Exhibit 10.1
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FIRST AMENDMENT TO CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment" or "First
Amendment") has been executed as of the 15th day of July, 2004, (the "First
Amendment Effective Date"), by INDIAN-XXXXXX, INC., a Nevada corporation,
("Company"), and BANK ONE, NATIONAL ASSOCIATION, a national banking association
("Bank").
Recitals
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1. Company and Bank (collectively, the "Parties") are parties to
a Credit Agreement, dated as of September 5, 2003 (as in effect immediately
prior to the execution of this Amendment, the "Existing Agreement").
2. The Parties have determined that it is in their best interests
to amend the Existing Agreement, effective as of the First Amendment Effective
Date, as set forth in this First Amendment, and subject to the terms and
conditions of this First Amendment.
Agreement
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NOW THEREFORE, in consideration of the Recitals and for other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged by each of the Parties to this First Amendment, it is agreed as
follows:
1. Definitions. Terms which are defined in the Existing Agreement
shall have the same meanings in this Amendment as are ascribed to them in the
Existing Agreement, as amended hereby, excepting only those terms which are
expressly defined in this Amendment, which shall have the meanings ascribed to
them in this Amendment.
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2. Amendments to Existing Agreement.
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(a) Amendments to Definitions. The following definitions, which
are set forth in Section 1.02 of the Existing Agreement, are amended and
restated in their entirety as of the First Amendment Effective Date to read as
follows:
"Maximum Availability" means as of the date any determination thereof
is to be made, the lesser of: (i) the Borrowing Base as of such date,
and (ii) the following amounts during the respective time periods
described:
First Amendment Effective Date
through August 31, 2004 $20,000,000.00
September 1, 2004 through September 30, 2004 $30,000,000.00
October 1, 2004 through October 31, 2004 $45,000,000.00
November 1, 2004 through November 30, 2004 $40,000,000.00
December 1, 2004 through December 31, 2004 $30,000,000.00
January 1, 2005 through January 31, 2005 $25,000,000.00
February 1, 2005 through August 31, 2005 $20,000,000.00
September 1, 2005 through September 30, 2005 $30,000,000.00
October 1, 2005 through October 31, 2005 $45,000,000.00
November 1, 2005 through November 30, 2005 $40,000,000.00
December 1, 2005 through December 31, 2005 $30,000,000.00
January 1, 2006 through January 31, 2006 $25,000,000.00
February 1, 2006 through Scheduled Maturity Date $20,000,000.00
"Scheduled Maturity Date" means July 15, 2006 or such later date as may
be established pursuant to the terms of Section 2.01(d) of this
Agreement.
"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 the First Amendment.
(b) New Definitions. Section 1.02 of the Existing Agreement is
hereby amended, effective as of the First Amendment Effective Date, by adding
thereto in appropriate alphabetical sequence the following new definitions:
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The term "First Amendment" means the First Amendment to Credit
Agreement, dated as of the First Amendment Effective Date, executed by
and between the Parties.
The term "First Amendment Effective Date" is used as defined in the
Preamble of the First Amendment.
(c) Amendment of Section 5.01(c)(1). Section 5.01(c)(1) of the
Existing Agreement is amended and restated as of the First Amendment Effective
Date by deleting the last fifteen (15) words therefrom so that the last sentence
of such Section 5.01(c)(1) reads as follows:
" . . . This reporting requirement may be satisfied by the Company
providing to the Bank a copy of Escalade's annual audited Financial
Statements."
(d) Deletion of Section 5.01(c)(8). Section 5.01(c)(8) of the
Existing Agreement is hereby deleted in its entirety as of the First Amendment
Effective Date.
(e) Redesignation of Section 5.01(c)(9). Section 5.01(c)(9) of the
Existing Agreement is hereby redesignated as Section 5.01(c)(8) of the Agreement
as of the First Amendment Effective Date.
(f) Amendment of Section 5.02(a). Section 5.02(a) of the Existing
Agreement is hereby amended and restated as of the First Amendment Effective
Date to read as follows:
"(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 prepay,
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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: (i) set
aside funds for the purpose of making a Distribution to Escalade
(provided that such Distribution shall not be made without the Bank's
prior written consent); and (ii) 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."
3. Representations and Warranties. Company represents and
warrants to Bank that:
(a) (i) The execution, delivery and performance of this Amendment
and all agreements and documents delivered pursuant hereto by Company have been
duly authorized by all necessary corporate action and do not and will not
violate any provision of any law, rule, regulation, order, judgment, injunction
or writ presently in effect applying to Company, or its articles of
incorporation, or result in a breach of or constitute a default under any
material agreement, lease or instrument to which Company is a party or by which
it or any of its properties may be bound or affected; (ii) no authorization,
consent, approval, license, exemption or filing of a registration with any court
or governmental authority, department, agency or instrumentality is or will be
necessary to the valid execution, delivery or performance by Company of this
Amendment and all agreements and documents delivered pursuant hereto; and (iii)
this Amendment and all agreements and documents delivered pursuant hereto by
Company are the legal, valid and binding obligations of Company, as a signatory
thereto, and are enforceable against Company in accordance with the terms
thereof.
(b) After giving effect to the amendments contained in this
Amendment, the representations and warranties contained in Article III of the
Agreement are true and correct on and as of the First Amendment Effective Date
with the same force and effect as if made on and as of the First Amendment
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Effective Date, except that the representation in Section 3.01(d) of the
Agreement shall be deemed to refer to the Financial Statements of Company most
recently delivered to Bank prior to the First Amendment Effective Date.
(c) No Event of Default has occurred and is continuing or will
exist under the Agreement as of the First Amendment Effective Date.
4. Conditions. The obligation of Bank to execute and to perform
this Amendment shall be subject to full satisfaction of the following conditions
precedent on or before the First Amendment Effective Date:
(a) Copies, certified as of the First Amendment Effective Date, of
such corporate documents of Company as Bank may request evidencing necessary
corporate action by Company with respect to this First Amendment.
(b) This Amendment and the replacement Revolving Note shall have
been duly executed and delivered by Company to Bank and this Amendment executed
by Bank.
(c) Bank shall have received such additional agreements, documents
and certifications, fully executed by Company, as may be reasonably requested by
Bank.
Waiver of Default. Bank hereby waives as of the First
Amendment Effective Date, Company's default with respect to the financial
covenant set forth in Section 5.01(h)(3) of the Existing Agreement which
requires Company to at all times maintain a delinquency ratio with respect to
outstanding Eligible Accounts whereby not more than 10% of such Eligible
Accounts remain unpaid after sixty (60) days after the original payment due
dates shown on the underlying invoices. [Such default was evidenced on Company's
Borrowing Base Certificate dated May 15, 2004, which showed a delinquency ratio
of 10.9%.]
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Supplemental Documents and Further Assurances. Company shall
at any time on or after the First Amendment Effective Date, and upon the request
of Bank, execute and deliver, or cause to be executed and delivered, such
additional documents, agreements and instruments as may be reasonably required
by Bank or appropriate to give full force and effect to the intents and purposes
of this Amendment and the Agreement. Company's failure to comply with the terms
of this Section 6 within thirty (30) days after Bank's request shall at Bank's
sole discretion and election be deemed an Event of Default under Section 7.01 of
the Agreement.
Binding on Successors and Assigns. All of the terms and
provisions of this Amendment shall be binding upon and inure to the benefit of
the Parties and each of their respective successors, assigns and legal
representatives.
Governing Law/Entire Agreement/Survival. This Amendment is a
contract made under, and shall be governed by and construed in accordance with,
the substantive laws of the State of Indiana applicable to contracts made and to
be performed entirely within such state and without giving effect to the
conflicts of laws rules or principles of any jurisdiction. This Amendment
constitutes and expresses the entire understanding between the Parties with
respect to the subject matter hereof, and supersedes all prior agreements and
understandings, commitments, inducements or conditions, whether express or
implied, oral or written. All covenants, agreements, undertakings,
representations and warranties made in this Amendment shall survive the
execution and delivery of this Amendment, and shall not be affected by any
investigation made by any Person. Except as expressly provided otherwise in this
Amendment, the Existing Agreement, as amended hereby, remains in full force and
effect in accordance with its terms and provisions.
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IN WITNESS WHEREOF, the Parties have caused this Amendment to
be duly executed and delivered by their respective duly authorized signatories
as of the First Amendment Effective Date.
INDIAN-XXXXXX, INC., BANK ONE, NATIONAL ASSOCIATION
a Nevada corporation
By: /s/ XXXXXXXXX XXXXX By: /s/ XXXXX X. XXXXX
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Xxxxxxxxx Xxxxx, President Xxxxx X. Xxxxx, First Vice
President
("Company") ("Bank")
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REVOLVING NOTE
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$45,000,000.00 Dated: July 15, 0000
Xxxxxxxxxxxx, Xxxxxxx Due: July 15, 2006
FOR VALUE RECEIVED, on or before July 15, 2006, INDIAN-XXXXXX,
INC., a corporation organized and existing under the laws of the State of Nevada
("Company"), unconditionally promises to pay to the order of BANK ONE, NATIONAL
ASSOCIATION, a national banking association ("Bank"), at Bank One Tower, Mail
Code IN 1-0046, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, or such other
place as Bank may designate by written notice to Company, the principal sum of
Forty-five Million and 00/100 Dollars ($45,000,000.00), or so much of such
amount as may be disbursed by Bank as Advances made on the Loan under the terms
of the Credit Agreement (as hereinafter defined), together with interest thereon
at the rates and calculated as provided in the Credit Agreement. Interest
accruing on the principal balance of this Note outstanding from time to time
shall be due and payable by Company in accordance with the terms of the Credit
Agreement on such dates as are established therein. All amounts paid on this
Note shall be applied in accordance with the terms of the Credit Agreement.
This Note is the "Note" referred to in the Credit Agreement,
to which reference is made for the conditions and procedures under which
Advances, payments, readvances and repayments may be made prior to the maturity
of this Note, for the terms upon which Company may make prepayments from time to
time and at any time prior to the maturity of this Note and the terms of any
prepayment premiums, penalties and other charges which may be due and payable in
connection therewith, and for the terms and conditions upon which the maturity
of this Note may be accelerated and the unpaid balance of principal and accrued
interest thereon declared immediately due and payable.
If any installment of principal or interest due under the
terms of this Note prior to maturity is not paid in full within ten (10) days of
the date when due, then Bank at its option and without prior notice to Company,
may assess a late payment fee in an amount equal to Five Percent (5%) of the
amount past due up to the maximum of $1,500.00 per late charge. Each late
payment fee assessed shall be due and payable on the earlier of the next
regularly scheduled interest payment date or the maturity of this Note. Waiver
by Bank of any late payment fee assessed, or the failure of Bank in any instance
to assess a late payment fee shall not be construed as a waiver by Bank of its
right to assess late payment fees thereafter.
If any installment of interest due under the terms of this
Note falls due on a day which is not a Banking Day, the due date shall be
extended to the next succeeding Banking Day and interest will be payable at the
applicable rate for the period of such extension.
All amounts payable under this Note shall be payable without
relief from valuation and appraisement laws, and with all collection costs and
attorneys' fees.
The holder of this Note, at its option, may make extensions of
time for payment of the indebtedness evidenced by this Note, or approve
reductions of the payments thereon, release any Collateral securing payment of
such indebtedness or accept a renewal Note or Notes therefor, all without notice
to Company or any endorser(s), and Company and all endorsers hereby severally
consent to any such extensions, reductions, releases and renewals, all without
notice, and agree that any such action shall not release or discharge any of
them from any liability hereunder. Company and endorser(s), jointly and
severally, waive demand, presentment for payment, protest, notice of protest and
notice of nonpayment or dishonor of this Note and each of them consents to all
extensions of the time of payment thereof.
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As used in this Note, the term "Credit Agreement" means that
certain Credit Agreement, dated as of September 5, 2003, by and between Company
and Bank, as the same hereafter may be amended, modified and/or restated from
time to time and at any time. Terms which are defined in the Credit Agreement
and which are not otherwise defined in this Note shall have the same meanings in
this Note as are ascribed to them in the Credit Agreement. The principal amount
of this Note outstanding from time to time shall be determined by reference to
the books and records of Bank on which shall be recorded each Advance under the
Loan evidenced by this Note, and all payments by Company on account of such
Loan. Such books and records shall be deemed prima facia to be correct as to
such matters, absent demonstrative or manifest error.
This Note is 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.
INDIAN-XXXXXX, INC., a Nevada corporation
By: /s/ XXXXXXXXX XXXXX
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Xxxxxxxxx Xxxxx, President
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