EXHIBIT 10.02
SECOND AMENDMENT TO
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Second Amendment") is
dated as of April 18, 1997, and is entered into by among K2 Inc., a Delaware
corporation ( the "Borrower" ), the financial institutions listed on the
signature pages hereto (the "Banks") , and Bank of America National Trust and
Savings Association, as the agent for the Banks (the "Agent") amends that
certain credit Agreement dated as of May 21, 1996 among the Borrower, the Banks
and the Agent, as amended by a First Amendment to Credit Agreement dated as of
March 10, 1997 (as so amended, the "Agreement").
RECITALS
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A. The Borrower has requested the Banks and the Agent to increase
the combined commitments from $75,000,000 to $100,000,000, and the Banks and
Agent are willing to do so on the terms and conditions set forth herein.
B. The Borrower, Banks and Agent desire to confirm the extension of
the Termination Date pursuant to section 2.15 of the Agreement to May 20, 2002.
C. Separately, Citicorp, U.S.A. assigned its Commitments to Union
Bank of California, N.A. prior to the date of this Second Amendment.
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
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agreement unless otherwise defined herein. All references to the Agreement
shall mean the Agreement as hereby amended.
2. Amendments to Agreement.
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2.1 The Definition of "Termination Date" in section 1.1 of the
Agreement is amended by deleting "May 20, 2001" and inserting "May 20, 2002" in
lieu thereof.
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2.2 Schedule 2.1 to the Agreement is amended and restated in its
entirety in the form of schedule 2.1 hereto.
3. Representation and Warranties. The Borrower represents and warrants
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to Banks and Agent that, on and as of the date hereof, after giving effect to
this Second Amendment:
3.1 Authorization. The execution, delivery and performance of this
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Second Amendment have been duly authorized by all necessary corporate action by
the Borrower and this Second Amendment has been duly executed and delivered by
the Borrower.
3.2 Binding Obligation. This Second Amendment is the legal, valid
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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
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performance of this Second 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 Second Amendment, or the transactions contemplated hereby.
3.4 Incorporation of Certain Representations. The representations
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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
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has occurred and is continuing.
4. Conditions, Effectiveness. The effectiveness of this Second Amendment
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shall be subject to the compliance by the Borrower with its agreements herein
contained, and to the
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delivery of the following to the Agent in form and substance satisfactory to
the Agent:
4.1 Corporate Resolutions. A copy of a resolution or resolutions
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passed by the executive committee of the Board of Directors of the Borrower,
certified by the Secretary or an Assistant Secretary of the Borrower as being in
full force and effective on the effective date of this Second Amendment,
authorizing the amendments to the Agreement herein provided for and the
execution, delivery and performance of this Second Amendment and any note or
other instrument required hereunder.
4.2 Authorized Signatories. A certificate, signed by the Secretary
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or an Assistant Secretary of the Borrower dated the date of this Second
Amendment, as to the incumbency of the person or persons authorized to execute
and deliver this Second Amendment and any instrument or agreement required
hereunder on behalf of the Borrower.
4.3 New Committed Notes. Replacement Committed Notes reflecting the
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new Commitment of each Bank Substantially in the form of Exhibit G hereto.
4.4 Other Evidence. Such other evidence with respect to the
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Borrower or any other person as the Agent or any Bank may reasonably request in
connection with this Second Amendment and the compliance with the conditions set
forth herein.
5. Miscellaneous.
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5.1 Special Provisions Relating to Outstanding Offshore Rate Loans.
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Under the increased Commitments becoming effective with this Second Amendment,
the Pro Rata Share of each Bank will be different than its Pro Rata Share Under
the Agreement before giving hereto. However, the Borrower has requested that
the Banks continue to hold the Offshore Rate Loans outstanding on the date
hereof in their current Pro Rata Share until such Offshore Rate Loans continued,
converted or repaid to avoid either break funding or increased interest costs.
Accordingly, from and after the date hereof, continuations and conversations of
such outstanding Offshore Rate Loans, Borrowings of new Committed Loans and
participations in Letters of Credit will be made ratably in accordance with
each Bank's new Pro Rata Share of the increased combined Commitments; provided,
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however, that until all such outstanding Offshore Rate Loans have been so
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continued, converted or repaid payments of the commitment fee and distributions
of payments on account of such Offshore Rate Loans shall be in accordance with
each Bank's actual unused
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Commitment and its actual outstanding Offshore Rate Loans, respectively, not
in accordance with such new Pro Rata Share.
5.2 Effectiveness of Agreement. Except as hereby expressly amended
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the Agreement and each other Loan Document shall each remain in full force and
effect, and are hereby ratified and confirmed in all respects on and as of the
date hereof.
5.3 Waivers. This Second Amendment is specific in time and in intent
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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 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.
5.4 Counterparts. This Second Amendment may be executed in any
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number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. This Second Amendment shall
not become effective until the Borrower, the Banks and the Agent shall have
signed a copy hereof, whether the same or counterparts, and the same shall have
been delivered to the Agent.
5.5 Jurisdiction. This Second Amendment shall be governed by and
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construed under the laws of the State of California.
5.6 Committed Notes. Each Bank shall deliver its prior Committed
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Note against receipt of this replacement Committed Note hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered as of the date first written above.
K2 Inc.
By:
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Title:
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By:
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Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
and Issuing Bank
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
NATIONSBANK OF TEXAS, N.A.
By:
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Title:
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WACHOVIA BANK
By:
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Title:
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UNION BANK OF CALIFORNIA, N.A.
By:
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Title:
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SCHEDULE 2.1
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COMMITMENTS
AND PRO RATA SHARES
Letter
of Credit Pro Rata
Bank Commitment Commitment Share
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Bank of America
National Trust and
Savings Association $ 6,600,000 $ 33,000,000 33%
NationsBank of
Texas, N.A. 5,200,000 26,000,000 26
Wachovia Bank 4,600,000 23,000,000 23
Union Bank of
California, N.A. 3,600,000 18,000,000 18
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TOTAL $20,000,000.00 $100,000,000 100%
SCHEDULE G
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FORM OF COMMITTED LOAN NOTE
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$_____________ May ___, 1996
FOR VALUE RECEIVED, the undersigned K2 INC. (formerly named ▇▇▇▇▇▇▇
Industries, Inc.), a Delaware corporation (the "Borrower"), hereby promises to
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pay to the order of ________________ (the "Bank") the principal sum of
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_____________________ Dollars ($______________) or, if less, the aggregate
unpaid principal amount of all Committed Loans made by the Bank to the Borrower
pursuant to that certain Credit Agreement dated as of May 21, 1996 (as from time
to time amended, extended, restated, modified or supplemented, the "Credit
Agreement;" capitalized terms used herein shall have the meanings assigned to
them in the Credit Agreement), among the Borrower, the banks named therein (the
"Banks") and Bank of America National Trust and Savings Association, as Agent
(the "Agent"). The Borrower further promises to pay interest on the unpaid
principal amount of the Committed Loans evidenced hereby from time to time at
the rates, on the dates, and otherwise as provided in the Credit Agreement.
The Bank is authorized to endorse the amount and the date on which each
Committed Loan is made, the maturity date therefor and each payment of principal
with respect thereto on the schedules annexed hereto and made a part hereof, or
on continuations thereof which shall be attached hereto and made a part hereof;
provided, that any failure to endorse such information on such schedule or
continuation thereof shall not in any manner affect any obligation of the
Borrower under the Credit Agreement and this Promissory Note (the "Note").
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This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement, which Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified. If
a prior committed note had been delivered to the Bank under the Credit
Agreement, this Note amends and restates and supersedes such Note, and any
Committed Loans evidenced by such prior committed note are deemed evidenced by
this Note.
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This Note shall be governed by, and construed and interpreted in accordance
with, the laws of the State of California applicable to contracts made and to be
performed entirely within such State.
K2 INC. (formerly named ▇▇▇▇▇▇▇
Industries, Inc.)
By: ___________________________
Title: ________________________
Schedule A to Committed Loan Note
(3)
(2) End of (4) (5)
(1) Amount Interest Principal Notation
Date of Loan Period Amount Made By
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(4056854.02)
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