REVOLVING CREDIT
AGREEMENT
THE HUNTINGTON NATIONAL
BANK
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SECTION 1.
COMMITMENTS
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1
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1.1
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Basic
Commitment Terms
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1
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1.2
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Commitment
Limitations
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1
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SECTION 2.
REPRESENTATIONS AND WARRANTIES
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1
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2.1
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Organization,
Corporate Power, etc.
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1
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2.2
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Litigation
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2
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2.3
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Financial
Condition
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2
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2.4
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Title to
Properties
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2
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2.5
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Liabilities
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2
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2.6
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Investments
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3
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2.7
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Taxes
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3
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2.8
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ERISA
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3
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2.9
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Use of
Proceeds
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3
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2.10
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Compliance with
Law
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3
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2.11
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Government
Consent
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3
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2.12
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Legal and
Binding Obligation
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4
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2.13
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Investment
Company Act
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4
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SECTION 3.
BORROWING PROVISION
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4
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3.1
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Amount of
Revolving Credit
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4
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3.2
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Evidence of
Loans Made Under Revolving Credit
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4
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3.3
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Commitment
Fees
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5
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3.4
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Conversion of
Loans
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5
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3.5
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Prepayment
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6
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3.6
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Termination or
Reduction Options
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6
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3.7
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Interest
Payment Dates
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6
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3.8
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Payment
Method
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6
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3.9
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No Setoff or
Deduction
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7
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3.10
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Payment on
Non-Business Day; Payment Computations
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7
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3.11
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Extension of
Commitments
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7
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SECTION 4.
CONDITIONS OF LENDING
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7
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4.1
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Opinion of
Counsel for Borrower
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7
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4.2
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Supporting
Documents
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8
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4.3
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No
Default
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8
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4.4
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Delivery of
Note
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8
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SECTION 5.
PROVISIONS RELATING TO LOANS
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8
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5.1
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Limitations of
Requests and Elections
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8
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5.2
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Indemnification
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9
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5.3
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Survival of
Obligations
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10
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SECTION 6.
AFFIRMATIVE COVENANTS
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10
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6.1
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Financial
Statements
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10
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6.2
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Out of Pocket
Expenses
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11
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6.3
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Compliance with
Statutes; Payment of Taxes
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11
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6.4
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Insurance
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11
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6.5
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Corporate
Existence
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11
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6.6
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ERISA
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11
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6.7
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Books and
Records
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12
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6.8
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Inspection of
Books and Records
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12
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6.9
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Notification by
Borrower
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12
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6.10
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Notice of
Claims
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12
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6.11
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Clean out
Period
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12
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6.12
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Restriction on
Consolidated Assets
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12
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SECTION 7.
NEGATIVE COVENANTS
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13
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7.1
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Additional
Limitations on Debt
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13
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7.2
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Maintenance of
Consolidated Tangible Net Worth
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13
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7.3
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Minimum Fixed
Charge Coverage Ratio
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13
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7.4
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Permitted
Liens
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13
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7.5
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Restrictions on
Subsidiaries
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13
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7.5.1
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13
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7.5.2
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14
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7.5.3
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14
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7.6
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Disposition of
Assets
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14
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7.6.1
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14
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7.6.2
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14
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7.6.3
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14
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7.6.4
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14
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7.7
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Sale-Leaseback
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14
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7.8
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Limitations on
draws
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15
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SECTION 8.
FURTHER ASSURANCE
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15
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SECTION 9.
TAXES AND STAMPS
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15
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SECTION 10.
DEFAULT
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15
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10.1
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Events of
Default
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15
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10.1.1
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15
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10.1.2
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15
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10.1.3
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15
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10.1.4
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15
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10.1.5
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16
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10.1.6
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16
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10.1.7
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16
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10.1.8
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17
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10.1.9;
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17
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10.1.10
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17
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10.2
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Remedies
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17
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10.2.1
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18
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10.2.2
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18
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10.2.3
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ii
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SECTION 11.
MISCELLANEOUS
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18
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11.1
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Amendments,
Etc.
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19
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11.2
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Notices
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19
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11.3
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Conduct No
Waiver; Remedies Cumulative
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19
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11.4
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Reliance on and
Survival of Various Provisions
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19
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11.5
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Expenses
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19
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11.5.1
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19
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11.5.2
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20
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11.6
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Successors and
Assigns
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20
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11.7
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Assignment to
Federal Reserve Banks
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20
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11.8
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Counterparts
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20
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11.9
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Governing Law,
Consent to Jurisdiction and Waiver of Immunity
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20
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11.10
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Waiver of Jury
Trial
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21
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11.11
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Headings
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21
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11.12
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Construction of
Certain Provisions
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21
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11.13
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Integration and
Severability
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21
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11.14
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Usury
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SECTION 12.
CERTAIN DEFINITIONS.
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22
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12.1
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“Acquisition”
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12.2
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“Acquisition Loan”
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22
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12.3
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“Business
Day”
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12.4
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“Capitalized Lease”
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22
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12.5
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“Capitalized Lease
Obligation”
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23
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12.6
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“Consolidated Current
Assets”
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23
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12.7
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“Consolidated Current
Liabilities”
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23
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12.8
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“Consolidated Net Income”
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23
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12.9
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“Consolidated Tangible Net
Worth”
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23
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12.10
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“Consolidated Total
Assets”
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23
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12.11
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“Current
Debt”
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23
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12.12
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“Debt”
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23
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12.13
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“Default”
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23
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12.14
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“Dollars” and
“$”
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24
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12.15
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“Eligible
Accounts Receivable”
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24
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12.16
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“Eligible
Inventory”
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24
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12.17
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“Event of
Default”
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25
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12.18
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“Funded
Debt”
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25
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12.19
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“GAAP”
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25
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12.20
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“Guaranties”
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25
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12.21
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“Interest
Period”
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26
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12.22
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“Investment”
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26
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12.23
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“LIBO
Rate”
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26
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12.24
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“Lien”
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27
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12.25
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“Loan” or
“Loans”
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27
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12.26
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“Net
Income”
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27
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12.27
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“Note”
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27
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12.28
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“Person”
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27
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12.29
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“Prime
Commercial Rate”
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27
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12.30
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“Subsidiary”
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27
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12.31
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“Termination Date”
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27
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12.32
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“Variable
Interest Rate”
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27
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iii
REVOLVING CREDIT
AGREEMENT
THIS AGREEMENT, is
made and entered into to be effective on March 29, 2007, by
and among R. G. BARRY CORPORATION , an Ohio corporation
(hereinafter called the “Borrower”), and THE
HUNTINGTON NATIONAL BANK , a national banking association of
Columbus, Ohio (hereinafter called the
“Bank”);
The Borrower
and the Bank hereby agree as follows:
1.1 Basic
Commitment Terms . The Borrower has applied to the Bank for
revolving credit loans up to an aggregate principal amount of
$20,000,000.00, the proceeds of which are to be used by the
Borrower for general corporate purposes, including, without
limitation, seasonal financing of inventory and accounts
receivable. The Bank is willing to make such loans to the Borrower
upon the terms and subject to the conditions hereinafter set forth
up to a maximum aggregate principal amount not in excess of
$20,000,000.00 and otherwise in accordance with the terms hereof
(said amount being hereinafter called the
“Commitment”).
1.2 Commitment
Limitations . Notwithstanding the foregoing, during the
following periods in each year occurring during the term of this
Agreement the aggregate Commitment of the Bank shall be in an
amount equal to the lesser of the following amounts or the amount
to which the Commitment has been reduced pursuant to
Section 3.6 hereof:
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PERIOD
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COMMITMENT
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From 07/01/07 through 12/31/07
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$
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20,000,000
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From 01/01/08 through 06/30/08
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$
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5,000,000
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From 07/01/08 through 12/31/08
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$
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16,000,000
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From 01/01/09 through 06/30/09
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$
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5,000,000
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From 07/01/09 through 12/31/09
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$
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12,000,000
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From 01/01/10 through 03/31/10
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$
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5,000,000
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SECTION 2.
REPRESENTATIONS AND WARRANTIES .
The Borrower
represents and warrants to the Bank:
2.1
Organization, Corporate Power, etc . The Borrower and each
Subsidiary is a corporation duly organized, validly existing and in
good standing under
1
the laws of the
jurisdiction in which it was incorporated, and each has the
corporate power and authority to own its property and to carry on
its business as now being conducted and each is duly qualified (or
is in the process of becoming qualified) and where qualified, is in
good standing, to do business in every jurisdiction where such
qualification is necessary, except where failure to qualify would
not have a material adverse effect upon the financial condition,
business or operations of the Borrower and its Subsidiaries, taken
as a whole. The Borrower has the corporate power to execute,
deliver and perform this Agreement, to borrow hereunder and to
execute and deliver the Note herein referred to and to do so will
not violate any laws, rules, regulations, orders or decrees, its
Articles of Incorporation or Code of Regulations or any other
agreement or instrument to which it is a party.
2.2
Litigation . Except as set forth in Exhibit “B”,
there is no litigation or proceeding pending against the Borrower,
or any Subsidiary of the Borrower, nor to the knowledge of the
officers of the Borrower or its Subsidiaries threatened, which, if
decided adversely to the Borrower or any such Subsidiary, would
have a material adverse effect upon the financial condition,
business or operations of the Borrower and its Subsidiaries, taken
as a whole.
2.3 Financial
Condition . The audited financial statements of the Borrower
for the fiscal period ended July 1, 2006 certified by KPMG
Peat Marwick, independent certified public accountants, and the
interim unaudited financial statements for the period ended
December 31, 2006, fairly reflect the financial condition of
the Borrower and each Subsidiary and the results of their
operations as of the dates and for the periods stated, and no
material adverse change in the financial condition, business or
operations of the Borrower and its Subsidiaries, taken as a whole,
has occurred since the dates of such financial statements and
interim statements. Such financial statements are consolidated
statements and have been prepared in accordance with
GAAP.
2.4 Title to
Properties . The Borrower and each Subsidiary has good and
marketable title to its property and assets. Such property and
assets of the Borrower and its Subsidiaries are not subject to a
mortgage or lien except for current property taxes not yet
due.
2.5
Liabilities . The Borrower and its Subsidiaries have no
liabilities, direct or contingent, except (i) those disclosed
in the audited financial statements and interim statements referred
to in Section 2.3 above, and (ii) those incurred in the
ordinary course of business since the dates of such reports and
interim statements referred to in Section 2.3 above, having in
the aggregate no materially adverse effect on the financial
condition, business or operations of the Borrower and its
Subsidiaries, taken as a whole.
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2.6
Investments . The Borrower and its Subsidiaries have made no
material investments in, advances to or Guaranties of the
obligations of any corporation, individual or other entity except
those disclosed in either or both of the statements referred to in
Section 2.3 above.
2.7 Taxes .
The Borrower and its Subsidiaries have filed all required federal,
state and local tax returns and paid all required federal, state
and local taxes as they have become due. Federal income taxes have
been audited through December 28, 2002, and no material claims
have been assessed and are unpaid with respect to such taxes except
as shown in the audited financial statements or interim financial
statements referred to in Section 2.3 above.
2.8 ERISA .
The Borrower and its Subsidiaries (i) have made prompt payment
of all contributions required to meet the minimum funding standards
set forth in Sections 302 and 305 of the Employee Retirement
Income Security Act of 1974 as amended from time to time
(“ERISA”) with respect to any employee benefit plan
(“plan”), and (ii) have not:
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(a)
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engaged in any “Prohibited
Transaction”, as that term is defined in Section 406 of
ERISA for which there is no exemption under Section 408 of
ERISA, or
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(b)
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terminated any such plan in a manner
which would result in the imposition of a lien on the property of
the Borrower pursuant to Section 4068 of ERISA.
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2.9 Use of
Proceeds . The proceeds of all borrowings hereunder will be
used for general corporate purposes, but not directly or indirectly
to purchase or to carry any margin stock as defined by
Regulation U of the Board of Governors of the Federal Reserve
System, and the Borrower is not in the business of extending credit
to purchase or carry margin stock.
2.10 Compliance
with Law . The Borrower and its Subsidiaries are not in
violation of, whether foreign or domestic, any laws, ordinances,
governmental rules, regulations, judgments or agreements to which
they are subject and have not failed to obtain any licenses,
permits, franchises or other governmental authorizations necessary
to the ownership of their properties or to the conduct of their
businesses, which violation or failure to obtain might materially
and adversely affect the business, prospects, properties or
condition (financial or otherwise) of the Borrower.
2.11 Government
Consent . Neither the nature of the Borrower or its
Subsidiaries, or of their businesses or properties, nor any
relationship between the Borrower or its Subsidiaries and any other
entity or person, nor any circumstance in
3
connection with
the execution of this Agreement, is such as to require a consent,
approval or authorization of, or filing, registration or
qualification with, any governmental authority on the part of the
Borrower or its Subsidiaries as a condition to the execution,
delivery, performance, validity or enforceability of this Agreement
(including as to each borrowing hereunder), the Note and documents
contemplated herein.
2.12 Legal and
Binding Obligation . (i) The Board of Directors of the
Borrower has duly authorized the execution, delivery and
performance of this Agreement and the Note and this Agreement and
the Note will constitute the valid and binding obligations of the
Borrower enforceable in accordance with their terms; and
(ii) the execution of this Agreement, the Note and related
documents and compliance by the Borrower with all the provisions of
this Agreement are within the corporate powers of the Borrower, are
legal and will not conflict with, result in any breach of any of
the provisions of, constitute a default under, or result in the
creation of any lien or encumbrance upon any property of the
Borrower under the provisions of, any agreement, charter
instrument, bylaw or other instrument to which the Borrower is a
party or by which it is bound.
2.13 Investment
Company Act . Neither the Borrower nor any of its Subsidiaries
is an “investment company” or a company
“controlled” by an “investment company”,
within the meaning of the Investment Company Act of 1940, as
amended.
SECTION 3.
BORROWING PROVISION .
3.1 Amount of
Revolving Credit . Relying on the foregoing representations and
warranties and subject to the agreements and covenants hereinafter
contained, the Bank agrees to make Loans to the Borrower, from time
to time from the date hereof to the Termination Date, at such times
and in such amounts as the Borrower shall request, in the aggregate
not in excess of the Bank’s Commitment. The Borrower shall
give the Bank written or telephonic notice by 11:00 a.m., the
Bank’s local time, three Business Days prior to the date of
intended borrowing with respect to any Loan hereunder, which notice
shall specify the proposed date of borrowing, the amount thereof,
and the Interest Period selected. The Bank shall notify the
Borrower of the relevant LIBO Rate at approximately
11:00 a.m., New York time, two Business Days prior to the date
of intended borrowing. The Loans shall be evidenced by a Revolving
Credit Note (as defined in Section 3.2 hereof).
3.2 Evidence of
Loans Made Under Revolving Credit . All Loans made by the Bank
pursuant to the Bank’s Commitment shall be evidenced by a
promissory note, substantially in the form attached hereto as
Exhibit “A” (hereinafter collectively called the
“Revolving Credit Note”), payable to the order of the
Bank, duly executed on behalf of the Borrower, dated the date of
this Agreement. The Bank is hereby
4
authorized by
the Borrower to note on the schedule attached to any Revolving
Credit Note held by the Bank the date, amount and type of each Loan
made to the Borrower, the duration of the related Interest Period
if applicable, the amount of each payment or prepayment of
principal thereon, and the other information provided for on such
schedule, which schedule shall constitute prima facie evidence of
the information so noted; provided, that failure of the Bank to
make any such notation shall not relieve the Borrower of its
obligation to repay the outstanding principal amount of any Loan or
Loans made to it, all accrued interest thereon and all other
amounts payable in accordance with the terms of the Revolving
Credit Note or this Agreement. Interest on the Loans evidenced by
the Revolving Credit Note shall be payable, until an Event of
Default, at the Variable Rate and on each Interest Payment Date, as
hereinafter defined. After an Event of Default, interest on the
Loans evidenced by the Revolving Credit Note shall be payable at
three (3) percent in excess of the Prime Commercial Rate and
on the first day of each month, in arrears. The terms and
conditions of this Agreement are incorporated in the Revolving
Credit Note by reference as though the same were written
therein.
3.3 Commitment
Fees . The Borrower agrees to pay to the Bank on or prior to
the execution of this Agreement a commitment fee in the amount of
$5,000.00. The Borrower further agrees to pay an annual facility
fee of $2,500.00 on the last day of each March commencing March 31,
2008. The Borrower further agrees to pay the Bank an annual unused
fee (hereinafter called the “Unused Line Fee”) of one
quarter of one percent (1/4 of 1%) per annum (computed on the basis
of a 360-day year for the actual number of days elapsed in each
computation period) of the average daily unused amount of the
Commitment of the Bank available to Borrower pursuant to
Section 1.1 above taking into consideration the seasonal
adjustment. The Unused Line Fee shall commence to accrue on the
date hereof through and including the Termination Date, and shall
be paid quarterly in arrears on the last day of March, June,
September and December in each year commencing June 30, 2007
and on the termination of the Commitment.
3.4 Conversion
of Loans . The Borrower may elect to continue a Loan at the
same Interest Period or convert a Loan of one Interest Period to
another Interest Period by giving telephonic notice thereof to the
Bank not later than 11:00 a.m., the Bank’s local time,
three Business Days prior to the day on which the continuation of
the Loan or conversion to the Loan is to be effective, and not
later than 11:00 a.m., the Bank’s local time, three
Business Days prior to the proposed day of conversion of a Loan of
one Interest Period to a Loan of another Interest Period, provided,
that an outstanding Loan may only be converted on the last day of
the then current Interest Period with respect to such Loan, and
provided, further, that upon the continuation or conversion of a
Loan such notice shall also specify the Interest Period (if
applicable) to be applicable thereto upon such continuation or
conversion. If the Borrower shall fail to
5
timely provide
notice with respect to any outstanding Loan, the Borrower shall be
deemed to have elected to convert such Loan to a daily Interest
Period on the last day of the Interest Period with respect to such
Loan. Telephonic notice shall in each instance be followed within a
reasonable period of time by written notice substantially in the
form of Exhibit “C” hereto. In the event of any
conflict between telephonic and written notice, the telephonic
notice shall control to the extent that such notice has been relied
upon by the Bank in making the applicable Loan.
3.5
Prepayment . The Borrower may at any time, upon three
(3) Business Days prior written notice to the Bank, repay any
or all of the Loans without penalty (other than LIBO Rate breakage
costs and expenses, except that Loans may only be paid at the end
of the applicable Interest Period and the Borrower may not prepay
any portion of any Loan as to which an election for a continuation
of or a conversion is pending. All partial prepayments under this
Section 3.5 shall be accompanied by the payment of all accrued
interest. The Borrower shall make such prepayments as are necessary
to keep the amounts outstanding to the Banks hereunder within the
Commitment limitations identified in Section 1.2
hereof.
3.6 Termination
or Reduction Options . The Borrower shall have the right each
year during the month of June, upon three (3) Business Days
prior written notice to the Bank, (i) to terminate or reduce
permanently the aggregate principal amount of the Commitment of the
Bank to make Loans hereunder by written notice to the Bank;
provided that any permanent reduction of the Commitment of the Bank
to make Loans must be accompanied by the repayment of any
outstanding principal amount in excess of the amount of the
Bank’s Commitment, as thereby reduced together with interest
accrued thereon; and provided further that no such termination or
reduction which would require prepayment of any Loan shall be
permitted except at the end of the applicable Interest
Period.
3.7 Interest
Payment Dates . “Interest Payment Date” shall mean
the first day of each calendar month.
3.8 Payment
Method . All payments to be made by the Borrower hereunder will
be made in Dollars and in immediately available funds to the Bank
at its address set forth in Section 11.2 hereof not later than
3:00 p.m. the Bank’s local time on the date on which such
payment shall become due. Payments received after 3:00 p.m. the
Bank’s local time shall be deemed to be payments made prior
to 3:00 p.m. such Bank’s local time on the next succeeding
Business Day. At the time of making each such payment, the Borrower
shall specify to the Bank that obligation of the Borrower to which
such payment is to be applied, or, in the event that the Borrower
fails to so specify or if an Event of Default shall have occurred
and be continuing, such Bank may apply such payments to
indebtedness due hereunder as it may determine in its sole
discretion.
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3.9 No Setoff
or Deduction . All payments of principal and interest on the
Loans and other amounts payable by the Borrower hereunder shall be
made by the Borrower without setoff or counterclaim, and free and
clear of, and without deduction or withholding for, or on account
of, any present or future taxes, levies, imposts, duties, fees,
assessments, or other charges of whatever nature, imposed by any
governmental authority, or by any department, agency or other
political subdivision or taxing authority.
3.10 Payment on
Non-Business Day; Payment Computations . Except as otherwise
provided in this Agreement to the contrary, whenever any
installment of principal of, or interest on, any Loan outstanding
hereunder or any other amount due hereunder, becomes due and
payable on a day which is not a Business Day, the maturity thereof
shall be extended to the next succeeding Business Day and, in the
case of any installment of principal, interest shall be payable
thereon at the rate per annum determined in accordance with this
Agreement during such extension. Computations of interest and other
amounts due under this Agreement shall be made on the basis of a
year of 360 days for the actual number of days elapsed, including
the first day but excluding the last day of the relevant
period.
3.11 Extension
of Commitments . The Borrower may request, once each year
during the month of September, an extension of the Termination Date
and the Commitment for periods of one year each by making such
request following delivery of the Borrower’s annual financial
statement and current year’s operating plan. Upon receipt of
any request for extension, the Bank shall have 60 days to approve
or reject such request. Any Loans outstanding hereunder not
extended shall be paid when due. The decision as to whether to
grant such an extension shall be in the absolute discretion of the
Bank. The Borrower shall request any extension not later than
60 days prior to the Termination Date of any existing
Commitment.
SECTION 4.
CONDITIONS OF LENDING .
The obligations of
the Bank hereunder are subject to the following conditions
precedent:
4.1 Opinion of
Counsel for Borrower . On or before the date of first borrowing
hereunder, the Bank shall have received the favorable written
opinion of counsel for the Borrower acceptable to the Bank,
addressed to the Bank, and satisfactory to counsel for the Bank (i)
confirming the accuracy of the representations and warranties set
forth in Section 2.1 hereof (except such confirmation may
exclude any opinion as to the Borrower’s qualification to do
business in states other than Ohio), and to the best knowledge of
such counsel, confirming the accuracy of the representations and
warranties with respect to the Borrower set forth in
Sections 2.2, 2.11 and 2.13 hereof and those portions of
Section 2.12 hereof not described in Section 4.1
(ii) hereof;
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and
(ii) stating that (1) this Agreement has been duly
executed and delivered by the Borrower and constitutes the legal,
valid and binding obligation of the Borrower enforceable in
accordance with its terms and (2) the Note when duly executed
and delivered by the Borrower to the Bank in accordance with the
provisions hereof, will constitute the legal, valid, and binding
obligations of the Borrower enforceable in accordance with its
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency and similar laws and to
moratorium laws from time to time in effect and to such other
exceptions as the Bank may deem acceptable).
4.2 Supporting
Documents . The Bank shall have received on or before the date
of the first borrowing hereunder (i) a copy of the resolution
of the Board of Directors of the Borrower authorizing the
execution, delivery and performance of this Agreement, the
borrowings contemplated hereunder and the execution and delivery of
the Note provided for herein, (ii) a copy certified by the
Secretary of State of Ohio of the Articles of Incorporation of the
Borrower; (iii) a copy of the Bylaws or Code of Regulations of
the Borrower, certified as true and correct by its secretary or
assistant secretary, (iv) a certificate of the secretary or
assistant secretary of the Borrower identifying the officers
authorized to sign this Agreement and the Note provided for herein
and to borrow hereunder, together with samples of each of their
signatures, (v) a certificate of good standing as to the
Borrower from the Secretary of State of Ohio, and (vi) such
additional documents as counsel for the Bank may reasonably
request.
4.3 No
Default . Each borrowing hereunder shall constitute a
certification by the Borrower that (i) the Borrower and each
Subsidiary are in compliance with all of the terms and provisions
set forth herein on their part to be observed and performed,
(ii) no Default or Event of Default has occurred or is
continuing at the time of such borrowing and (iii) each of the
representations and warranties made in Section 2 hereof are
true and correct with the same effect as though such
representations and warranties had been made at the time of such
borrowing, except that the representations and warranties made in
Sections 2.3 and 2.5 hereof shall be deemed to refer to the
last audited financial statements or interim financial statement
delivered to the Banks pursuant to Section 6.1 hereof and
further excepting that the occurrence of any material adverse
change or effect shall be determined by reference to the
Borrower’s financial condition, business and operations on
the date of this Agreement.
4.4 Delivery of
Note . The Borrower shall have executed and delivered the Note
to the Bank.
SECTION 5.
PROVISIONS RELATING TO LOANS .
5.1 Limitations
of Requests and Elections . In the event that on any date on
which the Borrower requests an advance hereunder the Bank
reasonably
8
determines that
by reason of (1) any change arising after the date of the Note
affecting the interbank eurocurrency market or affecting the
position of the Bank with respect to such market, adequate and fair
means do not exist for ascertaining the applicable interest rates
by reference to which the LIBO Rate then being determined is to be
determined, (2) any change arising after the date of the Note
in any applicable law or governmental rule, regulation or order (or
any interpretation thereof, including the introduction of any new
law or governmental rule, regulation or order), or (3) any
other circumstance affecting the Bank or the interbank market (such
as, but not limited to, official reserve requirements required by
Regulation D of the Board of Governors of the Federal Reserve
System), the LIBO Rate plus the applicable spread shall not
represent the effective pricing to the Bank of making advances
based upon such rate, then, and in any such event, the ability of
the Borrower to request advances based upon the LIBO Rate shall be
suspended until the Bank shall notify the Borrower that the
circumstances causing such suspension no longer exist and interest
shall accrue on the unpaid balance of the Principal Sum at a
variable rate of interest per annum, which shall change in the
manner set forth below, equal to 1.5 percentage points (which
shall be 0.00 percentage points, unless completed) below the
Prime Commercial Rate (as hereinafter defined).
In the event that
on any date the Bank shall have reasonably determined that the
making or continuation of advances based upon the LIBO Rate has
become unlawful by compliance by the Bank in good faith with any
law, governmental rule, regulation or order, then, and in any such
event, the Bank shall promptly give notice thereof to the Borrower.
In such case, the ability of the Borrower to request an advance
hereunder based upon the LIBO Rate shall be terminated and
thereafter interest shall accrue on the unpaid balance of the
Principal Sum at a variable rate of interest per annum, which shall
change in the manner set forth below, equal to 1.5 percentage
points (which shall be 0.00 percentage points, unless
completed) below the Prime Commercial Rate.
5.2
Indemnification . If, due to (1) the introduction of or
any change in or in the interpretation of any law or regulation,
(2) the compliance with any guideline or request from any
central bank or other public authority (whether or not having the
force of law), or (3) the failure of the Borrower to repay any
advance when required by the terms of the Note, there shall be any
loss or increase in the cost to the Bank of agreeing to make or
making, funding or maintaining any advance hereunder based upon the
LIBO Rate, then the Borrower agrees that the Borrower shall, from
time to time, upon demand by the Bank, pay to the Bank additional
amounts determined in good faith by the Bank to be sufficient to
compensate the Bank for such loss or increased cost. A certificate
as to the amount of such loss or increase cost setting forth in
reasonable detail the basis for such determination and submitted to
the Borrower by the Bank, shall be conclusive evidence, absent
manifest error, of the correctness of such amount. Such amount
shall be due and payable by the Borrower to the Bank within
ten
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(10) days
after such certificate is received by the Borrower.
5.3 Survival of
Obligations . The provisions of this Section 5 shall
survive the termination of the Commitment and the payment in full
of the Note outstanding pursuant to this Agreement.
SECTION 6.
AFFIRMATIVE COVENANTS .
For as long as the
Bank is obligated to lend hereunder and until payment in full of
the Note and interest thereon, the Borrower covenants that it will
and will cause each Subsidiary, except in the case of
Sections 6.1, 6.2, and 6.9 hereof and unless the Bank shall
otherwise consent in writing, to:
6.1 Financial
Statements . Furnish the Bank, within ninety (90) days of
each fiscal year end, a copy of the report of the certified audit
of the Borrower and its Subsidiaries for each fiscal year prepared
by a certified public accountant of recognized standing and a
balance sheet and related statements of income and retained
earnings and cash flow of the Borrower and of the Subsidiaries as
of the end of and for each quarter, within forty-five
(45) days of each fiscal quarter end, certified as to fairness
of presentation by an officer of the Borrower and/or the respective
Subsidiaries. All financial statements will be consolidated
financial statements, will be prepared in accordance with GAAP, and
will be in a form satisfactory to the Bank. The annual audits and
quarterly statements shall be in the format required for filing
with the Securities and Exchange Commission. The en
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