Exhibit 10.23
FOURTH AMENDMENT TO REVOLVING CREDIT
AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT (the
"Agreement") is entered into as of May 30, 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 definition of "Revolving Interest Rate" contained in
Section I.1.2 of the Loan Agreement is hereby deleted and a new
definition is substituted therefor to read as follows: "Revolving
Interest Rate" shall mean an interest rate per annum equal to the Base
Rate plus two (2%) per cent with respect to Domestic Rate Loans.
B. The Termination Date as set forth in Section 13.1 is hereby
deleted and replaced with the new Termination Date of August 14, 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 August 14, 2003 or the date that any Forbearance
Default occurs.
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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) the first installment of the Forbearance Fee in the amount
of $12,500; and (iii) Agent's counsel's fees.
6. FORBEARANCE FEE. The Borrower shall pay to the Agent a Forbearance
Fee in the amount of $100,000 as follows: $12,500 on the date hereof; $12,500
on June 30, 2003; $50,000 on July 21, 2003; and $25,000 on August 8, 2003.
Except for the payment of $12,500 due on the date hereof, no further portion of
the Forbearance Fee shall be due and payable if, as of the date such payment is
due, the Obligations have been paid in full. Failure of the Borrower to pay the
above mentioned fees on the dates set forth above shall be deemed an Event of
Default under the Loan Agreement.
7. POST-CONDITIONS. The Borrower shall: (i) by June 3, 2003 deliver to
the Agent evidence that an amount of not less than $300,000 (less expenses and
back rent owed by Borrower to its Landlord) has been received by the Borrower
from Sick A.G. resulting from the settlement of a $500,000 hold-back from the
sale of Borrower's former material handling division; (ii) by June 5, 2003
complete the implementation of a full cash dominion program in favor of the
Agent; (iii) by June 16, 2003 deliver to the Agent evidence that the Borrower
has received additional Subordinated Debt (in form and substance satisfactory to
the Agent) of at least $2,000,000, or additional equity of at least $2,000,000;
(iv) by June 30, 2003 deliver to the Agent either (A) a letter of interest
regarding the sale of the Semiconductor Equipment Group in form satisfactory to
the Agent, or (B) a letter of interest regarding the sale of the Acuity Cimatrix
division that is satisfactory to the Agent in all respect; or (C) a proposal
from an alternate lender to refinance Borrower's Obligations due to the Agent in
all respects satisfactory to the Agent; (v) by July 15, 2003 deliver to the
Agent either (A) a definitive letter of intent with respect to the sale of the
Semiconductor Equipment Group in form and substance satisfactory to the Agent,
or (B) a definitive letter of intent with respect to the sale of the Acuity
Cimatrix division in form and substance satisfactory to the Agent, or (C) an
unconditional commitment from an alternative lender to refinance the Obligations
due PNC in form and substance satisfactory to the Agent; and (vi) by July 14,
2003 deliver to the Agent cash flow projections through August 14, 2003. Failure
by the Borrower to comply with any of the provisions contained in this paragraph
7 shall be deemed an Event of Default under the Loan Agreement.
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8. 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 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.
9. 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/ Xxxx X. Xxxxxxxx
--------------------------------
NAME: XXXX X. XXXXXXXX
TITLE: VICE PRESIDENT
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