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REVOLVING CREDIT AGREEMENT R. G. BARRY CORPORATION AND THE HUNTINGTON NATIONAL BANK

Revolving Credit Agreement

REVOLVING CREDIT AGREEMENT 

R. G. BARRY CORPORATION 

AND 

THE HUNTINGTON NATIONAL BANK 

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R. G. BARRY CORPORATION | THE HUNTINGTON NATIONAL BANK

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Title: REVOLVING CREDIT AGREEMENT R. G. BARRY CORPORATION AND THE HUNTINGTON NATIONAL BANK
Governing Law: Ohio     Date: 4/4/2007
Industry: Footwear     Sector: Consumer Cyclical

REVOLVING CREDIT AGREEMENT 

R. G. BARRY CORPORATION 

AND 

THE HUNTINGTON NATIONAL BANK 

, Parties: r. g. barry corporation  , the huntington national bank
50 of the Top 250 law firms use our Products every day
 

EXHIBIT 10.1

REVOLVING CREDIT AGREEMENT

R. G. BARRY CORPORATION

AND

THE HUNTINGTON NATIONAL BANK

March 29, 2007

 


 

TABLE OF CONTENTS

 

 

 

 

 

 

 

 

 

 

 

SECTION 1. COMMITMENTS

 

 

1

 

 

 

 

1.1

 

 

Basic Commitment Terms

 

 

1

 

 

 

 

1.2

 

 

Commitment Limitations

 

 

1

 

 

 

 

 

 

 

 

 

 

 

 

SECTION 2. REPRESENTATIONS AND WARRANTIES

 

 

1

 

 

 

 

2.1

 

 

Organization, Corporate Power, etc.

 

 

1

 

 

 

 

2.2

 

 

Litigation

 

 

2

 

 

 

 

2.3

 

 

Financial Condition

 

 

2

 

 

 

 

2.4

 

 

Title to Properties

 

 

2

 

 

 

 

2.5

 

 

Liabilities

 

 

2

 

 

 

 

2.6

 

 

Investments

 

 

3

 

 

 

 

2.7

 

 

Taxes

 

 

3

 

 

 

 

2.8

 

 

ERISA

 

 

3

 

 

 

 

2.9

 

 

Use of Proceeds

 

 

3

 

 

 

 

2.10

 

 

Compliance with Law

 

 

3

 

 

 

 

2.11

 

 

Government Consent

 

 

3

 

 

 

 

2.12

 

 

Legal and Binding Obligation

 

 

4

 

 

 

 

2.13

 

 

Investment Company Act

 

 

4

 

 

 

 

 

 

 

 

 

 

 

 

SECTION 3. BORROWING PROVISION

 

 

4

 

 

 

 

3.1

 

 

Amount of Revolving Credit

 

 

4

 

 

 

 

3.2

 

 

Evidence of Loans Made Under Revolving Credit

 

 

4

 

 

 

 

3.3

 

 

Commitment Fees

 

 

5

 

 

 

 

3.4

 

 

Conversion of Loans

 

 

5

 

 

 

 

3.5

 

 

Prepayment

 

 

6

 

 

 

 

3.6

 

 

Termination or Reduction Options

 

 

6

 

 

 

 

3.7

 

 

Interest Payment Dates

 

 

6

 

 

 

 

3.8

 

 

Payment Method

 

 

6

 

 

 

 

3.9

 

 

No Setoff or Deduction

 

 

7

 

 

 

 

3.10

 

 

Payment on Non-Business Day; Payment Computations

 

 

7

 

 

 

 

3.11

 

 

Extension of Commitments

 

 

7

 

 

 

 

 

 

 

 

 

 

 

 

SECTION 4. CONDITIONS OF LENDING

 

 

7

 

 

 

 

4.1

 

 

Opinion of Counsel for Borrower

 

 

7

 

 

 

 

4.2

 

 

Supporting Documents

 

 

8

 

 

 

 

4.3

 

 

No Default

 

 

8

 

 

 

 

4.4

 

 

Delivery of Note

 

 

8

 

 

 

 

 

 

 

 

 

 

 

 

SECTION 5. PROVISIONS RELATING TO LOANS

 

 

8

 

 

 

 

5.1

 

 

Limitations of Requests and Elections

 

 

8

 

 

 

 

5.2

 

 

Indemnification

 

 

9

 

 

 

 

5.3

 

 

Survival of Obligations

 

 

10

 

 

 

 

 

 

 

 

 

 

 

 

SECTION 6. AFFIRMATIVE COVENANTS

 

 

10

 

 

 

 

6.1

 

 

Financial Statements

 

 

10

 

i


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6.2

 

 

Out of Pocket Expenses

 

 

11

 

 

 

 

6.3

 

 

Compliance with Statutes; Payment of Taxes

 

 

11

 

 

 

 

6.4

 

 

Insurance

 

 

11

 

 

 

 

6.5

 

 

Corporate Existence

 

 

11

 

 

 

 

6.6

 

 

ERISA

 

 

11

 

 

 

 

6.7

 

 

Books and Records

 

 

12

 

 

 

 

6.8

 

 

Inspection of Books and Records

 

 

12

 

 

 

 

6.9

 

 

Notification by Borrower

 

 

12

 

 

 

 

6.10

 

 

Notice of Claims

 

 

12

 

 

 

 

6.11

 

 

Clean out Period

 

 

12

 

 

 

 

6.12

 

 

Restriction on Consolidated Assets

 

 

12

 

 

 

 

 

 

 

 

 

 

 

 

SECTION 7. NEGATIVE COVENANTS

 

 

13

 

 

 

 

7.1

 

 

Additional Limitations on Debt

 

 

13

 

 

 

 

7.2

 

 

Maintenance of Consolidated Tangible Net Worth

 

 

13

 

 

 

 

7.3

 

 

Minimum Fixed Charge Coverage Ratio

 

 

13

 

 

 

 

7.4

 

 

Permitted Liens

 

 

13

 

 

 

 

7.5

 

 

Restrictions on Subsidiaries

 

 

13

 

 

 

 

 

 

 

7.5.1

 

 

13

 

 

 

 

 

 

 

7.5.2

 

 

14

 

 

 

 

 

 

 

7.5.3

 

 

14

 

 

 

 

7.6

 

 

Disposition of Assets

 

 

14

 

 

 

 

 

 

 

7.6.1

 

 

14

 

 

 

 

 

 

 

7.6.2

 

 

14

 

 

 

 

 

 

 

7.6.3

 

 

14

 

 

 

 

 

 

 

7.6.4

 

 

14

 

 

 

 

7.7

 

 

Sale-Leaseback

 

 

14

 

 

 

 

7.8

 

 

Limitations on draws

 

 

15

 

 

 

 

 

 

 

 

 

 

 

 

SECTION 8. FURTHER ASSURANCE

 

 

15

 

 

 

 

 

 

 

 

 

 

 

 

SECTION 9. TAXES AND STAMPS

 

 

15

 

 

 

 

 

 

 

 

 

 

 

 

SECTION 10. DEFAULT

 

 

15

 

 

 

 

10.1

 

 

Events of Default

 

 

15

 

 

 

 

 

 

 

10.1.1

 

 

15

 

 

 

 

 

 

 

10.1.2

 

 

15

 

 

 

 

 

 

 

10.1.3

 

 

15

 

 

 

 

 

 

 

10.1.4

 

 

15

 

 

 

 

 

 

 

10.1.5

 

 

16

 

 

 

 

 

 

 

10.1.6

 

 

16

 

 

 

 

 

 

 

10.1.7

 

 

16

 

 

 

 

 

 

 

10.1.8

 

 

17

 

 

 

 

 

 

 

10.1.9;

 

 

17

 

 

 

 

 

 

 

10.1.10

 

 

17

 

 

 

 

10.2

 

 

Remedies

 

 

17

 

 

 

 

 

 

 

10.2.1

 

 

18

 

 

 

 

 

 

 

10.2.2

 

 

18

 

 

 

 

 

 

 

10.2.3

 

 

18

 

ii


 

 

 

 

 

 

 

 

 

 

 

 

SECTION 11. MISCELLANEOUS

 

 

18

 

 

 

 

11.1

 

 

Amendments, Etc.

 

 

19

 

 

 

 

11.2

 

 

Notices

 

 

19

 

 

 

 

11.3

 

 

Conduct No Waiver; Remedies Cumulative

 

 

19

 

 

 

 

11.4

 

 

Reliance on and Survival of Various Provisions

 

 

19

 

 

 

 

11.5

 

 

Expenses

 

 

19

 

 

 

 

 

 

 

11.5.1

 

 

19

 

 

 

 

 

 

 

11.5.2

 

 

20

 

 

 

 

11.6

 

 

Successors and Assigns

 

 

20

 

 

 

 

11.7

 

 

Assignment to Federal Reserve Banks

 

 

20

 

 

 

 

11.8

 

 

Counterparts

 

 

20

 

 

 

 

11.9

 

 

Governing Law, Consent to Jurisdiction and Waiver of Immunity

 

 

20

 

 

 

 

11.10

 

 

Waiver of Jury Trial

 

 

21

 

 

 

 

11.11

 

 

Headings

 

 

21

 

 

 

 

11.12

 

 

Construction of Certain Provisions

 

 

21

 

 

 

 

11.13

 

 

Integration and Severability

 

 

21

 

 

 

 

11.14

 

 

Usury

 

 

22

 

 

 

 

 

 

 

 

 

 

 

 

SECTION 12. CERTAIN DEFINITIONS.

 

 

22

 

 

 

 

12.1

 

 

“Acquisition”

 

 

22

 

 

 

 

12.2

 

 

“Acquisition Loan”

 

 

22

 

 

 

 

12.3

 

 

“Business Day”

 

 

22

 

 

 

 

12.4

 

 

“Capitalized Lease”

 

 

22

 

 

 

 

12.5

 

 

“Capitalized Lease Obligation”

 

 

23

 

 

 

 

12.6

 

 

“Consolidated Current Assets”

 

 

23

 

 

 

 

12.7

 

 

“Consolidated Current Liabilities”

 

 

23

 

 

 

 

12.8

 

 

“Consolidated Net Income”

 

 

23

 

 

 

 

12.9

 

 

“Consolidated Tangible Net Worth”

 

 

23

 

 

 

 

12.10

 

 

“Consolidated Total Assets”

 

 

23

 

 

 

 

12.11

 

 

“Current Debt”

 

 

23

 

 

 

 

12.12

 

 

“Debt”

 

 

23

 

 

 

 

12.13

 

 

“Default”

 

 

23

 

 

 

 

12.14

 

 

“Dollars” and “$”

 

 

24

 

 

 

 

12.15

 

 

“Eligible Accounts Receivable”

 

 

24

 

 

 

 

12.16

 

 

“Eligible Inventory”

 

 

24

 

 

 

 

12.17

 

 

“Event of Default”

 

 

25

 

 

 

 

12.18

 

 

“Funded Debt”

 

 

25

 

 

 

 

12.19

 

 

“GAAP”

 

 

25

 

 

 

 

12.20

 

 

“Guaranties”

 

 

25

 

 

 

 

12.21

 

 

“Interest Period”

 

 

26

 

 

 

 

12.22

 

 

“Investment”

 

 

26

 

 

 

 

12.23

 

 

“LIBO Rate”

 

 

26

 

 

 

 

12.24

 

 

“Lien”

 

 

27

 

 

 

 

12.25

 

 

“Loan” or “Loans”

 

 

27

 

 

 

 

12.26

 

 

“Net Income”

 

 

27

 

 

 

 

12.27

 

 

“Note”

 

 

27

 

 

 

 

12.28

 

 

“Person”

 

 

27

 

 

 

 

12.29

 

 

“Prime Commercial Rate”

 

 

27

 

 

 

 

12.30

 

 

“Subsidiary”

 

 

27

 

 

 

 

12.31

 

 

“Termination Date”

 

 

27

 

 

 

 

12.32

 

 

“Variable Interest Rate”

 

 

27

 

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:

SECTION 1. COMMITMENTS.

     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:

 

 

 

 

 

PERIOD

 

COMMITMENT

From 07/01/07 through 12/31/07

 

$

20,000,000

 

From 01/01/08 through 06/30/08

 

$

5,000,000

 

From 07/01/08 through 12/31/08

 

$

16,000,000

 

From 01/01/09 through 06/30/09

 

$

5,000,000

 

From 07/01/09 through 12/31/09

 

$

12,000,000

 

From 01/01/10 through 03/31/10

 

$

5,000,000

 

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.

2


 

     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:

 

(a)

 

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

 

 

 

 

 

(b)

 

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.

     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

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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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