EXHIBIT (10)(A)(2)
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K2, INC.
Second Amendment to Note Agreements
Dated as of December 1, 1999
Re: Note Agreements dated as of October 15, 1992
and
$40,000,000 8.39% Senior Notes
due November 30, 2004
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TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. AMENDMENTS .........................................................1
Section 1.1. Amendment of Section 5.9 ...........................................1
Section 1.2. Amendment of Section 5.11(d) .......................................2
Section 1.3. Amendment of Section 5.12 ..........................................2
Section 1.4. Amendment of Section 8.1 ...........................................3
SECTION 2. REPRESENTATIONS AND WARRANTIES .....................................5
SECTION 3. CONDITIONS PRECEDENT ...............................................5
Section 3.1. Payment of Special Counsel Fees ....................................5
Section 3.2. Consent of Requisite Holders .......................................5
Section 3.3. Intercreditor Agreement ............................................5
Section 3.4. Guaranty Agreement .................................................5
Section 3.5. Opinion of Counsel .................................................5
SECTION 4. MISCELLANEOUS ......................................................5
Section 4.1. Effective Date .....................................................5
Section 4.2. Counterparts .......................................................5
Section 4.3. Headings ...........................................................6
Section 4.4. Governing Law ......................................................6
Section 4.5. References to Note Agreements ......................................6
Section 4.6. Ratification .......................................................6
Section 4.7. Fees and Expenses ..................................................6
Signatures................................................................................7
EXHIBIT A -- Form of Representations and Warranties
EXHIBIT B -- Form of Intercreditor Agreement
EXHIBIT C -- Form of Guaranty Agreement
EXHIBIT D -- Form of Opinion of Company Counsel
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K2, INC.
SECOND AMENDMENT TO NOTE AGREEMENTS
Dated as of
December 1, 1999
Re: Note Agreements dated as of October 15, 1992
and
$40,000,000 8.39% Senior Notes
Due November 30, 2004
To the Holders Named in Schedule I
Ladies and Gentlemen:
Reference is made to those separate Note Agreements, each dated as
of October 15, 1992, as amended by that certain First Amendment dated as of
May 1, 1996 (collectively referred to herein as the "NOTE AGREEMENTS"),
pursuant to which K2, Inc. (formerly known as Xxxxxxx Industries, Inc.), a
Delaware corporation (the "COMPANY"), issued $40,000,000 aggregate principal
amount of its 8.39% Senior Notes due November 30, 2004. You and the other
Institutional Holders named in Schedule I are hereinafter sometimes referred
to as the "HOLDERS". Capitalized terms used herein and not otherwise defined
shall have the meanings given thereto in the Note Agreements.
The Company requests the amendment of certain provisions of the Note
Agreements to read as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and other good and
sufficient consideration, the Company agrees with you as follows:
SECTION 1. AMENDMENTS.
SECTION 1.1. AMENDMENT OF SECTION 5.9. Section 5.9 of each of
the Note Agreements is hereby amended as follows:
(a) Clause (h) of Section 5.9 is hereby amended by
deleting "and" where it appears at the end of said clause (h).
(b) Clause (i) of Section 5.9 is hereby amended by
inserting ";and" at the end of said clause (i).
(c) Clause (j) is hereby added to Section 5.9 as follows:
K2, Inc. Second Amendment to Note Agreements
"(j) Liens arising out of an Accounts Receivable
Financing Facility."
SECTION 1.2. AMENDMENT OF SECTION 5.11(d). Section 5.11(d) of
each of the Note Agreements is hereby amended as follows:
"(d) Neither the Company nor any Restricted
Subsidiary will sell, transfer or otherwise dispose of any
receivables other than any sale, lease or other disposition
of receivables pursuant to the Accounts Receivable
Financing Facility, PROVIDED that at all times the Accounts
Receivable Financing Facility has a Deemed Principal Amount
not exceeding (i) $75,000,000 for such Accounts Receivable
Financing Facility originating within the United States or
(ii) $20,000,000 for such Accounts Receivable Financing
Facility originating outside of the United States; PROVIDED
FURTHER that the net proceeds from any such Accounts
Receivable Financing Facility shall be applied to the
prepayment of Funded Debt of the Company or any Restricted
Subsidiary which for purposed of this Section 5.11(d) and
Section 5.11(e), shall include a temporary reduction in
Indebtedness outstanding under the Bank Credit Facility."
SECTION 1.3. AMENDMENT OF SECTION 5.12. Section 5.12 of each
of the Note Agreements is hereby amended as follows:
"SECTION 5.12. GUARANTIES. (a) The Company will
not, and will not permit any Restricted Subsidiary to,
become or be liable in respect of any Guaranty except (i)
Guaranties by the Company which are limited in amount to a
stated maximum dollar exposure or which constitute
Guaranties of obligations incurred by any Restricted
Subsidiary in compliance with the provisions of this
Agreement and (ii) Guaranties which constitute Excluded
Subsidiary Obligations.
(b) The Company will cause any Person which
becomes a Subsidiary after December 1, 1999 and which is
required by the terms of the Bank Credit Agreement to
become a party to, or otherwise Guaranty, Indebtedness
outstanding under the Bank Credit Agreement to enter into
the Guaranty Agreement, and deliver within three Business
Days thereafter to each of the holders of the Notes the
following items:
(i) a joinder agreement in respect of
the Guaranty Agreement;
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K2, Inc. Second Amendment to Note Agreements
(ii) a certificate signed by the President, a Vice
President or another authorized Responsible Officer of the
Company making representations and warranties to the effect
of those contained in Exhibit A to the Second Amendment,
with respect to such Subsidiary and the Guaranty Agreement,
as applicable;
(iii) such documents and evidence with respect to
such Subsidiary as any holder of the Notes may reasonably
request in order to establish the existence and good
standing of such Subsidiary;
(iv) an opinion of counsel addressed to each of
the holders of the Notes satisfactory to the holders of 66
2/3% in aggregate principal amount of the Notes, to the
effect that the Guaranty Agreement has been duly
authorized, executed and delivered and constitutes the
legal, valid and binding contract and agreement of such
Subsidiary enforceable in accordance with its terms, except
as an enforcement of such terms may be limited by
bankruptcy, insolvency, fraudulent conveyance and similar
laws affecting the enforcement of creditors' rights
generally and by general equitable principles; and
(v) If at any time one or more Subsidiaries which
shall have guaranteed the Indebtedness outstanding under
the Bank Credit Agreement shall have been released from its
obligations under such Guaranty, then upon delivery to the
holders of the Notes of evidence of such release (which
evidence shall be reasonably satisfactory to holders of 66
2/3% aggregate principal amount of the Notes), such
Subsidiary shall be released from its obligations under the
Guaranty Agreement."
SECTION 1.4. AMENDMENT OF SECTION 8.1. Section 8.1 of each of
the Note Agreements is hereby amended as follows:
(a) The definitions of "Accounts Receivable Financing
Facility" and "Priority Debt" are hereby deleted in their entirety and
the following inserted in lieu thereof:
"ACCOUNTS RECEIVABLE FINANCING FACILITY" shall
mean the facility or facilities as amended, extended or
renewed from time to time, providing for the sale,
encumbrance or other disposition to a Person or Persons
other than the Company or a Restricted Subsidiary, at any
time or from time to time, of all or a portion of the
accounts receivable of the Company or its Restricted
Subsidiaries, whether now existing or hereafter created;
but only so
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K2, Inc. Second Amendment to Note Agreements
long as the obligations of the Company and its
Restricted Subsidiaries thereunder shall not be deemed to
be liabilities on the balance sheet of the Company or any
Restricted Subsidiary prepared in accordance with GAAP.
"'PRIORITY DEBT' shall mean shall mean (x) any
Funded Debt of the Company secured by Liens permitted by
paragraphs (f), (g), (h) and (i) of Section 5.9 and (y)
any Funded Debt of a Restricted Subsidiary; PROVIDED,
however that Funded Debt in respect of Excluded Subsidiary
Obligations shall not be considered Priority Debt."
(b) The following definitions are hereby incorporated into
Section 8.1 in their correct alphabetical order:
"'BANK CREDIT AGREEMENT' shall mean the credit
agreement between the Company and its bank lenders dated as
of December __, 1999, as amended, restated, refinanced,
replaced, increased or reduced from time to time and any
successor bank credit agreement."
"'EXCLUDED SUBSIDIARY OBLIGATIONS' shall mean (a)
the Guaranty Agreement and any other Guaranty of Debt of
the Company by a Subsidiary Guarantor which shall be a
party to the Guaranty Agreement and (b) obligations of
Subsidiary Guarantors as Co-obligors with the Company on
Debt; PROVIDED that each creditor which is a beneficiary of
an Excluded Subsidiary Obligation shall have become a party
to the Intercreditor Agreement."
"'GUARANTY AGREEMENT' that certain Guaranty
Agreement dated as of December 1, 1999 from certain
Subsidiaries of the Company."
"'INTERCREDITOR AGREEMENT' shall mean that certain
Intercreditor Agreement dated as of December 17, 1999 among
the Purchasers and the banks which are parties to the Bank
Credit Agreement and certain other creditors which are
beneficiaries of Excluded Subsidiary Obligations."
"'SECOND AMENDMENT' shall mean that certain Second
Amendment dated as of December 1, 1999 among the Company
and the Purchasers named therein."
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K2, Inc. Second Amendment to Note Agreements
"SUBSIDIARY GUARANTOR' shall mean each Subsidiary of
the Company which shall be a party to the Guaranty Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants that all representations and
warranties set forth in Exhibit A hereto are true and correct as of the
Effective Date.
SECTION 3. CONDITIONS PRECEDENT.
The Effective Date for this Second Amendment shall be subject to the
fulfillment by the Company of the following conditions precedent:
SECTION 3.1. PAYMENT OF SPECIAL COUNSEL FEES. The Company shall
have paid the reasonable fees and disbursements of your special counsel for
which the Company shall have received an invoice at least one business day
prior to the Closing Date.
SECTION 3.2. CONSENT OF REQUISITE HOLDERS. The Company shall have
obtained the written consent of the Holders at least 66-2/3% in aggregate
principal amount of the Notes, as evidenced by their signatures at the foot
of this Second Amendment.
SECTION 3.3. INTERCREDITOR AGREEMENT. The Intercreditor
Agreement, substantially in the form of Exhibit B hereto, shall have been
executed and delivered by the parties thereto.
SECTION 3.4. GUARANTY AGREEMENT. The Guaranty Agreement shall
have been duly authorized, executed and delivered by each of Subsidiary,
shall constitute the legal, valid and binding contract and agreement of each
such Subsidiary and shall be enforceable against each such Subsidiary in
accordance with its terms and shall be substantially in the form of Exhibit C
hereto.
SECTION 3.5. OPINION OF COUNSEL. The Holders shall have received
from Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company, their opinion
dated the Closing Date, in form and substance satisfactory to the Holders,
and covering the matters set forth in Exhibit D hereto.
SECTION 4. MISCELLANEOUS.
SECTION 4.1. EFFECTIVE DATE. This Second Amendment shall become
effective on December 17, 1999 (the "EFFECTIVE DATE").
SECTION 4.2. COUNTERPARTS. This Second Amendment may be executed
in any number of counterparts, each executed counterpart constituting an
original, but all together only one Second Amendment.
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K2, Inc. Second Amendment to Note Agreements
SECTION 4.3. HEADINGS. The headings of the sections of this
Second Amendment are for purposes of convenience only and shall not be
construed to affect the meaning or construction of any of the provisions
hereof.
SECTION 4.4. GOVERNING LAW. This Second Amendment shall be
governed by and construed in accordance with the laws of the State of New
York.
SECTION 4.5. REFERENCES TO NOTE AGREEMENTS. Any and all notices,
requests, certificates and other instruments executed and delivered
concurrently with or after the execution of the Second Amendment may refer to
the Note Agreements without making specific reference to this Second
Amendment, but nevertheless all such references shall be deemed to include
this Second Amendment unless the context shall otherwise require.
SECTION 4.6. RATIFICATION. Except to the extent hereby modified
or amended, the Note Agreements are in all respects hereby ratified,
confirmed and approved by the parties hereto.
SECTION 4.7. FEES AND EXPENSES. All fees and expenses relating
to the subject matter of this Second Amendment, including, without
limitation, all fees and expenses of special counsel to the Holders, shall be
paid by the Company.
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K2, Inc. Second Amendment to Note Agreements
Please signify your consent to the amendment of the Note Agreements
between you and the Company by signing and returning this Second Amendment.
K2, INC.
By
Name:
------------------------------
Title:
------------------------------
Accepted as of the date first above written.
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Capital
Management, LLC, a Delaware
limited liability company,
its authorized signatory
By
------------------------------
Name:
Title:
By
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Name:
Title:
Holder of $20,000,000 in
aggregate original principal
amount of the Notes
Accepted as of the date first above written.
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
Holder of $10,000,000 in
aggregate original principal
amount of the Notes
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K2, Inc. Second Amendment to Note Agreements
Accepted as of the date first above written.
LIFE INVESTORS INSURANCE
COMPANY OF AMERICA
By
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
Holder of $3,000,000 in
aggregate original
principal amount of the
Notes
Accepted as of the date first above written.
MONUMENTAL LIFE INSURANCE COMPANY
By
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
Holder of $7,000,000 in
aggregate original principal
amount of the Notes
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SCHEDULE I
Principal Life Insurance Company
c/o Principal Capital Management, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Life Investors Insurance Company of America
c/o AEGON USA Investment Management, Inc.
0000 Xxxxxxxx Xxxx, X.X.
Xxxxx Xxxxxx, Xxxx 00000
Monumental Life Insurance Company
c/o AEGON USA Investment Management, Inc.
0000 Xxxxxxxx Xxxx, X.X.
Xxxxx Xxxxxx, Xxxx 00000
REPRESENTATIONS AND WARRANTIES
The Company hereby represent and warrants to you as follows:
1. ORGANIZATION; POWER AND AUTHORITY. The Company and each
Restricted Subsidiary is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation, and is
duly qualified as a foreign corporation and is in good standing in each
jurisdiction in which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good standing
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The Company and each Restricted Subsidiary has the
corporate power and authority to own or hold under lease the properties it
purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver the Second Amendment or the
Guaranty Agreement, as the case may be, and to perform the provisions thereof.
2. AUTHORIZATION, ETC. The Second Amendment has been duly
authorized by all necessary corporate action on the part of the Company, and
constitutes a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
The Guaranty Agreement has been duly authorized by all
necessary corporate action on the part of each Subsidiary, and constitutes a
legal, valid and binding obligation of the such Subsidiary enforceable
against such Subsidiary in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
3. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC. Neither the
execution, delivery and performance by the Company of the Second Amendment
nor the execution, delivery and performance by the Subsidiaries of the
Guaranty Agreement will (a) contravene, result in any breach of, or
constitute a default under, or result in the creation of any Lien in respect
of any property of the Company or any Restricted Subsidiary under, any
indenture, mortgage, deed of trust, loan, purchase or credit agreement,
lease, corporate charter or by-laws, or any other agreement or instrument to
which the Company or any Restricted Subsidiary is bound or by which the
Company or any Restricted Subsidiary or any of their respective properties
may be bound or affected, (b) conflict with or result in a breach of any of
the terms, conditions or provisions of any order, judgment, decree, or ruling
of any court, arbitrator or governmental authority or agency, Federal, State
or local, applicable to the Company or any Restricted Subsidiary or (c)
violate any provision of any statute or other rule or regulation of any
EXHIBIT A
(to Second Amendment)
K2, Inc. Second Amendment to Note Agreements
governmental authority or agency, Federal, State or local, applicable to the
Company or any Restricted Subsidiary.
4. GOVERNMENTAL AUTHORIZATIONS, ETC.. No consent, approval or
authorization of, or registration, filing or declaration with, any
governmental authority or agency, Federal, State or local is required in
connection with the execution, delivery or performance by the Company of this
Agreement or the Notes or by the Subsidiaries of the Guaranty Agreement.
5. GOVERNMENTAL CONSENT. No consent, approval or authorization
of, or registration, filing or declaration with, any governmental authority
or agency, Federal, State or local, is required in connection with the
execution, delivery or performance by the Subsidiaries of the Guaranty
Agreement.
6. NO DEFAULTS. No Default or Event of Default has occurred and
is continuing.
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FORM OF INTERCREDITOR AGREEMENT
EXHIBIT B
(to Second Amendment)
FORM OF GUARANTY AGREEMENT
EXHIBIT C
(to Second Amendment)
FORM OF OPINION OF COMPANY COUNSEL
The closing opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel
for the Company, which is called for by Section 3.5 of the Second Amendment,
shall be dated the Closing Date and addressed to the Holders, shall be
satisfactory in scope and form to the Holders and shall be to the effect that:
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, has the corporate power and authority and is duly
authorized to enter into the Second Amendment and perform the Note
Agreements, as amended by the Second Amendment, and has full
corporate power and authority to conduct the activities in which, to
such counsel's knowledge, it is now engaged.
2. The Second Amendment has been duly authorized,
executed and delivered by the Company and the Note Agreements, as
amended by the Second Amendment, constitute the legal, valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting creditors' rights
generally, and general principles of equity (regardless of whether
the application of such principles is considered in a proceeding in
equity or law).
3. No approval, consent, filing, registration or
qualification with any governmental authority or agency, Federal,
State or local, is necessary on the part of the Company in
connection with the execution and delivery of the Second Amendment.
4. The execution, delivery and performance by the Company
of the Second Amendment will not conflict with or result in any
breach of any of the provisions of or constitute a default under or
result in the creation or imposition of any Lien upon any property
of the Company pursuant to the provisions of the Articles of
Incorporation or By-laws of the Company or any agreement or other
instrument for borrowed money known to such counsel to which the
Company is a party or by which the Company may be bound.
The opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP shall cover such other
matters relating to the sale of the Notes as the Holders may reasonably
request. With respect to matters of fact on which such opinion is based, such
counsel shall be entitled to rely on appropriate certificates of public
officials and officers of the Company. The opinion of Xxxxxx, Xxxx & Xxxxxxxx
LLP may be relied upon by the Holders and its assignees and transferees.
EXHIBIT D
(to Second Amendment)
