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EXHIBIT 10.6.3.7.3
FOURTH AMENDMENT TO SECOND AMENDED
AND RESTATED BUSINESS LOAN AGREEMENT
This Amendment ("Amendment") is made as of the 31st day of December,
1998, by and between Xxxxxxx, Inc. (the "Borrower") and Bank One, NA successor
by merger of Bank One, Dayton, NA (the "Bank").
WHEREAS, the Borrower and the Bank entered into a Second Amended and
Restated Business Loan Agreement dated December 31, 1996, as amended on February
27, 1997, June 30, 1997, and June 30, 1998 (the "Credit Agreement"); and
WHEREAS, the parties hereto desire to amend the Credit Agreement as set
forth below:
NOW, THEREFORE, the parties hereto agree as follows:
1. Capitalized terms not defined herein shall have the meaning ascribed
in the Credit Agreement.
2. Section 6.2 of the Credit Agreement bearing the hearing FUNDED DEBT
TO TANGIBLE NET WORTH is hereby amended to add in the first paragraph after the
words "measured quarterly" the following language:
, except for the quarter ending December 31, 1998, the ratio
of Funded Debt to Tangible Net Worth shall not be more than
2.50 to 1.00.
3. Section 6.3 of the Credit Agreement bearing the heading FUNDED DEBT
TO EBITDA is hereby amended and restated to read as follows:
6.3 FUNDED DEBT TO EBITDA. Borrower agrees to maintain a ratio of
Funded Debt to EBITDA of not more than the ratio set forth for the
following periods measured at each quarter's end on a rolling four
quarter basis.
Periods Ratios
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04/01/98 through 06/30/98 8.50:1.00
07/01/98 through 9/30/98 7.25:1.00
10/01/98 through 12/31/98 13.50:1.00
"Funded Debt" shall be determined in accordance with GAAP and shall be
deemed to include all interest bearing borrowings plus capitalized
leases.
"EBITDA" shall be defined as earnings before interest expense, taxes
and depreciation/amortization.
4. Section 6.4 of the Credit Agreement bearing the heading CURRENT
RATIO is hereby amended to add in the first paragraph after the words "measured
quarterly" the following language:
, except for the quarter ending December 31, 1998, the Current
Ratio shall be not less than 1.18 to 1.00.
5. Section 6.5 of the Credit Agreement bearing the heading FIXED CHARGE
COVERAGE is hereby amended by deleting the words and figures:
of not less than 1.10 to 1.00 at fiscal quarter-end June 30,
1998, September 30, 1998 and December 31, 1998 and beginning
fiscal quarter ending March 31, 1999 and at each fiscal
quarter-end thereafter of not less than 1.20 to 1.00 measured
on a rolling four quarter basis.
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and by inserting in substitution therefore the words and figures:
of not less than 1.10 to 1.00 at fiscal quarter-end June 30,
1998 and September 30, 1998, of not less than 0.43 to 1.00 at
fiscal quarter-end December 31, 1998, and beginning fiscal
quarter ending March 31, 1999 and at each fiscal quarter-end
thereafter of not less than 1.20 to 1.00 measured on a rolling
four quarter basis.
6. The Borrower represents and warrants that (a) the representations
and warranties contained in the Credit Agreement are true and correct in all
material respects as of the date of this Amendment, (b) no condition, act or
event which could constitute an Event of Default under the Credit Agreement
exists, and (c) no condition, event, act or omission has occurred, which, with
the giving of notice or passage of time, would constitute an Event of Default
under the Credit Agreement.
7. This Amendment shall become effective only after it is fully
executed by the Borrower and the Bank. Except as amended by this Amendment, the
Credit Agreement shall remain in full force and effect in accordance with its
terms, and the Borrower hereby specifically ratifies and affirms the terms and
provisions of the Credit Agreement.
8. This Amendment is a modification only and not a novation. Except for
the above- stated modification(s), the Credit Agreement, any agreement or
security document, and all the terms and conditions thereof, shall be and remain
in full force and effect with the changes herein deemed to be incorporated
herein. This Amendment is to be considered attached to the Credit Agreement and
made a part hereof. This Amendment shall not release or affect the liability of
any guarantor, surety or endorser of the Credit Agreement or release any owner
of collateral securing the Credit Agreement. The validity, priority and
enforceability of the Credit Agreement shall not be impaired hereby. To the
extent that any provision of this Amendment conflicts with any term or condition
set forth in the Credit Agreement, or any agreement or security document
executed in conjunction therewith, the provision of this Amendment shall
supersede and control. Borrower acknowledges that as of the date of this
Amendment it has no offsets with respect to all amounts owned by Borrower to
Bank and Borrower waives and releases any and all claims, known and unknown,
which it may have against Bank arising under or in connection with the Credit
Agreement on or prior to the date of this Amendment.
9. The Borrower acknowledges and agrees that this Amendment is limited
to the terms stated herein and shall not be construed as an amendment of any
other terms or provisions of the Credit Agreement. This Amendment shall not
establish a course of dealing or be construed as evidence of any willingness on
the Bank's part to grant other or future amendments, should any be requested.
IN WITNESS WHEREOF, the parties have entered into the Agreement as of
the day and year first above written.
BANK ONE, XX XXXXXXX, INC.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
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Title: Vice President Title: Treasurer
