FIRST AMENDMENT TO
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.,
FOSTER TECHNOLOGIES, INC.
AND
FOSMART, INC.
(BORROWERS)
September 8, 2003
FIRST AMENDMENT TO REVOLVING CREDIT SECURITY AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT (the
"Amendment") is made as of September 8, 2003, 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"), FOSTER TECHNOLOGIES INC. a corporation organized
under the laws of Ontario, Canada ("Foster-Canada") 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 from time to time, the "Agreement").
WHEREAS, the Borrowers have requested the Lenders to amend the
agreement in connection with certain transactions relating to intercompany
obligations and sales of assets.
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 definition set forth in Section 1.2 of the Agreement is
hereby amended and restated as follows:
"Borrower" or "Borrowers" shall have the meaning set forth in
the preamble to this Agreement and shall extend to all permitted
successors and assigns of such Persons, but shall not include any
Person which has dissolved or otherwise ceased to have a separate legal
existence in a manner permitted by the Agreement.
3. Section 7.1 of the Agreement is hereby amended and restated as follows:
"7.1 Merger, Consolidation, Acquisition and Sale of Assets.
(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)
Foster-Canada, 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) Fosmart
may be merged with and into Foster so long as Foster is the surviving
corporation, and (iv) Foster 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 Foster is acquiring the ownership interests in such Person, 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 Foster 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,
Foster 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 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) 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 at least $8,000,000 of Undrawn Availability; and
(G) the aggregate consideration paid by Foster for all such Permitted
Acquisitions shall not exceed either $5,000,000 in the aggregate in any fiscal
year of the Borrowers or $10,000,000 in the aggregate during the Term.
(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 Equipment which Foster
determines is no longer required for the operation of its business,
(iii) the sale, disposition or transfer of any assets or Real Property located
at Foster' St. Mary, West Virginia facility, its Pomeroy, Ohio facility, its
Doraville, Georgia facility, or its Langfield Road, Texas property, (iv) the
sale of certain property formerly used at its former Newport Kentucky coating
operation, (v) the sale of any assets of Foster-Canada or the stock of
Foster-Canada, (vi) the sale of any securities issued by DM&E to Foster, (vii)
sales, dispositions and transfers to the extent permitted under Section 4.3, and
(viii) the sale of Foster's equity investment in RP&F and the release of
Foster's claims against RP&F in exchange for a note from Rail Productions and
Fabrications, Inc., a Washington corporation, in the principal amount of
$5,500,000."
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, and (d) advances made by a Borrower to RP&F, provided however,
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."
5. 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 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."
6. Amendment Fee. The Borrowers shall pay to the Agent, for the ratable benefit
of the Lenders, an amendment fee in the amount of $15,000, which fee shall be
deemed to be earned as of the date hereof.
7. 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.
8. 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.
9. 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.
10. 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 FIRST AMENDMENT TO
REVOLVING CREDIT AND SECURITY AGREEMENT]
Intending to be legally bound, each of the parties has signed this
First Amendment to Revolving Credit and Security Agreement as of the day and
year first above written.
ATTEST: L. B. FOSTER COMPANY
By:/s/David J. Russo [Seal]
- ------------------------------ ------------------------------------------
Name:David J. Russo
Title:Senior V.P. and CFO
ATTEST: CXT INCORPORATED
By:/s/David J. Russo [Seal]
- ------------------------------ ------------------------------------------
Name:David J. Russo
------------------------------------------
Title:V.P. and CFO
------------------------------------------
ATTEST: NATMAYA, INC.
By:/s/Judith J. Scarborough [Seal]
- ------------------------------ ------------------------------------------
Name:Judith J. Scarborough
------------------------------------------
Title:President
------------------------------------------
ATTEST: FOSTER TECHNOLOGIES INC.
By:/s/David J. Russo [Seal]
- ------------------------------ ------------------------------------------
Name:David J. Russo
------------------------------------------
Title:V.P. and CFO
------------------------------------------
ATTEST: FOSMART, INC.
By:/s/Judith J. Scarborough [Seal]
- ------------------------------ ------------------------------------------
Name:Judith J. Scarborough
------------------------------------------
Title:President
------------------------------------------
[SIGNATURE PAGE 2 OF 2 TO FIRST AMENDMENT TO
REVOLVING CREDIT AND SECURITY AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION, a
national banking association, as Lender and as
Agent
By:/s/James M. Steffy
----------------------------------------
Name:James M. Steffy
----------------------------------------
Title:Vice President
----------------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By:/s/Robert W. Hart
----------------------------------------
Name:Robert W. Hart
----------------------------------------
Title:First Vice President
----------------------------------------
FIRST COMMONWEALTH BANK
By:/s/Paul J. Oris
----------------------------------------
Name:Paul J. Oris
----------------------------------------
Title:V.P.
----------------------------------------