EXHIBIT 10 (A)(3)
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GUARANTY AGREEMENT
Dated as of December 1, 1999
Re: $40,000,000 8.39% Senior Notes
due November 30, 2004
of
K2 Inc.
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TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
Parties...........................................................................................................1
Recitals..........................................................................................................1
SECTION 1. DEFINITIONS......................................................................................2
SECTION 2. GUARANTY OF NOTES AND NOTE PURCHASE AGREEMENTS...................................................2
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE..............................................................2
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY......................................................3
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS.................................................8
SECTION 6. AMENDMENTS, WAIVERS AND CONSENTS.................................................................9
SECTION 7. SUBMISSION TO JURISDICTION......................................................................10
SECTION 8. NOTICES.........................................................................................10
SECTION 9. MISCELLANEOUS...................................................................................10
Signature........................................................................................................12
ATTACHMENTS TO GUARANTY AGREEMENT:
EXHIBIT A -- Guaranty Supplement
GUARANTY AGREEMENT
Re: Senior Notes of K2 Inc.
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This GUARANTY AGREEMENT dated as of December 1, 1999 (the or this
"GUARANTY") is entered into on a joint and several basis by each of the
undersigned (which parties are hereinafter referred to individually as a
"GUARANTOR" and collectively as the "GUARANTORS").
R E C I T A L S
A. Each Guarantor, is presently a Subsidiary of K2 Inc., a Delaware
corporation (the "COMPANY").
B. The Company entered into separate Note Purchase Agreements dated as
of October 15, 1992 (collectively, the "NOTE PURCHASE AGREEMENTS") between the
Company and each of the Purchasers named on Schedule I attached to said Note
Purchase Agreements (the "NOTE PURCHASERS") providing for, among other things,
the issue and sale by the Company to the Note Purchasers of the Company's 8.39%
Senior Notes, due November 30, 2004 in the aggregate principal amount of
$40,000,000 (the "NOTES"). The Note Purchasers together with their successors
and assigns, are hereinafter collectively referred to as the "HOLDERS".
C. The Company desires to amend the Note Purchase Agreements to
provide more flexibility for its Accounts Receivable Financing Facility and to
that end desires that the Note Purchasers consent to that certain Second
Amendment to Note Agreements dated as of December 1, 1999 (the "SECOND
AMENDMENT").
D. The Note Purchasers have required as a condition of their consent
to the Second Amendment that the Company cause each of the undersigned to enter
into this Guaranty and to cause each Person which hereafter at any time becomes
a Subsidiary and also becomes a party to the Bank Credit Agreement or otherwise
becomes guarantor of the Debt outstanding under the Bank Credit Agreement to
enter into a Guaranty Supplement in substantially the form set forth as Exhibit
A hereto (a "GUARANTY SUPPLEMENT"), in each case as security for the Notes, and
the Company has agreed to cause each of the undersigned to execute this Guaranty
and to cause each such Subsidiary to execute a Guaranty Supplement, in each case
in order to induce the Note Purchasers to consent to the Second Amendment and
thereby benefit the Company and its Subsidiaries.
NOW, THEREFORE, as required by the Note Purchase Agreements and in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency whereof are hereby acknowledged, each Guarantor does
hereby covenant and agree, jointly and severally, as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used herein shall have the meanings set forth in the
Note Purchase Agreements unless herein defined or the context shall otherwise
require.
SECTION 2. GUARANTY OF NOTES AND NOTE PURCHASE AGREEMENTS.
(a) Each Guarantor jointly and severally does hereby irrevocably,
absolutely and unconditionally guarantee unto the Holders: (1) the full and
prompt payment of the principal of, premium, if any, and interest on the Notes
from time to time outstanding, as and when such payments shall become due and
payable, whether by lapse of time, upon redemption or prepayment, by extension
or by acceleration or declaration or otherwise (including (to the extent legally
enforceable) interest due on overdue payments of principal, premium, if any, or
interest at the rate set forth in the Notes and interest accruing at the then
applicable rate provided in the Notes after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Company, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) in Federal or other
immediately available funds of the United States of America which at the time of
payment or demand therefor shall be legal tender for the payment of public and
private debts, (2) the full and prompt performance and observance by the Company
of each and all of the obligations, covenants and agreements required to be
performed or owed by the Company under the terms of the Notes and the Note
Purchase Agreements and (3) the full and prompt payment, upon demand by any
Holder, of all costs and expenses, legal or otherwise (including reasonable
attorneys' fees), if any, as shall have been expended or incurred in the
protection or enforcement of any rights, privileges or liabilities in favor of
the Holders under or in respect of the Notes, the Note Purchase Agreements or
under this Guaranty or in any action in connection therewith or herewith and in
each and every case irrespective of the validity, regularity, or enforcement of
any of the Notes or Note Purchase Agreements or any of the terms thereof or any
other like circumstance or circumstances.
(b) The liability of each Guarantor under this Guaranty shall not
exceed an amount equal to a maximum amount as will, after giving effect to such
maximum amount and all other liabilities of such Guarantor, contingent or
otherwise, result in the obligations of such Guarantor hereunder not
constituting a fraudulent transfer, obligation or conveyance.
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE.
This is a guarantee of payment and performance and each Guarantor
hereby waives, to the fullest extent permitted by law, any right to require that
any action on or in respect of any Note or the Note Purchase Agreements be
brought against the Company or any other Person or that resort be had to any
direct or indirect security for the Notes or for this Guaranty or any other
remedy. Any Holder may, at its option, proceed hereunder against any Guarantor
in the first instance to collect monies when due, the payment of which is
guaranteed hereby, without first proceeding against the Company or any other
Person and without first resorting to any direct or indirect security for the
Notes or for this Guaranty or any other remedy. The liability of each Guarantor
hereunder shall in no way be affected or impaired by any acceptance by any
Holder
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of any direct or indirect security for, or other guaranties of, any Debt,
liability or obligation of the Company or any other Person to any Holder or by
any failure, delay, neglect or omission by any Holder to realize upon or protect
any such guarantees, Debt, liability or obligation or any notes or other
instruments evidencing the same or any direct or indirect security therefor or
by any approval, consent, waiver, or other action taken, or omitted to be taken
by any such Holder.
The covenants and agreements on the part of the Guarantors herein
contained shall be joint and several covenants and agreements, and references to
the Guarantors shall be deemed references to each of them and none of them shall
be released from liability hereunder by reason of the guarantee ceasing to be
binding as a continuing security on any other of them.
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY.
(a) Each Guarantor hereby consents and agrees that any Holder or
Holders from time to time, with or without any further notice to or assent from
any other Guarantor may, without in any manner affecting the liability of any
Guarantor under this Guaranty, and upon such terms and conditions as any such
Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise),
modify, change, compromise, release or extend the duration of the time
for the performance or payment of any Debt, liability or obligation of
the Company or of any other Person secondarily or otherwise liable for
any Debt, liability or obligations of the Company on the Notes, or
waive any Default with respect thereto, or waive, modify, amend or
change any provision of any other agreement or this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or
substitute any and all property, of any nature and from whomsoever
received, held by, or for the benefit of, any such Holder as direct or
indirect security for the payment or performance of any Debt, liability
or obligation of the Company or of any other Person secondarily or
otherwise liable for any Debt, liability or obligation of the Company
on the Notes; or
(3) settle, adjust or compromise any claim of the Company
against any other Person secondarily or otherwise liable for any Debt,
liability or obligation of the Company on the Notes.
Each Guarantor hereby ratifies and confirms any such extension,
renewal, change, sale, release, waiver, surrender, exchange, modification,
amendment, impairment, substitution, settlement, adjustment or compromise and
that the same shall be binding upon it, and hereby waives, to the fullest extent
permitted by law, any and all defenses, counterclaims or offsets which it might
or could have by reason thereof, it being understood that such Guarantor shall
at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by
law:
(1) notice of acceptance of this Guaranty by the Holders or
of the creation, renewal or accrual of any liability of the Company,
present or future, or of the reliance of
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such Holders upon this Guaranty (it being understood that every
Debt, liability and obligation described in Section 2 hereof shall
conclusively be presumed to have been created, contracted or
incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any
other Person indebted in any manner on or for any of the Debt,
liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other
Person of the Notes or any other instrument, protest thereof and notice
of its dishonor to any party thereto and to such Guarantor.
The obligations of each Guarantor under this Guaranty and the rights of
any Holder to enforce such obligations by any proceedings, whether by action at
law, suit in equity or otherwise, shall not be subject to any reduction,
limitation, impairment or termination, whether by reason of any claim of any
character whatsoever or otherwise and shall not be subject to any defense,
set-off, counterclaim (other than any compulsory counterclaim), recoupment or
termination whatsoever.
(c) The obligations of each Guarantor hereunder shall be binding upon
such Guarantor and its successors and assigns, and shall remain in full force
and effect irrespective of:
(1) the genuineness, validity, regularity or enforceability
of the Notes, the Note Purchase Agreements or any other agreement or
any of the terms of any thereof, the continuance of any obligation on
the part of the Company, any other Guarantor or any other Person on or
in respect of the Notes or under the Note Purchase Agreements or any
other agreement or the power or authority or the lack of power or
authority of the Company to issue the Notes or the Company to execute
and deliver the Note Purchase Agreements or any other agreement or of
any other Guarantor to execute and deliver this Guaranty or to perform
any of its obligations hereunder or the existence or continuance of the
Company, any other Guarantor or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in
the performance by the Company, any other Guarantor or any other Person
of any obligations of any kind or character whatsoever under the Notes,
the Note Purchase Agreements, this Guaranty or any other agreement; or
(3) any creditors' rights, bankruptcy, receivership or other
insolvency proceeding of the Company, any other Guarantor or any other
Person or in respect of the property of the Company, any other
Guarantor or any other Person or any merger, consolidation,
reorganization, dissolution, liquidation, the sale of all or
substantially all of the assets of or winding up of the Company, any
other Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of
the Company, any other Guarantor or any other Person of its obligations
under the Notes, the Note Purchase Agreements, this Guaranty or any
other agreements; or
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(5) in respect of the Company, any other Guarantor or any
other Person, any change of circumstances, whether or not foreseen or
foreseeable, whether or not imputable to the Company, any other
Guarantor or any other Person, or other impossibility of performance
through fire, explosion, accident, labor disturbance, floods, droughts,
embargoes, wars (whether or not declared), civil commotion, acts of God
or the public enemy, delays or failure of suppliers or carriers,
inability to obtain materials, action of any federal or state
regulatory body or agency, change of law or any other causes affecting
performance, or any other FORCE MAJEURE, whether or not beyond the
control of the Company, any other Guarantor or any other Person and
whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order,
process, encumbrance or any other happening or event or reason, similar
or dissimilar to the foregoing, or any withholding or diminution at the
source, by reason of any taxes, assessments, expenses, Debt,
obligations or liabilities of any character, foreseen or unforeseen,
and whether or not valid, incurred by or against the Company, any
Guarantor or any other Person or any claims, demands, charges or Liens
of any nature, foreseen or unforeseen, incurred by any Person, or
against any sums payable in respect of the Notes or under the Note
Purchase Agreements or this Guaranty, so that such sums would be
rendered inadequate or would be unavailable to make the payments herein
provided; or
(7) any order, judgment, decree, ruling or regulation
(whether or not valid) of any court of any nation or of any political
subdivision thereof or any body, agency, department, official or
administrative or regulatory agency of any thereof or any other action,
happening, event or reason whatsoever which shall delay, interfere
with, hinder or prevent, or in any way adversely affect, the
performance by the Company, any Guarantor or any other Person of its
respective obligations under or in respect of the Notes, the Note
Purchase Agreements, this Guaranty or any other agreement; or
(8) the failure of any Guarantor to receive any benefit from
or as a result of its execution, delivery and performance of this
Guaranty; or
(9) any failure or lack of diligence in collection or
protection, failure in presentment or demand for payment, protest,
notice of protest, notice of default and of nonpayment, any failure to
give notice to any Guarantor of failure of the Company, any other
Guarantor or any other Person to keep and perform any obligation,
covenant or agreement under the terms of the Notes, the Note Purchase
Agreements, this Guaranty or any other agreement or failure to resort
for payment to the Company, any other Guarantor or to any other Person
or to any other guaranty or to any property, security, Liens or other
rights or remedies; or
(10) the acceptance of any additional security or other
guaranty, the advance of additional money to the Company (including the
issuance of Additional Notes in accordance with the terms of the Note
Purchase Agreements) or any other Person, the renewal or extension of
the Notes or amendments, modifications, consents or waivers
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with respect to the Notes, the Note Purchase Agreements or any other
agreement, or the sale, release, substitution or exchange of any
security for the Notes; or
(11) any change in the ownership of any shares of the Company,
any Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other
Person might have to the payment of the Notes (principal, premium, if
any, or interest), other than payment thereof in Federal or other
immediately available funds, or (ii) the Company or any other Person
might have to the performance or observance of any of the provisions of
the Notes, the Note Purchase Agreements or any other agreement, whether
through the satisfaction or purported satisfaction by the Company, any
other Guarantor or any other Person of its debts due to any cause such
as bankruptcy, insolvency, receivership, merger, consolidation,
reorganization, dissolution, liquidation, winding-up or otherwise; or
(13) any act or failure to act with regard to the Notes, the
Note Purchase Agreements, this Guaranty or any other agreement or
anything which might vary the risk of any Guarantor or any other
Person; or
(14) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any Guarantor or any other
Person in respect of the obligations of any Guarantor or other Person
under this Guaranty or any other agreement;
PROVIDED that the specific enumeration of the above-mentioned acts, failures or
omissions shall not be deemed to exclude any other acts, failures or omissions,
though not specifically mentioned above, it being the purpose and intent of this
Guaranty that the obligations of each Guarantor shall be absolute and
unconditional and shall not be discharged, impaired or varied except by the
payment of the principal of, premium, if any, and interest on the Notes in
accordance with their respective terms whenever the same shall become due and
payable as in the Notes provided and all other sums due and payable under the
Note Purchase Agreements at the place specified in and all in the manner and
with the effect provided in the Notes and the Note Purchase Agreements, as each
may be amended or modified from time to time. Without limiting the foregoing, it
is understood that repeated and successive demands may be made and recoveries
may be had hereunder as and when, from time to time, the Company shall default
under or in respect of the terms of the Notes or the Note Purchase Agreements
and that notwithstanding recovery hereunder for or in respect of any given
default or defaults by the Company under the Notes or the Note Purchase
Agreements, this Guaranty shall remain in full force and effect and shall apply
to each and every subsequent default.
(d) All rights of any Holder hereunder may be transferred or assigned
at any time and shall be considered to be transferred or assigned at any time or
from time to time upon the transfer of any Note whether with or without the
consent of or notice to the Guarantors under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, each
Guarantor shall be subrogated to the rights of the Holder upon whose Notes such
payment was made, but such
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Guarantor covenants and agrees that such right of subrogation shall be
subordinate in right of payment to the prior indefeasible final payment in
cash in full of all amounts due and owing by the Company with respect to the
Notes and the Note Purchase Agreements and by the Guarantors under this
Guaranty, and the Guarantors shall not take any action to enforce such right
of subrogation, and the Guarantors shall not accept any payment in respect of
such right of subrogation, until all amounts due and owing by the Company
under or in respect of the Notes and the Note Purchase Agreements and all
amounts due and owing by the Guarantors hereunder have indefeasibly been
finally paid in cash in full. If any amount shall be paid to any Guarantor in
violation of the preceding sentence at any time prior to the later of the
indefeasible payment in cash in full of the Notes and all other amounts
payable under the Notes, the Note Purchase Agreements and this Guaranty, such
amount shall be held in trust for the benefit of the Holders and shall
forthwith be paid to the Holders to be credited and applied to the amounts
due or to become due with respect to the Notes and all other amounts payable
under the Note Purchase Agreements and this Guaranty, whether matured or
unmatured. Each Guarantor acknowledges that it has received direct and
indirect benefits from the financing arrangements contemplated by the Note
Purchase Agreements and that the waiver set forth in this paragraph (e) is
knowingly made as a result of the receipt of such benefits.
(f) Each Guarantor agrees that to the extent the Company, any other
Guarantor or any other Person makes any payment on any Note, which payment or
any part thereof is subsequently invalidated, voided, declared to be fraudulent
or preferential, set aside, recovered, rescinded or is required to be retained
by or repaid to a trustee, receiver, or any other Person under any bankruptcy
code, common law, or equitable cause, then and to the extent of such payment,
the obligation or the part thereof intended to be satisfied shall be revived and
continued in full force and effect with respect to the Guarantors' obligations
hereunder, as if said payment had not been made. The liability of the Guarantors
hereunder shall not be reduced or discharged, in whole or in part, by any
payment to any Holder from any source that is thereafter paid, returned or
refunded in whole or in part by reason of the assertion of a claim of any kind
relating thereto, including, but not limited to, any claim for breach of
contract, breach of warranty, preference, illegality, invalidity, or fraud
asserted by any account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to ▇▇▇▇▇▇▇▇ any assets
in favor of the Guarantors or in payment of any or all of the liabilities of the
Company under or in respect of the Notes or the obligations of the Guarantors
hereunder or (2) to pursue any other remedy that the Guarantors may or may not
be able to pursue themselves and that may lighten the Guarantors' burden, any
right to which each Guarantor hereby expressly waives.
(h) The obligations of each Guarantor under this Guaranty rank PARI
PASSU in right of payment with all other Debt of such Guarantor which is not
secured or which is not expressly subordinated in right of payment to any other
Debt of such Guarantor.
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SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS.
Each Guarantor represents and warrants to each Holder that:
(a) Such Guarantor is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and is duly qualified as a foreign corporation or
other legal entity 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 on (1) the
ability of such Guarantor to perform its obligations under this Guaranty, or (2)
the validity or enforceability of this Guaranty (herein in this Section 5, a
"MATERIAL ADVERSE EFFECT"). Such Guarantor has the 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 this Guaranty and to perform the provisions hereof.
(b) This Guaranty has been duly authorized by all necessary action on
the part of such Guarantor, and this Guaranty constitutes a legal, valid and
binding obligation of such Guarantor enforceable against such Guarantor in
accordance with its terms, except as such enforceability may be limited by (1)
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer, obligation or conveyance or other similar laws affecting the
enforcement of creditors' rights generally and (2) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(c) The execution, delivery and performance by such Guarantor of this
Guaranty will not (1) 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 such Guarantor or any of its subsidiaries under its corporate charter or
by-laws, or except for contraventions, breaches or defaults which could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, under any indenture, mortgage, deed of trust, loan, purchase or
credit agreement, lease, or any other agreement or instrument to which such
Guarantor or any of its subsidiaries is bound or by which such Guarantor or any
of its subsidiaries or any of their respective properties may be bound or
affected, (2) 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 applicable to such Guarantor or any of its
subsidiaries or (3) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the such Guarantor or any
of its subsidiaries.
(d) No consent, approval or authorization of, or registration, filing
or declaration with, any Governmental Authority is required in connection with
the execution, delivery or performance by such Guarantor of this Guaranty.
(e) Such Guarantor is solvent, has capital not unreasonably small in
relation to its business or any contemplated or undertaken transaction and has
assets having a value both at fair valuation and at present fair salable value
greater than the amount required to pay its debts as they become due and greater
than the amount that will be required to pay its probable liability on
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its existing debts as they become absolute and matured. Such Guarantor does
not intend to incur, or believe that it will incur, debts beyond its ability
to pay such debts as they become due. Such Guarantor will not be rendered
insolvent by the execution and delivery of, and performance of its
obligations under, this Guaranty. Such Guarantor does not intend to hinder,
delay or defraud its creditors by or through the execution and delivery of,
or performance of its obligations under, this Guaranty.
SECTION 6. AMENDMENTS, WAIVERS AND CONSENTS.
(a) This Guaranty may be amended, and the observance of any term hereof
may be waived (either retroactively or prospectively), with (and only with) the
written consent of each Guarantor and the Required Holders, except that (1) no
amendment or waiver of any of the provisions of Sections 2, 3 or 4, or any
defined term (as it is used therein), will be effective as to any Holder unless
consented to by such Holder in writing, (2) no such amendment or waiver may,
without the written consent of each Holder, (i) change the percentage of the
principal amount of the Notes the Holders of which are required to consent to
any such amendment or waiver, or (ii) amend this Section 6, and (3) this
Guaranty may be amended by the addition of additional Guarantors pursuant to a
Guaranty Supplement.
(b) The Guarantors will provide each Holder (irrespective of the amount
of Notes then owned by it) with sufficient information, and shall be afforded
the opportunity of considering the same for a period of not less than 30 days
and shall be supplied by such Guarantors with a brief statement regarding the
reasons for any such proposed waiver or amendment, a copy of the proposed waiver
or amendment and such other information regarding such amendment as any Holder
shall reasonably request to enable it to make an informed decision with respect
thereto. The Guarantors will deliver executed or true and correct copies of each
amendment, waiver or consent effected pursuant to the provisions of this Section
6 to each Holder promptly following the date on which it is executed and
delivered by, or receives the consent or approval of, the requisite Holders.
(c) Each Guarantor agrees it will not directly or indirectly pay or
cause to be paid any remuneration, whether by way of fee or otherwise, or grant
any security, to any Holder as consideration for or as an inducement to the
entering into by any Holder of any waiver or amendment of any of the terms and
provisions hereof unless such remuneration is concurrently paid, or security is
concurrently granted, on the same terms, ratably to each Holder even if such
Holder did not consent to such waiver or amendment.
(d) Any amendment or waiver consented to as provided in this Section 6
applies equally to all Holders and is binding upon them and upon each future
holder and upon the Guarantors. No such amendment or waiver will extend to or
affect any obligation, covenant or agreement not expressly amended or waived or
impair any right consequent thereon. No course of dealing between the Guarantors
and any Holder nor any delay in exercising any rights hereunder shall operate as
a waiver of any rights of any Holder. As used herein, the term "this Guaranty"
and references thereto shall mean this Guaranty as it may from time to time be
amended or supplemented.
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SECTION 7. SUBMISSION TO JURISDICTION.
Any legal action or proceeding with respect to this Guaranty or any
document relating thereto shall be brought in the courts of the State of New
York or of the United States of America for the Southern District of New York
and in no other courts, and, by execution and delivery of this Guaranty, each
Guarantor hereby accepts for itself and in respect of its property generally and
unconditionally, the jurisdiction of the aforesaid courts. Each Guarantor hereby
irrevocably and unconditionally waives any objection, including, without
limitation, any objection to the laying of venue or based on the grounds of
FORUM NON CONVENIENS which it may now or hereafter have to the bringing of any
action or proceeding in such respective jurisdiction and waives personal service
of any and all process upon it, and consents that all such service of process be
made by delivery to it at the address set forth in Section 8 and that service so
made shall be deemed to be completed upon actual receipt.
SECTION 8. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telefacsimile if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized overnight delivery service
(with charges prepaid). Any such notice must be sent:
(1) if to Note Purchasers, to such Note Purchasers at the
address specified for such communications on Schedule A to the Note
Purchase Agreements, thereto, as the case may be, or at such other
address as such Note Purchasers shall have specified to any Guarantor
or the Company in writing,
(2) if to any other Holder, to such Holder at such address as
such Holder shall have specified to any Guarantor or the Company in
writing, or
(3) if to any Guarantor, to such Guarantor c/o the Company at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other address as such Guarantor shall have specified to the Holders in
writing.
Notices under this Section 8 will be deemed given only when actually received.
SECTION 9. MISCELLANEOUS.
(a) No remedy herein conferred upon or reserved to any Holder is
intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Guaranty now or hereafter existing at law or in equity.
No delay or omission to exercise any right or power accruing upon any default,
omission or failure of performance hereunder shall impair any such right or
power or shall be construed to be a waiver thereof but any such right or power
may be exercised from time to time and as often as may be deemed expedient. In
order to entitle any
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Holder to exercise any remedy reserved to it under the Guaranty, it shall not
be necessary for such Holder to physically produce its Note in any
proceedings instituted by it or to give any notice, other than such notice as
may be herein expressly required.
(b) The Guarantors will pay all sums becoming due under this Guaranty
by the method and at the address specified for such purpose in the Note Purchase
Agreements, or by such other reasonable method or at such other address as any
Holder shall have from time to time specified to the Guarantors in writing for
such purpose, without the presentation or surrender of this Guaranty or any
Note.
(c) Any provision of this Guaranty that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
(d) If the whole or any part of this Guaranty shall be now or hereafter
become unenforceable against any one or more of the Guarantors for any reason
whatsoever or if it is not executed by any one or more of the Guarantors, this
Guaranty shall nevertheless be and remain fully binding upon and enforceable
against each other Guarantor as if it had been made and delivered only by such
other Guarantors.
(e) This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of each Holder and its
successors and assigns (including, without limitation, any subsequent holder of
a Note) whether so expressed or not, so long as its Notes remain outstanding and
unpaid.
(f) This Guaranty may be executed in any number of counterparts, each
of which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
(g) This Guaranty shall be construed and enforced in accordance with,
and the rights of the parties shall be governed by the law of the State of New
York.
-11-
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly
executed by an authorized representative as of this ______ day of December,
1999.
[VARIATION]
By
Name:
------------------------------
Title:
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-12-
GUARANTY SUPPLEMENT
Re: Senior Notes of K2 Inc.
----------------------------
This GUARANTY SUPPLEMENT dated as of _________, _____ (the or this
"GUARANTY SUPPLEMENT") is entered into [on a joint and several basis] by [each
of] the undersigned __________, a ____________ corporation [and ____________, a
___________ corporation] ([which parties are hereinafter referred to
individually as] an "ADDITIONAL GUARANTOR" [and collectively as the "ADDITIONAL
GUARANTORS"]).
R E C I T A L S
A. [Each] Guarantor, is presently a Subsidiary of K2 Inc., a Delaware
corporation (the "COMPANY").
B. The Company entered into separate Note Purchase Agreements dated as
of October 15, 1992 (collectively, the "NOTE PURCHASE AGREEMENTS") between the
Company and each of the Purchasers named on Schedule I attached to said Note
Purchase Agreements (the "NOTE PURCHASERS") providing for, among other things,
the issue and sale by the Company to the Note Purchasers of the Company's 8.39%
Senior Notes, due November 30, 2004 in the aggregate principal amount of
$40,000,000 (the "NOTES"). The Note Purchasers together with their successors
and assigns, are hereinafter collectively referred to as the "HOLDERS".
C. The Company desires to amend the Note Purchase Agreements to provide
more flexibility for its Accounts Receivable Financing Facility and to that end
desires that the Note Purchasers consent to that certain Second Amendment to
Note Agreements dated as of December 1, 1999 (the "SECOND AMENDMENT").
D. As a condition precedent to their consent to the Second Amendment,
the Note Purchasers required that certain Subsidiaries of the Company enter into
the Guaranty Agreement dated as of December 1, 1999 (the "GUARANTY") as security
for the Notes.
NOW, THEREFORE, as required by the Note Purchase Agreements and in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency whereof are hereby acknowledged, [each/the] Guarantor
does hereby covenant and agree, [jointly and severally,] as follows:
In accordance with the requirements of the Guaranty, the Additional
Guarantor[s] desire to amend the definition of Guarantor (as the same may have
been heretofore amended) set forth in the Guaranty attached hereto so that at
all times from and after the date hereof, the Additional Guarantor[s] shall be
[jointly and severally] liable as set forth in the Guaranty for the obligations
EXHIBIT A
(to Guaranty Agreement)
of the Company under the Note Purchase Agreements and Notes to the extent and in
the manner set forth in the Guaranty.
The undersigned is the duly elected ____________ of the Additional
Guarantor[s] and is duly authorized to execute and deliver this Guaranty
Supplement for the benefit of all Holders of the Notes. The execution by the
undersigned of this Guaranty Supplement shall evidence its consent to and
acknowledgment and approval of the terms set forth herein and in the Guaranty by
such execution the Additional Guarantor[s] shall be deemed to have made the
representations and warranties set forth in Section 5 of the Guaranty in favor
of the Holders as of the date of this Guaranty Supplement].
Upon execution of this Guaranty Supplement, the Guaranty shall be
deemed to be amended as set forth above. Except as amended herein, the terms and
provisions of the Guaranty are hereby ratified, confirmed and approved in all
respects.
A-2
Any and all notices, requests, certificates and other instruments
(including the Notes) may refer to the Guaranty without making specific
reference to this Guaranty Supplement, but nevertheless all such references
shall be deemed to include this Guaranty Supplement unless the context shall
otherwise require.
[NAME OF ADDITIONAL GUARANTOR]
By
Its
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A-3