FIRST AMENDMENT TO REVOLVING CREDIT, TERM LOAN
AND SECURITY AGREEMENT
THIS AGREEMENT is entered into as of August 31, 2000 by and among
RHEOMETRIC SCIENTIFIC, INC., a corporation organized under the laws of the State
of New Jersey ("RSI"), RHEOMETRIC SCIENTIFIC LIMITED, a company organized under
the laws of England and Wales ("RSL"), RHEOMETRIC SCIENTIFIC FRANCE SARL, a
limited liability company organized under the laws of France ("RSF"), RHEOMETRIC
SCIENTIFIC GmbH, a corporation organized under the laws of Germany ("RSG"), and
RHEOMETRIC SCIENTIFIC F.E. LTD., a corporation organized under the laws of Japan
("RSLFE") (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").
RECITALS
Whereas, the Borrowers and PNC entered into a Revolving Credit, Term
Loan and Security Agreement dated March 6, 2000 (as same is being and may be
further modified or extended, the "Loan Agreement"); and
Whereas, Borrowers and PNC have agreed to modify the terms of the Loan
Agreement as set forth in this First Amendment To Revolving Credit, Term Loan
and Security Agreement (the "Agreement") to correct the Term Loan repayment
schedule set forth therein.
Now, therefore, in consideration of PNC's continued extension of credit
and the agreements contained herein, the parties agree as follows:
AGREEMENT
1) ACKNOWLEDGMENT OF BALANCE. Borrower acknowledges that the most recent
statement of account sent to Borrower with respect to the Obligations is
correct.
2) MODIFICATIONS. The Loan Agreement be and hereby is modified as follows:
(A) Section 2.4 of the Loan Agreement be and hereby is deleted, and is
replaced with new Section 2.4, to read as follows:
2.4. Term Loan. Subject to the terms and conditions of this Agreement,
each Lender, severally and not jointly, will make a Term Loan to
Borrowers in the sum equal to such Lender's Commitment Percentage of
$1,500,000.00. The Term Loan shall be advanced on the Closing Date and
shall be, with respect to principal, payable pursuant to the following
schedule, subject to acceleration upon the occurrence and during the
continuance of an Event of Default under this Agreement or termination
of this Agreement:
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Payment Date Amount
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June 6, 2000 $75,000
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September 6, 2000 $75,000
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December 6, 2000 $75,000
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March 6, 2001 $75,000
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April 6, 2001 through February 6, $25,000 each month
2003
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March 6, 2003 $625,000
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and shall be evidenced by one or more secured promissory notes
(collectively, the "Term Note") in substantially the form attached
hereto as Exhibit 2.4.
(B) Section 2.14 of the Loan Agreement be and hereby is deleted, and is
replaced with new Section 2.14, to read as follows:
2.14 Letters of Credit. Subject to the terms and conditions hereof,
Agent shall issue or cause the issuance of Letters of Credit ("Letters
of Credit") on behalf of any Borrower; provided, however, that Agent
will not be required to issue or cause to be issued any Letters of
Credit to the extent that the total of the face amount of such Letters
of Credit would then cause the sum of (i) the outstanding Revolving
Advances plus (ii) outstanding Letters of Credit to exceed the lesser
of (x) the Maximum Revolving Advance Amount or (y) the Formula Amount;
and further provided that Agent will not be required to issue or cause
to be issued any additional Letter of Credit to the extent that the
issuance of any such additional Letter of Credit would cause the total
of the face amount of all Letters of Credit to exceed $800,000.00. All
disbursements or payments related to Letters of Credit shall be deemed
to be Domestic Rate Loans consisting of Revolving Advances and shall
bear interest at the Revolving Interest Rate; Letters of Credit that
have not been drawn upon shall not bear interest.
(C) Sections 9.7, 9.8, and 9.9 of the Loan Agreement be and hereby are
deleted, and are replaced with new Sections 9.7, 9.8, and 9.9, to read as
follows:
9.7. Annual Financial Statements. Furnish Agent within ninety (90) days
after the end of each fiscal year of Borrowers, financial statements of
Borrowers on a consolidating and consolidated basis including, but not
limited to, statements of income and stockholders' equity and cash flow
from the beginning of the current fiscal year to the end of such fiscal
year and the balance sheet as at the end of such fiscal year, all
prepared in accordance with GAAP applied on a basis consistent with
prior practices, and in reasonable detail and reported upon, with
respect to the consolidated statements, without qualification by an
independent certified public accounting firm selected by Borrowers and
reasonably satisfactory to Agent (the "Accountants"), and with respect
to the consolidating statements, by the Chief Financial Officer of RSI.
The report of the Accountants shall be accompanied by a statement of
the Accountants certifying that (i) they have caused the Loan Agreement
to be reviewed, (ii) in making the examination upon which such report
was based either no information came to their attention which to their
knowledge constituted an Event of Default or a Default under this
Agreement or any related agreement or, if such information came to
their attention, specifying any such Default or Event of Default, its
nature, when it occurred and whether it is continuing, and such report
shall contain or have appended thereto calculations which set forth
Borrowers' compliance with the requirements or restrictions imposed by
Sections 6.5, 7.6 and 7.11 hereof. In addition, the reports shall be
accompanied by a certificate of RSI's Chief Financial Officer 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 such Borrower with respect to such event, and such
certificate shall have appended thereto calculations which set forth
Borrowers' compliance with the requirements or restrictions imposed by
Sections 6.5, 7.6 and 7.11 hereof.
9.8. Quarterly Financial Statements. Furnish Agent within forty-five
(45) days after the end of each fiscal quarter, an unaudited balance
sheet of Borrowers on a consolidated and consolidating basis and
unaudited statements of income and stockholders' equity 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 quarter and for such quarter, 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. The
reports shall be accompanied by a certificate signed by the Chief
Financial Officer of RSI, 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, 7.6 and
7.11 hereof.
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9.9. Monthly Financial Statements. Furnish Agent within thirty (30)
days after the end of each month, an unaudited balance sheet of
Borrowers on a consolidated and consolidating basis and unaudited
statements of income and stockholders' equity 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. The reports
shall be accompanied by a certificate of RSI's Chief Financial Officer,
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 event and, such
certificate shall have appended thereto calculations which set forth
Borrowers' compliance with the requirements or restrictions imposed by
Sections 6.5, 7.6 and 7.11 hereof.
3) CONSENT AND WAIVER. The Agent and the Lenders hereby consent to RSI's
proposed reincorporation merger pursuant to which RSI's state of
incorporation will change from New Jersey to Delaware (the "Reincorporation
Merger"). Any default that would otherwise be deemed to have occurred under
Sections 7.1 and 7.15 of the Loan Agreement as a result of the
Reincorporation Merger be and is hereby waived, solely for the limited
purpose of allowing the Reincorporation Merger to occur.
4) ACKNOWLEDGMENTS. Borrowers acknowledge and represent that:
(A) the Loan Agreement and other Loan Documents, as amended hereby, are in
full force and effect without any defense, claim, counterclaim, right or
claim of set-off;
(B) to the best of their knowledge, no default by the Agent or Lenders in
the performance of their duties under the Loan Agreement or the other Loan
Documents has occurred;
(C) all representations and warranties contained herein and in the other
Loan Documents are true and correct as of this date, except for any
representation or warranty that specifically refers to an earlier date;
(D) Borrowers have taken all necessary action to authorize the execution
and delivery of this Agreement; and
(E) this Agreement is a modification of an existing obligation and is not a
novation.
5) PRECONDITIONS. As a precondition to the effectiveness of any of the
modifications, consents, or waivers contained herein, the Borrower agrees
to:
(A) provide the Bank with a resolution, in form and substance acceptable to
the Bank, which approves the modification contemplated hereby.
(B) provide the Bank with drafts of all documents to be executed (and,
promptly after their execution, facsimile and overnight mail copies of
executed versions thereof) in connection with the Reincorporation Merger,
all to be in form and substance reasonably acceptable to the Bank.
(C) pay all fees and costs incurred by the Bank in entering into this
Agreement and the other documents executed in connection herewith.
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6) MISCELLANEOUS. This Agreement shall be construed in accordance with and
governed by the laws of the State of New Jersey, without reference to that
state's conflicts of law principles. This Agreement and the other Loan
Documents constitute the sole agreement of the parties with respect to the
subject matter thereof and supersede all oral negotiations and prior
writings with respect to the subject matter thereof. No amendment of this
Agreement, and no waiver of any one or more of the provisions hereof shall
be effective unless set forth in writing and signed by the parties hereto.
The illegality, unenforceability or inconsistency of any provision of this
Agreement shall not in any way affect or impair the legality,
enforceability or consistency of the remaining provisions of this Agreement
or the other Loan Documents. This Agreement and the other Loan Documents
are intended to be consistent. However, in the event of any inconsistencies
among this Agreement and any of the Loan Documents, the terms of this
Agreement, then the Loan Agreement, shall control. This Agreement may be
executed in any number of counterparts and by the different parties on
separate counterparts. Each such counterpart shall be deemed an original,
but all such counterparts shall together constitute one and the same
agreement.
7) DEFINITIONS. The terms used herein and not otherwise defined or modified
herein shall have the meanings ascribed to them in the Loan Agreement. The
terms used herein and not otherwise defined or modified herein or defined
in the Loan Agreement shall have the meanings ascribed to them by the
Uniform Commercial Code as enacted in New Jersey.
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IN WITNESS WHEREOF, the undersigned have signed and sealed this Agreement the
day and year first above written.
ATTEST: RHEOMETRIC SCIENTIFIC, INC.
By:/s/ By:/s/ Xxxxxx Xxxxxxx
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Name: Name: XXXXXX XXXXXXX
Title: Title: Vice President
ATTEST: RHEOMETRIC SCIENTIFIC LIMITED
By:/s/ By: /s/ Xxxxxx Xxxxxxx
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Name: Name: XXXXXX XXXXXXX
Title: Title: Director
WITNESS: RHEOMETRIC SCIENTIFIC FRANCE SARL
BY:/s/ By:/s/ Xxxxxx Xxxxxxx
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Name: Name: XXXXXX XXXXXXX
Title: Title: Manager
WITNESS: RHEOMETRIC SCIENTIFIC GmbH
BY:/s/ By:/s/ Xxxxxx Xxxxxxx
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Name: Name: XXXXXX XXXXXXX
Title: Title: Under Power of Attorney from
Xxxxxxx Xxxxxx, Managing Director
WITNESS: RHEOMETRIC SCIENTIFIC F.E. LTD.
BY:/s/ By: /s/ Xxxxxx Xxxxxxx
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Name: Name: XXXXXX XXXXXXX
Title: Title: Chairman and Representative
Director
PNC BANK, NATIONAL ASSOCIATION, as
Lender and as Agent
By:/s/ Xxxxxxxx Xxxxxxx-Nurse
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Name: XXXXXXXX XXXXXXX-NURSE
Title: Vice President
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