EXHIBIT 10.26
SEVENTH AMENDMENT TO REVOLVING CREDIT
AND SECURITY AGREEMENT
THIS SEVENTH AMENDMENT TO REVOLVING CREDIT AND SECURITY
AGREEMENT (the "Agreement") is entered into as of October 10, 2003 by and among
ROBOTIC VISION SYSTEMS, INC., a corporation organized under the laws of the
State of Delaware (the "Borrower"), 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 Borrower and PNC entered into a Revolving Credit
and Security Agreement dated April 28, 2000 (as has been and may be further
amended, the "Loan Agreement"); and
WHEREAS, the Borrower, PNC, Middlefield Ventures, Inc., Intel
Corp. and Xxx X. Xxxxx entered into a Subordination, Forbearance and Waiver of
Offset Rights Agreement dated April 11, 2003 (as may be further amended, the
"Forbearance Agreement"); and
WHEREAS, the Borrower and PNC have agreed to modify the terms
of the Loan Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of PNC's continued extension
of credit and the agreements contained herein, the parties agree as follow:
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. MODIFICATION OF LOAN AGREEMENT. The Loan Agreement be and
hereby is modified as follows:
A. The Termination Date as set forth in Section 13.1
is hereby deleted and replaced with the new Termination Date
of October 31, 2003.
3. MODIFICATION OF FORBEARANCE AGREEMENT. The Forbearance
Agreement be and hereby is modified as follows:
A. Paragraph 23(vi) is hereby deleted and a new
paragraph 23(vi) is substituted to read as follows:
"Forbearance Period" shall mean the period commencing on the
date hereof and ending on the earlier to occur of October 31,
2003 or the date that any Forbearance Default occurs.
4. ACKNOWLEDGMENTS. Borrower acknowledges and represents that:
A. the Loan Agreement, the Forbearance Agreement and
the Other 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 its knowledge, no default by the
Agent or Lenders in the performance of their duties under the
Loan Agreement, the Forbearance or the Other Documents has
occurred;
C. all representations and warranties of the Borrower
contained herein and in the Other Documents are true and
correct in all material respects as of this date, except for
any representation or warranty that specifically refers to an
earlier date; and except for representations and warranties
that are categorized as "Designated Defaults;"
D. Borrower has 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 preconditions to the effectiveness of any
of the modifications, consents, or waivers contained herein, the Borrower shall
deliver to the Agent, simultaneously with the execution hereof: (i) Secretary's
Certificate of the Borrower containing Resolutions authorizing the execution of
this Agreement; (ii) an extension fee in the amount of $25,000 (which is in
addition to and not in substitution of the Forbearance Fee as set forth in
paragraph 6 of the Fourth Amendment to Revolving Credit and Security Agreement
executed on May 30, 2003, which shall remain due and payable on the dates set
forth therein); and (iii) Agent's counsel's fees.
6. ADDITIONAL FORBEARANCE. The Borrower acknowledges that the
Lenders have agreed to extend the Termination Date as set forth herein,
notwithstanding the fact that the Borrower has failed to comply with the post
conditions set forth in paragraph 7 of the Fourth Amendment to Revolving Credit
and Security Agreement dated May 30, 2003, and the Borrower further acknowledges
the Lenders ability to exercise any and all remedies available to them based
upon such failure to comply.
7. MISCELLANEOUS. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York, without
reference to that state's conflicts of law principles. This Agreement, the Loan
Agreement, the Forbearance Agreement and the Other 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, the Loan Agreement, the Forbearance Agreement or the Other Documents.
This Agreement, the Loan Agreement, the Forbearance Agreement and the Other
Documents are
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intended to be consistent. However, in the event of any inconsistencies among
this Agreement, the Loan Agreement, the Forbearance Agreement and any of the
Other 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.
8. DEFINITIONS. The terms used herein and not otherwise
defined or modified herein shall have the meanings ascribed to them in the Loan
Agreement and the Forbearance Agreement. The terms used herein and not otherwise
defined or modified herein or defined in the Loan Agreement and the Forbearance
Agreement shall have the meanings ascribed to them by the Uniform Commercial
Code as enacted in New York.
IN WITNESS WHEREOF, the undersigned have signed and sealed
this Agreement the day and year first above written.
ROBOTIC VISION SYSTEMS, INC.
BY: /S/ XXX X. XXXXX
---------------------------
NAME: XXX X. XXXXX
TITLE: PRESIDENT
PNC BANK, NATIONAL ASSOCIATION
BY: /S/ XXXXXXX XXXXXXXXXX
---------------------------
NAME: XXXXXXX XXXXXXXXXX
TITLE: VICE PRESIDENT
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