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EXHIBIT 10.11
OFFSET WAIVER AGREEMENT
This Offset Waiver Agreement (the "Agreement") is made and
entered into as of May 15, 2000, by and among ESCALADE, INCORPORATED, an Indiana
corporation ("Escalade"); XXXXXX YALE INDUSTRIES, INC., an Indiana corporation
("Xxxxxx Yale"); INDIAN INDUSTRIES, INC., an Indiana corporation ("Indian
Industries"); MASTER PRODUCTS MANUFACTURING COMPANY, INC., a Delaware
corporation ("Master Products"); HARVARD SPORTS, INC., a California corporation
("Harvard Sports"); INDIAN-XXXXXX XX, a corporation organized and existing under
the laws of Switzerland ("Indian-Xxxxxx"); and BANK ONE, INDIANA, NATIONAL
ASSOCIATION, a national banking association with its principal office in
Indianapolis, Indiana ("Bank").
Recitals
A. Escalade is the sole shareholder of Xxxxxx Yale, Indian
Industries and the owner of 99% of the outstanding shares of Indian-Xxxxxx.
Xxxxxx Yale is the sole shareholder of Master Products, and Indian Industries is
the sole shareholder of Harvard Sports. (Hereinafter, Xxxxxx Yale, Indian
Industries, Master Products, and Harvard Sports shall be referred to
collectively as the "Domestic Subsidiaries," and individually as a "Domestic
Subsidiary.")
B. Indian-Xxxxxx and Bank have entered into a Credit Agreement
as of even date (the "Credit Agreement"), that, among other things, establishes
a credit facility for Indian-Xxxxxx with the Bank authorizing a loan to
Indian-Xxxxxx xxxx Bank of up to the aggregate principal sum of $30,000,000 (the
"Loan"). The Loan is secured by the grant of a security interest and assignment
to Bank of all of Indian-Xxxxxx'x rights, title and interests, now owned or
hereafter acquired by Indian-Xxxxxx, in and to that Collateral defined and
described in the Credit Agreement. (Hereinafter, all indebtedness, Obligations
and liabilities and any renewals or extensions thereof owed by Indian-Xxxxxx to
Bank under the Credit Agreement and Loan Documents shall be referred to
collectively as the "Indian-Xxxxxx/Bank One Obligations.") All capitalized terms
used, but not otherwise defined, herein shall have the respective meanings
ascribed to them in the Credit Agreement.
C. In accordance with those four (4) certain Receivables
Purchase Agreements executed by Indian-Xxxxxx and each of the Domestic
Subsidiaries, respectively, before or concurrent with execution of the Credit
Agreement, the other Loan Documents and this Agreement, Indian-Xxxxxx shall
purchase certain accounts receivable of the Domestic Subsidiaries. Payment by
Indian-Xxxxxx for the purchase of such receivables shall be made pursuant to an
unsecured note issued by Indian-Xxxxxx payable to each of the Domestic
Subsidiaries in the amounts, respectively, of ninety-five percent (95%) of the
face value of the accounts receivables sold by each such Domestic Subsidiary to
Indian-Xxxxxx (collectively, the "Indian-Xxxxxx Receivables Notes", and
individually, an "Indian-Xxxxxx Receivables Note"). (Hereinafter, all
indebtedness, obligations and liabilities, and any renewals or extensions
thereof, owed by Indian-Xxxxxx to the Domestic Subsidiaries, respectively,
arising out of the Indian-Xxxxxx Receivables Notes shall be referred to
collectively as the "Indian-Xxxxxx/Domestic Subsidiaries Obligations".) Upon
Indian-Xxxxxx'x delivery of the Indian-Xxxxxx Receivables
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Notes to each of the Domestic Subsidiaries, respectively, Bank understands and
agrees that each Domestic Subsidiary may distribute as a dividend, assign or
otherwise sell, transfer or convey its Indian-Xxxxxx Receivables Note to
Escalade.
D. Pursuant to the Receivables Purchase Agreements, among
other things, Indian-Xxxxxx shall have and be granted certain indemnities and
rights of limited recourse owing to it from the Domestic Subsidiaries,
respectively, all of which indemnities and rights are required to and shall be
assigned by Indian-Xxxxxx to Bank, and Bank shall be granted a security interest
therein, under the Company Security Agreement (hereinafter, collectively the
"Domestic Subsidiaries/Indian-Xxxxxx/Bank One Obligations").
E. The permitted use of the proceeds of the Loan under the
Credit Agreement requires Indian-Xxxxxx, on a one time basis, to loan to
Escalade the proceeds of the Loan's initial funding in an amount not less than
the greater of the initial Advance (which amount shall be equal to the total
principal sum of the Indian-Xxxxxx Receivables Notes) or $7,500,000.00, for
which Escalade shall issue the Escalade Note payable to Indian-Xxxxxx evidencing
such loan (the "Escalade/Indian-Xxxxxx Loan"). The Escalade Note shall be
pledged by Indian-Xxxxxx to Bank and shall be a part of the Collateral given to
secure the Indian-Xxxxxx/Bank One Obligations. (Hereinafter, all indebtedness,
obligations and liabilities, and all renewals and extensions thereof, owed by
Escalade to Indian-Xxxxxx arising out of the Escalade/Indian-Xxxxxx Loan shall
be referred to collectively as the "Escalade/Indian-Xxxxxx Obligations.")
F. Escalade intends to use the proceeds of the
Escalade/Indian-Xxxxxx Loan to repay existing indebtedness to Bank and/or fund
unsecured loans from Escalade to each of the Domestic Subsidiaries,
respectively, to finance their current ongoing operations (the "Domestic
Subsidiaries/Escalade Loans"). (Hereinafter, all indebtedness, obligations and
liabilities, and all renewals and extensions thereof, owed by the Domestic
Subsidiaries, individually and collectively, to Escalade arising out of the
Domestic Subsidiaries/Escalade Loans shall be referred to collectively as the
"Domestic Subsidiaries/Escalade Obligations".)
G. As a condition precedent to execution and delivery of the
Credit Agreement, Bank requires the execution and delivery of this Agreement
whereby Escalade, the Domestic Subsidiaries and Indian-Xxxxxx each knowingly,
unconditionally and absolutely waive and terminate all rights of offset and
similar rights which may otherwise exist with respect to those obligations owing
by, to or among each other.
NOW THEREFORE, IN CONSIDERATION OF THE FOREGOING, AND FOR GOOD
AND VALUABLE CONSIDERATIONS, THE RECEIPT, SUFFICIENCY AND MUTUALITY OF WHICH ARE
HEREBY ACKNOWLEDGED, AND IN ORDER TO SATISFY THE CONDITIONS PRECEDENT OF THE
CREDIT AGREEMENT, ESCALADE, THE DOMESTIC SUBSIDIARIES AND INDIAN-XXXXXX AGREE
WITH BANK AS FOLLOWS:
1. Until such time as all Indian-Xxxxxx/Bank One Obligations are fully
and finally paid, performed and satisfied, and the credit commitment under the
Credit Agreement from Bank to Indian-Xxxxxx is no longer of any force or effect,
Indian-Xxxxxx hereby knowingly,
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unconditionally and absolutely waives all rights, claims or privileges of
offset, set off, counterclaim, recoupment, abatement and any and all other
similar rights, claims or privileges which Indian-Xxxxxx may otherwise have, or
hereafter claim or assert, with respect to (i) any or all of the
Escalade/Indian-Xxxxxx Obligations, and (ii) any or all of the
Indian-Xxxxxx/Domestic Subsidiaries Obligations, whether or not such
Indian-Xxxxxx/Domestic Subsidiaries Obligations are assigned, sold or otherwise
transferred by the Domestic Subsidiaries to Escalade.
2. Until such time as all Indian-Xxxxxx/Bank One Obligations are fully
and finally paid, performed and satisfied, and the credit commitment under the
Credit Agreement from Bank to Indian-Xxxxxx is no longer of any force or effect,
Escalade hereby knowingly, unconditionally and absolutely waives all rights,
claims or privileges of offset, set off, counterclaim, recoupment, abatement and
any and all other similar rights, claims or privileges which Escalade may
otherwise have, or hereafter claim or assert, with respect to (i) any or all of
the Escalade/Indian-Xxxxxx Obligations, and (ii) any or all of the
Indian-Xxxxxx/Domestic Subsidiaries Obligations, whether or not such
Indian-Xxxxxx/Domestic Subsidiaries Obligations are assigned, sold or otherwise
transferred by the Domestic Subsidiaries to Escalade.
3. Until such time as all Indian-Xxxxxx/Bank One Obligations are fully
and finally paid, performed and satisfied, and the credit commitment under the
Loan Agreement from Bank to Indian-Xxxxxx is no longer of any force or effect,
each Domestic Subsidiary hereby knowingly, unconditionally and absolutely waives
all rights, claims or privileges of offset, set off, counterclaim, recoupment,
abatement and any and all other similar rights, claims or privileges which
Domestic Subsidiaries may otherwise have, or hereafter claim or assert, with
respect to (i) any or all of the Indian-Xxxxxx/Domestic Subsidiaries
Obligations, whether or not such Indian-Xxxxxx/Domestic Subsidiaries Obligations
are assigned, sold or otherwise transferred by the Domestic Subsidiaries to
Escalade, and (ii) any or all of the Domestic Subsidiaries/Indian-Xxxxxx/Bank
One Obligations.
4. Indian-Xxxxxx, Escalade and the Domestic Subsidiaries, respectively,
each hereby acknowledge and consent to the waivers and agreements of each other
as set forth in this Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement as of the date first written above.
INDIAN-XXXXXX XX, a corporation organized and
existing under the laws of Switzerland
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx, Director
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(Printed Name and Title)
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ESCALADE, INCORPORATED, an Indiana corporation
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Secretary
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(Printed Name and Title)
XXXXXX YALE INDUSTRIES, INC., an Indiana
corporation
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Secretary
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(Printed Name and Title)
INDIAN INDUSTRIES, INC., an Indiana corporation
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Secretary
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(Printed Name and Title)
MASTER PRODUCTS MANUFACTURING
COMPANY, INC., a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Secretary
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(Printed Name and Title)
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HARVARD SPORTS, INC., a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Secretary
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(Printed Name and Title)
BANK ONE, INDIANA, NATIONAL
ASSOCIATION, a national banking association
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Vice President
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(Printed Name and Title)
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