Exhibit 10.8
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FIFTH AMENDMENT TO REVOLVING CREDIT, TERM LOAN
AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
(the "Agreement") is entered into as of August 14, 2002 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"),
RHEOMETRIC SCIENTIFIC F.E. LTD., a corporation organized under the laws of Japan
("RSLFE"), 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 Commonwealth of Virginia ("Protein Inc."),
PROTEIN SOLUTIONS LIMITED, a company organized under the laws of England and
Wales ("Protein Ltd.") and AVIV INSTRUMENTS, INC., a corporation organized under
the laws of the State of Delaware ("Aviv") (collectively the "Borrowers" and
individually each a "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 Borrowers and PNC entered into a Revolving Credit, Term Loan
and Security Agreement dated March 6, 2000, as amended by a First Amendment
thereto dated August 31, 2000 a Second Amendment thereto dated March 16, 2001, a
Third Amendment thereto dated June 1, 2001, and a Fourth Amendment thereto dated
March 27, 2002 (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.
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:
Section 6.5 of the Loan Agreement be and hereby is deleted, and
replaced with a new Section 6.5. to read as follows:
6.5 Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage
Ratio of not less than .20 to 1 for the three month period ending
03/31/02; .65 to 1 for the six month period ending 06/30/02, 0.85 to 1
for the nine month period ending 09/30/02, 1.1 to 1 for the twelve
month period ending 12/31/02, and maintain, thereafter, on a quarterly
basis at each quarter end on a rolling four-quarter basis, a Fixed
Charge Coverage Ratio of not less than 1.10 to 1.
3) WAIVER. The Agent and the Lenders hereby waive the Borrower's failure to
comply with Section 6.5, the Fixed Charge Coverage Ratio for the period
ending 06/30/02.
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 of the Borrowers 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.
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) pay to the Bank a waiver fee in the amount of $50,000.
(C) pay all other fees and costs incurred by the Bank in entering into this
Agreement.
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.
IN WITNESS WHEREOF, the undersigned have signed and sealed this Agreement the
day and year first above written.
ATTEST: RHEOMETRIC SCIENTIFIC, INC.
BY: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxxxx
--------------------- -------------------------------------
Name: XXXXXX XXXXXXX Name: XXXX X. XXXXXXXXX
Title: Asst. Secretary Title: Executive Vice President
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RHEOMETRIC SCIENTIFIC LIMITED
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: XXXXXX XXXXXXX
Title: Director
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/ Xxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxxxx
--------------------- -------------------------------------
Name: XXXXXX XXXXXXX Name: XXXX X. XXXXXXXXX
Title: Asst. Secretary Title: Vice President
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ATTEST: PROTEIN SOLUTIONS, INC.
BY: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxxxx
--------------------- -------------------------------------
Name: XXXXXX XXXXXXX Name: XXXX X. XXXXXXXXX
Title: Asst. Secretary Title: Vice President
PROTEIN SOLUTIONS LIMITED
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Name: XXXX X. XXXXXXXXX
Title: Director
ATTEST: AVIV INSTRUMENTS, INC.
BY: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxxxx
--------------------- -------------------------------------
Name: XXXXXX XXXXXXX Name: XXXX X. XXXXXXXXX
Title: Asst. Secretary Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
Lender and as Agent
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: XXXXXX X. XXXXXXX
Title: Director
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