EXHIBIT 10.1
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is executed as of the 5th day of September, 2003
(the "CLOSING DATE"), between INDIAN-XXXXXX, INC., a corporation organized and
existing under the laws of the State of Nevada (the "COMPANY"), and BANK ONE,
NATIONAL ASSOCIATION, a national banking association with its principal office
in Indianapolis, Indiana (the "BANK").
ARTICLE I
DEFINITION OF TERMS
Section 1.01. Accounting Terms/Financial Statements. All accounting and
financial terms used in this Agreement are used with the meanings such terms
would be given in accordance with GAAP, except as may be otherwise specifically
provided in this Agreement.
Section 1.02. Definitions. The following terms have the meanings
indicated when used in this Agreement with the initial letter capitalized:
"ACCOUNT" means cash collateral Account No. 641874540 maintained by the
Company with the Bank.
"ADVANCE" means the disbursement of proceeds under the Loan.
"AFFILIATE" means, with respect to any Person, any officer, shareholder
or director of such Person and any Person or group acting in concert in
respect of the Person in question that, directly or indirectly,
controls or is controlled by or is under common control with such
Person.
"AGREEMENT" means this Credit Agreement, as amended, modified,
supplemented and/or restated from time to time and at any time.
"APPLICABLE SPREAD" means that number of percentage points or Basis
Points to be taken into account in determining the rate per annum at
which interest will accrue on the Loan, which shall be as follows:
If determining a If determining a
LIBOR-based Rate Prime-based Rate
---------------- ----------------
137.5 B.P. (125) B.P.
"APPLICATION FOR ADVANCE" or "APPLICATION" means the written
application of the Company for a disbursement of proceeds of the Loan,
which application will be in
form and substance substantially the same as EXHIBIT "A" attached to
this Agreement.
"AUTHORIZED OFFICER" means any of the Chairman, President, Chief
Financial Officer, Treasurer, Secretary or Assistant Secretary of the
Company, acting singly.
"BANK" has the meaning ascribed to such term in the preamble to this
Agreement.
"BANK DEBT" has the meaning ascribed to such term in Section 8.11 of
this Agreement.
"BANKING DAY" means a day on which the principal offices of the Bank in
the City of Indianapolis, Indiana, are open for the purpose of
conducting substantially all of the Bank's business activities.
"BASIS POINT" and "B.P." each mean one hundredth of one percent
(0.01%).
"BEAR ARCHERY" is used as defined in the definition of Escalade
Domestic Subsidiaries.
"BOC" means BANK ONE CORPORATION and all of its Subsidiaries (including
the Bank), Affiliates and divisions.
"BOARD" means the Board of Governors of the Federal Reserve System.
"BORROWING BASE" means, at any date a determination thereof is made, an
amount equal to the sum of: eighty percent (80%) of the book value of
the Eligible Accounts plus one hundred percent (100%) of the Pledged
Cash, plus fifty percent (50%) of the outstanding principal balance
owed on the Escalade Note, less the amount of excess, if any, by which
the aggregate Eligible Accounts outstanding at any time from any
account debtor and its Affiliates exceeds fifteen percent (15%) of
aggregate Eligible Accounts on such date of determination; provided
however, that such concentration limitation shall not apply to Eligible
Accounts owed by Sears Xxxxxxx, Inc. so long as such account debtor is
rated at least BBB/Baa2, or better, on the senior unsecured debt
ratings established from time to time by S&P and Xxxxx'x, respectively.
For purposes of the Borrowing Base calculations provided herein, the
Parties acknowledge and agree that from time to time there may be
discrepancies (attributable to write-offs, incomplete payments,
returns, disputes, discounts and other assorted credit memo balances)
as to the amount of the Eligible Accounts shown by the Company on the
Borrowing Base Certificate and the consolidated total of summary agings
as to all Purchased Accounts Receivable which are prepared by each of
the Escalade Domestic Subsidiaries, as servicing agents for the
Company, both of which reports are submitted to the Bank as of the same
date and are meant to define the same body of Eligible Accounts at that
point in time. The effect of such discrepancies is such that the amount
of Eligible Accounts shown on the Company's Borrowing Base Certificate
is occasionally and unwittingly shown to be a greater amount than the
amount to which Eligible Accounts then actually total. The Parties
agree that the Bank shall
2
be authorized and entitled to calculate the Company's Borrowing Base as
of any given date to the amount which is the lesser of (i) the amount
of Eligible Accounts shown by the Company on the Borrowing Base
Certificate, and (ii) the aggregate total of Purchased Accounts
Receivable shown on the summary agings prepared and submitted as of
even date by the Escalade Domestic Subsidiaries. Stated alternatively,
to the extent that an otherwise Eligible Account is subject to any
claimed set-off, offset, credit or other reduction right held by the
account receivable debtor, then for purposes of determining the
Borrowing Base the amount of such Eligible Account shall be reduced by
the sum of all such claimed offsets, credits and reductions to the
extent not covered by the Escalade Domestic Subsidiary, or
Subsidiaries, that sold the Eligible Accounts to the Company.
"BORROWING BASE CERTIFICATE" means a certificate (in form and substance
substantially the same as EXHIBIT "B" attached to this Agreement) which
is required to be delivered to the Bank in accordance with Section
5.01(c)(6) of this Agreement.
"CAPITAL LEASE" means, at any time, any lease of property (whether
real, personal or mixed) with respect to which the lessee is required
concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"CHANGE OF CONTROL OF THE COMPANY" means Escalade shall cease to own
one hundred percent (100%) of stock of the Company.
"CLOSING DATE" has the meaning ascribed to such term in the Preamble to
this Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" has the meaning ascribed to such term in Section 4.01 of
this Agreement.
"COMMITMENT" has the meaning ascribed to such term in Section 2.01(a)
of this Agreement.
"COMPANY" has the meaning ascribed to such term in the Preamble to this
Agreement.
"COMPANY'S AUDITORS" means BKD Financial, LLP, or such other
independent certified public accounting firm in the United States of
America as is acceptable to the Bank.
"COMPANY SECURITY AGREEMENT" means the Collateral Assignment and
Security Agreement, dated as of the Closing Date, executed by the
Company in favor of the Bank (in form and substance substantially the
same as EXHIBIT "C" attached to this Agreement), as the same hereafter
may be amended, modified, supplemented and/or restated from time to
time and at any time.
3
"DEBT" means, with reference to any Person, as of any date, without
duplication: (a) all indebtedness, liabilities and obligations of such
Person for borrowed money and its redemption obligations in respect of
mandatorily redeemable preferred stock; (b) obligations of such Person
to pay the deferred purchase or acquisition price of property (tangible
or intangible, real or personal) or services; (c) all obligations of
such Person appearing as a liability on its balance sheet in accordance
with GAAP in respect of Capital Leases; (d) all obligations,
indebtedness and liabilities which are secured by any Lien on any asset
of such Person, whether or not the obligation, indebtedness or
liability secured thereby shall have been assumed by such Person (e)
all obligations for any swap or Rate Management Transaction of such
Person; and (f) all obligations, indebtedness and liabilities of others
similar in character to those described in clauses (a) through (e) of
this definition for which such Person is liable, contingently or
otherwise, as obligor, guarantor or in any other capacity, or in
respect of which obligations, indebtedness or liabilities such Person
assures a creditor against loss or agrees to take any action to prevent
any such loss (other than endorsements of negotiable instruments for
collection in the ordinary course of business), including without
limitation all reimbursement obligations of such Person in respect of
letters of credit, surety bonds or similar obligations and all
obligations of such Person to advance funds to, or to purchase assets,
property or services from, any other Person in order to maintain the
financial condition of such other Person. Debt of any Person shall
include all obligations of such Person of the character described in
clauses (a) through (f) above to the extent such Person remains legally
liable in respect thereof notwithstanding that any such obligation is
deemed to be extinguished under GAAP.
"DEFAULT RATE" means the Prime Rate plus three percent (3%) per annum.
"DISTRIBUTION" means any dividend, distribution, redemption or other
acquisition for value of capital interests in the Company now or
hereafter outstanding, return of capital or any distribution of assets
to any shareholder of the Company.
"DOLLARS" or "$" means dollars of the USA.
"EFFECTIVE DATE" means 12:01 a.m. on September 7, 2003.
"ELIGIBLE ACCOUNTS" means, at any date a determination thereof is to be
made, those Purchased Accounts Receivable of the Company for which the
Company shall have furnished to the Bank information adequate for
purposes of identification at all times and in form and substance as
may be requested by the Bank; provided however, that a Purchased
Account Receivable shall not constitute an Eligible Account if it: (a)
remains unpaid sixty-one (61) or more days after the original due date
for its payment stated on the applicable invoice; (b) is an account
receivable with respect to which the account receivable debtor is the
subject of a bankruptcy or similar insolvency proceeding or has made an
assignment for the benefit of creditors or whose assets have been
conveyed to a receiver or trustee or who is no longer conducting its
customary business, except and to the extent the
4
Bank otherwise agrees in writing; (c) is an account receivable which is
not invoiced (and dated as of the date of such invoice) and sent to the
account receivable debtor in the ordinary course of the business of the
Company and in accordance with customary billing practices after
delivery of the underlying goods to, or performance of the underlying
services for, the accounts receivable debtor; (d) is an account
receivable arising with respect to goods which have not been shipped or
arising with respect to services which have not been fully performed;
(e) is an account receivable with respect to which the account
receivable debtor's obligation to pay the account receivable is
conditioned upon the account receivable debtor's approval or is
otherwise subject to any repurchase obligation or return right, as with
sales made on a xxxx-and-hold, guaranteed sale, sale-and-return, sale
on approval or consignment basis; (f) is an account receivable in which
the Bank does not have a security interest; (g) is an account
receivable due from any Affiliate of the Company or which is due solely
from an accounts receivable debtor which is a USA federal governmental
entity or agency, except and to the extent the Bank otherwise agrees in
writing; (h) is an account receivable evidenced by an instrument (as
defined in Article 9 of the UCC) not in the possession of the Bank; or
(i) is an account receivable which has been charged-off by the Company,
whether pursuant to Section 5.01(i) of this Agreement, or otherwise. At
any time more than ten percent (10%) of the aggregate amount of
accounts receivable due from an accounts receivable debtor remain
unpaid sixty-one (61) or more days after the date(s) due, as stated on
the original invoice(s) evidencing such accounts receivable, then no
account receivable due the Company from that accounts receivable debtor
shall constitute an Eligible Account.
"ESCALADE" means Escalade, Incorporated, a corporation organized and
existing under the laws of the State of Indiana.
"ESCALADE DOMESTIC SUBSIDIARIES" means the following first and second
tier subsidiaries of Escalade: (i) Indian Industries Inc., a
corporation organized under the laws of the State of Indiana ("Indian
Industries"), and its three (3) subsidiaries, Harvard Sports, Inc., a
corporation organized under the laws of the State of California
("Harvard Sports"), U.S. Weight, Inc., a corporation organized under
the laws of the State of Illinois ("U.S. Weight") and Bear Archery,
Inc., a corporation organized under the laws of the State of Florida
("Bear Archery"); and (ii) Xxxxxx Yale Industries, Inc., a corporation
organized under the laws of the State of Indiana ("Xxxxxx Yale"), and
its subsidiary, Master Products Manufacturing Company, Inc., a
corporation organized under the laws of the State of Delaware ("Master
Products").
"ESCALADE NOTE" means that certain unsecured, demand promissory note
made by Escalade and payable to the order of the Company, dated as of
the Closing Date in an original principal amount of $14,000,000.00.
"ESCALADE NOTE PLEDGE AGREEMENT" means the Pledge Agreement, dated as
of the Closing Date, executed by the Company in favor of the Bank (in
form and substance substantially the same as EXHIBIT "D" attached to
this Agreement), as
5
the same hereafter may be amended, modified, supplemented and/or
restated from time to time and at any time, whereby the Company pledges
the Escalade Note to the Bank as a part of the Collateral securing the
Obligations.
"ESCALADE SUBORDINATION AGREEMENT" is used as defined in Section
6.01(b)(4), which Escalade Subordination Agreement shall be in form and
substance substantially the same as EXHIBIT "E" attached to this
Agreement.
"EURODOLLAR RATE" means, with respect to a LIBOR Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) LIBOR
applicable to such Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such
Interest Period, plus (ii) the Applicable Spread.
"EVENT OF DEFAULT" means any of the events described in Section 7.01 of
this Agreement.
"FINANCIAL STATEMENTS" includes, but is not limited to, balance sheets,
profit and loss statements, reconciliations of net worth and cash flow
statements, prepared in accordance with GAAP.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, which shall include
the official interpretations thereof by the Financial Accounting
Standards Board, consistently applied (from and after the date hereof)
and for the period as to which such accounting principles are to apply.
Except as otherwise provided in this Agreement, to the extent
applicable, all computations and determinations as to accounting or
financial matters and all Financial Statements to be delivered pursuant
to this Agreement shall be made and prepared in accordance with GAAP
(including principles of consolidation where appropriate), and, to the
extent applicable, all accounting or financial terms shall have the
meanings ascribed to such terms by GAAP.
"HARVARD SPORTS" is used as defined in the definition of Escalade
Domestic Subsidiaries.
"HIGHEST LAWFUL RATE" means the maximum rate of interest which may be
charged the Company by the Bank under applicable state or federal usury
law or regulation or any other law or regulation, however
characterized, limiting the rate of interest which may be charged to
corporations.
"INCREASED COST NOTICE" is used as defined in Section 2.01(g)(vii).
"INCREASED COSTS" is used as defined in Section 2.01(g)(vii).
"INDIAN INDUSTRIES" is used as defined in the definition of Escalade
Domestic Subsidiaries.
"INFORMAL REQUEST" is used as defined in Section 2.01(b) of this
Agreement.
6
"INTEREST PERIOD" means, with respect to any LIBOR Advance, the one (1)
month, two (2) month, three (3) month or six (6) month period
commencing on a Banking Day selected by the Company as provided in this
Agreement and commencing on that day designated by the Company in its
written notice to the Bank making such selection (so long as such day
is not less than two (2) Banking Days after the date of such notice).
Each Interest Period for a LIBOR Advance that begins on the last day of
a calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall
end on the last Banking Day of the appropriate subsequent calendar
month. Each Interest Period for a LIBOR Advance which would otherwise
end on a day which is not a Banking Day shall end on the next
succeeding Banking Day (unless such next succeeding Banking Day is in
another calendar month, in which case such Interest Period shall end on
the immediately preceding Banking Day).
"INTANGIBLE ASSETS" means amortizable loan costs, business acquisition
costs, license agreements, trademarks, trade names, patents,
capitalized research and development, proprietary products (the results
of past research and development treated as long term assets and
excluded from inventory), goodwill and all other assets which would be
classified as intangible assets, all determined in accordance with
GAAP.
"INTEREST" means, for any fiscal period and for any Person, the amount
equal to the sum of (a) the gross interest expense of such Person for
that period plus, (b) capitalized interest on any Debt of such Person,
in each case determined in accordance with GAAP.
"INVESTMENT" means any investment, in cash or by delivery of property,
made directly or indirectly in any other Person, whether by acquisition
of shares of capital stock, Debt or other obligations or securities or
by loan, advance, capital contribution or otherwise.
"LIBOR" means, with respect to any LIBOR Advance, for the relevant
Interest Period, the applicable British Bankers' Association LIBOR rate
for deposits in Dollars as reported by any generally recognized
financial information service as of 11:00 a.m. (London time) two (2)
Banking Days prior to the first day of such Interest Period, and having
a maturity equal to such Interest Period; provided however, that (i) if
no such British Bankers' Association LIBOR rate is available to the
Bank for any reason, the applicable LIBOR for the relevant Interest
Period shall instead be the rate determined by the Bank in its sole
discretion to be the rate at which the Bank, or any of its Affiliate
banks, offers to place deposits in Dollars with first-class banks in
the London interbank market at approximately 11:00 a.m. (London time)
two (2) Banking Days prior to the first day of such Interest Period in
the approximate amount of the Bank's relevant LIBOR Advance and having
a maturity equal to such Interest Period, all as determined by the
Bank. Each determination of a LIBOR made by the Bank in accordance with
the foregoing shall be conclusive except in the case of demonstrative
or manifest error.
7
"LIBOR ADVANCE" means any Advance (or, if the case, the entire
outstanding principal balance of the Loan) as to which a LIBOR-based
Rate is elected by the Company pursuant to this Agreement.
"LIBOR-BASED RATE" means a per annum rate at which interest may accrue
on all or a portion of the Loan under the terms of this Agreement,
which rate is determined by reference to LIBOR.
"LIEN" means any mortgage, security interest, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or
otherwise) or other security interest or preferential arrangement of
any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any financing or
similar statement or notice filed under the UCC as in effect in any
jurisdiction, or any other similar recording or notice statute, and any
lease having substantially the same effect as the foregoing, but
excluding any equipment operating leases and any precautionary filings
related thereto).
"LOAN" has the meaning ascribed to such term in Section 2.01 of this
Agreement.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Revolving
Note, the Company Security Agreement, the Lockbox Agreements, the
Escalade Note Pledge Agreement, the Escalade Subordination Agreement
and all other instruments, agreements, certificates, financing
statements and documents executed and delivered or to be delivered by
the Company and others pursuant to or by virtue of this Agreement
including, but not limited to all the documents, instruments and
agreements enumerated in Article VI of this Agreement, as each of the
foregoing may be amended, modified, extended, renewed, supplemented
and/or restated from time to time and at any time, and when used in the
singular form, means any of the Loan Documents, as the context
requires.
"LOCKBOX AGREEMENTS" means the existing Lockbox Operating Agreements
previously entered into by the Bank and each of Indian Industries (No.
663637), Xxxxxx Yale (No. 663646) and Master Products (No. 664073),
including all amendments, modifications, extensions and/or replacements
thereof.
"LOCKBOXES" has the meaning ascribed to such term in Section 2.01(f)(1)
of this Agreement.
"LOSS" has the meaning ascribed to such term in Section 8.12 of this
Agreement.
"XXXXXX YALE" is used as defined in the definition of Escalade Domestic
Subsidiaries.
"MASTER PRODUCTS" is used as defined in the definition of Escalade
Domestic Subsidiaries.
"MATERIALLY ADVERSE EFFECT" means any event, circumstance or condition
that could reasonably be expected to have a materially adverse effect
on (a) the
8
business, operations, financial condition, properties or prospects of
the Company, Escalade or the Escalade Domestic Subsidiaries, (b) the
ability of the Company to pay or perform the Obligations, (c) the
validity or enforceability of any of the Loan Documents, or any
material provision thereof, or any transaction contemplated thereby, or
(d) the rights and remedies of the Bank under any of the Loan
Documents.
"MATURITY DATE" means the earlier of (i) the Scheduled Maturity Date,
and (ii) that date upon which the Bank accelerates payment of the Loan
in accordance with Section 7.02 of this Agreement.
"MAXIMUM AVAILABILITY" means, as of the date any determination thereof
is to be made, the lesser of (i) Borrowing Base as of such date, and
(ii) the following amounts during the respective time periods
described:
September 1, 2003 through September 30, 2003 $30,000,000
October 1, 2003 through October 31, 2003 40,000,000
November 1, 2003 through November 30, 2003 45,000,000
December 1, 2003 through December 31, 2003 40,000,000
January 1, 2004 through January 31, 2004 35,000,000
February 1, 2004 through July 15, 2004 20,000,000
"XXXXX'X" means Xxxxx'x Investors Service, Inc.
"NET INCOME" means, for any period, the net income of the Company,
determined for such period in accordance with GAAP.
"NET WORTH" means, as of the date any determination thereof is to be
made, the net worth of the Company as of such date, determined in
accordance with GAAP.
"OBLIGATIONS" means all present and future indebtedness, obligations
and liabilities, and all renewals, modifications and extensions
thereof, now or hereafter owed to the Bank by the Company, including
without limitation all of the Company's Rate Management Obligations,
whether arising under, by virtue of or pursuant to any of this
Agreement, the Revolving Note, any other Loan Documents, or otherwise
(including without limiting the generality of the foregoing, all
indebtedness, obligations and liabilities hereafter arising by virtue
of or in connection with any extensions of credit by the Bank to the
Company unrelated to and not made under this Agreement), together with
all costs, expenses and reasonable attorneys' fees incurred by the Bank
in the enforcement or collection thereof, whether such indebtedness,
obligations and liabilities are direct, indirect, fixed, contingent,
liquidated, unliquidated, joint, several, joint and several, now exist
or hereafter arise, or were prior to acquisition thereof by the Bank
owed to some other Person.
"OFFICER'S CERTIFICATE" means a certificate (in form and substance
substantially the same as EXHIBIT "F" attached to this Agreement) which
is in all regards
9
satisfactory to the Bank and signed by an Authorized Officer confirming
that all of the representations and warranties contained in Section
3.01 of this Agreement are true and correct as of the date of such
certificate except as specified therein and with the further exceptions
that: (i) the representation contained in Section 3.01(d) of this
Agreement shall be construed so as to refer to the latest Financial
Statements which have been furnished to the Bank as of the date of any
such certificate, and (ii) all other representations will be construed
to have been amended to conform with any changes of which the Company
shall have previously given the Bank notice in writing. The Officer's
Certificate shall further confirm that no Event of Default or Unmatured
Event of Default shall have occurred and be continuing as of the date
of the Officer's Certificate or shall describe any such event which
shall have occurred and be then continuing and the steps being taken by
the Company to correct it. In addition, the Officer's Certificate shall
demonstrate compliance with the financial covenants stated in Section
5.01(h), as applicable, and shall otherwise be in such form and provide
such detail as may be reasonably satisfactory to the Bank.
"OFFSET WAIVER AGREEMENT" means that certain offset waiver agreement
executed by and among the Company, the Bank, Escalade and each of the
Escalade Domestic Subsidiaries as of even date with this Agreement,
which Offset Waiver Agreement shall be in form and substance
substantially the same as EXHIBIT "G" attached to this Agreement.
"PARTIES" means the Company and the Bank.
"PERSON" means any natural person, a corporation, a limited or general
partnership, a limited liability company, a joint venture, a trust, an
unincorporated association or organization, a joint stock company or
other similar firm or organization, a government or any political
subdivision thereof, a court, or any other legal entity, or enterprise,
whether acting in an individual, fiduciary or other capacity.
"PLEDGED CASH" means the Company's cash and cash-equivalent
Investments, which have been pledged to the Bank, and in which the Bank
holds a perfected security interest, constituting part of the
Collateral securing the Obligations.
"PREPAYMENT PREMIUM" means the excess, if any, as determined by the
Bank of: (i) the present value at the time of prepayment of the
interest payments which would have been payable on account of an amount
prepaid from the date of prepayment until the end of the period during
which interest would have accrued at the LIBOR-based Rate applicable to
the amount so prepaid but for such prepayment over (ii) the present
value at the time of prepayment of interest payments calculated at the
rate (the "REINVESTMENT RATE") which the Bank then estimates it would
receive upon reinvesting the principal amount of the prepayment in an
obligation which presents a credit risk substantially similar (as
determined in accordance with the commercial credit rating system then
used by the Bank) to that which is then presented by the Loan for the
same period. The discount rate used by the Bank in determining such
present values shall be the Reinvestment Rate.
10
"PRIME ADVANCE" means any Advance (or, if the case, the entire
outstanding principal balance of the Loan) as to which a Prime-based
Rate is elected by the Company pursuant to this Agreement.
"PRIME RATE" means a rate per annum equal to the prime rate of interest
announced from time to time by the Bank or its parent as its prime rate
(which is not necessarily the lowest or best rate charged to any
customer), changing when and as said prime rate changes.
"PRIME-BASED RATE" means the variable rate per annum at which interest
may accrue on all or a portion of the Loan under the terms of this
Agreement, which rate is determined by reference to the Prime Rate.
"PURCHASED ACCOUNTS RECEIVABLE" means those accounts receivable less
than sixty-one (61) days delinquent at the time of purchase, which are
purchased on a non-recourse basis by the Company from the Escalade
Domestic Subsidiaries pursuant to the Receivables Purchase Agreements
for an amount which is not in excess of ninety-five percent (95%) of
the original face amount of such purchased accounts receivable and all
of the accounts receivable owned by the Swiss Subsidiary on and as of
the Effective Date, which accounts receivable shall have been purchased
by the Swiss Subsidiary from certain of the Escalade Domestic
Subsidiaries pursuant to the terms and conditions of those certain
receivables purchase agreements dated as of May 15, 2000 by and between
the Swiss Subsidiary and each of Indian Industries, Harvard Sports,
Xxxxxx Yale and Master Products.
"RATE MANAGEMENT OBLIGATIONS" of a Person means any and all obligations
of such Person, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions
therefor), under (i) any and all Rate Management Transactions, and (ii)
any and all cancellations, buy backs, reversals terminations or
assignments of any Rate Management Transactions.
"RATE MANAGEMENT TRANSACTION" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered by
the Borrower which is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index
swap, equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction,
collar transaction, forward transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect to any of these
transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or
other financial measures.
"RECEIVABLES PURCHASE AGREEMENTS" means the six (6) Receivable Purchase
Agreements dated as of the Closing Date, by and between the Company and
each of the Escalade Domestic Subsidiaries, respectively, pursuant to
which the Company
11
shall purchase from the Escalade Domestic Subsidiaries on a
non-recourse basis certain of the accounts receivable of the Escalade
Domestic Subsidiaries existing as of the Effective Date having in the
aggregate an estimated face value of approximately $________________,
with additional accounts receivable being thereafter purchased by the
Company from the Escalade Domestic Subsidiaries in an aggregate amount
at any one time outstanding not in excess of the Maximum Availability
(each of which Receivables Purchase Agreements shall be in form and
substance substantially the same as EXHIBIT "H-1" attached to this
Agreement). The term Receivables Purchase Agreements also includes, as
the context may require, that certain Receivables Purchase Agreement
dated as of the Closing Date by and between the Company and the Swiss
Subsidiary pursuant to which the Company shall purchase from the Swiss
Subsidiary on a non-recourse basis all of the accounts receivable then
owned by the Swiss Subsidiary as of the Effective Date having in the
aggregate an estimated face value of approximately $____________. The
Accounts Receivable Purchase Agreement by and between the Company and
the Swiss Subsidiary shall be in form and substance substantially the
same as EXHIBIT "H-2" attached to this Agreement.
"REGULATION D" means Regulation D of the Board as in effect from time
to time and any successor thereto or other regulation or official
interpretation of the Board relating to reserve requirements applicable
to member banks of the Federal Reserve System.
"REGULATION U" means Regulation U of the Board as in effect from time
to time and any successor or other regulation or official
interpretation of the Board relating to the extension of credit by
banks for the purpose of purchasing or carrying margin stocks
applicable to member banks of the Federal Reserve System.
"REINVESTMENT RATE" is used as defined in the definition of Prepayment
Premium.
"RESERVE REQUIREMENT" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed under
Regulation D on Eurocurrency liabilities.
"REVOLVING NOTE" has the meaning ascribed to it in Section 2.01(b) of
this Agreement, which Revolving Note shall be in form and substance
substantially the same as EXHIBIT "I" attached to this Agreement.
"S&P" means Standard and Poor's Rating Services, a division of The
McGraw Hill Companies, Inc.
"SCHEDULED MATURITY DATE" means July 15, 2004, or such later date as
may be established pursuant to Section 2.01(d) of this Agreement.
"SERVICERS" means Indian Industries and Xxxxxx Yale, and in the
singular means either one of them, as the context requires.
12
"SERVICES AGREEMENTS" means the six (6) Services Agreements dated as of
the Closing Date, by and between the Company and a Servicer pursuant to
which the Servicer with respect to those Purchased Accounts Receivable
sold by it and its Subsidiary(ies) to the Company (or previously sold
to the Swiss Subsidiary which Purchased Accounts Receivable as of the
Effective Date are being sold to the Company by the Swiss Subsidiary),
will service and collect such Purchased Accounts Receivable (each of
which Services Agreements shall be in form and substance substantially
the same as EXHIBIT "J" attached to this Agreement).
"SOLVENT" means, when used with respect to any Person, that: (i) the
fair salable value of its assets is in excess of the total amount of
its liabilities (including for purposes of this definition all
liabilities, whether or not reflected on a balance sheet prepared in
accordance with GAAP, and whether direct or indirect, fixed or
contingent, disputed or undisputed; (ii) it is able to pay its debts or
obligations in the ordinary course as they mature; and (iii) that
Person has capital sufficient to carry on its business and all business
in which it is about to engage.
"SUBORDINATED DEBT" means with respect to the Company, as of any date
of determination, all Debt of the Company owed to Persons other than
the Bank which is made expressly subordinate in a manner acceptable to
Bank to the payment of all or any of the Obligations.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, joint venture or other business entity (whether now
existing or hereafter organized or acquired) over which the Person
exercises control, provided that it shall be conclusively presumed that
the Person exercises control over any such entity (a) if more than 50%
of the equity interest in such entity is owned by the Person, directly
or indirectly; or (b) if at least a majority of the securities of each
class having ordinary voting power for the election of directors (other
than securities which have such power only by reason of the happening
of a contingency) at the time as of which the determination is being
made, is owned, beneficially and of record, by such Person or by one or
more of the other Subsidiaries of such Person or by any combination
thereof.
"SWISS SUBSIDIARY" means Indian-Xxxxxx XX, a corporation organized and
existing under the laws of Switzerland.
"TANGIBLE CAPITAL BASE" means, as of the date any determination thereof
is to be made, the Net Worth of the Company as of such date, less the
amount of all Intangible Assets of the Company as of such date,
determined in accordance with GAAP (except that, notwithstanding GAAP,
such Intangible Assets shall include all notes and loans receivable
from any of the Company's Affiliates as of such date), plus the sum of
all Subordinated Debt.
"TOTAL DEBT" means, with respect to the Company, as of the date any
determination thereof is to be made, all Debt of the Company computed
and determined in accordance with GAAP.
13
"UCC" means the Indiana Uniform Commercial Code (i.e., IC 26-1-1-1, et
seq.), as amended from time to time.
"USA" means the United States of America.
"U.S. WEIGHT" is used as defined in the definition of Escalade Domestic
Subsidiaries.
"UNAVAILABLE LIBOR-BASED RATE" is used as defined in Section
2.01(g)(vi) of this Agreement.
"UNAVAILABILITY DATE" is used as defined in Section 2.01 (g)(vi) of
this Agreement.
"UNMATURED EVENT OF DEFAULT" means any event specified in Section 7.01
of this Agreement, which is not initially an Event of Default, but
which would, if uncured, become an Event of Default with the giving of
notice or the passage of time or both.
"UNUSED COMMITMENT FEE PERCENTAGE" means twenty-five (25) B.P. per
annum.
"UNUSED LOAN COMMITMENT" has the meaning ascribed to such term in
Section 2.01(h) of this Agreement.
ARTICLE II
BORROWING TERMS
Section 2.01. Loan. Provided that all of the conditions of lending
stated in Section 6.01(a) and (b) of this Agreement have been fulfilled on the
Closing Date, and subject to and in accordance with the terms of this Agreement,
and in reliance upon the representations, warranties, covenants, and agreements
of the Company made in this Agreement and the other Loan Documents, the Bank
will make a revolving loan available to the Company on the Closing Date, and
thereafter, on the following terms and subject to the following conditions:
(a) The Loan Commitment / Use of Proceeds. From the Closing Date
and until the Maturity Date, the Bank agrees to make Advances (collectively, the
"LOAN") under a revolving line of credit from time to time to the Company up to
a principal amount which at any time shall not be in excess of the Maximum
Availability (the "COMMITMENT"). The Bank's agreement to make Advances is
subject to the requirement that all of the conditions of lending stated in
Article VI of this Agreement as being applicable to the Loan have been fulfilled
at the time of each Advance. The initial Advance of the Loan shall be used to
fund a one-time, unsecured loan by the Company to Escalade in an amount of
$14,000,000.00 in exchange for which Escalade shall issue to the Company the
Escalade Note. Thereafter, the proceeds of the Loan shall be used in their
entirety to fund the Company's acquisition of Purchased Accounts Receivable, in
accordance with the Receivables Purchase Agreements; provided however, that
certain operating expenses, service charges and legal and accounting fees of the
Company may be paid from the proceeds of the Loan if first disclosed to the
Bank.
14
(b) Method of Borrowing. The Obligation of the Company to repay
the Loan shall be evidenced by a promissory note (the "REVOLVING NOTE") of the
Company. So long as no Event of Default or Unmatured Event of Default shall have
occurred and be continuing and until the Maturity Date, Company may borrow,
repay and reborrow under the Revolving Note on any Banking Day, provided that no
Advance shall cause the total principal balance outstanding on the Loan to then
exceed the Maximum Availability or result in an Event of Default or an Unmatured
Event of Default. Each Advance under the Loan shall be conditioned upon receipt
by the Bank from the Company of an Application for Advance and an Officer's
Certificate, provided that the Bank may, at its discretion, make a disbursement
upon the oral request of the Company made by an Authorized Officer, or upon a
request transmitted to the Bank by telephone facsimile machine, or by any other
form of written electronic communication (each such request for an Advance being
hereafter referred to as "INFORMAL REQUEST"). In so doing, the Bank may rely
upon any Informal Request which shall have been received by it in good faith
from a Person reasonably believed by it to be an Authorized Officer. Each
Informal Request shall be promptly confirmed by a duly executed Application and
Officer's Certificate, if the Bank so requires, which shall constitute the
representation of the Company that no Event of Default or Unmatured Event of
Default has occurred and is continuing or would result from the making of the
requested Advance and that the making of the requested Advance shall not cause
the total outstanding principal balance of the Loan to exceed the Maximum
Availability. All borrowings and reborrowings shall be in amounts of not less
than Ten Thousand Dollars ($10,000.00). Upon receipt of an Application, or at
the Bank's discretion upon receipt of an Informal Request for an Advance and
upon compliance with any other conditions of lending stated in Article VI of
this Agreement applicable to the Loan, the Bank shall disburse the amount of the
requested Advance to the Company. All Advances by the Bank and payments by the
Company shall be recorded by the Bank on its books and records, and the
principal amount outstanding on the Loan from time to time, plus interest
payable thereon, shall be determined by reference to the books and records of
the Bank, which books and records shall be presumed prima facie to be correct as
to such matters, absent demonstrative or manifest error.
(c) Interest on the Loan. The principal amount of the Loan
outstanding from time to time shall bear interest until maturity of the
Revolving Note at a rate per annum equal to the Prime Rate, plus the Applicable
Spread, except that at the option of the Company, exercised from time to time as
provided in Section 2.01(g) of this Agreement, interest may accrue prior to
maturity on any Advance or on the entire outstanding principal balance of the
Loan as to which no LIBOR-based Rate previously elected remains in effect, at
the Eurodollar Rate, for a period of one month, two months, three months or six
months, provided that an election of a LIBOR-based Rate for a period extending
beyond the Scheduled Maturity Date shall be permitted only at the discretion of
the Bank. After maturity, whether on the Scheduled Maturity Date or on account
of acceleration upon the occurrence of an Event of Default, and until paid in
full, the Loan shall bear interest at a per annum rate equal to the Default
Rate. Accrued interest on the outstanding principal balance of the Loan bearing
a Prime-based Rate shall be due and payable monthly on the first Banking Day of
each month prior to maturity. Accrued interest on the outstanding principal
balance of the Loan bearing one or more LIBOR-based Rates shall be due and
payable on the last day of the related Interest Period unless the related
Interest Period covers a period of six months in which event accrued interest
thereon shall be due and payable on the date which is three months after the
first day of such Interest Period and on the last day of such Interest Period.
After maturity, all interest shall be payable as accrued and without demand.
15
(d) Extensions of Scheduled Maturity Date. The Bank may, upon the
request of Company, but at the Bank's sole discretion, extend the Scheduled
Maturity Date from time to time to such date or dates as the Bank may elect by
notice in writing to the Company, and upon any such extension and upon execution
and delivery by the Company of a replacement Revolving Note reflecting the
extended maturity date, the date to which such Revolving Note is then extended
will become the "Scheduled Maturity Date" for purposes of this Agreement.
(e) Special Repayments of Principal. At any time the total
outstanding principal balance of the Loan exceeds the then existing Maximum
Availability, as determined by the Bank, the Company shall, immediately and
without notice or demand of any kind, repay that portion of the principal
balance of the Loan which is in excess of the Maximum Availability.
(f) Manner of Payment. The Company shall pay the Obligations by
and through application of the proceeds of the Purchased Accounts Receivable as
set forth below:
(1) All checks, notes, drafts, items, money orders or
other documents or instruments in satisfaction of or
related to payments on the Purchased Accounts
Receivable (collectively, the "ITEMS") shall be
directed by the Company to be paid into one of three
(3) lockboxes (the "LOCKBOXES") which shall be owned
and controlled by the Bank, all as set forth more
fully in the Company Security Agreement and Lockbox
Agreements. The Bank shall process for collection all
Items and remittances received into the Lockboxes at
the close of every Banking Day and shall endorse and
deposit all collected remittances into the Account.
The Company shall cause any payments and remittances
received by any of the Escalade Domestic Subsidiaries
on account of the Purchased Accounts Receivable by
means of an ACH credit, wire transfer or any other
electronic means to be promptly transmitted by such
Escalade Domestic Subsidiary to the Account.
(2) Provided that such funds are then "good and
available" (as such term is understood in usual and
customary banking parlance), the receipts deposited
into the Account prior to an Event of Default or
Unmatured Event of Default shall automatically be
posted as payments and applied to the Obligations in
accordance with the provisions of Section 2.02 (b) of
this Agreement, or alternatively, upon written notice
to the Bank from an Authorized Officer, funds in the
Account may be used by the Company to acquire
additional Purchased Accounts Receivable, pay
interest on the Loan and other Obligations arising
under this Agreement, pay normal and customary
operating expenses of the Company previously approved
by the Bank and/or pay accrued servicing fees due
under the Services Agreements. After an Event of
Default or Unmatured Event of Default all proceeds on
deposit in the Account shall be applied solely to the
Obligations. The Bank and the Company recognize as a
matter of procedure that (i) payments on accounts
16
receivable owing to one or more of the Escalade
Domestic Subsidiaries may be deposited into the
Account and applied by the Bank to the Obligations;
and (ii) each of the Escalade Domestic Subsidiaries
may owe the Company monies on account of returns,
discounts, allowances or otherwise with respect to
the Purchased Accounts Receivable. Accordingly, in
accordance with the Services Agreements, the Escalade
Domestic Subsidiaries and the Company shall make a
determination within five (5) business days of the
end of every four week accounting period of the
Escalade Domestic Subsidiaries whether (i) the Bank
has applied against the Obligations proceeds of
accounts receivable, which are not Purchased Accounts
Receivable, or (ii) any of the Escalade Domestic
Subsidiaries owe the Company any monies for returns,
discounts, allowances or otherwise. Such amounts
shall be netted against each other as of the same
date, and (i) any net monies to be reimbursed by the
Bank to the Escalade Domestic Subsidiaries shall be
paid out of receipts thereafter collected and
deposited into the Account; provided however, that
such payment does not cause any erosion of the
Borrowing Base which would result in the outstanding
principal balance of the Loan being in excess of the
Maximum Availability, and (ii) any net monies owing
by the Escalade Domestic Subsidiaries to the Company
shall be paid immediately by their deposit of such
amounts into the Account.
(g) Procedures for Electing LIBOR-based Rates -- Certain Effects
of Election. LIBOR-based Rates may be elected only in accordance with the
following procedures, shall be subject to the following conditions, and the
election of a LIBOR-based Rate shall have the following consequences in addition
to other consequences stated in this Agreement:
(i) No more than three (3) LIBOR-based Rate elections may
be in effect under the Loan, or portions thereof, at
any one time.
(ii) No LIBOR-based Rate may be elected at any time that
an Event of Default or Unmatured Event of Default has
occurred and is continuing.
(iii) Voluntary prepayment prior to scheduled expiration of
the relevant Interest Period pertaining to all or any
portion of the Loan on which interest is accruing at
a LIBOR-based Rate shall be subject to
contemporaneous payment of the Prepayment Premium if,
at the time of prepayment, the Reinvestment Rate is
less than the LIBOR-based Rate at which interest
accrues on such portion of the Loan. A Prepayment
Premium shall also be due and payable on prepayment
of all or any portion of any or all of such Loan
prior to scheduled expiration of the relevant
Interest Period because of acceleration of maturity
on account of an Event of Default if, at the time of
acceleration of maturity, the Reinvestment Rate is
less than
17
the LIBOR-based Rate at which interest is accruing on
such portion of the Loan. If at the time of any
voluntary or mandatory prepayment of any portion of
the principal of the Loan, interest accrues at both a
LIBOR-based Rate or Rates and at a Prime-based Rate
on portions of such Loan, then any prepayment of
principal will be applied first to the portion of
such Loan on which interest accrues at the
Prime-based Rate and next to the portion or portions
at which interest accrues at a LIBOR-based Rate or
Rates, and if interest accrues on such Loan at more
than one LIBOR-based Rate, first to that portion or
those portions on which interest accrues at a Rate or
Rates which results in no Prepayment Premium or the
lowest Prepayment Premium or Premiums.
(iv) On any Banking Day, the Company may request a
quotation of the LIBOR-based Rates then in effect
from the Bank. As soon as possible, and in any event
before the close of business on the next following
Banking Day, the Bank shall quote such LIBOR-based
Rates. The Company shall then have until the end of
the Banking Day on which such quotation is given or
within such shorter time as the Bank may specify, to
exercise its option to elect any LIBOR-based Rate
quoted, subject to all other conditions and
limitations stated in this Agreement. The period for
which any LIBOR-based Rate is effective shall begin
on the second Banking Day following the day on which
the quotation is given.
(v) An election of a LIBOR-based Rate may be communicated
to the Bank on behalf of the Company only by an
Authorized Officer. Such election may be communicated
by telephone or by telecopy or any other form of
written electronic communication, or by a writing
delivered to the Bank. At the request of the Bank,
the Company shall confirm any oral election in
writing, and such written confirmation shall be
signed by an Authorized Officer. The Bank shall be
entitled to rely on any oral or written electronic
communication of an election of a LIBOR-based Rate
which is received by an appropriate Bank employee
from anyone reasonably believed in good faith by such
employee to be an Authorized Officer.
(vi) The Bank may elect not to quote a LIBOR-based Rate
(the "UNAVAILABLE LIBOR-BASED RATE") to any of its
customers otherwise eligible for the Unavailable
LIBOR-based Rate, including the Company, on any day
(the "UNAVAILABILITY DATE") on which the Bank has
determined that it is not practical to quote the
Unavailable LIBOR-based Rate because of the
unavailability of sufficient funds to the Bank for
appropriate terms at rates approximating the then
relevant LIBOR, or because of legal or regulatory
changes which
18
make it impractical or burdensome for the Bank to
lend money at the Unavailable LIBOR-based Rate.
(vii) If, as a result of any regulatory change, the basis
of taxation of payments to the Bank of the principal
of or any interest on any portion or all of the Loan
bearing interest at a LIBOR-based Rate or any other
amounts payable hereunder in respect thereof, other
than taxes imposed on the overall net income of the
Bank, is changed, or any reserve, special deposit, or
similar requirement relating to any extensions of
credit or other assets of or any deposits with or
other liabilities of the Bank are imposed, modified,
or deemed applicable, and the Bank reasonably
determines that, by reason thereof, the cost to it of
making, issuing, or maintaining the Loan or any part
thereof at a LIBOR-based Rate is increased by an
amount deemed by it to be material, then the Company
shall pay promptly upon demand to the Bank such
additional amounts as the Bank reasonably determines
will compensate for such increased costs ("INCREASED
COSTS"); provided however, that (i) the Bank shall
give the Company ninety (90) days' prior written
notice of the Bank's intention to collect Increased
Costs from the Company ("INCREASED COST NOTICE"), and
the Bank shall not be entitled to pass-through to or
collect from the Company Increased Costs incurred by
the Bank prior to that date which is the ninetieth
(90th) day after the delivery of the Increased Cost
Notice to the Company by the Bank, and (ii) the
Company shall not be the only borrower of the Bank
that is singled out from a group of similarly
situated borrowers of the Bank subject to this type
of provision that is requested to remit Increased
Costs. Any determination by the Bank of Increased
Costs made pursuant to the provisions of this section
shall be final, absent manifest error.
(h) Unused Commitment Fee. In addition to interest on the Loan,
the Company shall pay to the Bank an unused commitment fee for each partial or
full fiscal quarter during which Advances under the Loan are available equal to
the Unused Commitment Fee Percentage in effect at the close of such partial or
full fiscal quarter times the daily average "Unused Loan Commitment" (as defined
in the following sentence) for such partial or full fiscal quarter multiplied by
a fraction, the numerator of which shall be the number of calendar days in such
partial or full fiscal quarter and the denominator of which is 360. As used
herein, the term "UNUSED LOAN COMMITMENT" means, as of close of each calendar
day for which a determination thereof is to be made the positive difference, if
any, which results from subtracting from the authorized Maximum Availability
under the Commitment the outstanding principal balance of the Loan at close of
such calendar day. Unused commitment fees for each fiscal quarter shall be due
and payable within ten (10) days following the Bank's submission, following the
close of such quarter, of a statement of the amount due. Such fees may be
debited by the Bank when due to any demand deposit account of the Company
carried with the Bank without further authority, notice or demand.
19
Section 2.02. Provisions Applicable to All Obligations. The following
provisions shall be applicable to all of the Obligations:
(a) Calculation of Interest. Interest on all Obligations shall be
calculated on the basis of actual days elapsed and that an entire year's
interest is earned in three hundred sixty (360) days.
(b) Other Manner of Payment -- Application. All payments of
principal and interest on the Loan made in addition to the payments provided for
in Section 2.02(f) shall be payable at the principal office of the Bank in
Indianapolis, Indiana, in funds available for the Bank's immediate use in that
city and for the Bank's account addressed as follows:
Bank One, National Association
ABA #000000000
Attn: Commercial Loan Note Servicing
Re: Indian-Xxxxxx, Inc.
Account No. 641874540
No payment will be considered to have been made until received in such funds.
Unless otherwise agreed to, in writing, or otherwise required by applicable law,
payments will be applied first to accrued, unpaid interest, then to principal,
and any remaining amount to any unpaid collection costs, late charges and other
charges; provided however, upon delinquency or other default, the Bank reserves
the right to apply payments among principal, interest, late charges, collection
costs and other charges as may be determined in the sole discretion of the Bank.
All prepayments shall be applied to the Obligations owing hereunder in such
order and manner as the Bank may from time to time determine in its sole
discretion.
(c) Automatic Debit. The Bank may without further authority debit
when due all payments of principal and interest, or any other Obligations due
and payable by the Company under the terms of this Agreement or any other Loan
Document, to any deposit account maintained with the Bank by the Company.
(d) Unconditional Obligations and No Deductions. The Company's
Obligations to make all payments provided for in this Agreement and the Note
shall be absolute and unconditional. Each such payment shall be made without
relief from valuation and appraisement laws and without deduction for any claim,
defense or offset of any type, including without limitation any withholdings and
other deductions on account of income or other taxes and regardless of whether
any claims, defenses or offsets of any type exist.
(e) Payment on Non-Banking Days. Whenever any payment to be made
under this Agreement and the Note shall be stated to be due on a day other than
a Banking Day, such payment may be made on the next succeeding Banking Day, and
such extension of time shall in such case be included in the computation of
payment of fees, if any, and interest under this Agreement and the Note.
(f) Reduction of Maximum Availability. If an Event of Default or
an Unmatured Event of Default has occurred and is continuing, and the Event of
Default is one described in Section 7.01(d) of this Agreement or the Bank shall
have notified the Company of the
20
election of the Bank to take any action specified in Section 7.02 of this
Agreement, the Maximum Availability shall be automatically reduced to zero
Dollars ($0) without any action on the part of or the giving of any additional
notice to the Company by the Bank.
(g) Additional Amounts Payable. If any change or the enactment,
adoption or judicial or administrative interpretation of any law, regulation,
treaty, guideline or directive (including, without limitation, Regulation D of
the Board) either (a) subjects the Bank to any additional tax, duty, charge,
deduction or withholding with respect to the Loan (other than a tax measured by
the net or gross income of the Bank), or (b) imposes or increases any reserve,
special deposit or similar requirement on account of the Loan not otherwise
provided in this Agreement or (c) imposes increased minimum capital requirements
on the Bank on account of its issuing or maintaining the Loan; and if any of the
foregoing (i) results in any increase to the Bank in the cost of issuing or
maintaining the Loan, or making any payment on account of the Loan, (ii) reduces
the amount of any payment receivable by the Bank under this Agreement with
respect to the Loan, (iii) requires the Bank to make any payment calculated by
reference to the gross amount of any sum received or paid by the Bank pursuant
to the Loan, or (iv) reduces the rate of return on the Bank's capital to a level
below that which the Bank could otherwise have achieved (taking into
consideration the Bank's policies with respect to capital adequacy), then the
Company shall pay to the Bank, as additional compensation for the Loan, such
amounts as will compensate the Bank for such increased costs, payments or
reductions. Within twenty (20) days after (A) the initial demand therefor and
(B) presentation by the Bank of a certificate to the Company containing a
statement of the cause of such increased costs, payments or reductions and a
calculation of the amounts thereof (which statement and calculation shall be
presumed prima facie to be correct, absent demonstrative or manifest error), the
Company shall pay the additional amounts payable, measured from the date such
change, enactment, adoption or interpretation first affects the Bank.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties. To induce the Bank to
make the Loan, the Company represents and warrants to the Bank that:
(a) Existence and Authority. The Company is a corporation duly
organized and validly existing under the laws of the State of Nevada. The
Company is qualified to do business in every jurisdiction in which: (i) the
nature of the business conducted by it or the character or location of
properties owned or leased by it, or the residences or activities of its
shareholder, directors, officers or employees, make such qualification
necessary; and (ii) failure so to qualify might have a Materially Adverse
Effect. No jurisdiction in which the Company is not qualified to do business has
asserted that the Company is required to be qualified therein. The principal
office of the Company is located at 0000-X Xxxxxxxxxxx Xxxxx, Xxxxx 00, Xxx
Xxxxx, Xxxxxx 00000. The Company does not conduct any material operations or
keep any material amounts of property at any location other than the locations
specified in the Company Security Agreement. The Company has not done business
under any name other than its present corporate name at any time during the six
years preceding the date of this Agreement.
21
(b) Authorization/No Conflict. The execution and delivery of this
Agreement, the borrowings hereunder, the execution and delivery of all of the
other Loan Documents and the performance by the Company of its obligations under
this Agreement and all of the other Loan Documents are within the powers of the
Company, have been duly authorized by all necessary action, have received any
required governmental or regulatory agency approvals and do not and will not
contravene or conflict with any provision of law or of the Articles of
Incorporation or By-Laws of the Company or of any agreement binding upon the
Company or its properties.
(c) Validity and Binding Nature. This Agreement and all of the
other Loan Documents to which the Company is a party are the legal, valid and
binding obligations of the Company, enforceable against the Company under the
substantive laws of the State of Indiana, in accordance with their respective
terms, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws enacted for
the relief of debtors generally and other similar laws affecting the enforcement
of creditors' rights generally or by equitable principles which may affect the
availability of specific performance and other equitable remedies.
(d) Financial Statements. The Company came into existence as of
August 22, 2003. The Company has delivered to the Bank its balance sheet
prepared by management of the Company as of September 10, 2003, which balance
sheet has been prepared in accordance with GAAP. Such balance sheet presents
fairly the financial position of the Company as of the date thereof. There has
been no materially adverse change in the financial position of the Company as of
the Closing Date, and the Company is Solvent as of the Closing Date.
(e) Litigation and Contingent Liabilities. No litigation,
arbitration proceedings or governmental proceedings are pending or to the best
of the Company's knowledge threatened against the Company which would, if
adversely determined, have a Materially Adverse Effect. The Company does not
have any material, contingent liabilities not provided for or disclosed in the
Financial Statements referred to in Section 3.01(d), above.
(f) Liens. None of the assets of the Company are subject to any
Lien (including without limitation any seller or vendor's lien or right of
reclamation), except for Liens described in Sections 5.02(b) of this Agreement.
(g) Payment of Taxes. The Company has filed all tax returns
(federal, state, local or otherwise) and tax related reports as may be required
under the laws of the USA and state and local jurisdictions which it is required
to file by any statute or regulation and all taxes and any tax related interest
payments and penalties that are due and payable have been paid, except for such
as are being diligently contested in good faith and by appropriate proceedings
and as to which appropriate reserves have been established. Adequate provision
has been made for the payment when due of all tax liabilities which have been
incurred, but are not as yet due and payable.
(h) Investment Company Act. The Company is not an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
22
(i) Regulation U. The Company is not engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying margin stock within the meaning of Regulation
U of the Board. Not more than twenty-five percent (25%) of the assets of the
Company consists of margin stock, within the contemplation of Regulation U, as
amended.
(j) Subsidiaries/Parent/Business Activities. The Company has no
Subsidiaries. Escalade is the sole owner of the issued and outstanding capital
stock of the Company. Except for such activities that the Bank may approve
pursuant to Section 5.02(m), the sole business of the Company is to buy and own
accounts receivable generated by and originally owed to the Escalade Domestic
Subsidiaries, respectively, and to engage in activities that are directly and
necessarily related thereto. The Company has only one employee, and all
servicing and collections of the Purchased Accounts Receivable are performed by
the Servicers under the respective Services Agreements.
ARTICLE IV
SECURITY FOR OBLIGATIONS
Section 4.01. Collateral for the Obligations. Until finally paid and
satisfied in full and this Agreement is no longer of any force or effect, the
Obligations are and shall remain secured by a valid and enforceable first
priority pledge, assignment of and/or grant of security interest and Lien in and
to all personal property of the Company, tangible and intangible, now owned and
existing or hereafter acquired or arising, including, without limitation, all
accounts receivable, all Purchased Accounts Receivable, cash, Pledged Cash,
Investment securities, all promissory notes (including, but not limited to, the
Escalade Note) made and issued by Escalade and/or any of the Escalade Domestic
Subsidiaries in favor of, and owned and held by, the Company, general
intangibles and all proceeds and products thereof (collectively, the
"COLLATERAL"), which assignments, security interests and pledges shall be
granted to the Bank by the Company Security Agreement and the Escalade Note
Pledge Agreement, respectively, subject only to Liens and security interests
described in the exceptions enumerated in Section 5.02(b) of this Agreement. In
the event the Company owns or acquires tangible or intangible personal property
that the Bank deems is or may not be covered as Collateral by the Company
Security Agreement and the Escalade Note Pledge Agreement, respectively, or in
which the Bank deems its security interest is or may not be perfected, the
Company covenants and agrees promptly, upon the request of the Bank, to execute
such other security instruments and documents and take such other actions as the
Bank may require to grant to the Bank a perfected security interest therein, all
of which security instruments and documents shall be in form and substance
satisfactory to the Bank and its counsel in all respects.
23
ARTICLE V
AFFIRMATIVE AND
NEGATIVE COVENANTS OF COMPANY
Section 5.01. Affirmative Covenants of the Company. Unless otherwise
agreed or consented to by the Bank in a prior written document, until all
Obligations of the Company are paid and satisfied in full, and this Agreement
and the Bank's obligation to make Advances hereunder have been terminated, the
Company shall strictly observe each of the following covenants:
(a) Existence. The Company shall preserve and maintain its
corporate existence and the right to do business in its place of incorporation
and in such other jurisdictions and states wherein non-qualification would have
a Materially Adverse Effect. Except for such activities that the Bank may
approve pursuant to Section 5.02(m), the sole business of the Company shall be
to buy and own accounts receivables generated by and originally owed to the
Escalade Domestic Subsidiaries, respectively, and to engage in activities that
are directly and necessarily related thereto. The Company shall not at any time
have more than three (3) employees, and all servicing and collections of the
Purchased Accounts Receivable shall be performed by the Escalade Domestic
Subsidiaries under the respective Services Agreements.
(b) Use of the Proceeds of the Purchased Accounts Receivables. The
Company shall apply all proceeds of the Purchased Accounts Receivable against
its Obligations to the Bank to the extent necessary or required to all times to
prevent the outstanding principal balance owed on the Obligations from exceeding
the Maximum Availability and shall not invest or otherwise utilize the proceeds
for any purpose whatsoever; provided however, that the Company shall be
permitted from time to time to acquire additional Purchased Accounts Receivable
from the Escalade Domestic Subsidiaries so long as the Company as a result of
such transaction(s) does not at any time owe the Bank a principal balance on the
Loan in excess of the Maximum Availability and has not then otherwise committed
an Event of Default or Unmatured Event of Default.
(c) Reports, Certificates and Other Information. The Company shall
furnish to the Bank the following Financial Statements, certificates and other
information, in form and substance satisfactory in all regards to the Bank:
(1) Annual Audited Statements. As soon as available and
in any event within ninety (90) days after the end of
each fiscal year ending after the Closing Date,
annual audited Financial Statements, audited by the
Company's Auditors, showing the financial condition
and results of operations of the Company as at the
close of such fiscal year and for such fiscal year,
all prepared in accordance with GAAP, accompanied by
an opinion of the Company's Auditors, which opinion
shall be without qualification and shall state that
such audited Financial Statements present fairly the
financial position of the Company as of the date of
such Financial Statements and the results of its
operations and changes in its financial position for
the
24
period covered thereby, and that their examination in
connection with such Financial Statements has been
made in accordance with GAAP. This reporting
requirement may be satisfied by the Company providing
to the Bank a copy of Escalade's annual audited
Financial Statements which are inclusive of and show
all consolidating data and information related to the
Company.
(2) Interim Quarterly Statements. As soon as available
and in any event within forty-five (45) days after
the end of each fiscal quarter ending after the
Closing Date, unaudited Financial Statements for the
Company prepared in accordance with GAAP showing its
financial condition and results of operations as at,
and for such fiscal period and year-to-date, all in
reasonable detail, and certified to the Bank by an
Authorized Officer. This reporting requirement may be
satisfied by the Company providing to the Bank a copy
of Escalade's fiscal quarter Financial Statements
which are inclusive of and show all consolidating
data and information related to the Company.
(3) Annual and Quarterly Officer's Certificates.
Contemporaneously with the furnishing of each set of
Financial Statements provided for in Sections
5.01(c)(1) and (2), an Officer's Certificate.
(4) Orders. Prompt notice of any orders in any material
proceedings to which the Company is a party, issued
by any court or regulatory agency, federal or state,
and if the Bank should so request, a copy of any such
order.
(5) Notice of Default or Litigation. Immediately upon
learning of the occurrence of an Event of Default or
Unmatured Event of Default, or the institution of or
any adverse determination in any litigation,
arbitration proceeding or governmental proceeding
which is material to the Company or the occurrence of
any event which could have a Materially Adverse
Effect, written notice thereof describing the same
and the steps being taken with respect thereto.
(6) Borrowing Base Certificate. A Borrowing Base
Certificate evidencing the Borrowing Base as of the
close of the last prior Banking Day, on the date of
the initial Advance. For each four (4) week period,
the Company shall also provide a Borrowing Base
Certificate as of the last Banking Day of such four
(4) week period by the tenth (10th) Banking Day of
the next successive four (4) week period.
(7) Agings. Summary agings as to all Purchased Accounts
Receivable which are outstanding on the books and
records of the Company as of the last Banking Day of
each four (4) week period, which agings
25
shall be provided to the Bank by the tenth (10th)
Banking Day of the next successive four (4) week
period.
(8) Top Ten List. A list of the Company's ten (10)
largest account debtors, determined based upon the
balance of account receivable then owed, as of the
last Banking Day of each four (4) week period, which
list shall be provided to the Bank by the tenth
(10th) Banking Day of the next successive four (4)
week period.
(9) Other Information. From time to time all such other
information, data and documents concerning the
Company as the Bank may reasonably request.
(d) Books, Records and Inspections. The Company shall maintain
complete and accurate books and records, and permit access thereto by the Bank
for purposes of inspection, copying and audit, and the Company shall permit the
Bank to inspect its properties and operations at all reasonable times and upon
reasonable notice. To the extent that the Company has rights pursuant to the
Receivables Purchase Agreements to access, inspect, copy and audit the books and
records and the properties and operations of the Escalade Domestic Subsidiaries,
the Company hereby irrevocably designates and authorizes the Bank to undertake
such access, inspection, copying and auditing functions for or on its behalf as
the Bank may determine, subject however, to the notice and other reasonable
limitations provided in the Receivables Purchase Agreements.
(e) Insurance. In addition to any insurance required by any other
Loan Documents to which it is a party, the Company shall maintain in full force
and effect such insurance as may be required by law and such other insurance, to
such extent and against such hazards and liabilities, as is customarily
maintained by companies similarly situated.
(f) Taxes and Liabilities. The Company shall pay when due all
taxes, license fees, assessments and other liabilities except such as are being
contested in good faith and by appropriate proceedings and for which appropriate
reserves have been established.
(g) Compliance with Legal and Regulatory Requirements. The Company
shall maintain material compliance with the applicable provisions of all
federal, state and local statutes, ordinances and regulations of the USA and all
statutes, ordinances and regulations (or their equivalents) of Switzerland and
any court orders or orders of regulatory authorities issued thereunder.
(h) Financial Covenants. The Company shall observe each of the
following financial covenants:
(1) Minimum Tangible Capital Base. The Company shall at
all times maintain a Tangible Capital Base of not
less than Three Million and 00/100 Dollars
($3,000,000.00) as of the Closing Date through and
including the payment and satisfaction in full of all
Obligations and termination of this Agreement.
26
(2) Total Debt. The Total Debt of the Company as of the
Closing Date and at all times through and including
the payment and satisfaction in full of all
Obligations and termination of this Agreement shall
be limited solely to the Obligations and the Debt
specifically identified on the attached Schedule
5.01(h)(2) to this Agreement.
(3) Delinquency Ratio. The Company shall at all times
maintain a delinquency ratio with respect to
aggregate outstanding Eligible Accounts whereby the
percentage of Eligible Accounts by Dollar amount
which remains unpaid more than sixty (60) or more
days after the original due dates for payment stated
on the underlying invoices does not exceed ten
percent (10%) of total Eligible Accounts then
outstanding.
(i) Charge-off Requirements. All Purchased Accounts Receivable
owned by the Company which become more than ninety (90) days delinquent shall be
charged-off immediately and automatically by the Company. If thirty percent
(30%) or more by Dollar amount of the Purchased Accounts Receivable owed to the
Company by a single account debtor become more than ninety (90) days delinquent,
all accounts owed to the Company by that account debtor shall be charged-off
immediately and automatically by the Company. All accounts charged-off pursuant
to this Section 5.01(i) shall not thereafter be deemed to be Eligible Accounts
for any purpose.
(j) Primary Banking Relationship. The Company shall maintain the
Account and its other primary deposit accounts with the Bank.
(k) Ownership/Solvency. The Company shall remain a wholly-owned
subsidiary of Escalade and be Solvent at all times.
Section 5.02. Negative Covenants of the Company. Unless otherwise
agreed or consented to by the Bank in a prior written document, until all
Obligations of the Company are paid and satisfied in full, and this Agreement
and the Bank's obligation to make Advances hereunder have been terminated, the
Company shall strictly observe each of the following covenants:
(a) Restricted Payments. The Company shall not purchase or redeem
any shares of the capital stock of the Company, or declare or pay any
Distributions thereon. The Company shall not make any other Distributions to
shareholders as shareholders in any manner, or set aside any funds for any such
purpose, or prepay, purchase or redeem any Subordinated Debt of the Company;
provided however, that prior to the occurrence of an Event of Default or
Unmatured Event of Default, the Company shall be entitled to pay regularly
scheduled payments of interest owed by the Company on its Subordinated Debt
which is payable to the Escalade Domestic Subsidiaries and owned and held by
Escalade.
(b) Liens. The Company shall not create or permit to exist any
Lien with respect to any property or assets now owned or hereafter acquired by
it, including, without
27
limitation any of its rights, title and interests in and to any real estate,
whether leased or owned, except:
(1) Liens in favor of the Bank created pursuant to the
requirements of this Agreement, or otherwise;
(2) any Lien or deposit with any governmental agency
required or permitted to qualify the Company to
conduct business;
(3) Liens for taxes and governmental charges which are
not yet due or which are being contested in good
faith and by appropriate proceedings and for which
appropriate reserves have been established;
(4) Liens created by or resulting from any litigation or
legal proceeding which is being contested in good
faith and by appropriate proceedings and for which
appropriate reserves have been established; and
(5) those specific Liens now existing, if any, described
on Schedule 5.02(b)(5) attached to this Agreement.
(c) Guaranties. The Company shall not be a guarantor or surety of,
or otherwise be responsible in any manner with respect to any undertaking of any
other Person, whether by guaranty agreement or by agreement to purchase any
obligations, stock, assets, goods or services, or to supply or advance any
funds, assets, goods or services, or otherwise, except for:
(1) guaranties in favor of the Bank;
(2) guaranties by endorsement of instruments for deposit
made in the ordinary course of business; and
(3) those specific existing guaranties, if any, listed on
Schedule 5.02(c)(3) attached to this Agreement.
(d) Loans or Advances. The Company shall not make or permit to
exist any loans, advances or extensions of credit by it to any other Person,
except for the specific items, if any, listed in Schedule 5.02(d).
(e) Mergers, Consolidations, Sales, Acquisition or Formation of
Subsidiaries. The Company shall not (i) be a party to any consolidation or to
any merger or purchase the capital stock of or otherwise acquire any equity
interest in any other Person, (ii) acquire any assets of any other Person other
than Purchased Accounts Receivable acquired from the Escalade Domestic
Subsidiaries, or (iii) sell, transfer, convey or lease all or any of its assets.
The Company shall not cause to be created or otherwise acquire any Subsidiary
without the prior written consent of the Bank.
28
(f) Other Agreements. The Company shall not enter into any
agreement containing any provision which would be violated or breached in any
material respect by the performance of its Obligations under this Agreement or
under any other Loan Document.
(g) Judgments. The Company shall not permit any uninsured judgment
or monetary penalty rendered against it in any judicial or administrative
proceeding to remain unsatisfied for a period in excess of thirty (30) days
unless such judgment or penalty is being contested diligently and in good faith
by appropriate proceedings and execution upon such judgment has been stayed, and
unless an appropriate reserve has been established with respect thereto.
(h) Change Name/Location of Principal Office. The Company shall
not change its legal name or the location of its principal office unless it
gives not less than sixty (60) days' prior written notice of such change to the
Bank.
(i) Negative Pledge Limitation. The Company shall not enter into
any agreement with any Person, other than the Bank, which prohibits or limits
its ability to create, incur, assume, or suffer to exist in favor of the Bank
any Lien upon any of its assets, rights, revenues, or property, real, personal,
or mixed, tangible or intangible, whether now owned or hereafter acquired.
(j) Accounting Policies/Change of Business. The Company shall not:
(1) change its fiscal year or any of its significant accounting policies except
to the extent necessary to comply with GAAP; and (2) make any material change in
or expansion of the nature of its business as carried on as of the Closing Date.
(k) Service Fees. With the sole exception of the Company's
agreements with respect to the Services Agreements and this Agreement, the
Company shall not pay, nor enter into any contract or other commitment which
obligates it to pay any management fees, consulting fees, administrative service
fees or any other similar fee or charge to any Person or any Affiliate of the
Company.
(l) Limitation on Compensation. The Company shall not pay or
become obligated to pay any compensation, including salaries, bonuses or fees of
any kind, to: (i) any Person as compensation for employment services or
consulting or administrative services except as provided in the Services
Agreements, and (ii) except as specified in Schedule 5.02(l).
(m) Limitation on Business Activities. The Company shall not
engage in any business activity other than is directly and necessarily related
to the purchase and ownership by the Company of Purchased Accounts Receivable,
unless the details of such additional business activity have been previously and
fully disclosed to the Bank and the Bank shall have consented in writing to such
expanded business activity.
(n) Prohibited Use of Loans. No portion of any Loan made hereunder
shall be used directly or indirectly to purchase any ineligible securities, as
defined by applicable regulations of the Board, which are underwritten by BOC
during the underwriting period and for the thirty (30) days thereafter.
29
(o) Change in Receivables Purchase Agreements and Services
Agreements. The Company shall not permit, consent to or acquiesce in any
material change to any of the Receivables Purchase Agreements and Services
Agreements.
ARTICLE VI
LENDING CONDITIONS
Section 6.01. Conditions of Lending. The obligation of the Bank to
advance the proceeds of the Loan shall be subject to fulfillment of each of the
following conditions precedent:
(a) No Default. No Event of Default or Unmatured Event of Default
shall have occurred and be continuing, and the representations and warranties of
the Company contained in Section 3.01 of this Agreement shall be true and
correct as of the date of this Agreement and as of the date of any Advance,
except that after the date of this Agreement: (i) the representations contained
in Section 3.01(d) of this Agreement will be construed so as to refer to the
latest Financial Statements furnished to the Bank by the Company pursuant to the
requirements of this Agreement, and (ii) all other representations will be
construed to have been amended to conform with any changes of which the Bank
shall previously have been given notice in writing by the Company.
(b) Documents and other Items to be Furnished at Closing. The Bank
shall have received contemporaneously with the execution of this Agreement, the
following, each duly executed by the parties or intended signatories thereto,
currently dated (as applicable) and in form and substance in all regards
satisfactory to the Bank and its counsel:
(1) The Revolving Note, the Company Security Agreement,
the Escalade Note Pledge Agreement and the Escalade
Note.
(2) A copy of the Written Consent Resolutions of the
Board of Directors of the Company authorizing the
execution and delivery, on behalf of the Company, of
this Agreement and the other Loan Documents provided
for in this Agreement to which the Company is a
party.
(3) A certificate of the Secretary, or any Assistant
Secretary, of the Company certifying the names and
signatures of the officer or officers authorized to
sign this Agreement and the other Loan Documents
provided for in this Agreement to which the Company
is a party, for and on behalf of the Company,
together with a Certificate of Existence (or its
equivalent) for the Company issued by the appropriate
State of Nevada governmental office.
(4) Escalade subordination agreement executed by Escalade
in favor of the Bank, and consented to by each of the
Escalade Domestic Subsidiaries (the "Escalade
Subordination Agreement").
30
(5) A copy of the Written Consent Resolutions of the
Board of Directors of Escalade authorizing the
execution and delivery, on behalf of Escalade, of the
Escalade Note and all other documents provided for in
this Agreement to which Escalade is a party.
(6) A certificate of the Secretary of Escalade certifying
the names and signatures of the officer authorized to
sign the documents referenced in (6) above to be
executed by Escalade, for and on behalf of Escalade.
(7) Payment to the Bank of reimbursement for all costs
and expenses incurred by the Bank in the preparation
and closing of the Loan Documents and in the making
of the Loan, including, but not limited to, all of
its reasonable attorneys' fees.
(8) Opinions of counsel for the Company, Escalade and the
Escalade Domestic Subsidiaries, addressed to the Bank
in such form and substance as shall be acceptable in
all regards to the Bank and its counsel on the
matters identified on Schedule 6.01 (b)(9).
(9) UCC-1 Financing Statements in such form as the Bank
may request from the Company and UCC-3 Statements of
Assignment in such form as the Bank may request from
the Company pertaining to any and all security
interests which the Company may have or hereafter
been granted by Escalade and/or the Escalade Domestic
Subsidiaries, or otherwise.
(10) Copies of the Articles of Incorporation of the
Company certified by the Company's Authorized
Officer, and copies of the current By-Laws for the
Company, certified by its Secretary.
(11) An initial Borrowing Base Certificate and an initial
Officer's Certificate.
(12) Seven (7) Receivables Purchase Agreements to be
executed by and between the Company and each of the
Escalade Domestic Subsidiaries and the Company and
the Swiss Subsidiary, together with copies of all the
documentation and information described in Section
4.1 thereof, respectively.
(13) Six (6) Services Agreements by and between the
Company and each of the Escalade Domestic
Subsidiaries.
(14) The Offset Waiver Agreement executed by and among
each of the Bank, Escalade and the Escalade Domestic
Subsidiaries.
(15) Payment in full of all sums owed to the Bank by the
Swiss Subsidiary.
31
(16) Such other documents, certificates, agreements and/or
information as the Bank may reasonably require.
ARTICLE VII
EVENTS OF DEFAULT--ACCELERATION
Section 7.01. Events of Default. Each of the following shall constitute
an Event of Default under this Agreement:
(a) Nonpayment of the Loan. Default in the payment when due of any
amount payable under the terms of the Revolving Note, or otherwise payable to
the Bank or any other holder of any of the Revolving Note under the terms of
this Agreement.
(b) Nonpayment of Other Debt. (i) Default by the Company in the
payment when due, whether by acceleration or otherwise, of any other Debt owed
to a Person other than the Bank, or default in the performance or observance of
any obligation or condition with respect to any such other Debt if the effect of
such default is to accelerate the maturity of such other Debt or to permit the
holder or holders thereof, or any trustee or agent for such holders, to cause
such Debt to become due and payable prior to its scheduled maturity, unless the
Company is diligently contesting the existence of such default in good faith and
by appropriate proceedings; and (ii) Default by any other Credit Party to pay
any Debt owed to the Bank when due.
(c) Other Material Obligations. Subject to the expiration of any
applicable grace period, default by the Company in the payment when due, or in
the performance or observance of any material obligation of, or condition agreed
to by the Company with respect to any agreement respecting any material
purchase, sale or lease of goods, securities or services except only to the
extent that the existence of any such default is diligently being contested in
good faith and by appropriate proceedings and that appropriate reserves have
been established with respect thereto.
(d) Bankruptcy, Insolvency, etc. The Company or any Servicer
admitting in writing its inability to pay its debts as they mature or an
administrative or judicial order of dissolution or determination of insolvency
being entered against the Company or any Servicer; or the Company or any
Servicer applying for, consenting to, or acquiescing in the appointment of a
trustee or receiver for the Company or any Servicer or any property thereof, or
the Company or any Servicer making a general assignment for the benefit of
creditors; or, in the absence of such application, consent or acquiescence, a
trustee or receiver being appointed for the Company or any Servicer or for a
substantial part of the property of the Company or any Servicer and not being
discharged within sixty (60) days; or any bankruptcy, reorganization, debt
arrangement, or other proceeding under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding being instituted by or against the Company
or any Servicer, and, if involuntary, being consented to or acquiesced in by the
Company or any Servicer, as applicable, or remaining for sixty (60) days
undismissed.
(e) Warranties and Representations. Any warranty or representation
made by the Company in this Agreement, or any of the other Loan Documents,
proving to have been false
32
or misleading in any material respect when made, or any schedule, certificate,
financial statement, report, notice, or other writing furnished by the Company
to the Bank proving to have been false or misleading in any material respect
when made or delivered.
(f) Violations of Negative and Financial Covenants. Failure by the
Company to comply with or perform any covenant stated in Section 5.01(h) or
Section 5.02 of this Agreement.
(g) Change of Control. There shall be a Change of Control of the
Company without the prior written consent of the Bank.
(h) Noncompliance With Other Provisions of this Agreement. Failure
of the Company to comply with or perform any covenant or other provision of this
Agreement or to perform any other Obligation (which failure does not constitute
an Event of Default under any of the preceding provisions of this Section 7.01)
and continuance of such failure for five (5) days after actual receipt of notice
thereof by the Company from the Bank.
(i) Noncompliance With Other Loan Documents. The occurrence of any
"Event of Default" or "Default" (as such terms are defined in any of the Loan
Documents other than this Agreement).
(j) Escalade Note/Policies. If at any time the principal balance
of the Escalade Note is paid or reduced to an amount of less than
$14,000,000.00, or if any change in the credit practices or policies of the
Company, the Escalade Domestic Subsidiaries or Escalade occurs with respect to
the Purchased Accounts Receivable which the Bank reasonably deems likely to have
a Materially Adverse Effect.
(k) Termination/Modification of the Lockbox Agreements,
Receivables Purchase Agreements or Services Agreements. The termination or
purported termination of any one or more of the Lockbox Agreements, the
Receivables Purchase Agreements or Services Agreements, or in the case of the
Services Agreements, or any of them, if any Person other than the Servicers is
named as the servicing agent thereunder.
Section 7.02. Effect of Event of Default. If any Event of Default
described in Section 7.01(d) of this Agreement shall occur: (i) the maturity of
the Loan shall immediately be accelerated, and the Note and the Loan evidenced
thereby and all other indebtedness and any other payment Obligations of the
Company to the Bank shall become immediately due and payable; (ii) the Escalade
Domestic Subsidiaries shall waive any sums that may be owing to them under
Section 2.01 (f)(2); and (iii) the Maximum Availability shall be immediately
reduced to zero Dollars ($0). When any other Event of Default has occurred and
is continuing, the Bank or any other holder of the Note may accelerate payment
of the Loan and declare the Note and all other payment Obligations due and
payable, whereupon maturity of the Loan shall be accelerated, the Note and the
Loan evidenced thereby, and all other payment Obligations shall become
immediately due and payable and the Maximum Availability shall be immediately
reduced to zero Dollars ($0), all without notice of any kind. The Bank or such
other holder shall promptly advise the Company of any such declaration, but
failure to do so shall not abrogate the occurrence or impair the effect of such
declaration. The remedies of the Bank specified in this Agreement or in any
other Loan
33
Document shall not be exclusive, and the Bank may avail itself of any other
remedies provided by law, as well as any equitable remedies available to the
Bank.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Waiver -- Amendments. No delay on the part of the Bank,
or any holder of the Note in the exercise of any right, power or remedy shall
operate as a waiver thereof, nor shall any single or partial exercise by any of
them of any right, power or remedy preclude any other or further exercise
thereof, or the exercise of any other right, power or remedy. No amendment,
modification or waiver of, or consent with respect to any of the provisions of
this Agreement or the other Loan Documents or otherwise of the Obligations shall
be effective unless such amendment, modification, waiver or consent is in
writing and signed by the Bank.
Section 8.02. Notices. Any notice given under or with respect to this
Agreement to the Company or the Bank shall be in writing and, if delivered by
hand or sent by overnight courier service, shall be deemed to have been given
when delivered and, if mailed, shall be deemed to have been given five (5) days
after the date when sent by registered or certified mail, postage prepaid, and
addressed to the Company or the Bank (or other holder of the Note) at its
address shown below, or at such other address as any such party may, by written
notice to the other party to this Agreement, have designated as its address for
such purpose. The addresses referred to are as follows:
The Company: Indian-Xxxxxx, Inc.
0000-X Xxxxxxxxxxx Xxxxx
Xxxxx 00
Xxx Xxxxx, XX 00000
Attn: President
Telecopy: (000) 000-0000
(with a copy to:) Escalade, Incorporated
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxxx
Telecopy: (000) 000-0000
The Bank: Bank One, National Association
Bank One Tower, Mail Code IN 1-0046
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Manager -- Corporate Banking
Telecopy: (000) 000-0000
(with a copy to:) XXXXX & XXXXXXX
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
34
Section 8.03. Costs, Expenses and Taxes. The Company agrees to pay
(without duplication), all of the following fees, costs and expenses incurred by
the Bank: (i) all reasonable costs and expenses in connection with the
negotiation, preparation, printing, typing, reproduction, execution and delivery
of the Loan Documents and any and all other documents furnished pursuant hereto
or in connection herewith, including without limitation the reasonable fees and
out-of-pocket expenses of Messrs. Xxxxx & Xxxxxxx, special counsel to the Bank,
as well as the fees and out-of-pocket expenses of such counsel in connection
with the foregoing and the administration of this Agreement, (ii) all reasonable
costs and expenses in connection with the negotiation, preparation, printing,
typing, reproduction, execution and delivery of any amendments or modifications
of (or supplements to) any of the foregoing and any and all other documents
furnished pursuant thereto or in connection therewith, including without
limitation the reasonable fees and out-of-pocket expenses of counsel retained by
the Bank relative thereto (or, but not as well as, the reasonable allocated
costs of staff counsel), (iii) all UCC and Lien search fees and costs and all
fees and taxes payable in connection with the filing or recording of any Loan
Documents or financing statements; (iv) all costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses of the Bank), if
any, incurred in connection with the administration and enforcement of this
Agreement and/or any other Loan Documents or other agreement furnished pursuant
hereto or thereto or in connection herewith or therewith; and (v) all costs and
expenses incurred by the Bank in conducting an independent audit or review by
the Bank's internal staff of the books and records of the Company and the
Collateral provided under the Loan Documents. In addition, the Company shall pay
any and all stamp, transfer and other similar taxes payable or determined to be
payable in connection with the execution and delivery of this Agreement, or any
of the other Loan Documents, or the issuance of the Notes, or the making of the
Loans, and agrees to save and hold the Bank harmless from and against any and
all liabilities with respect to or resulting from any delay in paying, or
omission to pay, such taxes. Any portion of the foregoing fees, costs and
expenses which remains unpaid following the Bank's statement and request for
payment thereof shall bear interest from the date of such statement and request
to the date of payment at a per annum rate equal to the Default Rate, that the
Bank shall be entitled to rely thereon.
Section 8.04. Severability/Counterparts. If any provision of this
Agreement or any other Loan Document is determined to be illegal or
unenforceable, such provision shall be deemed to be severable from the balance
of the provisions of this Agreement or such Loan Document and the remaining
provisions shall be enforceable in accordance with their terms. This Agreement,
and any other of the Loan Documents, may be executed in any number of
counterparts, which taken together (as to this Agreement or any other of the
Loan Documents, as applicable) shall be considered as one instrument, and each
of the parties agree that the facsimile signature of an Authorized Officer
hereon or thereon shall be deemed for all purposes to have the same force and
effect as an original, manual signature and any Loan Document bearing such a
facsimile signature may be enforced by the Bank accordingly.
Section 8.05. Captions/Time of Essence/Miscellaneous. Section captions
used in this Agreement are for convenience only and shall not affect the
construction of this Agreement.
35
Time is of the essence under the Loan Documents. This Agreement may be executed
by original or facsimile signatures (which shall be binding and enforceable for
all purposes the same as if original), in two or more counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute but one agreement.
Section 8.06. Further Assurances. The Company shall, at its expense,
upon request of Bank, duly execute and deliver, or cause to be executed and
delivered, such further documents, agreements and instruments and perform or
cause to be performed such further acts as may be necessary or proper in the
reasonable opinion of Bank to from time to time carry out the intents,
provisions and purposes of this Agreement.
Section 8.07. Governing Law. Except as may otherwise be expressly
provided in any other Loan Document, this Agreement and all other Loan Documents
are made under and will be governed in all cases by the substantive laws of the
State of Indiana without reference to the conflicts of laws rules or principles
of any jurisdiction. THE COMPANY AGREES THAT ALL SERVICE OF PROCESS MAY BE MADE
BY MESSENGER, BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY REGISTERED MAIL
DIRECTED TO THE COMPANY AT THE ADDRESS STATED IN SECTION 8.02 OF THIS AGREEMENT.
NOTHING CONTAINED IN THIS SECTION SHALL AFFECT THE RIGHT OF THE BANK TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
Section 8.08. Prior Agreements, Etc. This Agreement supersedes all
previous agreements and commitments made by the Bank and the Company with
respect to the Loan and all other subjects of this Agreement, including, without
limitation, any oral or written proposals or commitments made or issued by the
Bank. The Company agrees to indemnify and hold harmless the Bank from and
against all liabilities, obligations, losses, damages, penalties, action,
judgments, suits, costs (including attorneys' fees), expenses or disbursements
of any kind whatever which may be imposed upon or asserted against the Bank in
any way relating to the business operations of the Company, execution of this
Agreement or any other of the Loan Documents or the performance of its
obligations thereunder. It is expressly agreed that the Bank shall not be deemed
to control the business activities of the Company as a result of this Agreement,
the other Loan Documents or the performance thereof.
Section 8.09. Successors and Assigns. This Agreement and the other Loan
Documents shall be binding upon and shall inure to the benefit of the Company
and the Bank and their respective legal representatives, successors and assigns,
provided that the Company's rights under this Agreement shall not be assignable
without the prior written consent of the Bank.
Section 8.10. Waiver of Jury Trial/Jurisdiction. THE COMPANY AND THE
BANK EACH HEREBY VOLUNTARILY, KNOWINGLY, ABSOLUTELY, IRREVOCABLY AND
UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY TRIAL OR HAVE A JURY PARTICIPATE
IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE)
BETWEEN THE BANK AND THE COMPANY ARISING OUT OF OR IN ANY WAY RELATED TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY RELATIONSHIP BETWEEN THE COMPANY AND
THE BANK. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANK TO PROVIDE
36
THE FINANCING DESCRIBED IN THIS AGREEMENT AND IN THE OTHER LOAN DOCUMENTS.
NEITHER THE COMPANY NOR THE BANK WILL SEEK TO CONSOLIDATE ANY SUCH
ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL HAS NOT BEEN OR CANNOT BE WAIVED.
THE COMPANY AGREES THAT THE COURTS OF THE STATE OF INDIANA, USA,
LOCATED IN INDIANAPOLIS, INDIANA, AND THE FEDERAL COURTS LOCATED IN THE SOUTHERN
DISTRICT OF INDIANA, INDIANAPOLIS DIVISION, HAVE EXCLUSIVE JURISDICTION OVER ANY
AND ALL ACTIONS AND PROCEEDINGS INVOLVING THIS AGREEMENT OR ANY OTHER AGREEMENT
MADE IN CONNECTION HEREWITH, AND THE COMPANY HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES TO SUBMIT TO THE JURISDICTION OF SUCH COURTS FOR PURPOSES
OF ANY SUCH ACTION OR PROCEEDING. THE COMPANY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY OBJECTION THAT THE COMPANY MAY NOW HAVE OR HEREAFTER
CLAIM TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING, INCLUDING ANY CLAIM THAT
SUCH COURT IS AN INCONVENIENT FORUM, AND HEREBY CONSENTS TO SERVICE OF PROCESS,
PROVIDED THE SAME IS IN ACCORDANCE WITH THE TERMS HEREOF. FINAL JUDGMENT IN ANY
SUCH PROCEEDING AFTER ALL APPEALS HAVE BEEN EXHAUSTED OR WAIVED SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN ALL OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT.
Section 8.11. Highest Lawful Rate. Notwithstanding any provision to the
contrary contained in this Agreement or in any of the other Loan Documents, it
is expressly provided that in no case or event shall the aggregate of (a) all
interest on the unpaid balance of the Note, accrued or paid from the date
hereof, and (b) the aggregate of any other amounts accrued or paid pursuant to
the Note, or any of the other Loan Documents, which under applicable laws are or
may be deemed to constitute interest upon such Debt from the date hereof, ever
exceed the maximum rate of interest which could lawfully be contracted for,
charged or received on the unpaid principal balance of such Debt. In this
connection, it is expressly stipulated and agreed that it is the intent of the
Company and the Bank to contract in strict compliance with any applicable state
usury laws and with federal usury laws (whichever permit the higher rate of
interest) from time to time in effect. In furtherance thereof, none of the terms
of this Agreement, the Note or any of the other Loan Documents shall ever be
construed to create a contract to pay, as consideration for the use, forbearance
or detention of money, interest at a rate in excess of the Highest Lawful Rate.
Neither the Company nor any other Person now or hereafter becoming liable for
payment of indebtedness pursuant to the Loan Documents (the "BANK DEBT") shall
ever be liable for interest in excess of the Highest Lawful Rate. If under any
circumstances the aggregate amounts paid on the Bank Debt include amounts which
by law are deemed interest which would exceed the Highest Lawful Rate, the
Company stipulates that such amounts will be deemed to have been paid as a
result of an error on the part of the Company and the Bank, and the Person
receiving such excess payment shall promptly, upon discovery of such error or
upon notice thereof from the Person making such payment, in its discretion
credit the amount of such excess as a reduction of the principal balance
outstanding or refund the amount of such excess. The parties further stipulate
that such credit or
37
refund shall be a sufficient and sole remedy for such error and that no party
shall be entitled to any damages or penalties, whether statutory or otherwise,
as a result of such error. In addition, all sums paid or agreed to be paid to
the holder or holders of the Bank Debt for the use, forbearance or detention of
the Bank Debt shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full term of the Bank Debt. The
provisions of this Section 8.11 shall control all agreements, whether now or
hereafter existing and whether written or oral, between the Company and the
Bank.
Section 8.12. Indemnification. The Company agrees to indemnify the Bank
and BOC and each of their respective past, present and future Affiliates,
Subsidiaries, successors and assigns (including any purchaser of a participation
in any of the Loan) and each such entity's directors, officers, employees,
agents and attorneys against all losses, claims, costs, damages, liabilities and
expenses, including, without limitation, all expenses of litigation or
preparation therefor (a "LOSS"), which they, or any of them, may pay or incur in
connection with or arising out of the direct or indirect application of the
proceeds of the Loan, except for any Loss incurred as the result of the willful
misconduct of the Bank, its successors or assigns, or its directors, officers,
employees, agents and attorneys. The indemnity set forth herein shall be in
addition to the other Obligations of the Company to the Bank under the Loan
Documents or at common law or otherwise, and shall survive termination of this
Agreement and the payment of all other Obligations.
IN WITNESS WHEREOF, the Bank and the Company have by their respective
duly authorized officers executed and delivered this Credit Agreement as of the
Closing Date.
INDIAN-XXXXXX, INC., a corporation organized
and existing under the laws of the State of
Nevada
By:_________________________________________
____________________________________________
(Printed Name and Title)
("Company")
BANK ONE, NATIONAL ASSOCIATION
By:_________________________________________
____________________________________________
(Printed Name and Title)
("Bank")
38
LIST OF EXHIBITS AND SCHEDULES
Exhibits Description
--------- --------------------------------------------
"A" Application for Advance
"B" Borrowing Base Certificate
"C" Collateral Assignment and Security Agreement
"D" Escalade Note Pledge Agreement
"E" Escalade Subordination Agreement
"F" Officer's Certificate
"G" Offset Waiver Agreement
"H-1" Receivables Purchase Agreement (Specimen -
Escalade Domestic Subsidiaries)
"H-2" Receivables Purchase Agreement (Specimen -
Swiss Subsidiary)
"I" Revolving Note
"J" Services Agreement (Specimen)
Schedules
-----------
5.01 (h)(2) Other Permitted Debt
5.02 (b)(5) Other Liens
5.02 (c)(3) Guaranties
5.02 (d) Loans or Advances
5.02 (l) Permitted Compensation
6.01 (b)(9) Opinions Required
