Exhibit 10.3
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UNCOMMITTED OVERDRAFT FACILITY
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The Company: ESCALADE, INC has requested and BANK ONE, NA
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BANK ONE, NA (the "Bank") has agreed to make available an uncommitted
multicurrency overdraft facility (the "Facility") on the basis of the terms and
conditions specified in this document. This document has been executed by the
parties hereto to signify their agreement to the terms and conditions which
follow this page.
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By: BANK ONE, NA By: ESCALADE, INC
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Signature: /s/ XXXXX X. XXXXX Signature: /s/ XXXXX XXXXXXXX
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Name: XXXXX X. XXXXX Name: XXXXX XXXXXXXX
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Title: FIRST VICE PRESIDENT Title: CHIEF FINANCIAL OFFICER
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Date: Date:
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Address: BANK ONE, NA Address:
LONDON BRANCH
0 XXXXXX XXXXXX
XXXXXX XX0 0XX
XXXXXX XXXXXXX
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Process
Agent
(Name):
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Address:
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TERMS AND CONDITIONS
1 Interpretation and definitions
1.1 In these terms and conditions:
"Acceptance Date" means the date appearing below the Company's
signature on the first page of these terms and conditions or, in the
absence of any such date, the first date after the Offer Date on which
a debit balance occurs on any of the Company's accounts with the Bank.
"Additional Borrower" shall have the meaning ascribed to it in Clause
7.
"Authorised Signatory" means any person authorised to give and sign on
behalf of the Company any request, notice, instruction or other
document to be delivered by the Company pursuant hereto as the same may
be notified to the Bank in writing from time to time.
"Board Resolution Certificate" means a certificate signed by the
secretary or a director of the Company substantially in the form set
out in Schedule 3 (in respect of a resolution of the board of directors
of the Company approving the Facility and authorising one or more
specified persons to sign these terms and conditions and give
instructions to the Bank in connection herewith).
"Business Day" means a day on which banks are open for business in
London.
"Default Margin" means the percentage rate per annum specified as such
in Schedule 1 or such other rate as the Bank may notify to the Company
in writing from time to time.
"$" and "Dollars" means the lawful currency for the time being of the
United States of America.
"Facility Amount" means the amount specified as such in Schedule 1 or
such other amount as the Bank may notify to the Company in writing from
time to time.
"Netted Accounts" shall have the meaning ascribed to it in Clause 12.3.
"Offer Date" means the date appearing below the Bank's signature on the
first page of these terms and conditions.
"Optional Currency" means any currency which is freely transferable and
convertible into Dollars and acceptable to the Bank for the purposes of
the Facility.
"Overdraft Rate" means the rate per annum specified in, or calculated
in accordance with the provisions of, Schedule 1 or such other rate as
the Bank may notify to the Company in writing from time to time.
"Overdrafts" means the overdrafts made or to be made available pursuant
to these terms and conditions.
"Process Agent" means the person specified as such on the first page of
these terms and conditions.
"Relevant Entities" means the entities (if any) specified as such in
Schedule 1.
"Successor" means any assignee or successor in title of the Bank or any
person who, under laws of its jurisdiction of incorporation or
domicile, has assumed the rights and obligations of the Bank under
these terms and conditions or to which under such laws the same have
been transferred.
1.2 In these terms and conditions, any reference to a "Clause" or a
"Schedule" is, unless otherwise stated, a reference to a Clause of or a
Schedule to these terms and conditions.
1.3 Clause and Schedule headings are for ease of reference only.
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2. Amount and type of Facility
The Facility may be used by way of Overdrafts on the Company's Dollar
and/or Optional Currency current accounts with the Bank provided that
at no time shall the aggregate Dollar equivalent of all amounts
outstanding under the Facility exceed the Facility Amount.
3. Availability of Facility
3.1 The Facility will not be available to the Company until the Bank has
notified the Company that it has received each of the documents
described in Schedule 2, in form and substance satisfactory to the
Bank.
3.2 Subject to these terms and conditions, the Overdrafts may be used at
any time and all drawings thereunder shall be debited to the Company's
Dollar or Optional Currency current account, as the case may be, with
the Bank.
3.3 The Facility is of an uncommitted nature. Accordingly, there is no
obligation on the Bank's part to agree to any request or utilisation
made by the Company. In the event of any inconsistency between the
terms of any request or utilisation and these terms and conditions,
these terms and conditions shall prevail.
4. Interest
4.1 Interest is payable monthly or quarterly in arrear (as specified in
Schedule 1) on the amounts outstanding from day to day by way of
Overdrafts at the Overdraft Rate at the relevant time. The Bank may
debit such interest to the Company's Dollar or relevant Optional
Currency account provided that, if this would result in the amounts
outstanding by way of Overdrafts exceeding the Facility Amount, the
Company will on demand pay the amount of such interest to the Bank.
4.2 Interest shall be calculated on the basis of a 360-day year (or, if
market practice differs, in accordance with market practice) and for
the actual number of days elapsed.
4.3 The Company shall from time to time on demand by the Bank pay interest
(both before and after judgment) on each amount payable by the Company
under these terms and conditions but unpaid, from the due date up to
the date of actual payment. The rate of interest shall be a rate
determined by the Bank from time to time to be equal to the cost
(expressed as a percentage rate per annum) to the Bank of funding such
unpaid sum (from whatever source the Bank may select), plus the Default
Margin.
5. Repayment
The Overdrafts shall be repayable forthwith on demand.
6. Cancellation
Notwithstanding any other provision of these terms and conditions, the
Bank may at any time and regardless of the purpose of the Facility by
notice to the Company (which notice shall be effective immediately)
terminate the availability of the Facility immediately and/or declare
all amounts outstanding hereunder immediately due and payable,
whereupon the Company will forthwith repay to the Bank all Overdrafts
outstanding together with accrued interest thereon and all other
amounts payable to the Bank hereunder.
7. Additional Borrowers
7.1 If indicated as applicable in Schedule 1 (or as otherwise agreed in
writing from time to time) the Company may from time to time by written
notice to the Bank request that one or more of the Company's affiliates
become additional borrowers under the Facility. If the Bank (in its
discretion) accepts any such request, each of the Company, the Bank and
each affiliate specified in such notice shall enter into an agreement
supplemental to these terms and conditions and substantially in the
Bank's standard form from time to time.
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7.2 When such supplemental agreement has been executed and delivered and
the Bank has confirmed that it has received (in form and substance
satisfactory to the Bank) all the documents specified therein as
conditions precedent to its effectiveness, the affiliate named therein
shall thereupon become an Additional Borrower for the purposes of these
terms and conditions. Each Additional Borrower shall have all the
rights of a borrower under the Facility subject to these terms and
conditions.
7.3 The Company and each Additional Borrower shall be severally liable to
the Bank in respect of their respective obligations under or pursuant
to the Facility, and these terms and conditions shall be construed
accordingly. If, in relation to the Company or any Additional Borrower,
any such obligation is or becomes void, invalid, not binding or
unenforceable for any reason whatsoever or if the Bank (in its
discretion) releases or varies the terms of any obligation or takes or
fails to take any other action in respect of any obligation, the
obligations under these terms and conditions of each Additional
Borrower or, as the case may be, the Company shall nevertheless remain
valid, binding and enforceable by the Bank; and the Bank shall not in
any circumstances whatsoever have any liability to the Company or any
Additional Borrower as a consequence of any of the foregoing.
8. Increased Costs
If the Bank determines that compliance with any law or regulation or
any guideline or request from any central bank or other governmental,
monetary or regulatory authority (whether or not having the force of
law) affects or would affect the manner in which capital is allocated
or the amount of capital required or expected to be maintained by the
Bank or by any holding company of the Bank, or with any other law or
regulation or other guideline or request from any central bank or other
governmental, monetary or regulatory authority, and that such
compliance would (i) create a cost or increase the cost to the Bank or
such holding company of funding or maintaining any of the Overdrafts
and/or (ii) reduce the rate of return on the overall capital of the
Bank or such holding company, then the Company shall from time to time
on demand pay to the Bank amounts sufficient to indemnify the Bank or
such holding company against such proportion of such cost or increased
cost and/or such reduction as is in the Bank's opinion attributable to
any of the Overdrafts under this Agreement.
9. Payments
9.1 All payments to be made under these terms and conditions shall be made
to the Bank:
(a) if in Dollars, in Dollar funds settled through the New York
Clearing House Interbank Payments System for value on the due
date to the head office in New York of JPMorgan Chase Bank for
the account of its London branch; and
(b) if in any Optional Currency, on such date and at such time as
the Bank may notify to the Company to ensure same day value on
the due date in immediately available funds of the relevant
currency, freely convertible and transferable into Dollars, to
the Bank's account at such bank in such jurisdiction as the
Bank may from time to time nominate for the purpose.
9.2 Each payment by the Company to the Bank shall be without any deduction
or withholding whatsoever. If the Company is obliged by law to make any
deduction or withholding from any such payment, the amount due from the
Company in respect of such payment shall be increased to the extent
necessary to ensure that, after the making of such deduction or
withholding, the Bank receives a net amount equal to the amount the
Bank would have received had no such deduction or withholding been
required to be made. In the event of such payment the Company will
deliver promptly to the Bank such tax receipts or other documentation
as it may require.
9.3 All payments by the Company to the Bank hereunder shall be made without
set-off or counterclaim.
9.4 The Bank may from time to time utilise such payment or settlement
system as it may in its discretion select for the purpose of making any
payment to the Company or as it may direct, and the Bank shall not be
liable for any delay, or the consequences of any delay, by any such
payment or settlement system in effecting any such payment.
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10. Representations
The Company represents and warrants that:
(a) these terms and conditions are the Company's legally binding
obligations enforceable in accordance with their terms;
(b) no consents or authorisations whatsoever are required in
relation to these terms and conditions; and
(c) neither these terms and conditions nor use of the Facility
will contravene its constitutional documents or any agreement
to which it is a party or entitle any person to exercise any
rights against the Company's assets pursuant to any such
agreement.
11. Covenants
So long as the Facility is available to the Company or any amount is
outstanding hereunder, the Company will:
(a) not, without the prior written consent of the Bank (i) create
or permit to subsist any mortgage, charge, lien or other
encumbrance or (ii) enter into or permit to subsist any
agreement or arrangement the purpose of which is to place a
person in a position which is similar (or similar except as
regards the nature of such person's legal rights) to that
which would have been occupied had such person possessed a
mortgage, charge, pledge, lien or other encumbrance, in either
case on all or any part of the present or future undertaking,
property or assets of the Company or any of the Relevant
Entities (if applicable); and
(b) ensure that all amounts outstanding hereunder will at all
times rank at least pari passu in right of repayment and in
point of security with all the Company's other present and
future unsubordinated indebtedness.
12. Miscellaneous
12.1 No failure by the Bank in exercising any right, power or privilege
hereunder shall operate as a waiver thereof or prejudice any other or
further exercise by the Bank of any of its rights or remedies
hereunder. The rights and remedies herein are cumulative and not
exclusive of any rights or remedies provided by law.
12.2 Without prejudice to the Bank's rights under applicable law, it may set
off against any amount owing by the Company to the Bank hereunder any
amount in any currency standing to the credit of any of the Company's
accounts (whether current, deposit or otherwise) with the Bank
anywhere. The Bank shall be entitled to accelerate the maturity of any
fixed term deposits for such purpose. Any currency conversions
necessary for the purposes hereof shall be at the Bank's then current
rates for the sale and purchase of the relevant currencies.
12.3 Without prejudice to Clause 12.2 the Company hereby certifies that all
accounts in its name maintained with the Bank from time to time,
including the accounts to which the Overdrafts are debited, (all such
accounts being the "Netted Accounts") are, and shall at all times be,
owned and held by the Company in the same legal right and capacity. The
Bank is authorised to treat the Netted Accounts as a single account and
consequently may set off any credit balance on any one of them against
any debit balance on any other. The Bank or the Company may, at any
time, identify any account to be excluded from the Netted Accounts by
not less than three Business Days' prior written notice to the other.
If any Netted Account becomes subject to an adverse claim or otherwise
becomes held in another right or capacity from the remainder of the
Netted Accounts, it will be excluded from the Netted Accounts as of the
Business Day immediately prior to the date of such change.
12.4 In the absence of manifest error the Bank's statement of the rate of
interest, the amount outstanding hereunder or any other amount payable
hereunder shall be conclusive.
12.5 The Dollar equivalent of any Optional Currency shall, for the purposes
hereof, be determined at the spot rate of exchange quoted by the Bank
for the purchase of relevant Optional Currency with Dollars at such
place and at such time as the Bank deems appropriate on the day on
which the Dollar equivalent falls to be determined.
12.6 These terms and conditions shall remain in effect despite any
amalgamation or merger (however effected) relating to the Bank; and
references to the Bank shall be deemed to include its Successors.
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12.7 If indicated as being applicable in Schedule 1, as at the Acceptance
Date, these terms and conditions replace all other agreements between
the Bank and the Company relating to the provision of overdrafts which
shall as of the Acceptance Date cease to have any effect.
12.8 The terms and conditions set out herein shall be deemed to take effect
on the Acceptance Date and shall also apply to any debit balances on
any of the Company's accounts with the Bank which exceed the Facility
Amount from time to time.
12.9 These terms and conditions may be enforced only by a party to them or
such party's successors and permitted assigns.
13. Costs and expenses
The Company shall pay all costs and expenses (including all legal fees)
incurred by the Bank in connection with the enforcement of these terms
and conditions and the preservation of its rights hereunder.
14. Notices
14.1 Any request, notice, instruction or demand to be given or served on the
Company or the Bank under or pursuant to these terms and conditions may
be given or served by leaving the same at the address specified on the
first page of these terms and conditions under the name of the Company
or the Bank (as the case may be) or posting the same (by prepaid
first-class post) by letter addressed to such address, or by facsimile
to the facsimile number specified on the first page of these terms and
conditions under the name of the Company or the Bank (as the case may
be). Any request, notice, instruction or demand sent by post in
accordance with this Clause to any destination in the United Kingdom
shall be deemed to have been served at 10 a.m. (London time) on the
second day following the date of posting or, in the case of a
destination outside the United Kingdom, at 10 a.m. (London time) on the
fourth day following and exclusive of the date of posting; or, if sent
by facsimile, shall be deemed to have been served when despatched. In
proving such service by post it shall be sufficient to show that the
letter containing the request, notice, instruction or demand was
properly addressed and posted and such proof of service shall be
effective notwithstanding that the letter was in fact not delivered or
was returned undelivered.
14.2 Any request, notice or instruction to be served on the Bank shall be
effective only when actually received by the Bank.
14.3 The Company agrees to be bound by any request, notice or instruction
given in the name of the Company by letter or facsimile which bears or
purports to bear the signature of any Authorised Signatory whether or
not such request, notice or instruction was actually authorised by the
Company.
15. Assignment
The Company may not assign or otherwise transfer the benefit or burden
of the Facility. The Bank may at its discretion assign and/or transfer
all or part of its rights and/or obligations under the Facility. The
Bank may disclose to any actual or proposed assignee, transferee or
other person with whom it may enter into contractual relations in
connection herewith any such information about the Company as the Bank
may consider appropriate.
16. Service of process
If indicated in Schedule 1 as being applicable, the process by which
any suit, action or proceedings are begun in England may be served on
the Company by being delivered to the Process Agent at the address
specified on the first page of these terms and conditions or such
person's registered office for the time being. If the appointment of
the Process Agent ceases to be effective, the Company shall immediately
appoint another person in England to accept service of process on its
behalf in England; and, if the Company fails to appoint such other
person within 15 days, the Bank shall be entitled to appoint such other
person by notice to the Company. The right of either party to serve
process in any other manner permitted by law shall not be affected.
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17. Law and jurisdiction
These terms and conditions shall be governed by and construed in
accordance with English law, and for the Bank's benefit the Company
irrevocably submits to the jurisdiction of the English courts (without
limiting the right of either party to take proceedings in any other
court of competent jurisdiction).
SCHEDULE 1
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1. Overdraft Rate: Two per cent (2%) plus the Bank's base rate (as
determined by the Bank in its sole discretion
having regard to prevailing market rates) as may
be applicable from time to time for GBP or in the
case of euros the rate per annum which is
published by the European Central Bank by the
opening of TARGET and is applied in arrears at or
about 09:00 London time for each applicable day
for euros.
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2. Default Margin: Interest shall be paid on any overdue sum under
this agreement (both before and after judgment) at
the annual rate determined by the Bank to be 3 per
cent. per annum above the rate referred to in
Overdraft Rate.
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3. Facility Amount: No utilisation of the Facility shall be permitted
if, as a result, the amount of the Overdraft
Facility would exceed euro 1,000,000 (one million)
and GBP 500,000 (five hundred thousand pounds
sterling).
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4. Payment of Interest Monthly
under Clause 4.1:
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5. Relevant Entities: ESCALADE, INC
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6. Applicability of Not Applicable
Clause 7:
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7. Applicability of Not Applicable
Clause 12.7:
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8. Applicability of Applicable - Process Agent appointed
Clause 16:
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