EXHIBIT (10)(b)(4)
FOURTH AMENDMENT TO
CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Fourth Amendment")
is dated August 21, 1998, and is entered into by and among K2 Inc., a
Delaware corporation (the "Borrower"), the financial institutions listed on
the signature pages hereto (the "banks"), Bank of America National Trust and
Savings Association, as Issuing Bank (in such capacity, the "Issuing Bank"),
Bank of America National Trust and Savings Association, as Swing Line Bank
(in such capacity, the "Swing Line Bank"), and Bank of America National Trust
and Savings Association, as the agent for the Banks (in such capacity, the
"Agent") and amends that certain Credit Agreement dated as of May 21, 1996
among the Borrower, the Banks, the Issuing Bank, the Swing Line Bank and the
Agent, as amended by a First Amendment to Credit Agreement dated as of March
10, 1997, a Second Amendment to Credit Agreement dated as of April 18, 1997
and a Third Amendment to Credit Agreement dated as of December 15, 1997 (as
so amended, the "Agreement").
RECITAL
The Borrower has requested, and the Banks, the Issuing Bank, the
Swing Line Bank and the Agent are willing, to amend the Agreement on the
terms and conditions set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as
follows:
1. TERMS. All terms used herein shall have the same meanings as in
the Agreement unless otherwise defined herein. All references to the
Agreement shall mean the Agreement as hereby amended.
2. AMENDMENT TO AGREEMENT. The Borrower, the Banks, the Issuing
Bank, the Swing Line Bank and the Agent hereby agree that Section 9.14(a)(5)
of the Agreement is amended by deleting "$50,000,000" and inserting
$75,000,000" in lieu thereof.
3. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to Banks, the Issuing Bank, the Swing Line Bank and Agent that, on
and as of the date hereof, after giving effect to this Fourth Amendment.
3.1 AUTHORIZATION. The execution, delivery and performance of this
Fourth Amendment have been duly authorized by all necessary corporate action
by the Borrower and this Fourth Amendment has been duly executed and
delivered by the Borrower.
3.2 BINDING OBLIGATION. This Fourth Amendment is the legal, valid
and binding obligation of Borrower, enforceable against the Borrower in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability.
3.3 NO LEGAL OBSTACLE TO AMENDMENT. The execution, delivery and
performance of this Fourth Amendment will not (a) contravene the terms of the
Borrower's certificate of incorporation, by laws or other organization
document; (b) conflict with or result in any breach or contravention of the
provisions of any contract to which the Borrower is a party, or the violation
of any law, judgment, decree or governmental order, rule or regulation
applicable to Borrower, or result in the creation under any agreement or
instrument of any security interest, lien, charge, or encumbrance upon any of
the assets of the Borrower. No approval or authorization of any governmental
authority is required to permit the execution, delivery or performance by the
Borrower of this Fourth Amendment, or the transactions contemplated hereby.
3.4 INCORPORATION OF CERTAIN REPRESENTATIONS. The representations
and warranties of the Borrower set forth in Section 7 of the Agreement are
true and correct in all respects on and as of the date hereof as though made
on and as of the date hereof, except as to such representations made as of an
earlier specified date.
3.5 DEFAULT. No Default or Event of Default under the Agreement
has occurred and is continuing.
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4. MISCELLANEOUS.
4.1 EFFECTIVENESS OF AGREEMENT. Except as hereby expressly
amended, the Agreement and each other Loan Document shall remain in full
force and effect, and are hereby ratified and confirmed in all respects on
and as of the date hereof.
4.2 WAIVERS. This Fourth Amendment is specific in time and in
intent and does not constitute, nor should it be construed as, a waiver of
any other right, power or privilege under the Loan Documents, or under any
agreement, contract, indenture, document or instrument mentioned in the Loan
Documents; nor does it preclude any exercise thereof or the exercise of any
other right, power or privilege, nor shall any future waiver of any right,
power, privilege or default hereunder, or under any agreement, contract,
indenture, document or instrument mentioned in the Loan Documents, constitute
a waiver of any other default of the same or of any other term or provision.
4.3 COUNTERPARTS. This Fourth Amendment may be executed in
any number of counterparts and all of such counterparts taken together shall
be deemed to constitute one and the same instrument. This Fourth Amendment
shall not become effective until the Borrower, the Banks, the Issuing Bank,
the Swing Line Bank and the Agent shall have signed a copy hereof, whether
the same or counterparts, and the same shall have been delivered to the Agent.
4.4 JURISDICTION. This Fourth Amendment shall be governed by
and construed under the laws of the State of California.
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