Exhibit 10.0.3
THIRD AMENDMENT TO
AMENDED AND RESTATED REVOLVING
CREDIT AND SECURITY AGREEMENT
BY AND AMONG
PNC BANK, NATIONAL ASSOCIATION
(AS LENDER AND AGENT),
THE LENDERS,
AND
▇. ▇. ▇▇▇▇▇▇ COMPANY,
CXT INCORPORATED,
NATMAYA, INC.,
AND
FOSMART, INC.
(BORROWERS)
February 8, 2007
THIRD AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT SECURITY AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY
AGREEMENT (the "Amendment") is made as of February 8, 2007, by and among ▇. ▇.
▇▇▇▇▇▇ COMPANY, a corporation organized under the laws of the State of
Pennsylvania ("▇▇▇▇▇▇"), CXT INCORPORATED, a corporation organized under the
laws of the State of Delaware ("CXT"), NATMAYA, INC., a corporation organized
under the laws of the State of Delaware ("Natmaya"), and FOSMART, INC., a
corporation organized under the laws of the State of Delaware ("Fosmart") (each
a "Borrower" and collectively "Borrowers"), the financial institutions which are
now or which hereafter become a party hereto (collectively, the "Lenders" and
individually a "Lender") and PNC BANK, NATIONAL ASSOCIATION ("PNC"), as agent
for Lenders (PNC, in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders and Agent are parties to that certain
Amended and Restated Revolving Credit and Security Agreement dated as of May 5,
2005, as amended by a First Amendment thereto dated as of September 13, 2005,
and a Second Amendment thereto dated as of May 16, 2006 (as amended from time to
time, the "Agreement").
WHEREAS, the Borrowers have requested the Lenders to modify the terms of
the pricing as well as certain covenants under the Agreement.
WHEREAS, the parties hereto desire to amend the terms of the Agreement as
provided for herein.
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. Definitions.
Defined terms used herein shall have the meanings given to them in the
Agreement.
2. The following definitions set forth in Section 1.2 of the Agreement are
hereby amended and restated as follows:
"Facility Fee" shall mean a percentage rate per annum equal to one fourth
of one percent (0.25%).
"Permitted Encumbrances" shall mean (a) Liens in favor of Agent for the
benefit of Agent and Lenders; (b) Liens for taxes, assessments or other
governmental charges not delinquent or being contested in good faith and by
appropriate proceedings and with respect to which proper reserves have been
taken by Borrowers; provided, that, the Lien shall have no effect on the
priority of the Liens in favor of Agent or the value of the assets in which
Agent has such a Lien and a stay of enforcement of any such Lien shall be in
effect; (c) deposits or pledges to secure obligations under worker's
compensation, social security or similar laws, or under unemployment insurance;
(d) deposits, security interests or pledges to secure bids, tenders, contracts
(other than contracts for the payment of money), leases, statutory obligations,
surety and appeal bonds and other obligations of like nature arising in the
ordinary course of any Borrower's business; (e) judgment Liens that have been
stayed or bonded and mechanics', workers', materialmen's or other like Liens
arising in the ordinary course of any Borrower's business with respect to
obligations which are not due or which are being contested in good faith by the
applicable Borrower; (f) Liens placed upon fixed assets, proceeds from
disposition thereof and other property directly related thereto, hereafter
acquired to secure a portion of the purchase price thereof (or refinance fixed
assets acquired with proceeds of Revolving Advances, so long as the proceeds of
such refinancing are applied to the outstanding balance of Revolving Advances)
or Liens of lessors on fixed assets subject to capital leases, or Liens on Real
Property, improvements and fixtures in connection with the financing of Capital
Expenditures, provided that in each case above (x) any such lien shall not
encumber any other property of Borrowers (other than related obligations owed to
such lender or lessor) and (y) the aggregate amount of Indebtedness secured by
such Liens incurred as a result of such purchases during any fiscal year shall
not exceed the amount provided for in Section 7.6; (g) other Liens incidental to
the conduct of Borrowers' business or the ownership of its property and assets
which were not incurred in connection with the borrowing of money or the
obtaining of advances or credit, and which do not in the aggregate materially
detract from Agent's or Lenders' rights in and to the Collateral or the value of
Borrowers' property or assets or which do not materially impair the use thereof
in the operation of Borrowers' business; (h) Liens on assets of the Borrowers
other than Collateral which secure Indebtedness not exceeding $10,000,000 in the
aggregate at any one time outstanding and which is permitted under Section 7.8;
and (i) Liens disclosed on Schedule 1.2(B).
"Revolving Interest Rate" shall mean an interest rate per annum equal to
(a) the sum of the Alternate Base Rate minus one percent (1%) with respect to
Domestic Rate Loans and (b) the sum of the Eurodollar Rate plus one and
one-fourth percent (1.25%) with respect to Eurodollar Rate Loans.
3. Section 7.2(b) of the Agreement is hereby amended and restated as
follows:
"(b) Enter into or suffer to exist any agreement with any Person which
prohibits or limits the ability of any Borrower to create, incur, assume or
suffer to exist any Lien upon or with respect to any property or assets of any
kind, real or personal, tangible or intangible, now owned or hereafter acquired
(including, without limitation Equipment, Investment Property and Real
Property), other than (i) such agreements in favor of Agent or Lenders pursuant
to this Agreement and the Other Documents, (ii) as set forth on Schedule 7.2(b)
hereto, and (iii) capital leases, purchase money financing, industrial revenue
bond financing and financing secured by Liens on Real Property, improvements and
fixtures in connection with the financing of Capital Expenditures consummated
after the Closing Date (to the extent permitted under this Agreement) pursuant
to contracts which restrict Liens on the Equipment, Real Property, improvements,
fixtures and other capital assets (excluding any Inventory or Receivables) being
financed pursuant to such capital leases, purchase money financing, industrial
revenue bond financing or other secured financing."
4. Section 7.4 of the Agreement is hereby amended and restated as follows:
"7.4 Investments.
Except as set forth on Schedule 7.4 or as permitted under Section
7.1(a)(ii), purchase or acquire obligations or stock of, or any other interest
in, any Person, except (a) obligations issued or guaranteed by the United States
of America or any agency thereof, (b) commercial paper with maturities of not
more than 180 days and a published rating of not less than A-1 or P-1 (or the
equivalent rating), (c) certificates of time deposit and bankers' acceptances
having maturities of not more than 180 days and repurchase agreements backed by
United States government securities of a commercial bank if (i) such bank has a
combined capital and surplus of at least $500,000,000, or (ii) its debt
obligations, or those of a holding company of which it is a Subsidiary, are
rated not less than A (or the equivalent rating) by a nationally recognized
investment rating agency, (d) U.S. money market funds that invest solely in
obligations issued or guaranteed by the United States of America or an agency
thereof, (e) investments not in excess of $1,000,000 at any one time in the
stock of Customers in settlement of Receivables and related obligations which
are delinquent or in default by such Customers, and (f) equity investments in
other corporations not in excess of five percent (5%) of the aggregate ownership
interests of any such corporation, provided that prior to and after giving
effect to any such investment (i) the Borrowers have Undrawn Availability of at
least $10,000,000, and (ii) the aggregate amount of all such investments then
existing does not exceed more than $10,000,000."
5. Section 7.6 of the Agreement is hereby amended and restated as follows:
"7.6 Capital Expenditures.
Commencing with the fiscal year ended December, 31, 2006, contract for,
purchase or make any expenditure or commitments for fixed or capital assets
(including capitalized leases) in any fiscal year in an aggregate amount for all
Borrowers in excess of $12,000,000, exclusive of capital expenditures for direct
construction expenses and equipment costs incurred pursuant to the Union Pacific
Contract. The difference between $12,000,000 and the actual amount of the
aggregate capital expenditures of the Borrowers in any fiscal year (excluding
the expenses related to the Union Pacific Contract) may be carried over to the
immediately succeeding fiscal year. In addition to the foregoing capital
expenditures, the Borrowers may make capital expenditures for the direct
construction expenses and equipment costs of the Union Pacific Contract,
provided that such capital expenditures do not violate the provisions of Section
7.8 or 7.11 and are made on or before December 31, 2006. Expenditures made in
consummating Permitted Acquisitions shall not be included in the calculation of
capital expenditures under this Section 7.6."
6. Section 7.8 of the Agreement is hereby amended and restated as follows:
"7.8 Indebtedness.
Except as set forth on Schedule 7.8, create, incur, assume or suffer to
exist any Indebtedness (exclusive of trade debt) except in respect of (a)
Indebtedness to Lenders under this Agreement; (b) Indebtedness incurred for
capital expenditures permitted under Section 7.6 hereof; (c) Indebtedness for
the direct construction expenses and equipment costs incurred pursuant to the
Union Pacific Contract; and (d) other Indebtedness not to exceed $10,000,000 in
the aggregate at any one time outstanding. Notwithstanding the foregoing,
Indebtedness for the direct construction expenses and equipment costs incurred
pursuant to the Union Pacific Contract and permitted under this Section 7.8 plus
the operating lease obligations incurred under Section 7.11 pursuant to the
Union Pacific Contract shall not exceed $20,000,000 in the aggregate."
7. Update to Certain Schedules. Each of Schedule 1.2(B) and Schedule 7.8 to
the Agreement are hereby amended and restated as set forth on the Revised
Schedule 1.2(B) and Revised Schedule 7.8 attached to this Amendment, and the
Lenders hereby consent to such revised schedules and their substitution in place
of the original schedules to the Agreement.
8. Representations. Each Borrower hereby represents and warrants that it
has the corporate power and has been duly authorized by all requisite corporate
action to execute and deliver this Amendment and to perform its obligations
hereunder. Each Borrower hereby represents and warrants that no Default or Event
of Default exists under the Agreement or shall result from the execution and
delivery of this Amendment.
9. Force and Effect. Each Lender and each Borrower reconfirms and ratifies
the Agreement and all Other Documents executed in connection therewith except to
the extent any such documents are expressly modified by this Amendment, and each
Borrower confirms that all such documents have remained in full force and effect
since the date of their execution.
10. Governing Law. This Amendment shall be deemed to be a contract under
the laws of the Commonwealth of Pennsylvania and for all purposes shall be
governed by and construed and enforced in accordance with the internal laws of
the Commonwealth of Pennsylvania without regard to its conflict of laws
principles.
11. Counterparts. This Amendment may be signed by telecopy or original in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
12. Effective Date. This Amendment shall be effective upon the execution
and delivery to the Agent of this Amendment by the Borrowers and the Lenders.
[SIGNATURE PAGES FOLLOW]
[SIGNATURE PAGE 1 OF 2 TO THIRD AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
Intending to be legally bound, each of the parties has signed this Third
Amendment to Amended and Restated Revolving Credit and Security Agreement as of
the day and year first above written.
ATTEST: ▇. ▇. ▇▇▇▇▇▇ COMPANY
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ [Seal]
-------------------------------- ----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Sr. V.P., Treasurer & CFO
ATTEST: CXT INCORPORATED
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ [Seal]
-------------------------------- ----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Sr. V.P., Treasurer and CFO
ATTEST: NATMAYA, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ [Seal]
-------------------------------- ----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: President
ATTEST: FOSMART, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ [Seal]
-------------------------------- ----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: President
[SIGNATURE PAGE 2 OF 2 TO THIRD AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION, a
national banking association, as
Lender and as Agent
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Sr. Vice President
LASALLE BANK NATIONAL ASSOCIATION
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
FIRST COMMONWEALTH BANK
By:/s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
▇.▇. ▇▇▇▇▇▇ Company and Subsidiaries Schedule 1.2(B) - Permitted Encumbrances
Other Debt
As of 12/31/06
Other Debt-Capital Leases Current L/T
Subledger Lessor Collateral From To Acct 2126 Acct 2902 Total
-------- --------------------------- --------------------------------- ---------- ---------- ------------ ------------ -------------
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Land and Building 3/1/2002 2/29/2012 46,884.00 244,645.00 291,529.00
Lasalle National Leasing
245 Corporation Forklift and Steamplant 11/1/2003 11/1/2008 14,805.00 11,703.00 26,508.00
248 GE Capital Savin Copier 9/14/2004 1/13/2007 223.00 0.00 223.00
Lasalle National Leasing
249 Corporation Old Grand Island Equipment 3/1/2005 2/28/2009 323,685.00 375,607.00 699,292.00
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Leasing Corp New Grand Island Equipment #1 1/5/2006 12/5/2010 1,081,610.00 3,694,029.00 4,775,639.00
251 Leaf Financial Corp Phone Systems in Houston Facility 2/28/2006 2/28/2008 4,676.00 419.00 5,095.00
252 Citizens Asset Finance Equipment at Pueblo ARP Facility 7/1/2006 2/1/2011 311,067.00 1,166,334.00 1,477,401.00
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Leasing Corp New Grand Island Equipment #2 7/1/2006 1/1/2012 178,308.00 624,027.00 802,335.00
254 Xerox Headquarters Copy Machine 10/23/2005 10/22/2009 4,385.00 8,703.00 13,088.00
255 Xerox Headquarters Copy Machine 10/17/2005 10/16/2009 3,428.00 7,669.00 11,097.00
256 Xerox Headquarters Copy Machine 10/17/2005 10/16/2009 3,933.00 8,738.00 12,671.00
LaSalle National Leasing
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ Facility Equipment 1/1/2007 6/30/2012 938,950.00 5,880,656.00 6,819,606.00
Subtotal Other Debt-Capital Leases 2,911,954.00 12,022,530.00 14,934,484.00
============ ============= =============
Other Debt-non Capital Leases
LaSalle National Leasing Advances on Equipment at Tucson,
Corporation AZ 726,270.00 0.00 726,270.00
Citizens Asset Finance - Building and Property at Pueblo
Mortgage ARP Facility 2/13/2006 3/1/2011 91,298.00 588,217.00 679,515.00
PEDFA Portion of Bedford Expansion 4/30/2002 3/31/2012 27,083.00 331,250.00 358,333.00
Massachusetts Industrial
Finance Agency Precise asset acquisition 3/20/1998 3/1/2013 0.00 2,045,000.00 2,045,000.00
MELF(Machinery and
Equipment Loan Fund) Portion of Gruelich Asset Acq 8/1/2002 7/1/2009 75,109.00 124,826.00 199,935.00
------------ ------------- -------------
Subtotal-Other Debt-non Capital Leases 919,760.00 3,089,293.00 4,009,053.00
============ ============= =============
Grand Total-Other Debt 3,831,714.00 15,111,823.00 18,943,537.00
============ ============= =============
▇.▇. ▇▇▇▇▇▇ Company
REVISED SCHEDULE 7.8 - Other Indebteness
As of 12/31/06
Other Debt-Capital Leases Current L/T
Subledger Lessor Collateral From To Acct 2126 Acct 2902 Total
-------- --------------------------- --------------------------------- ---------- ---------- ------------ ------------ -------------
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Land and Building 3/1/2002 2/29/2012 46,884.00 244,645.00 291,529.00
Lasalle National Leasing
245 Corporation Forklift and Steamplant 11/1/2003 11/1/2008 14,805.00 11,703.00 26,508.00
248 GE Capital Savin Copier 9/14/2004 1/13/2007 223.00 0.00 223.00
Lasalle National Leasing
249 Corporation Old Grand Island Equipment 3/1/2005 2/28/2009 323,685.00 375,607.00 699,292.00
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Leasing Corp New Grand Island Equipment #1 1/5/2006 12/5/2010 1,081,610.00 3,694,029.00 4,775,639.00
251 Leaf Financial Corp Phone Systems in Houston Facility 2/28/2006 2/28/2008 4,676.00 419.00 5,095.00
252 Citizens Asset Finance Equipment at Pueblo ARP Facility 7/1/2006 2/1/2011 311,067.00 1,166,334.00 1,477,401.00
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Leasing Corp New Grand Island Equipment #2 7/1/2006 1/1/2012 178,308.00 624,027.00 802,335.00
254 Xerox Headquarters Copy Machine 10/23/2005 10/22/2009 4,385.00 8,703.00 13,088.00
255 Xerox Headquarters Copy Machine 10/17/2005 10/16/2009 3,428.00 7,669.00 11,097.00
256 Xerox Headquarters Copy Machine 10/17/2005 10/16/2009 3,933.00 8,738.00 12,671.00
LaSalle National Leasing
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ Facility Equipment 1/1/2007 6/30/2012 938,950.00 5,880,656.00 6,819,606.00
Subtotal Other Debt-Capital Leases 2,911,954.00 12,022,530.00 14,934,484.00
============ ============= =============
Other Debt-non Capital Leases
LaSalle National Leasing Advances on Equipment at Tucson,
Corporation AZ 726,270.00 0.00 726,270.00
Citizens Asset Finance Building and Property at Pueblo
Mortgage ARP Facility 2/13/2006 3/1/2011 91,298.00 588,217.00 679,515.00
PEDFA Portion of Bedford Expansion 4/30/2002 3/31/2012 27,083.00 331,250.00 358,333.00
Massachusetts Industrial
Finance Agency Precise asset acquisition 3/20/1998 3/1/2013 0.00 2,045,000.00 2,045,000.00
MELF(Machinery and
Equipment Loan Fund) Portion of Gruelich Asset Acq 8/1/2002 7/1/2009 75,109.00 124,826.00 199,935.00
------------ ------------- -------------
Subtotal-Other Debt-non Capital Leases 919,760.00 3,089,293.00 4,009,053.00
============ ============= =============
Grand Total-Other Debt 3,831,714.00 15,111,823.00 18,943,537.00
============ ============= =============