Exhibit 4.0.4
SECOND 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
SECOND AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT
THIS SECOND 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, (as amended
from time to time, the "Agreement").
WHEREAS, the Borrowers have requested the Lenders to amend the agreement in
connection with certain transactions relating to Marquo Inc., a supplier and
contractor to the Geotech Division of Xxxxxx.
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.
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Defined terms used herein shall have the meanings given to them in the
Agreement.
2. The following new definition is hereby inserted in Section 1.2 of
the Agreement in alphabetical order:
"Marquo" shall mean Marquo Inc., a corporation incorporated under the
laws of the state of Colorado.
3. Section 2.9 of the Agreement is hereby amended and restated as
follows:
"2.9 Letters of Credit and Acceptances.
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Subject to the terms and conditions hereof, Agent shall (a) issue or
cause the issuance of standby and documentary (trade) Letters of Credit
("Letters of Credit") on behalf of any Borrower, or (b) accept, or cause to be
accepted Acceptances; provided, however, that Agent will not be required to
issue or cause to be issued any Letters of Credit or accept or cause to be
accepted any Acceptances to the extent that the face amount of such Letters of
Credit and Acceptances would then cause the sum of (i) the outstanding Revolving
Advances plus (ii) outstanding Letters of Credit plus (iii) outstanding
Acceptances to exceed the lesser of (x) the Maximum Revolving Advance Amount or
(y) the Formula Amount. The maximum amount of outstanding Letters of Credit and
Acceptances shall not exceed $15,000,000 in the aggregate at any time. All
disbursements or payments related to Letters of Credit and Acceptances shall be
deemed to be Domestic Rate Loans consisting of Revolving Advances and shall bear
interest at the Revolving Interest Rate for Domestic Rate Loans; Letters of
Credit that have not been drawn upon shall not bear interest. That certain
Irrevocable Letter of Credit No. S247285NJY dated April 10, 2002, in the amount
of $409,863.01 issued for the benefit of X. X. Xxxxxx Trust Company, National
Association, as Trustee, shall from and after the Closing Date be deemed to be
issued pursuant to this Agreement, including without limitation, Sections 2.9,
2.10, 2.11 and 3.2, and this Agreement shall amend and restate the provisions of
that certain Reimbursement, Credit and Security Agreement dated as of April 1,
2002, between Xxxxxx and PNC with respect to such Letter of Credit."
4. Section 7.5 of the Agreement is hereby amended and restated as
follows:
"7.5 Loans.
Make advances, loans or extensions of credit to any Person, including
without limitation, any Parent, Subsidiary or Affiliate except with respect to
(a) the extension of commercial trade credit in connection with the sale of
Inventory in the ordinary course of its business and (b) loans advanced to its
employees in the ordinary course of business not to exceed the aggregate amount
of $1,000,000 at any time outstanding, (c) loans advanced by one Borrower to
another Borrower, (d) advances made by a Borrower to RP&F, provided however, (i)
advances to RP&F shall be limited to the amounts permitted in Section 7.1(b)
plus an additional amount not in excess of $250,000 in the aggregate at any one
time outstanding and (ii) advances to RP&F shall be made on or before December
31, 2003, and (e) loans made by Xxxxxx to Marquo; provided however, such loans
to Marquo shall not exceed $1,500,000 in the aggregate at any one time
outstanding."
5. Amendment Fee. The Borrowers shall pay to the Agent, for the
ratable benefit of the Lenders, an amendment fee in the amount of $12,000,
which fee shall be deemed to be earned as of the date hereof.
6. 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.
7. 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.
8. 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.
9. 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
Required Lenders and payment of the amendment fee required under Section 6
hereof.
[SIGNATURE PAGES FOLLOW]
[SIGNATURE PAGE 1 OF 2 TO SECOND AMENDMENT TO
REVOLVING CREDIT AND SECURITY AGREEMENT]
Intending to be legally bound, each of the parties has signed this
Second 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]
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Name: Xxxxx X. Xxxxx
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Title: Senior Vice President and CFO
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ATTEST: CXT INCORPORATED
By:/s/ Xxxxx X. Xxxxx [Seal]
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Name: Xxxxx X. Xxxxx
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Title: Senior Vice President and CFO
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ATTEST: NATMAYA, INC.
By:/s/ Xxxxxx X. Xxxxxxxxxxx [Seal]
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Name: Xxxxxx X. Xxxxxxxxxxx
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Title: President
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ATTEST: FOSMART, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx [Seal]
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Name: Xxxxxx X. Xxxxxxxxxxx
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Title: President
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- 2 -
[SIGNATURE PAGE 2 OF 2 TO SECOND 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
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
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LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Senior Vice President
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FIRST COMMONWEALTH BANK
By: /s/Xxxx X. Oris
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Name: Xxxx X. Oris
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Title: V.P.
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