SIXTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT BY AND AMONG PNC BANK, NATIONAL ASSOCIATION (AS LENDER AND AGENT), THE LENDERS, AND
Exhibit
10.0.6
SIXTH
AMENDMENT TO
AMENDED
AND RESTATED REVOLVING
CREDIT
AND SECURITY AGREEMENT
BY AND
AMONG
PNC BANK,
NATIONAL ASSOCIATION
(AS
LENDER AND AGENT),
THE
LENDERS,
AND
X. X.
XXXXXX COMPANY
AND
CXT
INCORPORATED,
(BORROWERS)
November
24, 2009
SIXTH
AMENDMENT TO AMENDED AND RESTATED
REVOLVING
CREDIT SECURITY AGREEMENT
THIS
SIXTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT
(the "Amendment") is made as of November 24, 2009, by and among X. X. XXXXXX
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. ("Xxxxxx") 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, a Fourth Amendment dated as of July 27, 2007, and a Fifth
Amendment thereto dated as of March 4, 2009 (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:
"Foreign Subsidiary"
shall mean any Subsidiary not organized under the laws of the United States or
any state thereof.
"Sixth Amendment Effective
Date" shall mean November 24, 2009.
3. The
following definition set forth in Section 1.2 of the Agreement is hereby amended
and restated as follows:
"Fixed Charges" shall
mean for any period the sum of Borrowers' consolidated cash interest expense,
scheduled 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.
4. Section
7.1(a)(A), (B) and (H) of the Agreement is hereby amended and restated as
follows:
"(A) if
Xxxxxx is acquiring the ownership interests in such Person and such Person is
not a Foreign Subsidiary, then such Person shall join this Agreement as a
Borrower or become a Guarantor for the Obligations as determined by the
Agent;"
"(B) in
the case of a stock or other ownership purchase, the Person acquired by Xxxxxx,
if such Person is not a Foreign Subsidiary, shall grant Liens in its assets to
the Agent for the benefit of the Lenders covering the same type of assets as the
Collateral, and in the case any of both a stock or other ownership purchase or
an asset purchase, Xxxxxx shall cause the Lien of the Agent to be a first
priority, perfected security interest;"
"(H) the
aggregate Consideration paid by Xxxxxx 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, of which aggregate amount not more than $15,000,000
shall be used for Permitted Acquisitions of, or advances to, Foreign
Subsidiaries. In addition, at such time as the aggregate
Consideration paid by Xxxxxx 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"
5. Section
7.1(b) of the Agreement is hereby amended and restated as follows:
"(b) Sell,
lease, transfer or otherwise dispose of any of its properties or assets, except
(i) the sale of Inventory in the ordinary course of its business,
(ii) the sale, disposition or transfer of any assets or Real Property
located at Xxxxxx'x Doraville, Georgia facility, or its Xxxxxxxxx Road, Texas
property (iii) the sale of any securities issued by DM&E to Xxxxxx
and/or Natmaya, and (iv) other sales or dispositions not in excess of
$15,000,000 in the aggregate; provided however, that in the event of the sale by
Borrowers of any Receivables or Inventory, the Borrowers shall receive cash or
cash equivalent proceeds in an amount equal to or greater than that portion of
the Formula Amount based upon such Receivables and Inventory prior to such
sale."
6. Section
7.4 of the Agreement is hereby amended and restated as follows:
"7.4 Investments.
Except as
otherwise permitted under Section 7.1 and Section 7.12, purchase or acquire
obligations or stock of, or any other interest in, any Person, except (a)
investments in the percentages permitted under the Borrowers' investment policy
in U.S. Treasury bills, notes, bonds and strips, U.S. Government Agencies (FFCB,
FHLB, FHLMC and FNMA), certificates of deposit or banker's acceptances in a
domestic bank, domestic corporate bonds, master notes or commercial paper,
variable rate demand obligations, money market funds, municipal bonds and notes
and auction market preferred securities, provided that each of the foregoing
investments (other than the certificates of deposit) shall meet the criteria for
Investment Quality, (b) 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 (c) equity
investments in other corporations not in excess of ten percent (10%) of the
aggregate ownership interests of any such corporation, provided that immediately
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."
7. Section
7.5 of the Agreement is hereby amended and restated as follows:
"7.5 Loans.
Except as
set forth on Schedule 7.5, make advances, loans or extensions of credit to any
Person, including without limitation, any Parent, Subsidiary or Affiliate except
with respect to (a) advances, loans or extensions of commercial trade
credit in connection with the sale of Inventory in the ordinary course of its
business, (b) advances, loans or extensions of credit to its employees in
the ordinary course of business not to exceed the aggregate amount of $1,000,000
at any time outstanding, (c) advances, loans or extensions of credit which,
when aggregated with the loans set forth on Schedule 7.5 and the guarantees
permitted under Section 7.3(b), do not exceed $4,000,000 in the aggregate
at any one time (excluding any advances made pursuant to Section 7.1(a)(H)), and
(d) loans advanced by one Borrower to another Borrower."
8. Section
7.12(a) of the Agreement is hereby amended and restated as follows:
"(a) Form
any Subsidiary unless (i) such Subsidiary takes all actions necessary to
join in this Agreement as a borrower and becomes jointly and severally liable
for the obligations of Borrowers hereunder, under the Revolving Credit Note, and
under any other agreement between any Borrower and Lenders, and (ii) Agent
shall have received all documents, including legal opinions, it may reasonably
require to establish compliance with each of the foregoing
conditions. Notwithstanding the foregoing: (A) Foreign Subsidiaries
acquired in a Permitted Acquisition pursuant to Section 7.1(a)(H) shall not be
required to join in this agreement as a Borrower or Guarantor, and (B) Coal
Train Holdings shall not be required to join this Agreement as a Borrower nor
provide the documents referenced above, so long as (x) the Borrowers do not
contribute in any fiscal year more than $100,000 to Coal Train Holdings and no
such contributions are made if there exists a Default or an Event of Default,
and (y) Coal Train Holdings has at all times a net worth and assets (valued at
market value) each less than $50,000. Any distributions or other
payments received by Coal Train Holdings from its prior ownership interest in
DM&E shall not be included in the calculation of its net worth or asset
valuation if such distributions and payments are further distributed to Xxxxxx
within 30 days after their receipt by Coal Train Holdings."
9. Schedule
Update. Schedule 5.2(b)
[Subsidiaries] to the Agreement is hereby amended and restated as set forth in
Schedule 5.2(b)
attached to this Amendment.
10. 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.
11. 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.
12. 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.
13. 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.
14. Effective
Date. This Amendment shall be effective on the Sixth Amendment
Effective Date upon the occurrence of all the following conditions:
(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 of a certificate of the secretary or an
assistant secretary of each Borrower, including incumbency of the officers
signing this Amendment, as well as certification with respect to the resolutions
of each such Borrower's board of directors with respect to this
Amendment,
(iii) the
Borrowers' payment to the Agent of all fees and expenses required in connection
with this Amendment.
[SIGNATURE PAGES FOLLOW]
[SIGNATURE
PAGE 1 OF 2 TO SIXTH 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.
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ATTEST:
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X.
X. XXXXXX COMPANY
|
/s/ Xxxxx X.
Xxxxx By:/s/ Xxxxx X.
Xxxxx[Seal]
Name:Xxxxx X.
Xxxxx
Title:Senior V.P., CFO &
Treasurer
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ATTEST:
|
CXT
INCORPORATED
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/s/ Xxxxx X.
Xxxxx By:/s/ Xxxxx X.
Xxxxx[Seal]
Name:Xxxxx X.
Xxxxx
Title:Senior V.P., CFO &
Treasurer
[SIGNATURE
PAGE 2 OF 2 TO SIXTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND
SECURITY AGREEMENT]
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PNC
BANK, NATIONAL ASSOCIATION, a national banking association, as Lender and
as Agent
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By: /s/ Xxxxx X.
Xxxxxx
Name: Xxxxx X.
Xxxxxx
Title: Vice
President
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BANK
OF AMERICA, N.A.
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By: /s/ Xxxxxxxxx
Xxxxxx
Name: Xxxxxxxxx
Xxxxxx
Title: Senior Vice
President
|
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FIRST
COMMONWEALTH BANK
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By: /s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx X.
Xxxxxxx
Title: Vice
President
SCHEDULE
5.2(b)
X. X.
Xxxxxx Company, as of November 16, 2009, has the following
subsidiaries:
CXT
Incorporated - a Delaware corporation
Coal
Train Holdings, LLC – a Delaware corporation
