FIRST MODIFICATION OF REVOLVING CREDIT AGREEMENT
EXHIBIT 10.1
FIRST MODIFICATION OF REVOLVING CREDIT AGREEMENT
THIS FIRST MODIFICATION OF REVOLVING CREDIT AGREEMENT (the “Modification”) is made and entered
into to be effective the 16th day of April, 2007, by and between X. X. XXXXX
CORPORATION, an Ohio corporation (the “Borrower”) and THE HUNTINGTON NATIONAL BANK, a national
banking corporation (the “Bank”).
RECITALS
I. The Borrower and the Bank entered into an Revolving Credit Agreement dated March 29, 2007,
(the “Credit Agreement”);
II. The Borrower has requested the ability to obtain letters of credit under its Commitment
from the Bank; and
III. The Borrower and the Bank by mutual agreement desire to modify the Credit Agreement to
make provision for letters of credit.
Section 1. NOW, THEREFORE, for good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 2. This Modification shall be limited to this specific transaction and shall
not be deemed or construed as consent by the Bank to any other modification of the Credit Agreement
or other loan documents executed in connection therewith. This Modification shall only modify the
Credit Agreement to the extent provided herein, all other provisions thereof remaining unchanged
and in full force and effect.
Section 3. The following is added as a new Section 1.3 to the Credit Agreement:
1.3 The Letters of Credit. From the date hereof until the
Termination Date, the Bank agrees to issue, against the Commitment,
one or more letters of credit (the “Letter(s) of Credit”) from time
to time in the maximum aggregate face amount outstanding at any one
time of $1,500,000.00, subject to the terms and conditions of this
Agreement; provided, however, that the Bank shall have no obligation
to issue any Letter(s) of Credit pursuant hereto at any time when
there exists any set of facts or circumstances which, by themselves
or upon the giving of notice or the lapse of time, or both would
constitute an Event of Default under this Agreement. The Letter(s)
of Credit shall be evidenced by and reimbursement therefor shall be
made in accordance with the terms of one or more applications and
agreements for commercial letter(s) of credit agreed upon by the
parties hereto in substitution or partial substitution therefor in
favor of the Bank. No Letter(s) of Credit shall have an expiry date
in excess of one year from the date of its issuance nor later than
the Termination
Date. Any Letter(s) of Credit issued hereunder will reduce the
availability under the Commitment dollar for dollar. The Borrower
shall pay all fees required by the Bank for each Letter(s) of Credit
issued. The Borrower shall also pay all other out of pocket
expenses in connection with the issuance of any Letter(s) of Credit.
The Letters of Credit issued hereunder will be subject to the
Uniform Customs and Practices for Documentary Credits, in effect as
of the date of issuance of this particular Letter of Credit, which,
as of the date hereof, is the 1993 Revision, International Chamber
of Commerce Publication No. 500 and, to the extent not inconsistent
therewith, the laws of the State of Ohio.
Section 4. This Modification shall be governed by and construed in accordance with the
laws of the State of Ohio.
Section 5. THE BANK AND THE BORROWER ACKNOWLEDGE AND AGREE THAT THERE MAY BE A
CONSTITUTIONAL RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY CLAIM, DISPUTE OR LAWSUIT ARISING
BETWEEN OR AMONG THEM, BUT THAT SUCH RIGHT MAY BE WAIVED. ACCORDINGLY, THE PARTIES AGREE THAT
NOTWITHSTANDING SUCH CONSTITUTIONAL RIGHT, IN THIS COMMERCIAL MATTER THE PARTIES BELIEVE AND AGREE
THAT IT SHALL BE IN THEIR BEST INTEREST TO WAIVE SUCH RIGHT, AND, ACCORDINGLY, HEREBY WAIVE SUCH
RIGHT TO A JURY TRIAL, AND FURTHER AGREE THAT THE BEST FORUM FOR HEARING ANY CLAIM, DISPUTE OR
LAWSUIT, IF ANY, ARISING IN CONNECTION WITH THIS AGREEMENT, ANY LOAN DOCUMENTS OR THE RELATIONSHIP
AMONG THE BANK AND THE BORROWER SHALL BE A COURT OF COMPETENT JURISDICTION SITTING WITHOUT A JURY
IN FRANKLIN COUNTY, OHIO.
Section 6. Any capitalized terms used herein, but not defined, shall have the meaning
given to such terms in the Loan Agreement.
IN WITNESS WHEREOF, the Bank and the Borrower have executed this Agreement as of the date set
forth above.
| X. X. XXXXX CORPORATION | |||||
| By: | /s/ Xxxxxx X. Xxxxx | ||||
| Name: | Xxxxxx X. Xxxxx | ||||
| Title: | Chief Financial Officer | ||||
| THE HUNTINGTON NATIONAL BANK | |||||
| By: | /s/ Xxx Xxxx | ||||
| Name: | Xxx Xxxx | ||||
| Title: | Senior Vice President | ||||
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