Exhibit 10.0.1
FIRST 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)
September 13, 2005
FIRST AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT SECURITY AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY
AGREEMENT (the "Amendment") is made as of September 13, 2005, 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 from time to time, the "Agreement").
WHEREAS, the Borrowers have requested the Lenders to increase the revolving
credit commitments available to the Borrowers under the Agreement and for
certain other modifications.
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 definition set forth in Section 1.2 of the Agreement is
hereby amended and restated as follows:
"Maximum Revolving Advance Amount" shall mean $75,000,000.
3. Subsection 2.1(a) of the Agreement is hereby amended and restated as
follows:
"(a) Revolving Advances. Subject to the terms and conditions set forth
in this Agreement including, without limitation, Section 16.2, each Lender,
severally and not jointly, will make Revolving Advances to Borrowers in
aggregate amounts outstanding at any time equal to such Lender's Commitment
Percentage of the lesser of (x) the Maximum Revolving Advance
Amount less the aggregate amount of outstanding Letters of Credit and
Acceptances or (y) an amount equal to the sum of:
(i) up to 85%, subject to the provisions of Section 2.1(c)
hereof ("Receivables Advance Rate"), of Eligible Receivables, plus
(ii) up to the lesser of (A) 60%, subject to the provisions of
Section 2.1(c) hereof ("Inventory Advance Rate"), of the value of the Eligible
Inventory (the Receivables Advance Rate and the Inventory Advance Rate shall be
referred to collectively, as the "Advance Rates") or (B) $45,000,000 in the
aggregate at any one time, minus
(iii) the aggregate amount of outstanding Letters of Credit
and Acceptances, minus
(iv) such reserves as Agent may reasonably deem proper and
necessary from time to time.
The amount derived from the sum of (a) Sections 2.1(a)(y)(i) and (ii)
minus (b) Section 2.1 (a)(y)(iii) and (iv) at any time and from time to time
shall be referred to as the "Formula Amount". The Revolving Advances shall be
evidenced by one or more secured promissory notes (collectively, the "Revolving
Credit Note") substantially in the form attached hereto as Exhibit 2.1(a)."
4. 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.
5. 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. All Collateral which secures the Obligations
shall continue to secure the Obligations, as such Obligations may be increased
pursuant to the terms of this Amendment.
6. 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.
7. 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.
8. Effective Date. This Amendment shall be effective upon (i) the execution
and delivery to the Agent of this Amendment by the Borrowers and the Lenders,
(ii) the execution and delivery to the Agent and Lenders of replacement
Revolving Credit Notes in favor of the
Lenders representing the amount of each Lender's Commitment Percentage of the
increased Maximum Revolving Advance Amount, (iii) the execution and delivery to
the Agent of a certificate of the secretary or an assistant secretary of each
Borrower, including incumbency of the officers signing this Amendment and the
Revolving Credit Notes, as well as certification with respect to the resolutions
of each such Borrower's board of directors with respect to this Amendment, (iv)
delivery of an opinion of counsel of the Borrowers with respect to the due
authorization, execution and delivery of this Amendment and the Revolving Credit
Notes and such other matters as required by the Agent, and (v) the Borrowers'
payment to the Agent, for itself and the benefit of the Lenders, of all fees and
expenses required in connection with this Amendment.
[SIGNATURE PAGES FOLLOW]
[SIGNATURE PAGE 1 OF 2 TO FIRST AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
Intending to be legally bound, each of the parties has signed this First
Amendment to Amended and Restated Revolving Credit and Security Agreement as of
the day and year first above written.
ATTEST: ▇. ▇. ▇▇▇▇▇▇ COMPANY
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇ By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇ [Seal]
----------------- ----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: Senior V.P. and CFO
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ATTEST: CXT INCORPORATED
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇ By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇ [Seal]
----------------- ----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: Senior V.P. and CFO
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ATTEST: NATMAYA, INC.
/s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By:/s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ [Seal]
------------------ ----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Title: President
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ATTEST: FOSMART, INC.
/s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By:/s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ [Seal]
------------------ ----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Title: President
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[SIGNATURE PAGE 2 OF 2 TO FIRST 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: Vice President
----------------------
LASALLE BANK NATIONAL ASSOCIATION
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: First Vice President
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FIRST COMMONWEALTH BANK
By:/s/ ▇▇▇▇ ▇. Oris
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Name: ▇▇▇▇ ▇. Oris
----------------------------
Title: S.V.P.
---------------------------