Exhibit 10.12
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (this
"Amendment"), made as of the 10th day of June, 1996, by and
between RSI (NJ) QRS 12-13, INC., a New Jersey corporation
("Landlord"), and RHEOMETRIC SCIENTIFIC, INC., a New Jersey
corporation ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into a certain
Lease Agreement, dated as of February 23, 1996 (the "Lease"); and
WHEREAS, Landlord and Tenant have agreed to amend the
Lease as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged,
Landlord and Tenant covenant and agree as follows:
1. Paragraph 3 of Exhibit E to the Lease (Financial
Covenants) is hereby deleted in its entirety and the following
Paragraph is inserted in lieu thereof:
3. Adjusted Funded Debt to Total Capitalization
Ratio. During the Term, Tenant shall maintain on a
consolidated basis an Adjusted Funded Debt to Total
Capitalization Ratio of not greater than .60 to 1.00.
2. The Lease is hereby amended by deleting in its
entirety the definition of EBITDA appearing in Paragraph 9 of
Exhibit E to the Lease (Financial Covenants) and inserting the
following definition in lieu thereof:
"EBITDA" means, for any period, the following each
calculated for such period: (a) Consolidated Net
Income (without deduction of income and franchise
taxes); plus (b) Consolidated Interest Expense paid or
accrued; plus (c) amortization and depreciation
deducted in determining Consolidated Net Income; plus
(d) without duplication, other non-cash charges
(excluding accruals in the normal course of business)
deducted in determining Consolidated Net Income; plus
(e) aggregate rent payments made pursuant to this Lease
and operating leases for such period, excluding rent
payments for automobile, machinery and equipment
leases, all as determined on a consolidated basis in
accordance with GAAP; minus (f) without duplication,
other non-cash credits increasing Consolidated Net
Income.
3. This Amendment shall be governed by and construed
in accordance with the laws of the State of New Jersey.
4. Except as specifically amended by this Amendment,
the terms and conditions of the Lease shall remain in full force
and effect and shall be binding upon Landlord and Tenant and
their respective successors and assigns.
5. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute but one and
the same instrument.
WITNESS the due execution hereof the day and year first above
written.
RSI (NJ) QRS 12-13, INC.
By: /s/ W. Xxxx Xxxxx
Title: Second Vice President
RHEOMETRIC SCIENTIFIC, INC.
By: /s/ X X Xxxxxxxxxxx
Title: V.P.
Exhibit 10.13
SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND AMENDMENT TO LEASE AGREEMENT (this
"Amendment"), made as of the 20th day of February, 1997, by and
between RSI (NJ) QRS 12-13, INC., a New Jersey corporation
("Landlord"), and RHEOMETRIC SCIENTIFIC, INC., a New Jersey
corporation ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into a certain
Lease Agreement, dated as of February 23, 1996 (the "Lease");
WHEREAS, the Lease was amended pursuant to a certain
First Amendment to Lease Agreement, dated as of June 10, 1996
(the Lease, as amended by the First Amendment to Lease Agreement,
being hereinafter referred to as the ("Amended Lease"); and
WHEREAS, Landlord and Tenant have agreed to amend the
Amended Lease as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged,
Landlord and Tenant covenant and agree as follows:
1. Paragraph 2 of the Amended Lease is hereby amended
by adding the following definition thereto:
"Second Refinancing Loan" shall mean the Loan that
refinances the First Refinancing Loan.
2. Paragraph 6 of the Amended Lease is hereby deleted
in its entirety and the following paragraph is inserted in lieu
thereof:
Basic Rent. From the date hereof to, but not
including, the date on which the First Refinancing Loan
is funded Tenant shall pay to Landlord, as initial
annual rent for the Leased Premises, the amounts
determined in accordance with Paragraph 1(a) of Exhibit
"D" hereto ("Initial Basic Rent"), such payment to
commence on the first day of March, 1996 and to
continue on the first day of each calendar month
thereafter until the date on which the First
Refinancing Loan is funded (each such day being an
"Initial Basic Rent Payment Date") . Commencing on the
first day of the first month following the date on
which the First Refinancing Loan is funded and
continuing on the first day of each month thereafter
until the date on which the Second Refinancing Loan is
funded (each such date being a "Subsequent Basic Rent
Payment Date"), Tenant shall pay to Landlord as annual
rent for the Leased Premises, the amounts determined in
accordance with Paragraphs 1(b)1 2, 3 and 4 of Exhibit
"D" ("Subsequent Basic Rent"). Commencing on the first
day of the first month following the date on which the
Second Refinancing Loan is funded and continuing on the
first day of each month thereafter for the balance of
the Term (each such date also being a "Subsequent Basic
Rent Payment Date"), Tenant shall pay to Landlord as
annual rent for the Leased Premises, the amounts
determined in accordance with Paragraphs 1(c), 2, 3 and
4 of Exhibit "D" (also "Subsequent Basic Rent"). Each
rental payment shall be made, at Landlord's sole
discretion, (a) to Landlord at its address set forth
above and/or to such one or more other Persons, at such
addresses and in such proportions as Landlord may
direct by fifteen (15) days' prior written notice to
Tenant (in which event Tenant shall give Landlord
notice of each such payment concurrent with the making
thereof), and (b) by wire transfer in Federal Funds or
check in immediately collectible funds. Pro rata
Initial Basic Rent for the period from the date hereof
through the last day of the month hereof shall be paid
on the date hereof. On the first Subsequent Basic Rent
Payment Date following the date on which the First
Refinancing Loan is funded the payment of Subsequent
Basic Rent shall be increased or decreased, as the case
may be, by the difference between the Initial Basic
Rent and the Subsequent Basic Rent for the period from
the date on which the First Refinancing Loan is funded
to but not including the first Subsequent Basic Rent
Payment Date and, if the first Subsequent Basic Rent
Payment Date would not have been an Initial Basic Rent
Payment Date, Tenant shall receive a credit against the
payment of Subsequent Basic Rent in an amount equal to
the pro rata Initial Basic Rent for the period from the
first Subsequent Basic Rent Payment Date to but not
including what would have been the next Initial Basic
Rent Payment Date. On the first Subsequent Basic Rent
Payment Date following the date on which the Second
Refinancing Loan is funded the payment of Subsequent
Basic Rent shall be increased or decreased, as the case
may be, by the difference between the Subsequent Basic
Rent and the Subsequent Basic Rent for the period from
the date on which the Second Refinancing Loan is funded
to but not including such Subsequent Basic Rent Payment
Date and, if such Subsequent Basic Rent Payment Date
would not have been a Subsequent Basic Rent Payment
Date, Tenant shall receive a credit against the payment
of Subsequent Basic Rent in an amount equal to the pro
rata Subsequent Basic Rent for the period from such
Subsequent Basic Rent Payment Date to but not including
what would have been the next Subsequent Basic Rent
Payment Date.
3. Exhibit D to the Amended Lease is hereby deleted
in its entirety and Exhibit D attached hereto is inserted in lieu
thereof.
4. Paragraph 31(a) of the Amended Lease is hereby
deleted in its entirety and the following paragraph is inserted
in lieu thereof:
Tenant agrees to pay, within three (3) business days of
written demand therefor, any reasonable cost, charge or
expense, in connection with the refinancing of the
Initial Loan or the First Refinancing Loan, including,
without limitation commitment fees and brokerage
commissions payable by Landlord.
5. This Amendment shall be governed by and construed
in accordance with the laws of the State of New Jersey.
6. Except as specifically amended by this Amendment,
the terms and conditions of the Amended Lease shall remain in
full force and effect and shall be binding upon Landlord and
Tenant and their respective successors and assigns.
7 This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute but one and
the same instrument.
WITNESS the due execution hereof the day and year first above
written.
RSI (NJ) QRS 12-13, INC.
Bv: /s/ W. Xxxx Xxxxx
Title: Second V P
RHEOMETRIC SCIENTIFIC, INC.
By: /s/ X X Xxxxxxxxxxx
Title: V. P. / CFO
EXHIBIT D
BASIC RENT PAYMENTS
1. Basic Rent. Subject to the adjustments provided
for in Paragraphs 2, 3 and 4 below, Basic Rent payable in respect
of the Term shall be payable monthly in advance on each Basic
Rent Payment Date (provided that on March 1, 1997, Tenant shall
make a quarterly payment of Basic Rent, but Tenant shall
nevertheless make the monthly payments of Basic Rent on April 1,
1997, and May 1, 1997, which shall be credited against the last
two monthly installments of Basic Rent or refunded to Tenant upon
the termination of the Lease, unless an Event of Default has
occurred and is continuing):
(a) Commencing on the Commencement Date and
continuing on each Initial Rent Payment Date until, but not
including, the date on which the First Refinancing Loan is
funded, Initial Basic Rent shall be $1,180,000 per annum payable
in equal installments of $98,333.33.
(b) Commencing on and including the date on which
the First Refinancing Loan is funded until, but not including,
the date on which the Second Refinancing Loan is funded, annual
subsequent basic rent ("Subsequent Basic Rent") shall be
$805,360.52 per annum payable in equal installments of
$67,113.38. Subsequent Basic Rent shall be payable on each
Subsequent Basic Rent Payment Date and shall be subject to the
adjustments provided for in Paragraphs 2, 3 and 4 below.
(c) Commencing on and including the date on which
the Second Refinancing Loan is funded and for the balance of the
Term, annual subsequent basic rent (also "Subsequent Basic Rent")
shall be the sum of (i) the amount of the annual scheduled debt
service payments payable on the Second Refinancing Loan, (ii)
14.7% multiplied by the difference between $6,000,000 and the
initial principal amount of the Second Refinancing Loan, (iii)
$35,000 and (iv) if the Second Refinancing. Loan is funded after
the Basic Rent Adjustment Date (as hereinafter defined) occurring
in 1998, an amount equal to the prior adjustments to Subsequent
Basic Rent pursuant to Paragraphs 2, 3 and 4 below. Subsequent
Basic Rent shall be payable on each Subsequent Basic Rent Payment
Date and shall be subject to the adjustments provided for in
Paragraphs 2, 3 and 4 below.
2. CPI Adjustments to Basic Rent The Subsequent
Basic Rent shall be subject to adjustment, in the manner
hereinafter set forth, for increases in the CPI. If the CPI
shall be discontinued with no successor or comparable successor
index, Landlord and Tenant shall attempt to agree upon a
substitute index or formula, but if they are unable to so agree,
then the matter shall be determined by arbitration in accordance
with the rules of the American Arbitration Association then
prevailing in New York City. Any decision or award resulting
from such arbitration shall be final and binding upon Landlord
and Tenant and judgment thereon may be entered in any court of
competent jurisdiction. In no event will the Subsequent Basic
Rent as adjusted by the CPI adjustment be less than the
Subsequent Basic Rent in effect for the one year period
immediately preceding such adjustment.
3. Effective Dates of CPI Adjustments. Subsequent
Basic Rent shall not be adjusted to reflect changes in the CPI
until the first anniversary of the Basic Rent Payment Date on
which the first full installment of Subsequent Basic Rent shall
be due and payable under clause (b) of Paragraph 1 above (the
"First Full Subsequent Payment Date"). As of the first
anniversary of the First Full Subsequent Payment Date and
thereafter on each anniversary of the First Full Subsequent
Payment Date, Subsequent Basic Rent shall be adjusted to reflect
increases in the CPI during the most recent one year period
immediately preceding each of the foregoing dates, except that if
the First Full Subsequent Payment Date occurs more than one year
after the Commencement Date, the first adjustment to Subsequent
Basic Rent shall reflect increases in the CPI during the period
from the Commencement Date to the first anniversary of the First
Full Subsequent Payment Date (each such date being hereinafter
referred to as the "Basic Rent Adjustment Date").
4. Method of Adjustment for CPI Adjustment.
(a) As of each Basic Rent Adjustment Date when the
average CPI determined in clause (i) below exceeds the Beginning
CPI (as defined in this Paragraph 4(a)), the Subsequent Basic
Rent in effect immediately prior to the applicable Basic Rent
Adjustment Date shall be multiplied by a fraction, the numerator
of which shall be the difference between (i) the average CPI for
the three (3) most recent calendar months (the "Prior Months")
ending prior to such Basic Rent Adjustment Date for which the CPI
has been published on or before the forty-fifth (45th) day
preceding such Basic Rent Adjustment Date and (ii) the Beginning
CPI, and the denominator of which shall be the Beginning CPI.
The product of such multiplication shall be added to the
Subsequent Basic Rent in effect immediately prior to such Basic
Rent Adjustment Date. In no event, however, will the new
Subsequent Basic Rent exceed 103% of the Subsequent Basic Rent in
effect prior to the annual CPI adjustment (or 3% per annum if any
adjustment to Subsequent Basic Rent is for a period of more than
one (1) year). As used herein, "Beginning CPI" shall mean the
average CPI for the three (3) calendar months corresponding to
the Prior Months, but occurring one year earlier. If the average
CPI determined in clause (i) is the same or less than the
Beginning CPI, the Subsequent Basic Rent will remain the same for
the ensuing one year period.
(b) Effective as of a given Basic Rent Adjustment
Date, Subsequent Basic Rent payable under this Lease until the
next succeeding Basic Rent Adjustment Date shall be the
Subsequent Basic Rent in effect after the adjustment provided for
as of such Basic Rent Adjustment Date.
(c) Notice of the new annual Subsequent Basic Rent
shall be delivered to Tenant on or before the tenth (10th) day
preceding each Basic Rent Adjustment Date.
Exhibit 10.14
Xxxxxx X. Xxxxxx
Vice President
Loan Officer
Fleet Capital
We Build Relationships Fleet Capital Corporation
000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
Tel 000-000-0000
Fax 000-000-0000
May 2, 1997
Xx. Xxxx Xxxxxxxxxxx
Rheometric Scientific
Xxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Dear Xxxx:
Reference is made to the Loan and Security Agreement dated
February 23, 1996 (the "Loan Agreement") by and between Fleet
Capital Corporation ("Lender") and Rheometric Scientific, Inc.
("Borrower"). Capitalized terms used but not defined herein
shall have the meanings given to them in the Loan Agreement.
It has been determined that Borrower failed to satisfy the
requirements of Secitons 9.1(J) and 9.3(D) of the Loan Agreement
for the period ended 12/31/96. Borrower has requested that
Lender waive the requirements of Sections 9.1(J) and 9.3(D) of
the Loan Agreement for such period. Lender has agreed to grant
Borrower's request.
In consideration of the foregoing, Borrower and Lender agree as
follows:
Lender hereby waives the requirements of Sections 9.1(J) and
9.3(D) of the Loan Agreement for the period ending December
31, 1996. Lender's waiver set forth in the preceding
sentence shall be effective for no other term or condition
of the Loan Agreement or for any other period.
In addition, the Loan Agreement is amended as follows:
Section 9.3(C)Cash Flow is hereby amended in its entirety as
follows:
Achieve Cash Flow of not less than the amount shown below
for the period corresponding thereto:
Period Amount
The three months ending March 31, 1997 ($750,000)
The six months ending June 30, 1997 ($300,000)
The nine months ending September 30, 1997 $ 0
The twelve months ending December 31, 1997 $ 0
The last day of each fiscal quarter there- $ 0
after for the prior four fiscal quarters.
Section 9.3(D) Consolidated Cash Flow is hereby amended in
its entirety as follows:
Achieve Consolidated Cash Flow of not less than the amount
shown below for the period corresponding thereto:
Period Amount
The three months ending March 31, 1997 ($900,000)
The six months ending June 30, 1997 ($500,000)
The nine months ending September 30, 1997 $250,000
The twelve months ending December 31, 1997 $750,000
The last day of each fiscal quarter there- $750,000
after for the prior four fiscal quarters.
Except as expressly set forth herein, all terms and conditions
set forth in the Loan Agreement shall remain in full force and
effect without modification, amendment, waiver or limitation of
any kind. The agreement contained herein shall be of no force or
effect until such time as Lender shall have received a fully
executed counterpart hereof.
It is requested that Borrower acknowledge its acceptance of the
foregoing by executing this letter in the space provided below
and returning it to the attention of the undersigned.
Very truly yours,
/s/ Xxxxxx Xxxxxx
Xxxxxx X. Xxxxxx
Vice President
Accepted and Agreed:
RHEOMETRIC SCIENTIFIC, INC.
By: /s/ X X Xxxxxxxxxxx
Title: V P / CFO 5/6/97
EXHIBIT 10.15
CPA:12 Corporate Property Associates 12 Incorporated
Xxxxx Property Advisors
May 6, 1997
Via Telecopier and
Certified Mail, Return Receipt Requested
Xx. Xxxx X. Xxxxxxxxxxx
Vice President, Finance & Administration
Rheometric Scientific, Inc.
Xxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Re: Lease Agreement, dated as of February 23, 1996,
between RSI (NJ) QRS 12-13, Inc. and Rheometric
Scientific, Inc., as amended by First Amendment to
Lease Agreement, dated as of February 20, 1997 (as
amended, the "Lease")
Dear Xxxx:
Reference is made to the above-referenced Lease.
Capitalized terms used but not defined herein shall have the
respective meanings ascribed thereto in the Lease.
In consideration of the foregoing and other good and
valuable consideration, Landlord has agreed to amend the Lease as
follows:
1. Paragraph 7 of Exhibit D to the Lease will be amended as
follows:
7. Cash Flow. Tenant shall achieve Cash flow of not less
than the amount shown below for the period corresponding thereto:
Period Amount
The three months ending March 31, 1997 ($750,000)
The six months ending June 30, 1997 ($300,000)
The nine months ending September 30, 1997 $ 0
The twelve months ending December 31, 1997 $ 0
The last day of each fiscal quarter there- $ 0
after for the prior four fiscal quarters.
2. Paragraph 8 of the Exhibit D to the Amended Lease will
be amended as follows:
8. Consolidated Cash Flow. Tenant shall achieve
Consolidated Cash Flow of not less than the amount shown below
for the period corresponding thereto:
Period Amount
The three months ending March 31, 1997 ($900,000)
The six months ending June 30, 1997 ($500,000)
The nine months ending September 30, 1997 $250,000
The twelve months ending December 31, 1997 $750,000
The last day of each fiscal quarter there- $750,000
after for the prior four fiscal quarters.
Except as expressly set forth herein, all terms and
conditions set forth in the Lease shall remain in full force and
effect without modification, amendment, waiver or limitation of
any kind. The agreement contained herein shall be of no force or
effect until such time as Landlord shall have received a fully
executed counterpart hereof and evidence that Fleet Capital
Corporation ("Fleet") has agreed to the same amendments to the
Loan and Security Agreement, dated February 23, 1996, between
Fleet and Rheometric.
It is requested the Rheometric acknowledge its acceptance of
the foregoing by executing this letter in the space provided
below and returning it to the attention of the undersigned.
Very truly yours,
RSI (NJ) QRS 12-13, Inc.
By: /s/ W Xxxx Xxxxx
W. Xxxx Xxxxx
Vice President
Accepted and Agreed:
RHEOMETRIC SCIENTIFIC, INC.
By: /s/ X X Xxxxxxxxxxx
Title: V P / CFO 5/6/97
cc: Xx. Xxx X. Xxxxxxx, Xxxx Xxxxx Xxxx & XxXxxx
WSS/bmo
