EX-10.0.5








    Exhibit 10.0.5

    Execution Copy



 


 




    FIFTH
    AMENDMENT TO

    AMENDED AND RESTATED REVOLVING

    CREDIT AND SECURITY AGREEMENT



 




    BY AND
    AMONG



 




    PNC BANK,
    NATIONAL ASSOCIATION

    (AS LENDER AND AGENT),



 




    THE
    LENDERS,



 




    AND



 




    L. B.
    FOSTER COMPANY

    AND

    CXT INCORPORATED,

    (BORROWERS)



 




    March 4,
    2009

    Effective as of December 31, 2008



 


 












 







    FIFTH
    AMENDMENT TO AMENDED AND RESTATED

    REVOLVING CREDIT SECURITY AGREEMENT



 



    THIS FIFTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
    AND SECURITY AGREEMENT (the “Amendment”) is made as of
    March 4, 2009, effective as of December 31, 2008, by
    and among L. B. FOSTER 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.
    (“Foster”) 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, and a
    Fourth Amendment dated as of July 27, 2007 (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:



 



    “Coal Train” shall mean Coal Train
    Holdings, Inc., a corporation organized under the laws of the
    State of Delaware and a wholly-owned Subsidiary of Foster.



 



    “Consideration” shall mean with respect
    to any Permitted Acquisition, the aggregate of (i) the cash
    paid by the Borrowers or any of their Subsidiaries, directly or
    indirectly, to the seller in connection therewith, (ii) the
    Indebtedness incurred or assumed by Borrowers or any of their
    Subsidiaries, whether in favor of the seller or otherwise,
    (iii) any guaranty given or incurred by the Borrowers or
    any of their Subsidiaries in connection therewith, and
    (iv) any capital stock other consideration given or
    obligations incurred by the Borrowers or any of their
    Subsidiaries in connection therewith.



 



    “Exclusion Standards” shall mean
    (i) the aggregate amount of outstanding Revolving Advances
    does not exceed $20,000,000, and (ii) the Borrowers have
    Undrawn Availability of not less than $50,000,000.



 



    “Fifth Amendment Effective Date” shall
    mean December 31, 2008.



 



    “Investment Quality” shall mean
    instruments which meet or exceed at least one of the published
    credit ratings listed below (or other comparable credit ratings
    by other nationally known rating agencies) at the time of
    purchase by the Borrowers:



 


	 	 	 	 	 	 	 	 	 
	

    Rating Agency


	
 
	
    Short Term
	
 
	
    Long Term

	 

	
 
	
 
	
    Taxable
	
 
	
    Tax Exempt
	
 
	
    Taxable
	
 
	
    Tax Exempt

	

    Standard and Poor’s


	
 
	
    A-1
	
 
	
    P1 / SP-1
	
 
	
    A / AA / AAA
	
 
	
    A / AA / AAA

	

    Moody


	
 
	
    P-1
	
 
	
    VMig1/ VMig1
	
 
	
    A / Aa / Aaa
	
 
	
    A / Aa/ Aaa










    

    2








 






    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 Foster and CXT.



 



    “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) 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
    (f) 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.



 



    “Fixed Charges” shall mean for any
    period the sum of Borrowers’ consolidated cash interest
    expense, 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.



 



    “Fixed Charge Coverage Ratio” shall mean
    and include, with respect to any period, the ratio of
    (a) EBITDA plus non-cash charges, minus noncash income,
    minus Net Capital Expenditures, minus Permitted Acquisition
    Financing minus taxes actually paid by Borrowers on a
    consolidated basis to (b) Fixed Charges, in the case of
    each of the foregoing during such period. Notwithstanding the
    foregoing, Net Capital Expenditures which are paid in cash at a
    time during which all Exclusion Standards are met shall be
    excluded from the calculation of the Fixed Charge Coverage Ratio
    for such period and all subsequent periods.



 



    4. Section 6.5 of the Agreement is hereby amended and
    restated as follows:



 



    “6.5 Net Worth.



 



    Maintain at all times a Net Worth in an amount not less than
    $150,000,000.”



 



    5. Section 7.1(H) of the Agreement is hereby amended
    and restated as follows:



 



    ‘‘(H) the aggregate Consideration paid by Foster 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. In addition, at such time as the
    aggregate Consideration paid by Foster 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.”



 



    6. The following new Section 7.1(I) is hereby inserted
    in the Agreement immediately following Section 7.1(H):



 



    ‘‘(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.”



 



    7. 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(b), purchase or acquire obligations or stock
    of, or any other interest in, any Person, except
    (a) investments in the percentages permitted under the




    

    3








 






    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.”



 



    8. Section 7.6 of the Agreement is hereby amended and
    restated as follows:



 



    “7.6 Capital Expenditures.



 



    Commencing with the fiscal year ended December, 31, 2008,
    contract for, purchase or make any expenditure or commitments
    for fixed or capital assets (including capitalized leases) in
    any fiscal year in an aggregate amount for all Borrowers in
    excess of (i) for the fiscal year ended December 31,
    2008, $12,000,000, exclusive of capital expenditures for direct
    construction expenses and equipment costs incurred pursuant to
    the Union Pacific Contract, and (ii) for the fiscal year
    ended December 31, 2009 and each fiscal year thereafter,
    $15,000,000. The difference between the maximum amount of
    permitted capital expenditures and the actual amount of the
    aggregate capital expenditures of the Borrowers in any fiscal
    year (excluding the expenses related to the Union Pacific
    Contract) may be carried over to the immediately succeeding
    fiscal year, provided that the amount carried over from the
    prior year shall not exceed $3,000,000. Expenditures made in
    consummating Permitted Acquisitions shall not be included in the
    calculation of capital expenditures under this
    Section 7.6.”



 



    9. Section 7.7 of the Agreement is hereby amended and
    restated as follows:



 



    “7.7 Dividends.



 



    Declare, pay or make any dividend or distribution on any shares
    of the common stock or preferred stock of any Borrower (other
    than dividends or distributions payable in its stock, or
    split-ups or
    reclassifications of its stock) or apply any of its funds,
    property or assets to the purchase, redemption or other
    retirement of any common or preferred stock, or of any options
    to purchase or acquire any such shares of common or preferred
    stock of any Borrower except that (a) Borrowers shall be
    permitted to pay dividends and distributions to other Borrowers,
    and (b) Foster shall be permitted to pay dividends and
    distributions and make redemptions with respect to its stock so
    long as prior to and after giving effect to such dividend,
    distribution or redemption (and treating such dividend,
    distribution or redemption as having occurred at the beginning
    of the fiscal period in which it is made): (i) no Event of
    Default or Default shall have occurred, (ii) the aggregate
    amount of dividends, distributions and redemptions from and
    after the Fifth Amendment Effective Date does not exceed
    $75,000,000, and (iii) in the event that Undrawn
    Availability is less than $25,000,000 at any time after the
    Fifth Amendment Effective Date, the aggregate amount of
    dividends, distributions and redemptions from and after the
    Fifth Amendment Effective Date shall not exceed fifty percent
    (50%) of the net income of the Borrowers from and after the
    Fifth Amendment Effective Date, as determined and consolidated
    in accordance with GAAP.”



 



    10. Section 7.12 of the Agreement is hereby amended
    and restated as follows:



 



    “7.12 Subsidiaries.



 



    (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, Coal Train Holdings shall not be
    required to




    

    4








 






    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 Foster within 30 days
    after their receipt by Coal Train Holdings.



 



    (b) Enter into any partnership or similar arrangement;
    provided however, Foster may make an investment in a Person as
    part of a joint venture with another Person, provided that
    (i) neither Foster nor any other Borrower shall be a
    general partner of such Person, nor shall any Borrower assume
    any liability of such joint venture Person, and (ii) the
    aggregate amount of investments made in such permitted joint
    ventures, when aggregated with the amount of consideration paid
    by Foster for Permitted Acquisitions under Section 7.1(H),
    shall not exceed either (i) $15,000,000 in the aggregate in
    any fiscal year of the Borrowers, or (ii) $30,000,000 in
    the aggregate during the Term, such amounts in (i) and
    (ii) to be increased by Net Proceeds of Significant Asset
    Sales.”



 



    11. Section 9.9 of the Agreement is hereby amended and
    restated as follows:



 



    “9.9 Monthly Financial Statements.



 



    “With respect to any month during which the Exclusion
    Standards are not met during one or more days in such month,
    furnish Agent within thirty (30) days after the end of each
    month, an unaudited balance sheet of Borrowers on a consolidated
    basis and unaudited statements of income and cash flow of
    Borrowers on a consolidated and consolidating basis reflecting
    results of operations from the beginning of the fiscal year to
    the end of such month and for such month, prepared on a basis
    consistent with prior practices and complete and correct in all
    material respects, subject to normal and recurring year end
    adjustments that individually and in the aggregate are not
    material to the business of Borrowers. Upon request of the
    Agent, the financial statements of the Borrowers shall also be
    prepared on a consolidating basis. The reports shall be
    accompanied by a certificate signed by the Chief Financial
    Officer of Foster, which shall state that, based on an
    examination sufficient to permit him to make an informed
    statement, no Default or Event of Default exists, or, if such is
    not the case, specifying such Default or Event of Default, its
    nature, when it occurred, whether it is continuing and the steps
    being taken by Borrowers with respect to such default, and such
    certificate shall have appended thereto calculations which set
    forth Borrowers’ compliance with the requirements or
    restrictions imposed by Sections 6.5, 6.6, 7.6 and 7.11
    hereof.”



 



    12.  Amendment Fee.  The
    Borrowers shall pay the Agent, for the ratable account of each
    Lender, and amendment fee in the amount of 15 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.



 



    13.  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.



 



    14.  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.



 



    15.  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.



 



    16.  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.




    

    5








 






    17.  Effective Date.  This
    Amendment shall be effective on the Fifth Amendment Effective
    Date upon the occurrence of all the following conditions on or
    before March 4, 2009:



 



    (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, for itself
    and the benefit of the Lenders, of all fees and expenses
    required in connection with this Amendment.



 




    [SIGNATURE
    PAGES FOLLOW]




    

    6








 







    [SIGNATURE
    PAGE 1 OF 2 TO FIFTH 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.



 


	 	 	 
	

    ATTEST:


	
 
	
    L. B. FOSTER COMPANY

	
 
	
 
	
 

	

    /s/  David
    L. Voltz


    




	
 
	

    By: /s/  David
    J.
    Russo                    [Seal]


    
Name: David
    J. Russo

    Title:   Senior Vice President, Chief Financial
    Officer and Treasurer 












 


	 	 	 
	

    ATTEST:


	
 
	
    CXT INCORPORATED

	
 
	
 
	
 

	

    /s/  David
    L. Voltz


    




	
 
	

    By: /s/  David
    J.
    Russo                    [Seal]


    
Name: David
    J. Russo

    Title:   Senior Vice President, Chief Financial
    Officer and Treasurer 













    

    7








 







    [SIGNATURE
    PAGE 2 OF 2 TO FIFTH AMENDMENT TO AMENDED AND

    RESTATED 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




 



    BANK OF AMERICA, N.A.



 


			
	 	    By: 
	
    /s/  Christian
    Barrow









    Name:     Christian Barrow



			
	 	    Title: 
	
    Senior Vice President




 



    FIRST COMMONWEALTH BANK



 


			
	 	    By: 
	
    /s/  C.
    Forrest Tefft









    Name:     C. Forrest Tefft



			
	 	    Title: 
	
    Senior Vice President





    

    8