Exhibit 4.0.5
THIRD AMENDMENT TO
REVOLVING CREDIT AND SECURITY AGREEMENT
BY AND AMONG
PNC BANK, NATIONAL ASSOCIATION
(AS LENDER AND AGENT),
THE LENDERS,
AND
X. X. XXXXXX COMPANY,
CXT INCORPORATED,
NATMAYA, INC.,
AND
FOSMART, INC.
(BORROWERS)
January 28, 2005
THIRD AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT (the
"Amendment") is made as of January 28, 2005, by and among X. X. XXXXXX COMPANY,
a corporation organized under the laws of the State of Pennsylvania ("Xxxxxx"),
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 Revolving Credit and Security Agreement dated as of September 26, 2002,
as amended by a First Amendment thereto dated as of September 8, 2003, and a
Second Amendment thereto dated as of January 28, 2005 (as amended from time to
time, the "Agreement").
WHEREAS, the Borrowers have requested the Lenders to extend the term of
the revolving credit facility 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. Section 13.1 of the Agreement is hereby amended and restated as follows:
"13.1 Term.
This Agreement, which shall inure to the benefit of and shall be
binding upon the respective successors and permitted assigns of each Borrower,
Agent and each Lender, shall become effective on the date hereof and shall
continue in full force and effect until April 8, 2006 (the "Term") unless sooner
terminated as herein provided. Borrowers may terminate this Agreement at any
time upon ninety (90) days' prior written notice upon payment in full of the
Obligations."
3. Representations. The Borrowers each represent and warrant 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.
The Borrowers each represent and warrant that no Default or Event of Default
exists under the Credit Agreement or shall result from the execution and
delivery of this Amendment.
4. 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.
5. 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.
6. Counterparts; Effective Date. 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. This Amendment shall become effective as of the date first above
written upon its execution and delivery by the Borrowers and the Lenders.
[SIGNATURE PAGES FOLLOW]
[SIGNATURE PAGE 1 OF 2 TO THIRD AMENDMENT TO
REVOLVING CREDIT AND SECURITY AGREEMENT]
Intending to be legally bound, each of the parties has signed this
Third Amendment to Revolving Credit and Security Agreement as of the day and
year first above written.
ATTEST: X. X. XXXXXX COMPANY
By: /s/ Xxxxx X. Xxxxx [Seal]
-------------------------- -------------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------------
Title: Senior Vice President and CFO
---------------------------------------
ATTEST: CXT INCORPORATED
By: /s/ Xxxxx X. Xxxxx [Seal]
-------------------------- -------------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------------
Title: Senior Vice President and CFO
----------------------------------------
ATTEST: NATMAYA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx [Seal]
-------------------------- -----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
-----------------------------------------
Title: President
----------------------------------------
ATTEST: FOSMART, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx [Seal]
-------------------------- --------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
----------------------------------------
Title: President
---------------------------------------
- 1 -
[SIGNATURE PAGE 2 OF 2 TO THIRD AMENDMENT TO
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
----------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By:/s/ Xxxxxx X. Xxxx
------------------------------------
Name:Xxxxxx X. Xxxx
----------------------------------
Title:Senior Vice President
---------------------------------
FIRST COMMONWEALTH BANK
By:/s/ Xxxx X. Oris
------------------------------------
Name:Xxxx X. Oris
----------------------------------
Title: S.V.P.
---------------------------------
