SEVENTH 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 10.1
SEVENTH AMENDMENT TO
AMENDED AND RESTATED REVOLVING
CREDIT AND SECURITY AGREEMENT
AMENDED AND RESTATED REVOLVING
CREDIT AND SECURITY AGREEMENT
BY AND AMONG
PNC BANK, NATIONAL ASSOCIATION
(AS LENDER AND AGENT),
(AS LENDER AND AGENT),
THE LENDERS,
AND
X. X. XXXXXX COMPANY
AND
CXT INCORPORATED,
(BORROWERS)
AND
CXT INCORPORATED,
(BORROWERS)
December 17, 2010
SEVENTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT SECURITY AGREEMENT
REVOLVING CREDIT SECURITY AGREEMENT
THIS SEVENTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT (the
“Amendment”) is made as of December 17, 2010, 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”).
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,
a Fifth Amendment thereto dated as of March 4, 2009, and a Sixth Amendment thereto dated as of
November 24, 2009 (as amended from time to time, the “Agreement”).
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:
“Domestic Subsidiary” shall mean any Subsidiary organized under the laws of the
United States or any state thereof.
“Xxxxxx Xxxxxx” shall mean Xxxxxx Xxxxxx Company, a West Virginia corporation
and wholly owned Subsidiary of Xxxxxx.
“Portec” shall mean Portec Rail Products, Inc., a West Virginia corporation.
“Portec Acquisition” shall mean the acquisition of ownership interests of
Portec pursuant to the Portec Acquisition Agreement.
“Portec Acquisition Agreement” shall mean that certain Agreement and Plan of
Merger dated February 16, 2010, among Portec, Xxxxxx and Xxxxxx Xxxxxx, as the same may be
amended prior to the Seventh Amendment Effective Date.
“Portec Rail Joint Division Sale” shall mean the sale by Portec to Koppers Inc.
or an affiliate of Koppers Inc. of the rail joint division of Portec pursuant to the Portec
Rail Joint Division Sales Agreement.
“Portec Rail Joint Division Sales Agreement” shall mean that certain Asset
Purchase Agreement dated as of December 15, 2010, between Portec, as seller, Koppers Inc.,
as purchaser, and Xxxxxx, as the same may be amended prior to the Seventh Amendment
Effective Date.
“Seventh Amendment Effective Date” shall mean December 17, 2010.
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 (i) prior to such time as Portec
and its Domestic Subsidiaries join this Agreement as additional Borrowers, or are required
by the terms of this Agreement to join as additional Borrowers, Xxxxxx, Xxxxxx Xxxxxx and
CXT, and (ii) at such time as Portec and its Domestic Subsidiaries join this Agreement as
additional Borrowers, or are required by the terms of this Agreement to join as additional
Borrowers, Xxxxxx, CXT, Xxxxxx Xxxxxx, Portec and the Domestic Subsidiaries of Portec.
“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) all
transactional costs and expenses related to the Portec Acquisition, plus (f) 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 (g) 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.
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“Fixed Charges” shall mean for any period the sum of 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 on a consolidated basis 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 of the Agreement is hereby amended and restated as follows:
“(a) Enter into any merger, consolidation or other reorganization with or into any other
Person or acquire all or substantially all of the assets, division, business, stock or other
ownership interests of any Person or permit any other Person to consolidate with or merge with it;
provided however, (i) Natmaya and/or Fosmart may be dissolved, (ii) Borrowers may exercise any
warrants to obtain stock of DM&E so long as the aggregate amount of funds required to exercise such
warrants does not exceed $500,000, (iii) Natmaya and/or Fosmart may be merged with and into Xxxxxx
so long as Xxxxxx is the surviving corporation, and (iv) Xxxxxx may purchase or acquire the assets
or stock of any Person (a “Permitted Acquisition”) if all of the following requirements are met in
connection with such acquisition:
(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;
(C) the board of directors or other equivalent governing body of such Person shall have
approved such Permitted Acquisition;
(D) the business acquired, or the business conducted by the Person whose ownership interests
are being acquired, as applicable, shall be substantially the same as or related to (in a
commercially reasonable manner) one or more line or lines of business conducted by the Borrowers as
described in Section 5.22, and the business shall be located in the United States;
(E) no Default or Event of Default shall exist immediately prior to and after giving effect to
such Permitted Acquisition;
(F) prior to and after giving effect to such Permitted Acquisition (including the payment of
any prospective portion of the purchase price or earn-outs), the Borrowers shall have a Fixed
Charge Coverage Ratio, calculated on a pro forma basis for the most recent 12 months and giving
effect to such Permitted Acquisition, of not less than 1.15 to 1.00;
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(G) prior to and after giving effect to such Permitted Acquisition (including the payment of
any prospective portion of the purchase price or earn-outs), the Borrowers shall meet the Minimum
Availability Threshold; and
(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
(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.
Notwithstanding the foregoing, the Borrowers may acquire the capital stock of Portec subject
to the following conditions, and upon the occurrence of such conditions, the Lenders shall be
deemed to have waived any Default or Event of Default resulting from such acquisition having
occurred prior to the Seventh Amendment Effective Date:
(x) Xxxxxx Xxxxxx shall acquire the capital stock of Portec in accordance with the terms of the
Portec Acquisition Agreement, and the aggregate Consideration in the form of cash or cash
equivalents plus transactional costs paid by the Borrowers for the Portec Acquisition shall not
exceed $125,000,000. For purposes of calculating the aggregate Consideration, in the event that
the Portec Rail Joint Division Sale is completed within seven days after consummation of the Portec
Acquisition, the sales price for the Portec Rail Joint Division Sale shall be subtracted from the
total Consideration of the Portec Acquisition;
(y) On the Seventh Amendment Effective Date, Xxxxxx Xxxxxx shall join as an additional Borrower
under the Agreement and 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 shall cause the Lien of the Agent to be a
first priority, perfected security interest;
(z) Portec and its Domestic Subsidiaries shall become Borrowers on the earliest to occur of the
following: (i) the Borrowers have outstanding Advances in excess of $35,000,000 or make a request
for an Advance which would cause outstanding Advances to exceed $35,000,000, (ii) the aggregate
amount of advances and investments made by the Borrowers in Portec and/or its Subsidiaries
(excluding the cash and cash equivalent Consideration referenced above) exceeds $20,000,000 and the
Borrower has outstanding Advances in excess of $20,000,000, and (iii) the date which is the six
month anniversary of the date upon which the Borrowers have direct or indirect ownership of a
majority of the outstanding capital stock of Portec. At the time Portec and its Domestic
Subsidiaries become Borrowers, Portec and each of its Domestic Subsidiaries shall execute and
deliver to the Agent (A) the documents required under Section 7.1(a), (B) the
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documents required under the Borrower Joinder and Assumption Agreement executed and delivered by
Portec and each of its Domestic Subsidiaries, and (C) updated disclosure schedules to this
Agreement, each of the foregoing to be in form and substance satisfactory to the Agent.
(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, (x) a sale by Portec of its rail joint division (following consummation of the
Portec Acquisition) is permitted and shall not constitute a disposition of assets by the Borrowers
for purposes of reducing the limitation of $15,000,000 limitation set forth in part (iv) above, and
(y) 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.”
5. 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)), (d) loans advanced by one
Borrower to another Borrower, and (e) subject to the provisions set forth in Section 7.1(a),
loans to Portec and its Subsidiaries.”
6. Section 7.10 of the Agreement is hereby amended and restated as follows:
“7.10 Transactions with Affiliates.
Directly or indirectly, purchase, acquire or lease any property from, or sell, transfer
or lease any property to, or otherwise deal with, any Affiliate (other than a Borrower),
except (i) transactions in the ordinary course of business, on an arm’s-length basis on
terms no less favorable than terms which would have been obtainable from a Person other than
an Affiliate, and (ii) transactions with Portec and its Subsidiaries subject to the
requirements set forth in Section 7.1(a) with respect to the joinder of Portec and its
Domestic Subsidiaries as Borrowers.”
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7. Section 7.12(a) of the Agreement is hereby amended and restated as follows:
“(a) Except as otherwise set forth in Section 7.1(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 this Agreement as Borrowers, (B) Foreign
Subsidiaries of Portec shall not be required to join in this agreement as a Borrower or
Guarantor; provided however, that in the event that Portec and its Domestic Subsidiaries
become Borrowers hereunder, the Borrowers shall cause to be pledged to the Agent sixty-five
percent (65%) of the outstanding ownership interests of the first-tier Foreign Subsidiaries
of Portec and its Domestic Subsidiaries, and (C) 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.”
8. Update to Schedules. Schedules 4.15(c) [Location of Executive Offices], 5.2(a)
[States of Qualification and Good Standing], 5.2(b) [Subsidiaries], and 5.4 [Federal Tax
Identification Number] are hereby amended and restated as set forth on the corresponding schedules
attached to this Amendment.
9. Amendment Fee. The Borrowers shall pay the Agent, for the ratable account of each
Lender, and amendment fee in the amount of 10 basis points of the sum of the aggregate commitments
for Revolving Advances and the principal balance outstanding on the Term Loan on the date hereof,
which fee shall be deemed to be earned as of the date of 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.
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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 Seventh 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 Borrower Joinder and related Other
Documents by Xxxxxx Xxxxxx as required under Section 7.1(a), in form and content
satisfactory to the Agent,
(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, as well as certification with respect to the resolutions of
each such Borrower’s board of directors with respect to this Amendment,
(iv) receipt by the Administrative Agent of true and correct copies of the Portec
Acquisition Agreement and the Portec Rail Joint Division Sales Agreement; and
(v) the Borrowers’ payment to the Agent of all fees and expenses required in
connection with this Amendment.
[SIGNATURE PAGES FOLLOW]
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[SIGNATURE PAGE 1 OF 2 TO SEVENTH AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
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: | X. X. XXXXXX COMPANY | |||||||
| /s/ Xxxxxxxxxxx X. Xxxxxxxx | By: | /s/ Xxxxx X. Xxxxx [Seal] | ||||||
XXXXXXXXXXX X. XXXXXXXX
|
Name: | Xxxxx X. Xxxxx | ||||||
ASSISTANT TREASURER
|
Title: | Senior Vice President, Chief Financial Officer, and Treasurer | ||||||
| ATTEST: | CXT INCORPORATED | |||||||
| /s/ Xxxxxxxxxxx X. Xxxxxxxx | By: | /s/ Xxxxx X. Xxxxx [Seal] | ||||||
XXXXXXXXXXX X. XXXXXXXX
|
Name: | Xxxxx X. Xxxxx | ||||||
ASSISTANT TREASURER
|
Title: | Senior Vice President, Chief Financial Officer, and Treasurer | ||||||
[SIGNATURE PAGE 2 OF 2 TO SEVENTH AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
| PNC BANK, NATIONAL ASSOCIATION, a national banking
association, as Lender and as Agent |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| BANK OF AMERICA, N.A. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| FIRST COMMONWEALTH BANK |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[SIGNATURE PAGE 2 OF 2 TO SEVENTH AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
| PNC BANK, NATIONAL ASSOCIATION, a national banking
association, as Lender and as Agent |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| BANK OF AMERICA, N.A. |
||||
| By: | /s/ Xxxxxxxxx Xxxxxx | |||
| Name: | Xxxxxxxxx Xxxxxx | |||
| Title: | SVP | |||
| FIRST COMMONWEALTH BANK |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[SIGNATURE PAGE 2 OF 2 TO SEVENTH AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
| PNC BANK, NATIONAL ASSOCIATION, a national banking
association, as Lender and as Agent |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| BANK OF AMERICA, N.A. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| FIRST COMMONWEALTH BANK |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
X. X. Xxxxxx Company
Schedule 4.15 (c)
Executive Offices of Borrowers
Executive Offices of Borrowers
| X. X. Xxxxxx Company | CXT, Incorporated | |
| 000 Xxxxxxx Xxxxx | 0000 Xxxxx Xxxxxxx Xxxx | |
| Xxxxxxxxxx, Xxxxxxxxxxxx 00000 | Xxxxxxx, Xxxxxxxxxx 00000 | |
| Xxxxxx Xxxxxx Company | ||
| 000 Xxxxxxx Xxxxx | ||
| Xxxxxxxxxx, XX 00000 |
Schedule 5.2(a)
States Authorized to do Business
States Authorized to do Business
X. X. Xxxxxx Company
| AL | AK | AZ | CA | CO | DE | FL | GA | HI | ID | |||||||||
| IL | IN | IA | KS | KY | LA | MD | MA | MI | MN | |||||||||
| MO | MT | NE | NJ | NM | NY | NC | ND | OH | OK | |||||||||
| OE | PA* | RI | TN | TX | UT | VT | VA | WA | WV |
CXT Incorporated
| AZ | CA | DE* | ID | NE | OR | TX | UT | WA |
Xxxxxx Xxxxxx Company
WV*
(*State of Incorporation)
SCHEDULE 5.2(b)
X. X. Xxxxxx Company has the following subsidiaries:
CXT Incorporated, a Delaware corporation
Portec Rail Products, Inc., a West Virginia corporation
Xxxxxx Xxxxxx Company, a West Virginia corporation
Coal Train Holdings, Inc., a Delaware corporation
X. X. Xxxxxx Company
Schedule 5.4
Schedule 5.4
Tax Identification Numbers
| NAME | FEIN | STATE OF INCORPORATION | ||
CXT, Incorporated
|
00-0000000 | Delaware | ||
X. X. Xxxxxx Company
|
00-0000000 | Pennsylvania | ||
Xxxxxx Xxxxxx Company
|
00-0000000 | West Virginia |