Exhibit 10.0.5
Execution Copy
FIFTH AMENDMENT TO
AMENDED AND RESTATED REVOLVING
CREDIT AND SECURITY AGREEMENT
BY AND AMONG
PNC BANK, NATIONAL ASSOCIATION
(AS LENDER AND AGENT),
THE LENDERS,
AND
L. B. FOSTER COMPANY
AND
CXT INCORPORATED,
(BORROWERS)
March 4, 2009
Effective as of December 31, 2008
FIFTH AMENDMENT TO AMENDED AND
RESTATED
REVOLVING CREDIT SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT (the
“Amendment”) is made as of March 4, 2009,
effective as of December 31, 2008, by and among L. B. FOSTER
COMPANY, a corporation organized under the laws of the State of
Pennsylvania, for itself and as successor by merger to Natmaya,
Inc. and Fosmart, Inc. (“ Foster ”) and CXT
INCORPORATED, a corporation organized under the laws of the State
of Delaware (“ CXT ”)(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, a Second Amendment thereto dated as of
May 16, 2006, a Third Amendment thereto dated as of
February 8, 2007, and a Fourth Amendment dated as of
July 27, 2007 (as amended from time to time, the “
Agreement ”).
WHEREAS, the Borrowers
have requested the Lenders to modify certain terms and covenants
set forth in 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
new definitions are hereby inserted in Section 1.2 of the
Agreement in alphabetical order:
“ Coal
Train ” shall mean Coal Train Holdings,
Inc., a corporation organized under the laws of the State of
Delaware and a wholly-owned Subsidiary of Foster.
“
Consideration ” shall mean with respect to any
Permitted Acquisition, the aggregate of (i) the cash paid by
the Borrowers or any of their Subsidiaries, directly or indirectly,
to the seller in connection therewith, (ii) the Indebtedness
incurred or assumed by Borrowers or any of their Subsidiaries,
whether in favor of the seller or otherwise, (iii) any
guaranty given or incurred by the Borrowers or any of their
Subsidiaries in connection therewith, and (iv) any capital
stock other consideration given or obligations incurred by the
Borrowers or any of their Subsidiaries in connection
therewith.
“ Exclusion
Standards ” shall mean (i) the aggregate
amount of outstanding Revolving Advances does not exceed
$20,000,000, and (ii) the Borrowers have Undrawn Availability
of not less than $50,000,000.
“ Fifth
Amendment Effective Date ” shall mean December 31,
2008.
“ Investment
Quality ” shall mean instruments which meet or
exceed at least one of the published credit ratings listed below
(or other comparable credit ratings by other nationally known
rating agencies) at the time of purchase by the
Borrowers:
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Short
Term
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Long
Term
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Taxable
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Tax
Exempt
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Taxable
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Tax
Exempt
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A-1
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P1
/ SP-1
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A /
AA / AAA
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A /
AA / AAA
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P-1
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VMig1/ VMig1
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A /
Aa / Aaa
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A /
Aa/ Aaa
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3. The following
definitions set forth in Section 1.2 of the Agreement are
hereby amended and restated as follows:
“ Borrowers
on a consolidated basis ” shall mean Foster and
CXT.
“ Earnings
Before Interest and Taxes ” shall mean for any period the sum of
(a) net income (or loss) of Borrowers on a consolidated basis
for such period, plus non-operating and non-recurring items such
as, but not limited to extraordinary items and cumulative changes
in accounting principles, plus (b) all interest expense of
Borrowers on a consolidated basis for such period, plus
(c) all charges against income of Borrowers on a consolidated
basis for such period for federal, state and local taxes, plus
(d) non-cash expenses in connection with Borrowers’
employee stock option plan, plus (e) commencing with the
fiscal year ended December 31, 2008 and each period
thereafter, all charges for such period attributable to the
Borrowers’ last-in, first-out (“LIFO”) accounting
for Inventory, minus (f) commencing with the fiscal year ended
December 31, 2008 and each period thereafter, all credits for
such period attributable to the Borrowers’ LIFO accounting
for Inventory.
“ Fixed
Charges ” shall mean for any period the sum of
Borrowers’ consolidated cash interest expense, principal
payments (excluding Advances) with respect to Indebtedness for
borrowed money and capital leases and dividends, distributions and
redemptions permitted under Section 7.7, all the foregoing of
Borrowers as determined and consolidated in accordance with GAAP.
Notwithstanding the foregoing, all cash dividends, distributions
and redemptions permitted under Section 7.7 which are paid in
cash at a time during which all Exclusion Standards are met shall
be excluded from the calculation of Fixed Charges for such period
and all subsequent periods.
“ Fixed
Charge Coverage Ratio ” shall mean and include, with respect
to any period, the ratio of (a) EBITDA plus non-cash charges,
minus noncash income, minus Net Capital Expenditures, minus
Permitted Acquisition Financing minus taxes actually paid by
Borrowers on a consolidated basis to (b) Fixed Charges, in the
case of each of the foregoing during such period. Notwithstanding
the foregoing, Net Capital Expenditures which are paid in cash at a
time during which all Exclusion Standards are met shall be excluded
from the calculation of the Fixed Charge Coverage Ratio for such
period and all subsequent periods.
4. Section 6.5
of the Agreement is hereby amended and restated as
follows:
Maintain at all times a
Net Worth in an amount not less than
$150,000,000.”
5. Section 7.1(H) of the
Agreement is hereby amended and restated as follows:
‘‘(H) the
aggregate Consideration paid by Foster for all such Permitted
Acquisitions, when aggregated with the amount invested by the
Borrowers in joint ventures permitted under Section 7.12(b),
shall not exceed $50,000,000 in the aggregate during the remaining
Term from and after the First Amendment Effective Date, as such
amount is increased by Net Proceeds of Significant Asset Sales from
and after the First Amendment Effective Date. In addition, at such
time as the aggregate Consideration paid by Foster for all such
Permitted Acquisitions, when aggregated with the amount invested by
the Borrowers in joint ventures permitted under
Section 7.12(b), exceeds $30,000,000, no additional Revolving
Advances shall be incurred in connection with any additional
Permitted Acquisition; and.”
6. The following
new Section 7.1(I) is hereby inserted in the Agreement
immediately following Section 7.1(H):
‘‘(I) in the
case of a stock or other ownership purchase, the Person acquired
shall have positive earnings before interests, taxes, depreciation
and amortization (as determined in accordance with GAAP) for the
most recent 12 months preceding such Permitted
Acquisition.”
7. Section 7.4
of the Agreement is hereby amended and restated as
follows:
Except as otherwise
permitted under Section 7.1 and Section 7.12(b), purchase
or acquire obligations or stock of, or any other interest in, any
Person
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