WMAR » Topics » SECTION 4. MISCELLANEOUS PROVISIONS .

This excerpt taken from the WMAR 10-K filed Mar 25, 2005.

SECTION 4. MISCELLANEOUS PROVISIONS.

 

4.01. Waiver. No failure or delay by the Administrative Agent or any Lender in exercising any remedy, right, power or privilege under this Guarantee or any other Loan Document shall operate as a waiver of such remedy, right, power or privilege, nor shall any single or partial exercise of such remedy, right, power or privilege preclude any other or further exercise of such remedy, right, power or privilege or the exercise of any other remedy, right, power or privilege. The remedies, rights, powers and privileges provided by this Guarantee are, to the extent not prohibited by law, cumulative and not exclusive of any remedies, rights, powers or privileges provided by the other Loan Documents or by law.

 

4.02. Notices. All notices, requests, demands, consents, instructions and other communications to or upon the Guarantors or any one of them (care of the Borrower) or the Administrative Agent under this Guarantee shall be given as provided in Section 11.6 of the Credit Agreement.

 

4.03. Expenses, Etc. Each Guarantor agrees to pay or to reimburse the Administrative Agent and the Lenders for all costs and expenses (including fees and expenses of counsel) that may be incurred by the Administrative Agent or the Lenders in any effort to enforce any of the obligations of the Guarantors under this Guarantee, whether or not any lawsuit is filed, including all such costs and expenses (and attorneys’ fees and expenses on a solicitor and own client basis) incurred by the Administrative Agent and the Lenders in any bankruptcy, reorganization, workout or similar proceeding. All amounts due under this Guarantee (including under Section 2.01) and not paid when due shall bear interest until paid at a per annum rate equal to the Alternate Base Rate plus the Applicable Alternate Base Rate Margin for Alternate Base Rate Advances plus two percent (2.00%).

 

4.04. Amendments, Etc. No amendment, modification, supplement, extension, termination or waiver of any provision of this Guarantee, no approval or consent thereunder, and no consent to any departure by any Guarantor therefrom, may in any event be effective unless in writing signed by the Administrative Agent with the written approval or upon the instructions of the Requisite Lenders, and then only in the specific instance and for the specific purpose given and any such amendment, modification, supplement, extension, termination or waiver shall be binding upon the Administrative Agent, each holder of Guaranteed Obligations and the Guarantors; and, without the approval in writing of all the Lenders, no amendment, modification, supplement, termination, waiver or consent may be effective as to the matters set forth in the Credit Agreement, including, without limitation, except as expressly provided in the Credit Agreement, the release of any Guarantor and no amendment, modification, or supplement of any provision of this Guarantee may in any event be effective unless in writing signed by each Guarantor who is a party to the Guarantee at the time any such amendment, modification, or supplement is made. Nothing herein shall in any way modify or limit the effect of terms or conditions set forth in any other document, instrument or agreement executed by any Guarantor or applicable to any Guarantor or in connection with the Guarantied Obligations, but each and every term and condition hereof shall be in addition thereto.

 

4.05. Successors and Assigns. This Guarantee shall be binding upon and inure to the benefit of the Guarantors, the Administrative Agent and their respective successors and

 

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assigns. No Guarantor may assign or transfer its rights or obligations under this Guarantee without the prior written consent of the Required Lenders. Any attempted assignment or transfer in violation of this Section 4.05 shall be null and void.

 

4.06. Survival. All representations and warranties made in this Guarantee or in any certificate or other document delivered pursuant to or in connection with this Guarantee shall survive the execution and delivery of this Guarantee or such certificate or other document (as the case may be) or any deemed repetition of any such representation or warranty.

 

4.07. ENTIRE AGREEMENT. THIS GUARANTEE REPRESENTS THE COMPLETE AND FINAL AGREEMENT AMONG THE GUARANTORS AND THE ADMINISTRATIVE AGENT AND SUPERSEDES ALL PRIOR AGREEMENTS, WRITTEN OR ORAL, ON THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN OR AMONG THE GUARANTORS, THE ADMINISTRATIVE AGENT AND THE LENDERS.

 

4.08. Partial Invalidity. If at any time any provision of this Guarantee is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Guarantee nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby.

 

4.09. Captions. The table of contents, captions and section headings appearing in this Guarantee are included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Guarantee.

 

4.10. Counterparts. This Guarantee may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the parties to this Guarantee may execute this Guarantee by signing any such counterpart. Transmission by telecopier of an executed counterpart of this Guarantee shall be deemed to constitute due and sufficient delivery of such counterpart.

 

4.11. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS APPLICABLE IN BRITISH COLUMBIA, CANADA.

 

EACH GUARANTOR HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF BRITISH COLUMBIA, CANADA FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS GUARANTEE OR THE TRANSACTIONS CONTEMPLATED BY THIS GUARANTEE. EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

 

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4.12. WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTEE OR THE TRANSACTIONS CONTEMPLATED BY THIS GUARANTEE.

 

4.13. Power of Attorney. Each Guarantor hereunder hereby grants to the Borrower an irrevocable power of attorney to act as its attorney-in-fact with regard to matters relating to this Guarantee and each other Loan Document after the occurrence and during the continuance of an Event of Default, including execution and delivery of any amendments, supplements, waivers or other modifications hereto or thereto, receipt of any notices hereunder or thereunder and receipt of service of process in connection herewith or therewith. Each Guarantor hereby explicitly acknowledges that the Administrative Agent has executed and delivered this Guarantee and each other Loan Document to which it is a party, and has performed its obligations under this Guarantee and each other Loan Document to which it is a party, in reliance upon the irrevocable grant of such power of attorney pursuant to this Section 4.13.

 

4.14. Additional Guarantors. If, pursuant to the terms and conditions of the Credit Agreement, the Borrower shall be required to cause any Subsidiary of Borrower or Parent that is not a Guarantor to become a Guarantor hereunder, such Subsidiary shall execute and deliver to the Administrative Agent a Joinder Agreement in the form of Annex 1 and shall thereafter for all purposes be a party hereto and have the same rights, benefits and obligations as a Guarantor party hereto.

 

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IN WITNESS WHEREOF, the undersigned have executed this Guarantee as of the date first above written.

 

 

GUARANTOR(S):

WEST MARINE CANADA CORP.,

a Nova Scotia unlimited liability company

By:

 

/s/ John Edmondson


Name:

 

John Edmondson

Title:

 

Chief Executive Officer

   

[Printed Name & Title]

 

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