorman Products Distribution Limited given to the Creditor, in order to induce
the Creditor to extend credit to R&B, Inc., (b) confirms that the Surety
Agreement to which it is a party is in full force and effect and enforceable
against it in accordance with its terms, and (c) confirms that the Obligations
(as defined in the Credit Agreement) include without limitation the Sixth
Amended and Restated Revolving Credit Note being executed and delivered to the
Creditor on or about the date hereof.
Capitalized terms used herein not otherwise defined shall have the
meanings ascribed thereto in the Credit Agreement referenced in the Surety
Agreement.
EXECUTED by a duly authorized officer on the date first above written.
Attest: (SEAL) RB Management, Inc.
By /s/Thomas J. Knoblauch By: /s/ Richard Berman
----------------------- -----------------------
Name: Thomas J. Knoblauch Name: Richard Berman
Title: Assistant Secretary Title: President
Attest: (SEAL) RB Distribution, Inc.
By /s/ Thomas J. Knoblauch By:/s/ Richard Berman
------------------------ -----------------------
Name: Thomas J. Knoblauch Name: Richard Berman
Title: Assistant Secretary Title: President
Attest: (SEAL) RB Mark, Inc.
By /s/ Thomas J. Knoblauch By:/s/ Richard Berman
----------------------- -----------------------
Name: Thomas J. Knoblauch Name: Richard Berman
Title: Assistant Secretary Title: President
Attest: (SEAL) RB Vest, Inc.
By /s/ Thomas J. Knoblauch By:/s/ Richard Berman
----------------------- -----------------------
Name: Thomas J. Knoblauch Name: Richard Berman
Title: Assistant Secretary Title: President
Attest: (SEAL) Dorman Products of America, Ltd.
By /s/ Thomas J. Knoblauch By:/s/ Richard Berman
------------------------ -----------------------
Name: Thomas J. Knoblauch Name: Richard Berman
Title: Assistant Secretary Title: President
Attest: (SEAL) Cosmos International, Inc.
By /s/ Thomas J. Knoblauch By:/s/ Richard Berman
------------------------- ------------------------
Name: Thomas J. Knoblauch Name: Richard Berman
Title: Assistant Secretary Title: President
Attest: (SEAL) Motor Power Industries, Inc.
By /s/ Thomas J. Knoblauch By: /s/ Richard Berman
------------------------- -----------------------
Name: Thomas J. Knoblauch Name: Richard Berman
Title: Assistant Secretary Title: President
Attest: (SEAL) Allparts, Inc.
By /s/ Thomas J. Knoblauch By: /s/ Richard Berman
------------------------- -----------------------
Name: Thomas J. Knoblauch Name: Richard Berman
Title: Assistant Secretary Title: President
Attest: (SEAL) Dorman Products Distribution Limited
By /s/ Thomas J. Knoblauch By:/s/ Richard Berman
------------------------- ------------------------
Name: Thomas J. Knoblauch General Partner: Dorman Management, Inc.
Title: Secretary Name: Richard Berman
Title: President