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Exhibit 10.0.4
FOURTH 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,
CXT INCORPORATED,
NATMAYA, INC.,
AND
FOSMART, INC.
(BORROWERS)
July 27, 2007
<PAGE>
FOURTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AND SECURITY
AGREEMENT (the "Amendment") is made as of July 27, 2007, by and
among L. B.
FOSTER COMPANY, a corporation organized under the laws of the
State of
Pennsylvania ("Foster"), 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, a
Second Amendment thereto dated as of May 16, 2006, and a Third
Amendment thereto
dated as of February 8, 2007 (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, to provide a
new term loan facility in the principal amount of $20,000,000,
and for certain
other modifications 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 new definitions are hereby inserted in Section
1.2 of the
Agreement in alphabetical order:
"Average Excess Availability" shall mean, for any thirty
(30)
---------------------------
consecutive day period, the daily average during such period of
(a) the
lesser of (i) the Formula Amount or (ii) the Maximum Revolving
Advance
Amount, minus (b) the sum of the outstanding amount of Advances
(other
than the Term Loan), as calculated on a daily basis.
<PAGE>
"Contract Rate" shall mean, as applicable, the Revolving
-------------
Interest Rate or the Term Loan Rate.
"Fourth Amendment Effective Date" shall mean July 27, 2007.
-------------------------------
"Term Loan" shall mean the Advances made pursuant to Section
---------
2.4 hereof.
"Term Loan Rate" shall mean an interest rate per annum equal
--------------
to (a) the Alternate Base Rate minus three-quarters of one
percent
(0.75%) with respect to Domestic Rate Loans and (b) the sum of
the
Eurodollar Rate plus one and one-half percent (1.50%) with
respect to
Eurodollar Rate Loans.
"Term Note" shall mean, collectively, the promissory notes
---------
described in Section 2.4 hereof.
3. The following definitions set forth in Section 1.2 of the
Agreement are
hereby amended and restated as follows:
"Advances" shall mean and include the Revolving Advances,
--------
Acceptances and Letters of Credit, as well as the Term Loan.
"Collateral" shall mean and include:
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(a) all Receivables;
(b) all General Intangibles;
(c) all Inventory;
(d) all of each Borrower's right, title and interest in and
to
(i) all merchandise returned or rejected by Customers, relating
to or
securing any of the Receivables; (ii) all of each Borrower's
rights as
a consignor, a consignee, an unpaid vendor, mechanic, artisan,
or other
lienor, including stoppage in transit, setoff, detinue,
replevin,
reclamation and repurchase; (iii) all additional amounts due to
any
Borrower from any Customer relating to the Receivables; (iv)
warranty
claims relating to any goods securing this Agreement; (v) all of
each
Borrower's contract rights, rights of payment which have been
earned
under a contract right, instruments (including promissory
notes),
documents, chattel paper (including electronic chattel
paper),
warehouse receipts, deposit accounts, letters of credit, and
money;
(vi) all commercial tort claims (whether now existing or
hereafter
arising); (vii) if and when obtained by any Borrower, all real
and
personal property of third parties in which such Borrower has
been
granted a lien or security interest as security for the payment
or
enforcement of Receivables; and (viii) any other personal
property or
real property now owned or hereafter acquired in which any
Borrower has
expressly granted a security interest or may in the future grant
a
security interest to Agent hereunder, or in any amendment or
supplement
hereto or thereto, or under any other agreement between Agent
and any
Borrower;
<PAGE>
(e) all of each Borrower's ledger sheets, ledger cards,
files,
correspondence, records, books of account, business papers,
computers,
computer software (owned by any Borrower or in which it has
an
interest), computer programs, tapes, disks and documents
relating to
(a), (b), (c) or (d) of this Paragraph; and
(f) all proceeds and products of (a), (b), (c), (d) and (e)
in
whatever form, including, but not limited to: cash, deposit
accounts
(whether or not comprised solely of proceeds), certificates of
deposit,
insurance proceeds (including hazard, flood and credit
insurance),
negotiable instruments and other instruments for the payment of
money,
chattel paper, security agreements, documents, eminent domain
proceeds,
condemnation proceeds and tort claim proceeds.
Notwithstanding the foregoing, the Collateral expressly
excludes Equipment, Investment Property and Real Property;
provided,
however, that in the event that Average Excess Availability is
at any
time less than $10,000,000, "Collateral" shall also include
all
Equipment, provided further that, with respect to any Equipment
subject
to a mechanic's or materialmen's Lien permitted under clause (e)
of the
definition of "Permitted Encumbrances" or any Lien permitted
under
clauses (f), (h) or (i) of the definition of "Permitted
Encumbrances",
such Equipment shall not constitute part of the Collateral until
such
time as no such Permitted Encumbrance shall exist as to such
Equipment.
"Equipment" shall mean and include as to each Borrower all
of
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such Borrower's goods (other than Inventory) which are owned by
the
Borrower or are leased to the Borrower as lessee pursuant to
a
capitalized lease, whether now owned or hereafter acquired and
wherever
located including, without limitation, all equipment,
machinery,
apparatus, motor vehicles, fittings, furniture, furnishings,
fixtures,
parts, accessories and all replacements and substitutions
therefor or
accessions thereto.
"Maximum Revolving Advance Amount" shall mean $90,000,000.
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"Revolving Advances" shall mean Advances made other than
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Letters of Credit and Acceptances and the Term Loan.
"Transferee" shall have the meaning set forth in Section
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16.3(d) hereof.
"Undrawn Availability" at a particular date shall mean an
--------------------
amount equal to (a) the lesser of (i) the Formula Amount plus
the
aggregate amount of outstanding Letters of Credit and
Acceptances, or
(ii) the Maximum Revolving Advance Amount, minus (b) the sum of
(i) the
outstanding amount of Advances (other than the Term Loan) plus
(ii) all
amounts due and owing to Borrowers' trade creditors which
are
outstanding sixty (60) days or more beyond the due date, plus
(iii)
fees and expenses which are due and for which Borrowers are
liable to
Agent or Lenders but which have not been paid or charged to
Borrowers'
Account.
<PAGE>
4. 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) $60,000,000 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)."
5. Subsection 2.2(d) of the Agreement is hereby amended and
restated as
follows:
"(d) Provided that no Event of Default shall have occurred
and
be continuing, any Borrower may, on the last Business Day of the
then
current Interest Period applicable to any outstanding Eurodollar
Rate
Loan, or on any Business Day with respect to Domestic Rate
Loans,
convert any such loan into a loan of another type in the same
aggregate
principal amount provided that any conversion of a Eurodollar
Rate Loan
shall be made only on the last Business Day of the then
current
Interest Period applicable to such Eurodollar Rate Loan. If a
Borrower
desires to convert a loan, Borrowing Agent shall give Agent
prior to
12:00 noon not less than two (2) Business Days prior written
notice to
convert from a Domestic Rate Loan to a Eurodollar Rate Loan or
two (2)
Business Days prior written notice to convert from a Eurodollar
Rate
Loan to a Domestic Rate Loan, specifying the date of such
conversion,
the loans to be converted and if the conversion is from a
Domestic Rate
Loan to any other type of loan, the duration of the first
Interest
Period therefor. After giving effect to each such conversion,
there
shall not be outstanding more than seven (7) Eurodollar Rate
Loans, in
the aggregate."
<PAGE>
6. Section 2.4 of the Agreement is hereby amended and restated
as follows:
"2.4 Term Loan.
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Subject to the terms and conditions of this Agreement, each
Lender, severally and not jointly, will make a Term Loan to
Borrowers
in the sum equal to such Lender's Commitment Percentage of
$20,000,000.
The Term Loan shall be advanced on the Fourth Amendment
Effective Date
and shall be, with respect to principal, payable as follows,
subject to
acceleration upon the occurrence of an Event of Default under
this
Agreement or termination of this Agreement: monthly payments due
and
payable on the first day of each month, each such payment in the
amount
of $238,095.24, commencing September 1, 2007, and on the first
day of
each month thereafter through and including May 1, 2011, with
the
balance payable upon the expiration of the Term. The Term Loan
shall be
evidenced by one or more secured promissory notes (collectively,
the
"Term Note") in substantially the form attached hereto as
Exhibit 2.4."
7. Subsection 2.6(a) of the Agreement is hereby amended and
restated as
follows:
"(a) The Revolving Advances shall be due and payable in full
on the last day of the Term subject to earlier prepayment as
herein
provided. The Term Loan shall be due and payable as provided in
Section
2.4 hereof and in the Term Note, subject to mandatory
prepayments as
herein provided."
8. Subsection 2.10(b) of the Agreement is hereby amended and
restated as
follows:
"(b) Each Letter of Credit shall, among other things, (i)
provide for the payment of sight drafts, other written demands
for
payment, or acceptances of usance drafts when presented for
honor
thereunder in accordance with the terms thereof and when
accompanied by
the documents described therein and (ii) have an expiry date not
later
than twelve (12) months after such Letter of Credit's date of
issuance
and in no event later than the last day of the Term. Each
standby
Letter of Credit shall be subject either to the Uniform Customs
and
Practice for Documentary Credits as most recently published by
the
International Chamber of Commerce at the time a Letter of Credit
is
issued ("UCP") or the International Standby Practices
(ISP98-International Chamber of Commerce Publication Numbr 590)
("ISP98
Rules"), as determined by Agent, and each trade Letter of Credit
shall
be subject to UCP."
9. Subsections 2.20(a) and (b) of the Agreement are hereby
amended and
restated as follows:
"(a) Each borrowing of Revolving Advances shall be advanced
according to the applicable Commitment Percentages of Lenders.
The Term
Loan shall be advanced according to the Commitment Percentages
of
Lenders.
(b) Each payment (including each prepayment) by Borrowers on
account of the principal of and interest on the Revolving
Advances,
shall be applied to the Revolving Advances pro rata according to
the
applicable Commitment Percentages of Lenders. Each payment
(including
each prepayment) by any Borrower on account of the principal of
and
interest on the Term Note, shall be made from or to, or applied
to that
portion of the Term Loan evidenced by the Term Note pro rata
according
to the Commitment Percentages of Lenders. Except as expressly
provided
herein, all payments (including prepayments) to be made by any
Borrower
on account of principal, interest and fees shall be made without
set
off or counterclaim and shall be made to Agent on behalf of
Lenders to
the Payment Office, in each case on or prior to 1:00 P.M., New
York
time, in Dollars and in immediately available funds."
<PAGE>
10. Subsection 2.20(c)(ii) of the Agreement is hereby amended
and restated
as follows:
"(ii) Each Lender shall be entitled to earn interest at the
applicable Contract Rate on outstanding Advances which it has
funded."
11. Section 3.1 of the Agreement is hereby amended and
restat
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