SECOND AMENDMENT TO REVOLVING CREDIT, TERM LOAN
AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO REVOLVING CREDIT, TERM LOAN AND SECURITY
AGREEMENT (the "Agreement") is entered into as of March 16, 2001 by and among
RHEOMETRIC SCIENTIFIC, INC., a corporation organized under the laws of the State
of Delaware ("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 an "Existing Borrower" and collectively "Existing Borrowers"),
PROTEIN SOLUTIONS HOLDINGS, INC., a corporation organized under the laws of the
State of Delaware ("PSI"), PROTEIN SOLUTIONS, INC., a corporation organized
under the laws of the State of Virginia ("Protein Inc."), and PROTEIN SOLUTIONS
LIMITED, a corporation organized under the laws of England and Wales ("Protein
Ltd."), (each an "Additional Borrower" and collectively the "Additional
Borrowers") (the Existing Borrowers and the Additional Borrowers shall
hereinafter sometimes be referred to collectively as "Borrowers" and
individually as "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 Existing Borrowers and PNC entered into a Revolving
Credit, Term Loan and Security Agreement dated March 6, 2000, as amended by the
First Amendment thereto dated August 31, 2000 (as may be further amended, the
"Loan Agreement"); and
Whereas, Borrowers and PNC have agreed to modify the terms of the Loan
Agreement as set forth in this Agreement to include the Additional Borrowers as
Borrowers.
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) The definition of "Borrower" contained in Section 1.2 is hereby deleted
and a new definition is substituted therefor to read as follows:
"Borrower" or "Borrowers" shall have the meaning set forth in the
preamble to this Agreement and shall also include PSI, Protein Inc. and
Protein Ltd. and shall extend to all permitted successors and assigns
of such Persons.
(B) Exhibits 2.1(a) and 2.4(a) are hereby deleted and replaced by new
Exhibits 2.1(a) and 2.4(a) attached hereto.
(C) Schedules 1.1, 1.2, 4.5, 4.15(c), 4.19, 5.2(a), 5.2(b), 5.4, 5.6, 5.7,
5.9 and 7.8 are hereby deleted and replaced with new Schedules 1.1, 1.2,
4.5, 4.15(c), 4.19, 5.2(a), 5.2(b), 5.4, 5.6, 5.7, 5.9 and 7.8.
3) 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 in all material respects 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.
4) PRECONDITIONS. As a precondition to the effectiveness of any of the
modifications, consents, or waivers contained herein, the Borrower agrees
to provide the Bank with the information and documentation set forth on the
Closing Agenda and Document List attached hereto as Schedule A.
5) 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.
6) 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.
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
------------------------ ---------------------------
Name: Name: XXXXXX XXXXXXX
Title: Title: Vice President
ATTEST: RHEOMETRIC SCIENTIFIC LIMITED
By:/s/ By:/s/ Xxxxxx Xxxxxxx
------------------------ ---------------------------
Name: Name: XXXXXX XXXXXXX
Title: Title: Director
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RHEOMETRIC SCIENTIFIC FRANCE SARL
By:/s/ Xxxxxx Xxxxxxx
----------------------------
Name: XXXXXX XXXXXXX
Title: Manager
RHEOMETRIC SCIENTIFIC GmbH
By:/s/ Xxxxxx Xxxxxxx
---------------------------
Name: XXXXXX XXXXXXX
Title: Under Power of Attorney from
Xxxxxxx Xxxxxx, Managing Director
RHEOMETRIC SCIENTIFIC F.E. LTD.
By:/s/ Xxxxxx Xxxxxxx
---------------------------
Name: XXXXXX XXXXXXX
Title: Chairman and Representative
Director
ATTEST: PROTEIN SOLUTIONS HOLDINGS, INC.
BY: /s/ By: /s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------- ---------------------------
Name: Name: XXXXXX X. XXXXXXX, XX.
Title: Title: Vice President
ATTEST: PROTEIN SOLUTIONS, INC.
BY:/s/ By: /s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------- --------------------------
Name: Name: XXXXXX X. XXXXXXX, XX.
Title: Title: Vice President
PROTEIN SOLUTIONS LIMITED
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------
Name: XXXX X. XXXXXXXX
Title: Director
PNC BANK, NATIONAL ASSOCIATION, as
Lender and as Agent
By:/s/ Xxxxxxxx Xxxxxxx-Nurse
--------------------------
Name: XXXXXXXX XXXXXXX-NURSE
Title: Vice President
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