EXHIBIT 99.2
ADDENDUM AND AMENDMENT TO FOURTH
AMENDED AND RESTATED REVOLVING AND TERM
CREDIT AGREEMENT
This Addendum is dated this 18th day of August, 1998, by and between
MARKER INTERNATIONAL, a Utah corporation, MARKER LTD., a Utah corporation,
MARKER USA, a Utah corporation, DNR USA, a Utah corporation, DNR NORTH AMERICA,
a Delaware corporation, (hereafter collectively referred to as "Marker") and
FIRST SECURITY BANK, NATIONAL ASSOCIATION (hereafter referred to as "First
Security").
This Addendum shall amend that "Fourth Amended and Restated Revolving
and Term Credit Agreement," dated November 6, 1997 (the "Fourth Agreement"). The
loans of First Security to Marker International, to Marker Ltd., to Marker USA,
and to DNR North America have heretofore been documented by an "Eighth Amended
Revolving Note" in the principal sum of $27,000,000.00 (the "Eighth Note," which
was made by Marker International, by Marker Ltd, by Marker USA, and by DNR North
America), and by a "Term Promissory Note" in the principal sum of $5,000,000.00
(which was made by Marker USA, by Marker Ltd. and by Marker International). Each
Marker International, Marker USA, Marker Ltd., and DNR North America
unconditionally reaffirm their respective obligations of indebtedness to First
Security pursuant to the said promissory notes and all related loan
documentation and confirm the enforceability of such promissory notes and
related loan documentation in accordance with their respective terms and
conditions.
Marker and First Security have agreed to amend the Fourth Agreement
and the Eighth Note to provide for the extension of additional credit to Marker
in the amount of $4,100,000.00. The principal amount of the indebtedness of
Marker to First Security now outstanding is $29,365,020.84; accrued and unpaid
interest on said indebtedness, as of the date hereof, totals $401,332.18. As a
condition of the further extension of credit herewith granted to Marker by First
Security, Marker has agreed to the following terms and conditions:
1. ADDITIONAL BORROWER: DNR USA, together with DNR North America,
Marker International, Marker USA, and Marker Ltd., executes and delivers to
First Security the "Ninth Amended and Substituted Revolving Promissory Note" in
the principal amount of $33,600,000.00 (the "Ninth Note").
2. ADDITIONAL COLLATERAL: Marker has agreed to provide additional
collateral to First Security as follows:
a. Marker Ltd., Marker USA, DNR USA, and DNR North America
execute and deliver to First Security the "Second Amendment
to Receivables and Inventory Security Agreement" which
grants unto First Security a security interest in all
trademarks, patents, distribution agreements, marketing
agreements, license agreements, sublicense agreements, and
general intangibles associated with such trademarks, license
agreements, patents of Marker used in connection with the
manufacture or sale of "Marker" branded goods in the U.S.A
b. Marker International herewith executes and delivers to
First Security a "Deed of Trust (with Assignment of Rents)"
encumbering the real estate and fixtures owned by Marker
International at 2300 South 0000 Xxxx Xxxxxx, and at 2305
South 0000 Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx. In connection
therewith, Marker International shall provide to First
Security, a second priority encumbrance on such parcels of
real estate, subject only to such other liens and
encumbrances as First Security may accept, and Marker
International shall provide, at its sole expense, a
mortgagee's policy of insurance in the total amount of
$2,600,000.00. First Security and Marker have agreed to
release such encumbrances upon payment to First Security by
Marker International, from the proceeds of the sale or
refinancing of such real estate, the total sum of
$2,600,000.00, or such lesser sum as may represent the net
proceeds from the sale or refinancing of such parcels of
real estate, reduced only by the following:
i) principal and interest owing to the holders of the
first priority encumbrances on each such parcel, including
any fees incurred by Marker International in connection with
any prepayment;
ii) accrued taxes and assessments then due with
respect to such parcels;
iii) customary escrow and recording expenses in
connection with any sale or refinancing of such parcels; and
iv) customary brokerage fees incurred and payable by
Marker International (if any) in connection with any such
sale or refinancing of such parcels.
Notwithstanding the provisions of Section 5. 8 MERGER OR
SALE of the Fourth Agreement, Marker and First Security
contemplate that Marker International will diligently
attempt to complete the sale or refinancing of the real
estate encumbered by the said "Deed of Trust (with
Assignment of Rents)" in order to reduce the outstanding
balance of the Ninth Note.
c. Marker International executes and delivers to First
Security a "Collateral Assignment of Trademarks and Patents"
in form and in substance acceptable to First Security,
encumbering certain of the trademarks of Marker used in the
manufacture and marketing of "Marker" branded goods in the
U. S. A. [Marker and First Security contemplate the
execution and delivery of additional such collateral
assignments of trademarks and patents by Marker in favor of
First Security as contemplated by that letter of
understanding dated August 16, 1998. ]
d. Marker Ltd., Marker USA, DNR North America, and DNR USA
execute and deliver to First Security Uniform Commercial
Code Financing Statements in form and substance acceptable
to First Security describing all inventories, accounts
receivable, general intangibles, goods, and other collateral
described in the "Second Amendment to Receivables and
Inventory Security Agreement";
e. Marker International executes and delivers to First
Security Uniform Commercial Code Financing Statements in form
and in substance acceptable to First Security describing the
following collateral:
i) all trademarks, patents, distribution agreements,
marketing agreements, license agreements, sublicense
agreements, and general intangibles associated with such
trademarks, license agreements, patents of Marker used in
connection with the manufacture or sale of "Marker" branded
goods in the U. S. A., and
ii) all fixtures used in connection with the real
estate encumbered by the said "Deed of Trust (with
Assignment of Rents)."
Marker and First Security hereby agree that in the event that Marker is able to
permanently reduce the outstanding, unpaid principal sum of the Ninth Note by at
least $2,600,000.00, AND, Marker is able to eliminate, on or before December 31,
1998, the temporary "overadvance" under the Fourth Agreement [being the sum of
$$5,073,913.00 as of the date hereof] either as a result of additional
reductions in the outstanding, principal balance of the Ninth Note, or as a
result of increases in the value of the "Borrowing Base," THEN IN SUCH EVENT,
First Security shall release all of the additional collateral (described in this
paragraph 2). Notwithstanding the foregoing, First Security and Marker
understand that the Fourth Agreement shall expire, by its own terms, at the
Termination Date.
3. New Definitions in Fourth Agreement. The Fourth Agreement is hereby
amended as follows:
"AGREEMENT" shall mean the Fourth Agreement as amended by
this Addendum, as this Agreement may be further amended from time to
time.
"AGGREGATE OUTSTANDINGS" shall mean the sum of (i) the
outstanding and unpaid principal balance of the Revolving Note, (ii)
the amounts outstanding, whether drawn or undrawn, under the then
effective L/Cs issued by Bank for the account of any Borrower, and
(iii) the FX Amount.
"AVAILABLE CREDIT" has application as a limitation on all of
the Commitments in the aggregate and means the amount available at any
given time for Advances, Import L/C's, and Foreign Exchange Contracts.
The amount of Available Credit shall mean: at any given time from the
date hereof through and including the Termination Date, the difference
obtained by subtracting the then Aggregate Outstandings from the
lesser of: (1) the sum of the Borrowing Base plus $5,073,913.00; or
(2) $33,600,000.00 (provided that Available Credit shall not be a
negative number).
"BORROWERS" shall mean Marker International, Marker Ltd.,
Marker USA, DNR USA, and DNR North America.
"BORROWING BASE" shall mean, at any time, THE SUM OF:
(i) the amount determined under a Borrowing Base Certificate
by applying (as shown in the formula therein contained) the applicable
Advance Rate to, respectively, Eligible Inventory and Eligible
Accounts, PLUS
(ii) the undrawn face amounts of any outstanding letters of
credit obtained by Borrowers in favor of Bank as beneficiary, which
letters of credit shall be in a form and issued by financial
institutions acceptable to Bank, PLUS
(iii) $2,600,000.00, LESS the amount of proceeds received by
First Security from the sale or refinancing of real estate encumbered
by the "Deed of Trust (with Assignment of Rents)," dated August 18,
1998, provided that in the event that all real property encumbered by
such deed of trust is reconveyed by First Security, such value shall
be deleted from the Borrowing Base.
"BORROWING BASE CERTIFICATE" shall mean the certificate in
the form set forth in EXHIBIT "A" hereto which must be submitted by
the Collateral Parties on a daily basis and serves as a basis for
determining the amount of Available Credit from time to time. "
"COLLATERAL PARTIES" shall mean any of Marker International,
Marker USA, Marker Ltd., DNR North America and DNR USA.
"COMMITMENTS" shall mean the obligations of the Bank, upon
the terms and subject to the conditions of this Agreement and pursuant
to the provisions of Section 2. 1 hereinafter to make Advances to
Borrowers, to provide Import L/Cs to Borrowers and to enter into
Foreign Exchange Contracts with Borrowers under the Revolving
Commitment.
"NOTES" shall mean the Revolving Note (Exhibit "B"), and the
L/C Notes (in the customary form), together with all amendments,
renewals and substitutions therefor.
"REVOLVING COMMITMENT," shall mean the Bank's commitment
under Section 2. 1(a) of the Fourth Agreement to lend to Borrowers, on
a revolving basis, in the form of Advances and Import L/Cs up to the
maximum aggregate principal amount of $33,600,000.00, at any time from
the date hereof, through and including the Termination Date (provided
there is sufficient Available Credit to permit said levels of
borrowing); provided further that the FX Amount calculated from time
to time (based upon the percentages of outstanding Foreign Exchange
Contracts set forth in the definition of FX Amount above) shall reduce
(on a dollar for dollar basis) the amount available under the
Revolving Commitment for Advances and Import L/Cs.
"REVOLVING NOTE means the Ninth Amended and Substituted
Revolving Promissory Note, dated of even date herewith, made by the
Borrowers and payable to the Bank in the maximum aggregate principal
sum of $33,600,000.00, in the form of Exhibit "B" attached hereto and
incorporated herein by this reference.
"SECURITY AGREEMENT" means the "Second Amendment to
Receivables and Inventory Security Agreement" as further amended from
time to time.
"TERM COMMITMENT," "TERM EURODOLLAR RATE," "TERM LOAN,"
"TERM MATURITY DATE," and "TERM NOTE" are eliminated and deleted as
defined terms, for the reason that the "TERM NOTE" has been
consolidated into the "REVOLVING NOTE" and the "TERM LOAN" eliminated.
4. ELIMINATION OF TERM LOAN COMMITMENT AND TERM LOAN NOTE. Section 2.
1 "BANK'S COMMITMENTS" is amended to read as follows:
"Upon the terms and subject to the conditions of this Agreement, the
Bank will extend credit to the Borrowers prior to the Termination Date
through the following financial accommodations: (a) the Bank hereby
commits to lend to Borrowers, by making Advances to the Borrowers on a
revolving basis and by issuing Import L/Cs for the account of
Borrowers, for use by the Borrowers in their general business
operations, subject to repayment as hereinafter stated (the "Revolving
Commitment"), up to the maximum aggregate amount at any one time
outstanding of $33,600,000.00 at any time through the date hereof
through and including the Termination Date (provided there is
sufficient Available Credit to permit said levels of borrowing),
provided further that the FX Amount calculated from time to time shall
reduce (on a dollar for dollar basis) the amount available under the
Revolving Commitment for Advances and Import L/Cs; (b) within the
Revolving Commitment, the Bank hereby further commits, subject to the
conditions and limitations set forth in Section 2. 6 below and
elsewhere in this Agreement, to make its foreign currency exchange
facilities available to Borrowers by entering into contracts with
Borrowers for sale by Bank to Borrowers of various foreign currencies
(provided there is sufficient Available Credit to permit such activity
in accordance with Section 2. 6 and recognizing that the FX Amount
calculated from time to time shall reduce (on a dollar for dollar
basis) the amount available under the Revolving Commitment for Advances
and Import L/Cs). The sum of all Advances outstanding under this
Agreement, the face amounts of all Import L/Cs outstanding under this
Agreement, and the FX Amount (the Aggregate Outstandings) shall not at
any time exceed the Available Credit at any given time from and
including the Termination Date. Repayment and reborrowing under the
Revolving commitment shall be permitted subject to the conditions
hereinafter set forth. "
Section 2. 7 "THE TERM NOTE" is deleted in its entirety. Section 3. 1 (b) "TERM
LOAN INTEREST" is deleted in its entirety. All other references to the "Term
Loan," "Term Note," or "Term Commitment," whether or not specifically identified
above, are hereby deleted to conform to the intent of the parties to consolidate
the term loan into the "Revolving Commitment. "
5. CERTAIN REPRESENTATIONS. Section 2. 4 "CERTAIN REPRESENTATIONS," is
amended to read as follows:
"Each draft upon the checking Account or withdrawal therefrom which
give rise to an Advance shall be deemed to be the representation to the
Bank by the Borrowers and the Authorized Representative making such
request that (a) no known Default or Event of Default exists or will
exist upon completion of the requested Advance; (b) the total amount of
the Aggregate Outstandings will not exceed the lesser of the Borrowing
Base or: $33,600,000.00 at any given time from the date hereof through
and including the Termination Date; (c) the representations and
warranties contained in Article IV hereof are true and correct with the
same force and effect as if made on the date of such request (except
for representations and warranties which relate solely to an earlier
date and except for changes of which the Bank has been previously
advised occurring as a result of transactions or events which are not
in violation of any term of this Agreement); and (d) the Borrowers are
otherwise in compliance with the terms of this Agreement without known
breach, delinquency, Default or Event of Default. "
Notwithstanding the foregoing, First Security and Marker acknowledge that Marker
is presently in default of certain of the terms of the Agreement, namely Section
3. 2 MANDATORY PAYMENT AND PREPAYMENTS C REVOLVING NOTE, Section 5. 15
CONSOLIDATED TANGIBLE NET WORTH, Section 5. 16 HYPOTHEKEN BANK LOAN, Section 7.
1 (a), (b), (e), and (g) EVENTS OF DEFAULT. First Security agrees to forbear
through the Termination Date with respect to the exercise of its rights and
remedies against Marker as a result of such conditions of default.
6. ELIMINATION OF EXCESS BORROWING RIGHT. Section 2. 9 EXCESS
BORROWING RIGHT is hereby deleted.
7. SUBORDINATION OF INSIDER DEBT. Marker delivers herewith the Letter
of Understanding of Xxxx Xxxxxxxx, attorney for Xxxxx X. Xxxxxx, agreeing to the
subordination of the priority and payment of $3,000,000.00 in debt which may
hereafter be owed by Marker to Xxxxx X. Xxxxxx TO THE PAYMENT OF ALL OBLIGATIONS
OF INDEBTEDNESS OF MARKER TO FIRST SECURITY. Through and including the
Termination Date, all representations of Marker to First Security shall include
an acknowledgement of such conditions of default.
Except as otherwise amended herein, all other terms, conditions and
provisions of the Fourth Agreement are hereby reaffirmed.
Marker International, a Utah corporation
By: /S/ XXXXX XXXXX
-----------------------------
Title: CHIEF FINANCIAL OFFICER
Marker USA, a Utah corporation
By: /S/ XXXXX XXXXX
-----------------------------
Title: CHIEF FINANCIAL OFFICER
Marker Ltd., a Utah corporation
By: /S/ XXXXX XXXXX
------------------------------
Title: CHIEF FINANCIAL OFFICER
DNR USA, a Utah corporation
By: /S/ XXXXX XXXXX
-------------------------------
Title: CHIEF FINANCIAL OFFICER
DNR North America
By: /S/ XXXXX XXXXX
-------------------------------
Title: CHIEF FINANCIAL OFFICER
First Security Bank, National Association
By: /S/ XXXXX X. XXXXXXX
----------------------------------
Title: VICE PRESIDENT
EXHIBIT A
To: First Security Bank, N.A
Special Loans Dept.
00 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
ATTN: Xxxxx Xxxxxxx
Effective date of this Certificate:
Pursuant to the terms and conditions of that certain "Addendum and
Amendment to Fourth Amended and Restated Revolving Credit Agreement" dated as of
August 18, 1998, among MARKER INTERNATIONAL, a Utah corporation, MARKER USA, a
Utah corporation, MARKER LTD, a Utah corporation, DNR North America, and DNR USA
(hereinafter collectively referred as "Borrowers"), and FIRST SECURITY BANK,
N.A. ("Bank"), as amended from time to time (the "Agreement"), Borrowers hereby
certify, that the representations and warranties of the Agreement are true and
correct as of the date set forth below with the same effect as if made as of the
date of said Agreement, and Borrowers warrant, that no Event of Default, as
defined in the Agreement, has occurred and that the Borrowers are in full
compliance with all terms and conditions of the Agreement.
Borrowers further certify, that the following computations of the
"Borrowing Base" are true and correct in accordance with the terms and
conditions of the Agreement as of the date hereof:
1. Summary of Inventory (as defined in the Agreement) of USA and LTD (at
"cost" - basis for valuation will be supplied at the request of Bank):
A. Inventory items held for sale (excluding
(i) items subject to lease or rental
agreements and whether in processing or
not, and (ii) items identified to a
contract of sale to any purchaser)
See Attached Summary of items, by type, and
quantity and ascribed value.
Total Value: $_____________
B. Less Inventories included in "A" above
subject to any encumbrance, lien or
security interest (excepting security
interests of Bank) or Inventories held
for sale on consignment (if any) $_____________
C. Less Inventories of MARKER LTD which as
of April 1 of any year are not carried
in MARKER LTD's current or coming season
catalog $
D. Total Adjusted Value of Inventories for
Borrowing Base (A-B-C) x 55% = $______________
2. A. All "Accounts" (as defined in the
Agreement) of BORROWERS $______________
B. Less "Accounts" included in "A" above
subject to any prior encumbrance, lien
or security interest (excepting
encumbrances of Bank) $______________
C. Less "Accounts" more than sixty (60)
days past the original contracted
payment due date $______________
D. Less other Accounts which are not
"Eligible" as provided in the definition
of "Eligible Accounts" in the Agreement $______________
E. Adjusted Value of "Satisfactory
Accounts" for Borrowing Base (A-B-C-D) x
80% = $_______________
3. A. $2,600,000.00 = $2,600,000.00
B. LESS the total sum of proceeds received
by Bank from the sale or refinancing of
real estate encumbered by Bank's "Deed
of Trust (with Assignment of Rents)"
dated as of 8-18-98. (At such time that
Bank has received the proceeds to which
Bank is entitled from the sale or
refinancing of BOTH parcels of such real
estate, the net = $ amount under this 3C
shall be zero from that time forward for
purposes of calculating the total
"Borrowing Base"). = $________________
C. Adjusted Value of Real Estate Collateral
(A-B) = $_________________
4. Total "Borrowing Base"
(1D + 2E + 3C. ) = $_________________
5. Aggregate Outstandings under the
Agreement (as defined in the Agreement)
$_________________
6. Amount Available for Advancement to
Borrowers (4-5) if the Difference is a
Positive Figure ("Available Credit") $_________________
Sum to be Repaid by Borrowers (4-5) if the
Difference is a Negative Figure $_________________
The undersigned certifies that all values
are calculated as of the date hereof in
accordance with the terms of the
Agreement.
DATED this_________ day of ______________, 19__.
MARKER USA, a Utah corporation
By:
Its:
MARKER LTD, a Utah corporation
By:
Its:
MARKER INTERNATIONAL, a Utah corporation
By:
Its:
DNR USA, a Utah corporation
By:
Its:
DNR North America, a Delaware corporation
By:
Its:
Exhibit B to Addendum
NINTH AMENDED AND SUBSTITUTED
REVOLVING PROMISSORY NOTE
August 18, 1998
Borrowers: MARKER USA, a Utah corporation
MARKER LTD, a Utah corporation
MARKER INTERNATIONAL, a Utah corporation
DNR NORTH AMERICA, INC., a Delaware corporation
DNR USA, INC., a Delaware corporation
Rate: As outlined in the Agreement (as defined below)
Principal Amount: Thirty-Three Million Six Hundred Thousand Dollars
($33,600,000.00)
Due Date: September 5, 1998
For value received, the undersigned ("Borrowers"), jointly and
severally, promise to pay on or before September 5, 1998, to First Security
Bank, N. A. f/k/a First Security Bank of Utah, National Association ("First
Security"), or to its order, the total principal sum of Thirty- Three Million
Six Hundred Thousand Dollars ($33,600,000.00), or such other amount then
outstanding on this Note, plus interest then accrued and unpaid. This Note is
payable in lawful money of the United States of America.
Interest on the unpaid balance outstanding will be calculated at a per
annum rate in effect pursuant to the terms of the Fourth Amended and Restated
Revolving and Term Credit Agreement dated as of November 6, 1997, as amended by
that certain Addendum and Amendment to Fourth Amended and Restated Revolving and
Term Credit Agreement dated August 18, 1998 (collectively the "Agreement").
Notwithstanding the foregoing, upon the occurrence of an "Event of Default" (as
defined in the Agreement), the rate of interest per annum shall be three percent
(3.0%) above the "Prime Rate" per annum from and after such Event of Default;
provided further, however, that if First Security shall waive in writing or
allow a cure of such Event of Default, the interest rate shall revert to the
then effective non-default rate from and after such waiver or completion of cure
(whichever is sooner). As used herein, "Prime Rate" shall mean First Security's
announced rate of interest (per annum) used as a reference point from which the
cost of credit to customers may be calculated, and is subject to change from
time to time. First Security may make loans bearing interest above, at or below
its Prime Rate; such rate, though designated as the Prime Rate, not necessarily
being the best or lowest rate available to borrowers from First Security. The
interest rate in effect for this Note may change from time to time, and the
interest payable on this Note will continue to fluctuate with the applicable
index rate and with changes in certain applicable interest margins, all as
specified in the Agreement. Any changes in the interest rate under this Note
shall become effective, without prior notice, on the date on which the
applicable index rate changes (or on which the applicable interest margin
changes), as provided in the Agreement. Interest will be charged on a daily
basis for the actual number of days the unpaid principal is outstanding on a per
annum basis from the date of disbursement to the date of maturity. The actual
interest to be charged under this Note shall be calculated on a 365 day year.
Should the rate of interest, as calculated, exceed that allowed by law, the
applicable rate of interest will be the maximum rate of interest lawfully
allowed. The principal amount outstanding, on which the interest rate shall be
charged, shall be determined from the records of First Security, which shall be
presumed correct unless clear and convincing evidence to the contrary shows the
same to be mistaken.
Installments of all accrued and then unpaid interest shall be paid on
the first day of each calendar month during the term hereof. The maximum
principal amount that Borrowers have the right to borrow under this Note is
limited by certain "Borrowing Base," "Available Credit" and other restrictions
contained in the Agreement. In the event that any of the above provided monthly
interest installments (or prepayments of principal) are not paid when due, or
within ten (10) days after such due date, Borrowers agree to pay without further
notice hereof, a late fee equal to five percent (5%) of the unpaid and
delinquent amount. If, however, such installment of interest or principal
prepayment falls due and payable on a Saturday, Sunday, legal holiday or other
nonbanking day under the laws of the State of Utah, the due date of such
installment or principal prepayment shall be extended to the next succeeding
business day and interest hereon shall be payable at the then applicable rate
during such extension.
All payments received by First Security on this Note shall be applied
as follows: first, following any "Default" under the Agreement, toward the
satisfaction of reasonable attorneys' fees and costs incidental thereto and to
advances made and costs and expenses incurred by the holder of this Note and its
agents to enforce Borrowers' obligations hereunder and under the related loan
documents or to preserve the collateral securing said obligations; second,
toward the reduction of any and all accrued and unpaid interest under this Note,
including uncollected late charges; third, toward the reduction of unpaid
principal under this Note; and fourth, toward the reduction of any obligations
of Borrowers under "Import L/Cs" issued under the Agreement.
This Note is the "Revolving Note" referred to in the Agreement and is
entitled to the benefits thereof. This Note evidences a revolving line of credit
and Borrowers may prepay the unpaid principal sum hereof as provided in the
Agreement, and, during the pendency of the "Revolving Commitment" set forth in
Section 2 of the Agreement, reborrow such sums subject to the conditions and
limitations set forth therein.
Upon the occurrence of an Event of Default related to the failure to
make any payment of said installments of interest or any part thereof, it shall
be optional with the legal holder of this Note to declare the entire principal
and interest balance hereunder due and payable, and proceedings may at once be
instituted for the enforcement and collection of the same by law.
If there shall be an Event of Default pursuant to the Agreement which
authorizes the acceleration of the maturity of this Note, First Security or the
holder of this Note, at its option, may declare the whole immediately due and
payable. Borrowers understand and agree that failure of First Security or any
holder of this Note to exercise this option shall not constitute a waiver of the
right to exercise the same on a later Event of Default.
In the Event of Default, Borrowers agree to pay all reasonable
attorneys' fees and other expenses incurred by First Security in the enforcement
of any of its rights hereunder whether the Event of Default is ultimately cured
or whether First Security is obligated to pursue its legal remedies, including
such expenses incurred prior to the institution of legal action, during the
pendency of such legal action and continuing to include all such expenses
incurred in connection with any appeal to higher courts arising out of legal
proceedings to enforce Borrowers' obligations hereunder or in any way in
connection with bankruptcy or other insolvency proceedings.
The makers, sureties, guarantors and endorsers of this Note jointly
and severally waive presentment for payment, notice of dishonor, protest, notice
of protest and of nonpayment of this Note, and consent to any extension of time
of payment hereof, any addition, release or substitution of all or any
collateral securing the payment hereof, and any addition, release or
substitution of any party liable for this obligation. Time is of the essence
hereof.
This Note shall be construed according to the laws of the State of
Utah.
This Note is intended to replace by consolidation and substitution
that certain Term Promissory Note dated October 29, 1996, made by Marker USA,
Marker LTD, and Marker International, in the original principal sum of
$5,000,000 (the "Term Note"). As of the date of this Note, the outstanding
principal balance of the Term Note ($4,500,000) shall be considered to have been
transferred to this Note, and the term feature of the indebtedness under the
Term Note shall, as of the date of this Note, be modified to be included as part
of the revolving indebtedness under this Note. This Note is also intended to
amend by substitution the Eighth Amended and Substituted Revolving Promissory
Note dated November 6, 1997, made by Marker USA, Marker Ltd, Marker
International, and DNR North America, Inc., and payable to First Security in the
maximum principal amount of $27,000,000 (the "Eighth Amended Note"), which in
turn amended by substitution the Seventh Amended and Substituted Revolving
Promissory Note dated October 29, 1996, made by Marker USA, Marker Ltd and
Marker International (the "Original Borrowers") and payable to First Security in
the maximum principal amount of $20,000,000 (the "Seventh Amended Note"), which
in turn amended by substitution the Sixth Amended and Substituted Revolving
Promissory Note dated August 26, 1996, made by Original Borrowers and payable to
First Security in the maximum principal amount of $20,000,000 (the "Sixth
Amended Note"), which in turn amended by substitution the Fifth Amended and
Substituted Revolving Promissory Note dated September 5, 1995, made by Original
Borrowers and payable to First Security in the maximum principal amount of
$18,000,000 (the "Fifth Amended Note"), which in turn amended by substitution
the Fourth Amended and Substituted Revolving Promissory Note dated July 15,
1994, made by Original Borrowers and payable to First Security in the maximum
principal amount of $14,000,000 (the "Fourth Amended Note"), which in turn
amended by substitution the Third Amended and Substituted Revolving Promissory
Note dated August 6, 1993, made by Original Borrowers and payable to First
Security in the maximum principal amount of $10,500,000 (the "Third Amended
Note"), which in turn amended by substitution the Second Amended and Substituted
Revolving Promissory Note dated July 31, 1992, made by Original Borrowers and
payable to First Security in the maximum principal amount of $8,500,000 (the
"Second Amended Note"), which in turn amended by substitution the Amended and
Substituted Revolving Promissory Note dated October 11, 1991, made by Original
Borrowers and payable to First Security in the maximum principal amount of
$8,500,000.00 (the "Amended Note"), which in turn amended by substitution the
Revolving Promissory Note dated March 28, 1991, made by Original Borrowers and
payable to First Security in the maximum principal amount of $7,500,000 (the
"Original Note"). This Note is not a novation or payment of the Term Note, the
Eighth Amended Note, the Seventh Amended Note, Sixth Amended Note, the Fifth
Amended Note, the Fourth Amended Note, the Third Amended Note, the Second
Amended Note, the Amended Note or the Original Note.
MARKER USA, a Utah corporation
By:/S/ XXXXX XXXXX
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Its: CHIEF FINANCIAL OFFICER
MARKER LTD, a Utah corporation
By:/S/ XXXXX XXXXX
-----------------------------
Its: CHIEF FINANCIAL OFFICER
MARKER INTERNATIONAL, a Utah corporation
By:/S/ XXXXX XXXXX
-----------------------------
Its: CHIEF FINANCIAL OFFICER
DNR NORTH AMERICA, INC.,
a Delaware Corporation
By:/S/ XXXXX XXXXX
------------------------------
Its: CHIEF FINANCIAL OFFICER
DNR USA, INC., a Delaware corporation
By:/S/ XXXXX XXXXX
-------------------------------
Its: CHIEF FINANCIAL OFFICER
