EXHIBIT 4
THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT
This Third Amendment to Revolving Credit Agreement (this "Amendment")
is entered into at Columbus, Ohio, by and between The Huntington National Bank,
as lender (the "Bank"), and X.X. Xxxxx Corporation, as borrower (the
"Borrower"), as of the 15th day of September, 2003, in order to amend the
Revolving Credit Agreement entered into by and among the Bank and the Borrower
as of the 27th day of December, 2002 (the "Credit Agreement").
Whereas, the Borrower and the Bank have agreed to the deletion of the
financial covenant contained in Section 9.13 of the Credit Agreement; and
Whereas, the Borrower and the Bank have agreed to the substitution of a
replacement financial covenant for the covenant contained in Section 9.13;
Now, therefore, the parties agree that the Credit Agreement is hereby
amended as follows:
1. The covenant contained in Section 9.13 of the Credit Agreement is
deleted, effective on the date of this Amendment. In substitution for the
deleted covenant, the following covenant is added, with the new covenant to be
first effective as of and for the year ending January 3, 2004:
Net Income. Permit Consolidated Net Income for any fiscal year,
beginning with the fiscal year ending on January 3, 2004, to be less
than $1.00. For the purpose of the calculations required by this
Section 9.13, "Consolidated Net Income" shall not include the loss
incurred by the Borrower in connection with the sale of certain of the
assets of its subsidiary, Vesture Corporation, nor any of the operating
losses of Vesture Corporation prior to such sale.
2. The Borrower represents and warrants that no Event of Default has
occurred and is continuing, nor will any occur immediately after the execution
and delivery of this Amendment by the performance or observance of any provision
hereof.
3. Each reference to the Credit Agreement, whether by use of the phrase
"Credit Agreement," "Agreement," the prefix "herein" or any other term, and
whether contained in the Credit Agreement itself, in this Amendment, in any
document executed concurrently herewith or in any loan documents executed
hereafter, shall be construed as a reference to the Credit Agreement as amended
by this Amendment.
4. Except as previously amended and as modified herein, the Credit
Agreement and the Loan Documents shall remain as written originally and in full
force and effect in all respects, and nothing herein shall affect, modify, limit
or impair any of the rights and powers which the Banks may have thereunder.
5. The Borrower agrees to perform and observe all the covenants,
agreements, stipulations and conditions to be performed on its part under the
Credit Agreement, the promissory note executed and delivered in connection
herewith, the Loan Documents, and all other related agreements, as amended by
this Amendment.
6. The Borrower hereby represents and warrants to the Bank that (a) the
Borrower has legal power and authority to execute and deliver the within
Amendment; (b) the respective officer executing the within Amendment on behalf
of the Borrower has been duly authorized to execute and deliver the same and
bind the Borrower with respect to the provisions provided for herein; (c) the
execution by the Borrower and the performance and observance by the Borrower of
the provisions hereof do not violate or conflict with the articles of
incorporation, regulations or by-laws of the Borrower or any law applicable to
the Borrower or result in the breach of any provision of or constitute a default
under any agreement, instrument or document binding upon or enforceable against
the Borrower; and (d) this Amendment constitutes a valid and legally binding
obligation upon the Borrower, subject to applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally, to
general equitable principles and to applicable doctrines of commercial
reasonableness.
7. This Amendment shall become effective only upon the execution hereof
by both the Borrower and the Bank. Execution of this Amendment by the parties
hereto may be in any number of counterparts, but all such counterparts when
taken together shall constitute one and the same document.
8. Except as otherwise specifically provided herein, the capitalized
terms used herein shall have the same meanings as the capitalized terms used in
the Credit Agreement.
IN WITNESS WHEREOF, the Borrower and the Bank have hereunto set their
hands as of the 15th day of September, 2003.
X. X. XXXXX CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Vice President
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxx Xxxx, Senior Vice President
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Xxx Xxxx, Senior Vice President
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