Exhibit 10.1
REVOLVING CREDIT AGREEMENT
BY AND BETWEEN
NB Manufacturing, Inc.,
as
Borrower
AND
Mathis Family Partners. LLP
And
EARNCO MPPP
as Lender(s)
Dated as of May 5, 2009
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TABLE OF CONTENTS
ARTICLE 1 - CERTAIN
DEFINITIONS...........................................1
Section
1.1 Certain
Definitions..............................1
Section
1.2
Construction.....................................2
ARTICLE 2 - LOANS, NOTES AND
PREPAYMENTS..................................3
Section
2.1
Loans............................................3
Section
2.2
Notes............................................3
Section
2.3 Procedure for
Borrowing..........................3
Section
2.4 Repayment of
Loans...............................3
Section
2.5 Optional
Prepayments.............................4
Section
2.6
Indemnity........................................4
Section
2.7
Computations.....................................4
Section
2.8 Repayment of the
Loans...........................4
ARTICLE 3 - EVENTS OF
DEFAULT.............................................4
Section
3.1 Events of
Default................................4
Section
3.2
Remedies.........................................4
ARTICLE 4 -
MISCELLANEOUS.................................................5
Section
4.1 Amendments,
etc..................................5
Section
4.2 Notices,
etc.....................................5
Section
4.3 No Waiver;
Remedies..............................5
Section
4.4 Binding
Effect...................................5
Section
4.5 Governing
Law....................................5
Section
4.6 Usury
Laws......................................5
Section
4.7 Section
Headings.................................5
Section
4.8
Execution........................................5
EXHIBITS
Exhibit A - Form
of Request for Borrowing
Exhibit B - Form
of Revolving Loan Note
<PAGE>
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT
("Agreement") is made as of May 5, 2009 by
and between NB Manufacturing, Inc., a Colorado corporation
("Borrower"), and
Mathis Family Partners, LP and EARNCO MPPP (collectively the
"Lender").
EXPLANATORY STATEMENT
A. The Borrower has and requested, and the
Lender has agreed to make,
Loans, advances and other financial accommodations to the Borrower
on the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the
foregoing Explanatory Statement
that is made a substantive part of this Agreement, and the promises
set forth
herein and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties hereto
agree as
follows:
ARTICLE 1
CERTAIN DEFINITIONS
Section 1.1 Certain Definitions. In
addition to words and terms defined
elsewhere in this Agreement, the following words and terms shall
have the
following meanings, respectively, unless the context clearly
requires otherwise:
"Agreement" shall mean this Revolving
Credit Agreement, as the same may be
amended, restated, supplemented or otherwise modified from time to
time
hereafter, including all Schedules and Exhibits hereto.
"Authorized Officer" shall mean Robert
Lazzeri.
"Borrower's Account" shall mean the
Borrower's bank account as may be
designated by the Borrower from time to time by written notice to
the Lender.
"Business Day" shall mean any day other
than a Saturday or Sunday or other
day upon which banks or the Lender are authorized or required to
close in the
State of Colorado.
"Dollar," "Dollars," "U.S. Dollars" and
the symbol "$" shall mean the
lawful currency of the United States of America.
"Event of Default" shall mean any of the
Events of Default described in
Section 3.1.
"Funding Date" shall mean the date on
which a Loan is made hereunder.
"Insolvency Event" shall mean, with
respect to any Person, (i) such Person
generally shall not pay its debts as such debts become due, or
shall admit in
writing its inability to pay its debts generally, or shall make a
general
assignment for the benefit of creditors; or any proceeding shall be
instituted
by or against such Person seeking to adjudicate it a bankrupt or
insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment,
protection, relief, or composition of it or its debts under any Law
related to
bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the
entry of an order for relief or the appointment of a receiver,
trustee, or other
similar official for it or for any substantial part of its property
provided;
however, any proceeding instituted against such Person shall not
constitute an
Insolvency Event if such proceeding has been dismissed within sixty
(60) days of
the institution of such proceeding against such Person; or (ii)
such Person
shall take any action to authorize any of the actions set forth in
clause (i)
herein.
1
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"Interest Rate" shall have the meaning
provided in Section 2.4(b).
"Law" shall mean any law (including common
law), constitution, statute,
treaty, regulation, rule, ordinance, opinion, release, ruling,
order,
injunction, writ, decree or award of any governmental
authority.
"Loan" shall have the meaning provided in
Section 2.1.
"Loan Documents" shall mean this
Agreement, the Revolving Loan Note and any
other instruments, certificates or documents delivered or
contemplated to be
delivered hereunder or thereunder or in connection herewith or
therewith, as the
same may be supplemented or amended from time to time hereafter in
accordance
herewith or therewith, and "Loan Document" shall mean any of the
Loan Documents.
"Person" shall mean any individual,
corporation, partnership, limited
liability company, joint-stock company, trust, unincorporated
organization or
association, joint venture, government or political subdivision or
agency
thereof, or any other entity.
"Post-Default Rate" shall mean, in respect
of any principal of any Loan or
any other amount under this Agreement, the Revolving Loan Note or
any other Loan
Document that is not paid when due to the Lender (whether at stated
maturity, by
acceleration, by optional or mandatory prepayment or otherwise), a
rate per
annum during the period from and including the due date to but
excluding the
date on which such amount is paid in full equal to the lesser of
fifteen percent
(15%) or the maximum amount permitted by applicable Law.
"Request for Borrowing" has the meaning
assigned to such term in Section
2.3(a).
"Revolving Loan Note" means the promissory
note of the Borrower, payable to
the order of the Lender, in substantially the form of Exhibit B
hereto,
evidencing the aggregate indebtedness of the Borrower to the Lender
resulting
from Loans made by the Lender.
"Term of this Agreement" means from the
date hereof and for a period of
five (5) years thereafter unless sooner terminated by the
Lender..
"Total Loan Amount" shall mean up to
$50,000, as such amount may be reduced
from time to time in accordance with this Agreement.
Section 1.2 Construction. Unless the
context of this Agreement otherwise
clearly requires, references to the plural shall include the
singular,
references to the singular shall include the plural, references to
the part
shall include the whole and references to any masculine, feminine
or neuter
pronoun shall include all other genders. References in this
Agreement to
"determination" of or by the Lender shall be deemed to include good
faith
estimates by the Lender (in the case of quantitative
determinations) and good
faith beliefs by the Lender (in the case of qualitative
determinations). The
word
