CONFIDENTIAL
EXHIBIT 10.26
LOAN AGREEMENT
This Loan Agreement (this "Agreement") is entered into as of April 11,
2003 (the "Closing Date") by and between Robotic Visions Systems, Inc., a
Delaware corporation (the "Company"), and [ * ] (1), a Delaware corporation (the
"Lender").
BACKGROUND
WHEREAS, the Company is an existing supplier of equipment to [ * ], of
which the Lender is an indirect wholly-owned subsidiary ([ * ]");
WHEREAS, in exchange for the covenants and other agreements contained
herein by the parties, the Lender wishes to lend the Company an aggregate of
Four Million Dollars ($4,000,000) in two equal tranches and the Company wishes
to borrow such funds from the Lender on the terms and conditions contained
herein;
WHEREAS, simultaneously with the execution of this Agreement, the
Company and [ * ] are entering into a Settlement and Release Agreement (the
"Settlement Agreement");
NOW, THEREFORE, for good and valuable consideration, the parties hereto
agree as follows:
AGREEMENT
Intending to be legally bound, the parties hereby agree as follows:
1. DEFINITIONS.
1.1 Certain Defined Terms. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) "Breach" of a representation, warranty, covenant,
obligation, or other provision of this Agreement or the Notes (as defined below)
shall be deemed to have occurred if there is or has been (i) any material
inaccuracy in or breach of, or any material failure to perform or comply with,
such representation, warranty, covenant, obligation, or other provision, or (ii)
any material claim or other occurrence or circumstance that is or was
inconsistent with such representation, warranty, covenant, obligation, or other
provision, and the term Breach shall mean any such material inaccuracy, breach,
failure, claim, occurrence, or circumstance.
(b) "Lien" shall mean any mortgage, deed of trust, or pledge,
security interest, hypothecation, assignment, assigned deposit, arrangement,
encumbrance, encroachment, lien (statutory or otherwise), claim, option,
reservation, right off way, easement, or defect of any kind,
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(1) Denotes omission pursuant to a confidentiality agreement between the Company
and the Lender.
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or preference, or priority, or other security agreement or preferential
arrangement of any kind of or nature whatsoever (including, without limitation,
any conditional sale or other title retention agreement, any financing statement
under the UCC, or under the comparable law of any other jurisdiction).
(c) "Maturity Date" shall mean one year from the date hereof.
(d) "Outstanding Balance" shall mean the unpaid principal
balance, all accrued interest thereon and any other amounts owing under the
Notes issued to the Lender under this Agreement.
(e) "Permitted Liens" shall mean Liens for taxes that are not
yet due and payable or contested in good faith and statutory, mechanics,
material persons and other liens imposed by law that are not yet due and payable
or being contested in good faith and certain Liens incurred by the Company under
and with respect to (i) that Revolving Credit and Security Agreement dated as of
April 28, 2000 by and between the Company and P.N.C. Bank, National Association
(the "P.N.C. Agreement") and (ii) that Convertible Promissory Note (the "Costa
Note") and that Security Agreement (the "Costa Security Agreement") dated as of
December 4, 2002 by and between the Company and Xxx X. Xxxxx.
(f) "Proprietary Assets" shall mean all patents, patent
applications, trademarks, service marks, trade names, copyrights, moral rights,
mask works, trade secrets, confidential and proprietary information,
compositions of matter, formulas, designs, proprietary rights, know-how and
processes of the Company.
(g) "Secured Obligations" shall mean all money, debts,
obligations and liabilities which now are or have been or at any time hereafter
may be or become due, owing or incurred by the Company to the Lender, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with this Agreement, the Notes and any other document made, delivered or given
in connection therewith or herewith, whether on account of principal, interest
(including, without limitation, interest accruing on the Notes after the First
Closing Date and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Company, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), royalties, reimbursement
obligations, fees, indemnities, costs, expenses, or otherwise.
(h) "UCC" shall mean the Uniform Commercial Code of the State
of California as in effect on the First Closing Date and as amended from time to
time hereafter.
2. THE LOAN.
2.1 The Loan and Notes. Subject to the terms and conditions of this
Agreement, the Lender agrees to lend to the Company, and the Company agrees to
borrow from the Lender, subject to the satisfaction of the conditions for the
respective Closings as set forth herein, the aggregate principal amount of four
million dollars ($4,000,000.00) evidenced by the Secured
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Promissory Notes to be issued at the respective Closings, each such Note in
substantially the form attached hereto as Exhibit A (the "Notes"). The amounts
of the foregoing aggregate principal amount will be advanced to the Company in
tranches as provided herein .
2.2 Closings.
(a) First Closing. Subject to the terms and conditions of this
Agreement, the initial issuance of the Note (the "First Closing") shall
be held at a location and on a date (the "First Closing Date") mutually
agreed to by the parties and upon the satisfaction or waiver in writing
by each of the parties hereto of all of the conditions set forth in
Section 7.1 and Section 8 hereof. At the First Closing, the Company
shall deliver to the Lender the initial Note against delivery of Two
Million Dollars ($2,000,000) of the funds pursuant thereto by a wire
transfer to the Company.
(b) Second Closing. Subject to the terms and conditions of
this Agreement, the issuance of the second Note (the "Second Closing")
shall be held at a location and on a date (the "Second Closing Date")
mutually agreed to by the parties and upon the satisfaction or waiver
in writing by each of the parties hereto of all of the conditions set
forth in Section 7.2 and Section 8 hereof. At the Second Closing, the
Company shall deliver to the Lender the second Note against delivery of
Two Million Dollars ($2,000,000) of the funds pursuant thereto by a
wire transfer to the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents
and warrants to the Lender that, except as set forth on the schedule of
exceptions attached hereto as Exhibit B (the "Schedule of Exceptions ")
furnished to the Lender and which exceptions shall be deemed to be
representations and warranties as if made hereunder, the following statements
are all true and correct. For the purposes of this Section 3, all references to
"Closing" or "Closing Date" shall be the respective First or Second Closing
Date:
3.1 Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
carry on its business as now conducted and as proposed to be conducted. The
Company is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a material adverse
effect on its business or properties.
3.2 Authorization. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization, execution
and delivery of this Agreement, the Notes and the Security Agreement, and the
performance of all obligations of the Company hereunder and thereunder has been
taken, and this Agreement, the Notes and the Security Agreement constitute valid
and legally binding obligations of the Company, enforceable in accordance with
their respective terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally and (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies.
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3.3 Valid Issuance of Notes. The Notes that are being issued to the
Lender hereunder, when issued, sold and delivered in accordance with the terms
of this Agreement, shall be duly and validly issued.
3.4 Governmental Consents. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated by
this Agreement, the Notes or the Security Agreement.
3.5 Compliance with Other Instruments. The Company is not in violation
or default of any provision of its Restated Certificate or in any material
respect of the Company's Bylaws, or in any material respect of any instrument,
judgment, order, writ, decree or contract to which it is a party or by which it
is bound, or, to the best of its knowledge, in any material respect of any
provision of any federal or state statute, rule or regulation applicable to the
Company. Except as set forth in Section 3.5 of the Schedule of Exceptions, the
execution, delivery and performance of this Agreement, the Notes and the
Security Agreement, and the consummation of the transactions contemplated hereby
and thereby shall not result in any such violation or be in conflict with or
constitute, with or without the passage of time and giving of notice, either a
default under any such provision, instrument, judgment, order, writ, decree or
contract or an event that results in the creation of any lien, charge or
encumbrance upon any assets of the Company or the suspension, revocation,
impairment, forfeiture, or nonrenewal of any material permit, license,
authorization or approval applicable to the Company, its business or operations
or any of its assets or properties.
3.6 Title to Property and Assets. Except for the Permitted Liens, the
Company has good and marketable title to, or a valid leasehold interest in, or
other legal, written right to use, all material properties and assets used in
its business or held or otherwise owned by the Company (including, without
limitation, all of the Collateral) held in each case subject to no Lien of any
kind except for the Permitted Liens or, in the case of leased real property,
easements and other rights or restrictions of record that do not materially
impair the use or value of such property to the Company. With respect to the
material property and assets it leases, the Company is in material compliance
with such leases and, to the best of the Company's knowledge, the Company holds
valid leasehold interests in such assets free of any Liens or claims of any
party other than the lessors of such property and assets.
3.7 SEC Reports. Other than as set forth in Section 3.7 of the Schedule
of Exceptions, the Company has timely filed with the Securities and Exchange
Commission (the "SEC") all reports, registrations and other documents, together
with any amendments thereto, required to be filed under the Securities Act of
1933, as amended (the "Securities Act") and the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (all such reports, registrations and documents
filed with the SEC since October 1, 1997 are collectively referred to as the
"Company SEC Reports"). Other than as set forth in Section 3.7 of the Schedule
of Exceptions, as of their respective dates, the Company SEC Reports complied in
all material respects with all rules and regulations promulgated by the SEC and
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or
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necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
3.8 Financial Statements. The consolidated financial statements of the
Company (the "Company Financial Statements") included in the Company's SEC
Reports present fairly, in all material respects, the consolidated financial
position of the Company and the Subsidiaries as of the respective dates and the
results of their operations and cash flows for the fiscal years and periods
covered in accordance with GAAP consistently applied and in accordance with
Regulation S-X of the SEC (subject, in the case of unaudited interim period
financial statements, to normal and recurring year-end adjustments which,
individually or collectively, are not material). Without limiting the generality
of the foregoing, (i) as of the date of the most recent balance sheet comprising
a portion of the Company Financial Statements, there was no material debt,
liability or obligation of any nature not fully reflected or reserved against in
the Company Financial Statements or in the notes thereto required to be so
reflected or reserved in accordance with GAAP; and (ii) there are no assets of
the Company or any subsidiary of the Company, the value of which (in the
reasonable judgment of the Company) is materially overstated in the Company
Financial Statements. Except as set forth in Section 3.8 of the Schedule of
Exceptions or as incurred in the ordinary course of business since December 31,
2002, neither the Company nor any subsidiary of the Company has any known
material contingent liabilities. The Company is not a party to any contract or
agreement for the forward purchase or sale of any foreign currency and has not
invested in any "derivatives."
3.9 Changes. Except as set forth in the Company's Quarterly Report on
Form 10-Q for the fiscal quarter ended December 31, 2002 or in Section 3.9 of
the Schedule of Exceptions, since December 31, 2002, there has not been:
(a) any change in the assets, liabilities, financial condition
or operating results of the Company from that reflected in the Financial
Statements, except changes in the ordinary course of business that have not
been, in the aggregate, materially adverse;
(b) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the assets, properties, financial
condition, operating results, prospects or business of the Company (as such
business is presently conducted and as it is proposed to be conducted);
(c) any waiver by the Company of a valuable right or of a
material debt owed to it;
(d) any satisfaction or discharge of any Lien, claim or
encumbrance or payment of any obligation by the Company, except in the ordinary
course of business and that is not material to the assets, properties, financial
condition, operating results or business of the Company (as such business is
presently conducted and as it is proposed to be conducted);
(e) any material change or amendment to a material contract or
arrangement by which the Company or any of its assets or properties is bound or
subject;
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(f) any material change in any compensation arrangement or
agreement with any employee;
(g) any sale, assignment or transfer of any patents,
trademarks, copyrights, trade secrets or other intangible assets;
(h) any resignation or termination of employment of any key
officer of the Company; and the Company, to the best of its knowledge, does not
know of the impending resignation or termination of employment of any such
officer;
(i) receipt of notice that there has been a loss of, or
material order cancellation by, any major customer of the Company;
(j) any mortgage, pledge, transfer of a security interest in,
or Lien, created by the Company, with respect to any of its material properties
or assets, except Permitted Liens;
(k) any loans or guarantees made by the Company to or for the
benefit of its employees, officers or directors, or any members of their
immediate families, other than travel advances and other advances made in the
ordinary course of its business;
(l) any declaration, setting aside or payment or other
distribution in respect of any of the Company's capital stock, or any direct or
indirect redemption, purchase or other acquisition of any of such stock by the
Company;
(m) to the best of the Company's knowledge, any other event or
condition of any character that might materially and adversely affect the
assets, properties, financial condition, operating results or business of the
Company (as such business is presently conducted and as it is proposed to be
conducted); or
(n) any agreement or commitment by the Company to do any of
the things described in this Section 3.9.
4. REPRESENTATIONS AND WARRANTIES OF THE LENDER. Lender represents and warrants
to the Company as follows:
4.1 Organization, Good Standing and Qualification. The Lender and [ * ]
are corporations duly organized, validly existing and in good standing under the
laws of the State of Delaware and have all requisite corporate power and
authority to carry on their businesses as now conducted and as proposed to be
conducted. Each of the Lender and [ * ] is duly qualified to transact business
and is in good standing in each jurisdiction in which the failure to so qualify
would have a material adverse effect on its business or properties.
4.2 Authorization. All corporate action on the part of [ * ], the
Lender, their respective officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the Notes, the Security
Agreement, the Costa Subordination Agreement and the P.N.C. Subordination
Agreement, and the performance of all obligations of [ * ] and the Lender
hereunder and thereunder has been taken, and this Agreement, the Notes, the
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Security Agreement, the Costa Subordination Agreement and the P.N.C.
Subordination Agreement constitute valid and legally binding obligations of
[ * ] and the Lender, enforceable in accordance with their respective terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies.
4.3 Consents. No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of [ * ], nor any
consent, approval, order or authorization of any individual, partnership,
corporation, limited liability company, association, trust, joint venture,
unincorporated organization or other entity at the request of [ * ] is required
in connection with the consummation of the transactions contemplated by this
Agreement, the Notes, the Security Agreement, the Costa Subordination Agreement
or the P.N.C. Subordination Agreement.
5. COVENANTS OF THE COMPANY. The Company covenants to the Lender as
follows:
5.1 Use of Proceeds. The Company shall use the proceeds from sale of
the Notes for working capital needs.
5.2 No Further Liens. The Company shall maintain good title to, or the
right to use, the Collateral, as the case may be, free and clear of any Liens or
restrictions on the transfer thereof except for Liens created pursuant to this
Agreement, Permitted Liens or Liens approved by the Lender in writing. In any
case, the Liens granted to the Lender hereby shall have priority over any other
Liens or restrictions as to the Collateral. The Company shall defend such title
against the claims and demands of all persons and shall not grant, create or
permit to attach or exist any mortgage, pledge, lien, levy, charge or other
encumbrance on, of or against any of the Collateral.
5.3 Place of Business. The Company shall maintain and keep its
principal place of business and its chief executive office at 0 Xxxxxxx Xxxx,
Xxxxxx Xxxxxxxxxxxxx 00000 or at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx
00000, or at 000 Xxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000 and at no other
location without prior written notice to the Lender. The Company shall maintain
and keep its records concerning the Collateral (as defined in the Security
Agreement) at 0 Xxxxxxx Xxxx, Xxxxxx Xxxxxxxxxxxxx 00000 or at 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx 00000 or at 000 Xxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxx
Xxxx 00000 and at no other location without prior written notice to the Lender.
5.4 Inspection Rights. The Lender and any person the Lender may
designate shall have the right to review all books and records, reports,
accounts and other financial documents of the Company pertaining to the
Collateral and to copy the same and to make excerpts therefrom, all at such
reasonable times and as often as the Lender may reasonably request, upon prior
written notice to the Company, so long as such review and copying does not
unreasonably interfere with the business of the Company and the Lender agrees to
keep confidential, and not disclose, except as may be required by law or court
order, all information obtained during such review of a confidential or
proprietary nature (and not otherwise known to the Lender through
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other sources or publicly known). The disclosure and exchange of confidential
information between the Company and either the Lender or [ * ] pursuant to this
Section 5.4 shall be governed solely by the terms of the Corporate
Non-Disclosure Agreement No. 7860090 dated November 13, 2002 (the "[ * ] CNDA")
executed between the Company and [ * ].
5.5 Financial Statements.
(a) Annual Financial Statements. Until the Outstanding Balance
has been paid, the Company will furnish Lender within ninety (90) days after the
end of each fiscal year of the Company, financial statements of the Company on a
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 accorded with generally accepted accounting
principles applied on a basis consistent with prior practices, and in reasonable
detail and reported upon without qualification by an independent certified
public accounting firm selected by the Company.
(b) Quarterly Financial Statements. Until the Outstanding
Balance has been paid, the Company will furnish Lender within forty-five (45)
days after the end of each fiscal quarter, an unaudited balance sheet of the
Company on a consolidated basis and unaudited statements of income and
stockholders' equity and cash flow of the Company on a consolidated 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 the Company.
(c) Other Reports. Until the Outstanding Balance has been
paid, the Company will furnish Lender as soon as available, but in any event
within ten (10) days after the issuance thereof with copies of such financial
statements, reports and returns as the Company shall send to its stockholders
generally.
5.6 Notification. Until the Outstanding Balance has been paid, the
Company shall promptly notify the Lender in writing if the Company becomes aware
of any fact or condition that causes or constitutes any Breach of any of the
Company's representations and warranties as of the Closing Date, or if the
Company becomes aware of the occurrence after the Closing Date of any fact or
condition that would (except as expressly contemplated by this Agreement) cause
or constitute a Breach of any such representation or warranty had such
representation or warranty been made as of the time of occurrence or discovery
of such fact or condition. Should any such fact or condition require any change
in the Schedule of Exceptions if the Schedule of Exceptions were dated the date
of the occurrence or discovery of any such fact or condition, the Company shall
promptly deliver to the Lender a supplement to the Schedule of Exceptions
specifying such change. During the same period, the Company shall promptly
notify the Lender of the occurrence of any Breach of any covenant of the Company
in this Section 5 or of the occurrence of any event that may make the
satisfaction of the conditions in Section 7 impossible or unlikely.
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5.7 Trademarks and Patents. As soon as practicable following the First
Closing, the Company shall execute a notice of security interest (the "Notice of
Security Interest") in reasonable form agreed to by the parties with the United
States Patent and Trademark Office and such foreign patent or trademark offices
as reasonably requested by the Lender. In addition, the Company shall give
prompt notice in writing to the Lender with respect to any registrations, or
applications for registrations, of such new trademarks or patents, or renewal or
extension of any trademark registration. Upon request of the Lender from time to
time, the Company agrees to provide the Lender with a Notice of Security
Interest, signed by the president, treasurer or secretary of the Company as to
any such new patent or trademark rights.
6. DEFAULT AND ACCELERATION.
6.1 For purposes of this Agreement, the term "default" shall include
any of the following:
(a) The Company's Breaches of any of the covenants set forth
in Section 5 of this Agreement;
(b) The Company fails to pay when due any payment on the
Notes;
(c) Pursuant to the terms of the P.N.C. Agreement, P.N.C.
Bank, N.A. has declared a Default (as defined under the P.N.C. Agreement) and
the Company's indebtedness pursuant thereto is accelerated, or the Company shall
commit a material Breach under the Company's real property lease agreement for
the premises at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxxxxx 00000 or any material
capital equipment lease agreement, by which Company is bound or obligated; and
(d) The Company Breaches in any material respect any other
agreement with the Lender or [ * ], including the Settlement Agreement and the
CPA (as defined in the Settlement Agreement).
Upon each such default, the Company shall have three business (3) days
to cure such default after receipt of written notice of default from the Lender
specifying the nature of the Company's default. If the Company is unable to cure
its default within such three (3) day period, the Lender may, at its option,
accelerate repayment of the Outstanding Balance in which case the Outstanding
Balance shall be due and payable immediately. Upon any default of the Company,
the Lender shall have full recourse against any tangible or intangible assets of
the Company and may pursue any legal or equitable remedies that has available to
it. The Lender shall have a full right of offset for any amounts due upon such a
default against any amounts (including royalties, if any) payable by the Lender
to the Company.
6.2 Acceleration/Payment upon Acquisition or Sale of Assets.
6.2.1 In the event that a third party acquires the Company's
SEG Division, upon the closing of such acquisition, the Company shall pay Lender
against the Outstanding Balance an amount of One Million Dollars ($1,000,000),
subject to the subordination of the Company's
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obligations to Lender under the Notes pursuant to the terms of the P.N.C.
Subordination Agreement.
6.2.2 In addition, the Maturity Date shall accelerate and the
Outstanding Balance (remaining after any payment made pursuant to Section 6.2.1
above) shall be due and payable under the circumstances set forth below:
(a) If (I) the aggregate amount of cash paid to the Company by
the purchaser of the Company's SEG Division at closure (the "Cash Sale
Proceeds"), together with the aggregate dollar amount of liabilities of
the Company assumed by such purchaser (collectively, with the Cash Sale
Proceeds, the "Total Sale Proceeds"), are in excess of $55.0 million
and (II) the Cash Sale Proceeds are in excess of $35.0 million, then
the Company will repay the Notes in full upon such closure.
(b) If, however, (I) the Total Sale Proceeds are more than
$50.0 million but less that $55.0 million, and (II) the Cash Sale
Proceeds are more than $30.0 million but less than $35.0 million, then
the Company will repay the Notes, on a dollar-for-dollar basis, only to
the extent the Cash Sale Proceeds exceeds $30.0 million upon such
closure.
6.2.3 Except as provided in Section 6.2.1 above, the Notes
shall not accelerate and the Maturity Date of the Notes recited in Section
1.1(c) hereof shall remain unchanged if the Total Sale Proceeds shall equal or
be less than $50.0 million.
7. CONDITIONS TO THE LENDER'S OBLIGATIONS.
7.1 Conditions to the First Closing. The obligation of the Lender to
advance the funds pursuant to the terms of Section 2.2(a) of this Agreement and
the Note at the First Closing is subject to the fulfillment, to the satisfaction
of the Lender on or prior to the First Closing, of the following conditions:
(a) Representations and Warranties Correct. All of the
representations and warranties made by the Company in Section 3 (considered
collectively) and each of the representations and warranties made by the Company
in Section 3 (considered individually) shall be true and correct in all material
respects when made (except each representation or warranty that is qualified as
to materiality shall be true and correct when made), and shall be true and
correct in all material respects (except each representation or warranty that is
qualified as to materiality shall be true and correct) as of the date of the
First Closing with the same force and effect as if they had been made on and as
of such date, without giving the effect to any supplement to the Schedule of
Exceptions (other than changes contemplated by the issuance of such Note at the
First Closing).
(b) Performance of Obligations. The Company shall have
performed and complied in all material respects with all agreements, obligations
and conditions contained in this Agreement (considered collectively), and each
agreement, obligation and conditions contained in this Agreement (considered
collectively), that are required to be performed or complied with by it
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on or before the First Closing and shall have obtained all approvals, consents
and qualifications necessary to complete the purchase and sale described herein.
(c) Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated hereby and all
documents and instruments incident to such transactions shall be satisfactory in
substance and form to the Lender, and the Lender shall have received all such
counterpart originals or certified or other copies of such documents as it may
reasonably request.
(d) Consents and Waivers. The Company shall have obtained any
and all consents and waivers necessary or appropriate for consummation of the
transactions contemplated by this Agreement.
(e) Liens and Notices. No later than the date prior to the
date of the First Closing, the Company shall have filed the UCC Statement in
substantially the form attached hereto as Exhibit D (the "UCC Statements") in
Delaware, New York and New Hampshire.
(f) Security Agreement. The Company shall have executed and
delivered to the Lender that Security Agreement substantially in the form
attached hereto as Exhibit E (the "Security Agreement").
(g) Settlement Agreement. The Company, [ * ], Xxx X. Xxxxx and
the other directors of the Company shall have executed and delivered to [ * ]
the Settlement Agreement substantially in the form attached hereto as Exhibit F.
(h) P.N.C. Subordination Agreement. The Company, P.N.C.,
National Bank and Xxx X. Xxxxx and [ * ] shall have executed and delivered to
the Lender the Subordination, Forebearance and Waiver of Offset Rights Agreement
substantially in the form attached hereto as Exhibit G (the "P.N.C.
Subordination Agreement") which provides, in part, for the subordination of the
Company's obligation to Lender pursuant to this Agreement to the Company's
obligations pursuant to the P.N.C. Agreement.
(g) Costa Subordination Agreement. The Company, Xxx X. Xxxxx
and Lender shall have executed and delivered to the Lender the Subordination
Agreement substantially in the form attached hereto as Exhibit H (the "Costa
Subordination Agreement").
7.2 Conditions to the Second Closing. The obligation of the Lender to
advance any funds pursuant to the terms of Section 2.2(b) of this Agreement and
the Note at the Second Closing is subject to the fulfillment, to the
satisfaction of the Lender on or prior to the Second Closing, of the following
conditions:
(a) Representations and Warranties Correct. All of the
representations and warranties made by the Company in Section 3 (considered
collectively) and each of the representations and warranties made by the Company
in Section 3 (considered individually) shall be true and correct in all material
respects when made (except each representation or warranty that is qualified as
to materiality shall be true and correct when made), and shall be true and
correct in all material respects (except each representation or warranty that is
qualified as to
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CONFIDENTIAL
materiality shall be true and correct) as of the date of the second Closing with
the same force and effect as if they had been made on and as of such date,
without giving the effect to any supplement to the Schedule of Exceptions (other
than changes contemplated by the issuance of such Note at the Second Closing).
(b) Performance of Obligations. The Company shall have
performed and complied in all material respects with all agreements, obligations
and conditions contained in this Agreement (considered collectively) and the
Settlement Agreement, and each agreement, obligation and conditions contained in
this Agreement (considered collectively), that are required to be performed or
complied with by it on or before the Second Closing and shall have obtained all
approvals, consents and qualifications necessary to complete the purchase and
sale described herein.
(c) Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated hereby and all
documents and instruments incident to such transactions shall be satisfactory in
substance and form to the Lender, and the Lender shall have received all such
counterpart originals or certified or other copies of such documents as it may
reasonably request.
(d) Consents and Waivers. The Company shall have obtained any
and all consents and waivers necessary or appropriate for consummation of the
transactions contemplated by this Agreement.
(e) Alternative Financing. The Company shall have obtained
alternative debt and/or equity financings pursuant to which the Company shall
have satisfied all the Company's obligations to P.N.C. Bank under the P.N.C.
Agreement (the "Alternative Financing(s)") and pursuant to any debt issued in
such Alternative Financing(s), no amounts shall be due and payable for less than
one (1) year following the Second Closing.
(f) No Bankruptcy Filing. The Company shall not have filed a
petition in bankruptcy or under any similar insolvency law nor made an
assignment for the benefit of creditors; and no involuntary petition in
bankruptcy or under any similar insolvency law shall have been filed against the
Company.
8. CONDITIONS TO COMPANY'S OBLIGATIONS AT EACH CLOSING. The obligations of the
Company under this Agreement are subject to the fulfillment at or before each
Closing of the following conditions:
8.1 Representations and Warranties. The representations and warranties
of the Lender contained in Section 4 hereof shall be true as of the date of the
respective Closing.
8.2 Advance of Funds Pursuant to each Note. The Lender shall have
delivered to the Company the funds pursuant to the terms of this Agreement and
the Note for the respective Closing.
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CONFIDENTIAL
9. CONFIDENTIALITY.
9.1 Disclosure of Terms. The Company acknowledges that the terms and
conditions (collectively, the "Loan Terms") of this Agreement, the Notes, the
Security Agreement, the Costa Subordination Agreement and the P.N.C.
Subordination Agreement and all exhibits, restatements and amendments thereto
(collectively, the "Loan Agreements"), including their existence, shall be
considered confidential information and shall not be disclosed by the Company to
any third party except in accordance with the provisions set forth below.
9.2 Press Releases, Etc. No announcement regarding the Loan Terms or
the Lender in a press release, conference, advertisement, announcement,
professional or trade publication, mass marketing materials or otherwise to the
general public may be made without the prior written consent of the Lender.
9.3 Permitted Disclosures. Notwithstanding the foregoing, (a) the
Company may disclose any of the Loan Terms to its current or bona fide
prospective investors, employees, investment bankers, lenders, accountants and
attorneys, in each case only where such persons or entities are under
appropriate written nondisclosure obligations; and (b) the Company shall have
the right to disclose to third parties any information regarding the Loan Terms
disclosed in a press release or other public announcement by the Lender or
[ * ].
9.4 Legally Compelled Disclosure. In the event that the Company is
requested or becomes legally compelled (including without limitation, pursuant
to securities laws and regulations) to disclose the existence of any of the Loan
Agreements or Loan Terms hereof in contravention of the provisions of this
Agreement, the Company shall provide the Lender or [ * ] with prompt written
notice of that fact before such disclosure and shall use its best efforts to
fully cooperate with the Lender or [ * ] to seek a protective order,
confidential treatment, or other appropriate remedy with respect to the
disclosure. In such event, the Company shall furnish for disclosure only that
portion of the information which is legally required and shall exercise its best
efforts to obtain reliable assurance that confidential treatment shall be
accorded such information to the extent reasonably requested by the Lender or
[ * ] and to the maximum extent possible under law. The Company agrees that it
shall provide the Lender or [ * ] with drafts of any documents, press releases
or other filings in which the Company is required to disclose this Agreement,
the Loan Agreements, the Loan Terms or any other confidential information
subject to the terms of this Agreement at least five (5) business days prior to
the filing or disclosure thereof, and that it shall make any changes to such
materials as requested by the Lender or [ * ] to the extent permitted by law or
any rules and regulations of the SEC, as applicable. The Company shall not file
any Loan Agreements with any governmental authority or any regulatory body, or
disclose the identity of the Lender or [ * ] or any other Loan Terms in any
filing except as permitted above.
9.5 Confidential Information. The disclosure and exchange of
confidential information between the Company and the Lender or [ * ] shall be
governed solely by the terms of the [ * ] CNDA.
10. MISCELLANEOUS.
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CONFIDENTIAL
10.1 Governing Law. This Agreement shall be governed in all respects by
and construed in accordance with the laws of the State of California without
regard to provisions regarding choice of laws.
10.2 Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by any party hereto
and the closing of the transactions contemplated hereby.
10.3 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto whose rights or obligations hereunder are affected by such
amendments. This Agreement and the rights and obligations therein may not be
assigned by the Lender without the written consent of the Company except to a
parent corporation, a subsidiary or affiliate. This Agreement and the rights and
obligations therein may not be assigned by the Company without the written
consent of the Lender.
10.4 Entire Agreement. This Agreement, the Notes, the Security
Agreement, the Settlement Agreement, the Costa Subordination Agreement, the
P.N.C. Subordination Agreement and the Exhibits and Schedules hereto and thereto
(all of which are hereby expressly incorporated herein by this reference)
constitute the entire understanding and agreement between the parties with
regard to the subjects hereof and thereof; provided, however, that nothing in
this Agreement shall be deemed to terminate or supersede the provisions of any
confidentiality and nondisclosure agreements executed by the parties hereto
prior to the date hereof, which agreements shall continue in full force and
effect until terminated in accordance with their respective terms.
10.5 Notices. Except as may be otherwise provided herein, all notices,
requests, waivers and other communications made pursuant to this Agreement shall
be in writing and shall be conclusively deemed to have been duly given (a) when
hand delivered to the other party; (b) when received when sent by facsimile at
the number set forth below; (c) three business days after deposit in the U.S.
mail with first class or certified mail receipt requested postage prepaid and
addressed to the other party as set forth below; or (d) the next business day
after deposit with a national overnight delivery service, postage prepaid,
addressed to the parties as set forth below with next-business-day delivery
guaranteed, provided that the sending party receives a confirmation of delivery
from the delivery service provider.
To the Company:
Robotic Vision Systems, Inc.
000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxxxxxx 00000
Attn: Xxx X. Xxxxx, Chairman, President and
Chief Executive Officer
Fax Number: (000) 000-0000
with copies to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
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CONFIDENTIAL
1221 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Att: Xxx Xxxxxxx, Esq.
Fax Number: (000) 000-0000
To [ * ] or the Lender:
c/o [ * ]
[ * ]
[ * ]
Attn: [ * ]
Fax Number: [ * ]
with copies to:
[ * ]
Each person making a communication hereunder by facsimile
shall promptly confirm by telephone to the person to whom such communication was
addressed each communication made by it by facsimile pursuant hereto but the
absence of such confirmation shall not affect the validity of any such
communication. A party may change or supplement the addresses given above, or
designate additional addresses, for purposes of this Section 10.5 by giving the
other party written notice of the new address in the manner set forth above.
10.6 Amendments. Any term of this Agreement may be amended only with
the written consent of the Company and the Lender.
10.7 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any party hereto, upon any breach or default of any
party hereto under this Agreement, shall impair any such right, power or remedy
of such party nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of any similar breach of default
thereafter occurring; nor shall any waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any party hereto of any breach of default
under this Agreement or any waiver on the part of such party of any provisions
or conditions of this Agreement, must be in writing and shall be effective only
to the extent specifically set forth in such writing. All remedies, either under
this Agreement, or by law or otherwise afforded to any party hereto shall be
cumulative and not alternative.
10.8 Legal Fees. In the event of any action at law, suit in equity or
arbitration proceeding in relation to this Agreement, the Notes or the Security
Agreement , the prevailing party, shall be paid by the other party a reasonable
sum for attorney's fees and expenses for such prevailing party.
10.9 Finder's Fees. Each party (a) represents and warrants to the other
party hereto that it has retained no finder or broker in connection with the
transactions contemplated by this
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CONFIDENTIAL
Agreement, and (b) hereby agrees to indemnify and to hold harmless the other
party hereto from and against any liability for any commission or compensation
in the nature of a finder's fee of any broker or other person or firm (and the
costs and expenses of defending against such liability or asserted liability)
for which the indemnifying party or any of its employees or representatives are
responsible.
10.10 Titles and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
10.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. Delivery of an executed signature page to this
Agreement by facsimile transmission shall be effective as delivery of a manually
signed counterpart thereof.
10.12 Severability. Should any provision of this Agreement be
determined to be illegal or unenforceable, such determination shall not affect
the remaining provisions of this Agreement.
10.13. Transfer to and Performance by [ * ]. Notwithstanding anything
to the contrary in this Agreement, the Notes or the Security Agreement, the
Lender may transfer all of its rights and obligations under, and the Notes
acquired in connection with, this Agreement to [ * ] without the prior consent
of the Company; provided, that the Company shall be given written notice
promptly following such transfer. The performance of any of the Lender's rights
or obligations under this Agreement by [ * ] shall be deemed, if the Lender so
desires, performance by the Lender.
10.14. Term and Termination. The term of this Agreement shall begin on
the First Closing Date and shall terminate on the date on which the Outstanding
Balance has been paid in full.
[Signature page follows.]
16
IN WITNESS WHEREOF, the parties have executed this Loan Agreement to be
effective as of the date first above written.
ROBOTIC VISION SYSTEMS, INC.
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
----------------------------
Title: Chairman, President and CEO
----------------------------
[ * ]
By:
Name: [ * ]
Title: [ * ]
SIGNATURE PAGE TO THE LOAN AGREEMENT
BY AND BETWEEN ROBOTIC VISION SYSTEMS, INC. AND [ * ]
17
