EXHIBIT 10.1
FIRST AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
ESCALADE, INCORPORATED, an Indiana corporation ("Borrower"), and BANK
ONE, NA, a national banking association (the "Bank"), agree as follows:
1. CONTEXT. This agreement is made in the context of the following
agreed state of facts:
a. The Company and the Bank are parties to an Amended and
Restated Credit Agreement effective October 24, 2001 (the
"Agreement").
b. The Company and the Bank desire to amend the Agreement and the
Bank desires to waive certain covenant violations.
c. The Company and Bank have executed this document (this "First
Amendment") to give effect to their agreement.
2. DEFINITIONS.
a. Terms used in this First Amendment with their initial letters
capitalized are used as defined in the Agreement, unless
otherwise defined herein.
b. The following definitions are hereby added to Section 1 of the
Agreement:
- "Schleicher" means Schleicher & Co. International AG.
- "Schleicher Debt" means any and all indebtedness of
Schleicher existing or refinanced as of the date of
the First Amendment to Amended and Restated Credit
Agreement.
3. LOANS OR ADVANCES. Subsection 6.d of the Agreement is hereby amended
in its entirety as follows:
d. LOANS OR ADVANCES. Neither the Company nor any Subsidiary
shall make or permit to exist any loans or advances to
Schleicher. Notwithstanding the preceding sentence, the
Company shall not make or permit to exist any loans or
advances to any person or entity, except for:
(i) extensions of credit or credit accommodations to
customers or vendors made by the Company in the
ordinary course of its business as now conducted;
(ii) reasonable salary advances to non-executive
employees, and other advances to agents and employees
for anticipated expenses to be incurred on behalf of
the Company in the course of discharging their
assigned duties; and
(iii) the specific items listed in the "Schedule of
Exceptions" attached as EXHIBIT "D."
4. WAIVER. With respect to the acquisition of Schleicher by the
Company, the Bank hereby agrees to waive the following:
a. The Company's noncompliance with Subsection 6.b of the
Agreement to permit the existence of liens created or existing
with respect to Schleicher in connection with existing or
refinanced Schleicher Debt.
b. The Company's noncompliance with Subsection 6.e of the
Agreement to not require Schleicher to execute a Guaranty
Agreement pursuant to Subsection 6.e in the event such
Guaranty Agreement is prohibited by or would violate the
terms of any refinancing of the Schleicher Debt.
c. The Company's noncompliance with Subsection 6.k of the
Agreement to permit Schleicher to retain the Schleicher Debt.
Such waivers by the Bank of the Company's noncompliance relate only to
the covenant expressly waived herein with respect to the purchase of
Schleicher by the Company, and shall not be construed as a waiver of
any other violations of this or any other covenant.
5. CONDITIONS PRECEDENT. As conditions precedent to the effectiveness
of this First Amendment, the Bank shall have received, each duly executed and in
form and substance satisfactory to the Bank, this First Amendment and the
following:
a. Certificates of Existence issued regarding the Company and
Schleicher.
b. A certified copy of resolutions of the Board of Directors of
the Company authorizing the execution and delivery of this
First Amendment and any other documents required under this
First Amendment.
c. A certificate signed by the Secretary of the Company
certifying the name of the officer or officers authorized to
sign this First Amendment and any other document required
under this First Amendment, together with a sample of the true
signature of each such officer.
d. A Guaranty Agreement executed by Schleicher unless waived
pursuant to Section 4.b. hereof.
e. A certified copy of resolutions of the Board of Directors of
Schleicher authorizing the execution and delivery of the
Guaranty Agreement.
f. Copies of all acquisition document with respect to the
acquisition of Schleicher by the Company.
g. A certificate signed by the Secretary of Schleicher certifying
the name of the officer or officers authorized to sign the
Guaranty Agreement, together with a sample of the true
signature of each such officer.
h. Copies of the organizational documents for Schleicher.
i. Such other documents as may be reasonably required by the
Bank.
6. REIMBURSEMENT OF EXPENSES. All out-of-pocket expenses of the Bank
incurred by the Bank associated with this First Amendment, including without
limitation, filing fees, recording fees and legal fees and disbursements, are to
be reimbursed by the Company to the Bank promptly upon demand therefor.
7. REPRESENTATIONS AND WARRANTIES. To induce the Bank to enter into
this First Amendment, the Company represents and warrants, as of the date of
this First Amendment, that no Event of Default or Unmatured Event of Default has
occurred and is continuing and that the representations and warranties contained
in Section 3 of the Agreement are true and correct, except that the
representations contained in Section 3.d refer to the latest financial
statements furnished to the Bank by the Company pursuant to the requirements of
the Agreement.
8. REAFFIRMATION OF THE AGREEMENT. Except as amended by this First
Amendment, all terms and conditions of the Agreement shall continue unchanged
and in full force and effect and the Obligations of the Company shall continue
to be secured and guaranteed as therein provided until payment and performance
in full of all Obligations.
IN WITNESS WHEREOF, the Company, and the Bank, by their duly authorized
officers, have executed this First Amendment to Credit Agreement effective as of
August 29, 2002.
ESCALADE, INCORPORATED
By: /s/ John R. Wilson
---------------------------------
John R. Wilson, Vice President and
Chief Financial Officer
BANK ONE, INDIANA, NA
By: /s/ Robert E. McElwain
----------------------------
Robert E. McElwain, First Vice President