EXHIBIT 10
FIFTH AMENDMENT
TO
CREDIT AGREEMENT
DATED AS OF NOVEMBER 20, 1990
FIFTH AMENDMENT dated as of October 31, 1995 (this
"Amendment") to the CREDIT AGREEMENT dated as of November 20,
1990, as amended from time to time (as so amended, the "Credit
Agreement") among ENVIRONMENTAL TECTONICS CORPORATION (the
"Borrower"), THE CHASE MANHATTAN BANK, N.A. ("Chase"), CHEMICAL
BANK, AS AGENT FOR CHEMICAL BANKING CORPORATION, SUCCESSOR IN
INTEREST TO CHEMICAL BANK NEW JERSEY, N.A. ("Chemical," and
together with Chase, the "Banks") and THE CHASE MANHATTAN BANK,
N.A., as Agent for the Banks (the "Agent").
WHEREAS, an Event of Default exists under the Credit
Agreement as a result of the Borrower's failure to make (a) the
payment of principal in the amount of $100,000.00 which was due
on the last business day of October, 1995 and (b) the payment of
interest due on the first day of November, 1995 pursuant to
Section 2.11 of the Credit Agreement;
WHEREAS, the Borrower has requested that the Agent and the
Banks agree to forebear from exercising their rights and remedies
under the Credit Agreement and the other Facility Documents as a
result of such Event of Default until November 30, 1995;
WHEREAS, the Borrower has also requested that the Banks
increase the Commitment by a total amount of $150,000, to enable
the Borrower to fund its immediate payroll needs and trade
obligations incurred in the ordinary course of business;
WHEREAS, the Agent and the Banks are prepared to agree to
forebear from exercising their rights and remedies under the
Credit Agreement and the other Facility Documents as a result of
such Event of Default, subject to the terms and conditions of
this Agreement;
WHEREAS, the Banks are prepared to increase the Commitments,
subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises, and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Agent, the
Banks and the Borrower hereby agrees as follows:
Section 1. Definitions. Except as otherwise provided
herein, the capitalized terms used in this Amendment shall have
the respective meanings assigned to such terms in the Credit
Agreement.
Section 2. Amendments. The Credit Agreement is hereby
amended as follows:
A. Section 2.01(e) of the Credit Agreement is
hereby amended by adding the following to the current
end of such Section:
"Notwithstanding anything to the contrary,
the Commitment shall be increased as of the
last business day of October, 1995 in the
amount of $150,000.00, and shall be reduced
on the last business day of November, 1995 in
the amount of $250,000.00. Thereafter, the
Commitment shall be reduced in the amounts
and on the dates set forth in this Section
2.08(e)."
B. Section 2.05 of the Credit Agreement is hereby
amended by amending the first parenthetical contained
therein, as follows: "(including, without limitation,
Sections 2.05 and 2.06 hereof)."
C. Section 2.05 of the Credit Agreement is hereby
amended by inserting the following sentence at the end
thereof:
"Notwithstanding anything to the contrary,
including the provisions of this
Section 2.05, the Borrower shall be permitted
to borrow up to the Commitment during the
period from the date hereof until November 3,
1995, solely for the purpose of funding its
payroll needs and trade debt incurred in the
ordinary course of its business."
D. Section 2.06 of the Credit Agreement is hereby
amended by inserting the following additional paragraph (d)
thereto:
"(d) Notwithstanding anything to the
contrary, the Borrower shall prepay the Loans
in the amount of $250,000.00 on or before
November 30, 1995, and the Commitment shall
be automatically and irrevocably reduced by
such amount on such date. Any amount prepaid
Pursuant to this Section 2.06(d) shall not be
reborrowed by the Borrower."
E. Section 2.08(a) of the Credit Agreement is hereby
amended by inserting the following sentence at the immediate
beginning of the first sentence thereof: "Subject to the
provisions of Section 2.06(d),".
Section 3. Forbearance, Etc.
(a) The Agent and the Banks hereby agree to forebear
from exercising their rights and remedies under the Credit
Agreement and the other Facility Documents as a result of the
Event of Default that exists as a result of the Borrower's
failure to make the payment of the Borrower's failure to make the
payment of principal in the amount of $100,000.00 which was due
on the last business day of October, 1995 and the Borrower's
failure to make the payment of interest due on the first day of
November, 1995 pursuant to Section 2.11 of the Credit Agreement,
subject to the following:
(i) On or before November 30, 1995, the Borrower shall
remit to the Agent, for the benefit of the Banks, the amount
of principal which was due on the last business day of
October, 1995 (as well as the payment of additional
principal which is due on the last business day of November,
1995 pursuant to Section 2.08(e)) and of interest payment
that was due on the first day of November, 1995, plus
interest on such amount from the due date until such payment
is made at the Default Rate; and
(ii) No other Event of Default shall have occurred
after the date hereof.
In the event that any other Event of Default shall occur
after the date hereof or the Bank shall fail to make the
payment required by clause (ii) above, then the Agent's and
the Banks' forbearance shall automatically terminate on the
date of such occurrence and/or failure, and the Agent and
the Banks shall be immediately be permitted to exercise all
of their rights and remedies under the Credit Agreement and
the Facility Documents.
(b) Except as expressly provided in Section 3(a), the
Loans shall continue to bear interest at the non-Default Rate.
(c) Notwithstanding anything to the contrary, the
forbearance contained herein is applicable to the Event of
Default specifically referenced herein and shall be effective
only in the specific instance, and for the specific provisions
and period for which given. Except as specifically provided
herein, nothing contained herein shall constitute a waiver or
modification of any the Agent's and the Banks' rights and
remedies under the Credit Agreement and the other Facility
Documents, which rights and remedies the Agent and the Banks
expressly reserve. No failure on the part of the Agent or any
Bank to exercise, and no delay in exercising, any rights under
the Facility Documents shall operate as a waiver thereof or
preclude any other or further exercise thereof or the exercise of
any other power or right.
Section 4. Borrower Representations. The Borrower
represents and warrants that (i) the execution and delivery of
this Amendment by the Borrower and the representations,
warranties and undertakings by Borrower now contemplated hereby:
(a) are within the corporate powers of the Borrower and have been
duly authorized by all necessary corporate action, (b) have been
discussed by the Borrower with the Borrower's own independent
counsel regarding the meaning and legal significance of this
Amendment and the provisions hereof, and (c) are valid and
legally binding obligations of the Borrower and are enforceable
in accordance with the respective terms thereof, except as may be
limited by general principles of equity and by bankruptcy,
insolvency, reorganization, moratorium, or similar law relating
to or affecting generally the enforcement of creditors' rights;
(ii) the representations and warranties contained in Article 5 of
the Credit Agreement and Article 2 of the Security Agreement are
true and correct on the date hereof, Borrower understanding and
acknowledging hereby that such representations and warranties are
being relied upon by each of the Agent and the Banks in entering
into this Fifth Amendment; and (iii) except as expressly provided
in this Amendment and as set forth in Borrower's transmittal of
its borrowing base material as of the end of August 1995, no
other Default or Event of Default exists as of the date hereof.
Section 5. Miscellaneous.
(a) Except as specifically provided in this Amendment,
all other terms and provisions of the Credit Agreement shall
remain unchanged and continue in full force and affect.
(b) This Amendment shall be governed by, and construed
in accordance with, the laws of the State of New York.
(c) This Amendment may be executed in one or more
counterparts and shall become effective when counterparts hereof
have been executed by each Bank and the Agent.
(d) The Borrower agrees to reimburse the Agent and
each Bank on demand for all reasonable costs, expenses, and
charges (including, without limitation, reasonable fees and
charges of external legal counsel for the Agent and the Banks and
costs and charges allocated by its internal legal department)
incurred by the Agent and each Bank in connection with the
preparation, performance or enforcement of this Amendment and the
Credit Agreement and the other Facility Documents as amended
hereby.
IN WITNESS WHEREOF, each of the Agent, the Banks and the
Borrower have executed this Amendment by their duly authorized
officers as of the date first above written.
THE CHASE MANHATTAN BANK, N.A., as
Agent and a Bank
By/s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
CHEMICAL BANK, AS AGENT FOR
CHEMICAL BANKING CORPORATION,
SUCCESSOR IN INTEREST TO CHEMICAL
BANK NEW JERSEY, N.A.
By/s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Vice President
ENVIRONMENTAL TECTONICS CORPORATION
By/s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: President
