Exhibit 10.12
Landlord Agreement and Amendment of Lease
This Landlord Agreement and Amendment of Lease (this "Agreement") made as of
March 6, 2000 by and between Rheometric Scientific, Inc. ("Rheometric"), RSI
(NJ) QRS 12-13, Inc. ("Landlord") and Axess Corporation ("Axess").
WHEREAS, Rheometric and Landlord are parties to a Lease Agreement dated February
26, 1996 (as amended to date, the "Lease");
WHEREAS, in connection with the execution of the Lease, Rheometric issued to
Landlord, and Landlord became the holder of, two Warrants to purchase, in the
aggregate, 464,160 shares of the common stock, no par value, of Rheometric (as
same have been amended and restated to date, the "Warrant Agreements") at a
purchase price of $.375 per share;
WHEREAS, pursuant to the Subordination Agreement dated as of February 23, 1996
by and between Axess, Landlord and Rheometric, as amended, (the "Existing
Subordination Agreement") Axess agreed to subordinate to the Landlord the
indebtedness of Rheometric to Axess in the principal amount of $8,205,907.09,
plus accrued interest;
WHEREAS, Andlinger Capital XXVI LLC ("Andlinger") has agreed to invest
$1,825,000 in Rheometric through the purchase of 10,606,000 shares of the common
stock, no par value, of Rheometric ("Andlinger Shares") and warrants to purchase
additional shares of common stock, no par value, of Rheometric, ("Andlinger
Warrants") pursuant to and as more fully described in the Securities Purchase
Agreement dated February 17, 2000 (the "Securities Purchase Agreement");
WHEREAS, as a condition to Closing under the Securities Purchase Agreement,
Rheometric and its subsidiaries are entering into a Revolving Credit, Term Loan
and Security Agreement with PNC Bank, National Association, as Lender and as
Agent, which provides for maximum borrowings by Rheometric in the principal
amount of $14.5 million and which, together with all other Documents (as defined
in the Revolving Credit, Term Loan and Security Agreement) are defined herein as
the "PNC Credit Documents";
WHEREAS, pursuant to the Securities Purchase Agreement, Axess has agreed to
cancel the indebtedness of Rheometric to Axess in the principal amount of
$8,205,907.09, plus accrued interest, in exchange for $3,500,000 in cash, the
PCR Product Line Note and the Preferred Stock Warrant (as defined in the
Securities Purchase Agreement);
WHEREAS, after the closing of the transaction described herein, Rheometric will
reincorporate in Delaware through a merger transaction with a wholly-owned
subsidiary in which the existing equity securities of Rheometric will be
replaced with comparable equity securities (the "Delaware Reincorporation");
WHEREAS, the execution of this Agreement by Landlord is a condition to the
obligation of Andlinger to close under the terms of the Securities Purchase
Agreement; and
WHEREAS, Landlord, Rheometric and Axess are willing to execute this Agreement to
provided for, among other things, the amendment of certain provisions of the
Lease in order to allow the Closing under the Securities Purchase Agreement to
be completed.
Now, therefore, in consideration of the above and other good and valuable
consideration, the receipt of which is hereby acknowledged, and intending to be
legally bound hereby, the parties agree as follows:
1. Landlord Consent to Transactions. To the extent required under the terms of
the Lease and any agreements or documents related thereto, Landlord hereby
consents to (a) the execution and delivery of and the performance by Rheometric
under the Securities Purchase Agreement (b) the execution and delivery of and
the performance by Rheometric and its subsidiaries under the PNC Credit
Documents, (c) the payment by Rheometric to Axess of $3.5 million in cash and
the execution and delivery of and the performance by Rheometric of the PCR
Product Line Note and the Preferred Stock Warrant and (d) the Delaware
Reincorporation.
2. Termination of Existing Subordination Agreement, Execution and Delivery of
New Subordination And Intercreditor Agreement. Landlord, Rheometric and Axess
hereby agree that the Existing Subordination Agreement shall terminate at the
Closing of the Securities Purchase Agreement, provided, however, that Rheometric
and Axess shall have executed and delivered to Landlord a Subordination And
Intercreditor Agreement (as described on Exhibit A) in respect to the PCR
Product Line Note and the Preferred Stock Warrant ("Subordination And
Intercreditor Agreement.").
3. Waiver of Warrant Adjustment Rights. Landlord hereby waives any adjustment of
the Exercise Price of the warrants under Section 4.2 of the Warrant Agreements,
and any adjustment of the number of shares purchasable under the Warrants under
Section 4.1 of the Warrants, in respect to (a) the issuance of the Andlinger
Shares of common stock of Rheometric to Andlinger, (b) the issuance to and
exercise of the Preferred Stock Warrant by Axess, (c) the issuance and exercise
of the Andlinger Warrants, (d) the contribution by Axess to the Company of the
Axess First Contributed Shares and Axess Second Contributed Shares and (e) the
issuance to Axess of the Axess Reissue Shares; provided, however, Landlord's
waiver hereunder with respect to Sections 4.1 and 4.2 of the Warrant Agreements
shall only be effective with respect to the issuances and transactions described
in clauses (a) through (e) above to the extent that same are consummated in
strict accordance with the terms of the Securities Purchase Agreement and PNC
Credit Documents as in effect on the date hereof, without amendment or
modification. Notwithstanding the foregoing waiver or anything else to the
contrary contained herein, Rheometric hereby covenants and agrees to comply with
the provisions of Section 4.2(g) of the Warrant Agreements with respect to the
Delaware Reincorporation.
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4. Waiver of Registration Rights under Warrants. Landlord hereby waives the
right to request a registration or qualification of the warrants or Issued
Warrant Shares or both under Section 5.2 of the Warrant Agreements for a period
of six (6) months from the date of this Agreement; provided however, that
nothing herein shall be deemed to limit Landlord's rights under Sections 4.3 and
5.3 of the Warrant Agreements.
5. Amendment of Holdback Agreement. Landlord hereby waives its rights with
respect to the 90-day holdback period described in Section 5.5 of the Warrant
Agreements for a period of one (1) year from the date of this Agreement.
6. Amendment of Term of Lease. The provisions of Paragraph 5(a) of the Lease are
hereby amended so that the Term of the Lease shall expire on, and the
"Expiration Date" shall mean, the last day of the one hundred ninety-second
(192nd) calendar month next following the Commencement Date.
7. Amendment of Financial Covenants in Lease. The existing financial covenants
of the Lease, as set forth in Exhibit E thereof are hereby deleted in their
entirety and the covenants identified on Exhibit B annexed hereto and made a
part hereof, which covenants are identified by the section and Heading
references contained in the PNC Credit Facility, are hereby substituted in place
thereof, and shall be deemed incorporated in their entirety into this Agreement
and the Lease by reference hereto.
All defined terms in used in such covenants shall have the same definitions as
are contained in the Revolving Credit, Term Loan and Security Agreement. So long
as the PNC Credit Facility remains in effect and the monetary obligations
thereunder remain unsatisfied (i) if PNC waives noncompliance with, or violation
of, any such covenants by Rheometric, then Landlord shall be deemed to have
waived such noncompliance or violation by Rheometric to the same extent and for
the same period as PNC without the need for any further action on the part of
Landlord, and (ii) if PNC and Rheometric shall amend any such financial
covenants, the corresponding financial covenants incorporated into this
Agreement and the Lease pursuant to this Section 5 shall be deemed to be amended
by Landlord and Rheometric to the same extent for the duration of the PNC Credit
Facility; provided however, that all of the covenants set forth on Exhibit B
hereof shall, as between Landlord and Rheometric, survive the termination,
cancellation or satisfaction of the PNC Credit Facility and any documents
executed in connection therewith and, provided further, that to the extent PNC
shall receive consideration for its agreement to waive or amend any such
covenants, Landlord shall not be deemed to have also waived or amended such
covenant. Rheometric shall provide Landlord written notice of any such waiver or
amendment within ten (10) business following such waiver or amendment.
8. Effectiveness. The terms and provisions of this Agreement are conditioned
upon and shall be only effective as of the effective date of the Closing of the
Securities Purchase Agreement. In the event that the Closing of the Securities
Purchase Agreement shall not have occurred on or before April 1, 2000, then this
Agreement shall be deemed terminated and shall be null and void and without
force or effect and the parties hereto
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shall have no further liability to each other under the terms of this Agreement.
Except as modified by this Agreement, all of the terms and conditions of the
Lease, the Warrant Agreements and the Subordination And Intercreditor Agreement
shall remain in full force and effect and are hereby ratified and confirmed in
all respects.
9. Landlord's Fees. Rheometric covenants and agrees to pay any and all of the
attorneys fees and expenses of Landlord's counsel incurred in connection with
the negotiation, preparation and execution of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date and year first written above.
RSI (NJ) QRS 12-13, INC.
By: /s/
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Title:
RHEOMETRIC SCIENTIFIC, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President - Finance
AXESS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title:
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