FIRST AMENDMENT TO UNSECURED COMMITTED REVOLVER LOAN AGREEMENT
This FIRST AMENDMENT TO UNSECURED COMMITTED REVOLVER LOAN AGREEMENT is
dated as of March 6, 2000 by and between:
CITIZENS BANK OF MASSACHUSETTS (as successor in interest to State Street
Bank and Trust Company), with an address of 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (hereinafter, the "BANK"); and
APPLIED SCIENCE AND TECHNOLOGY, INC., a Delaware corporation, with a
principal place of business at 00 Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
(hereinafter, the "BORROWER").
BACKGROUND
WHEREAS, the Borrower and the Bank entered into a certain loan arrangement
(hereinafter, the "LOAN ARRANGEMENT") evidenced by, among other documents,
instruments, and agreements, a certain Unsecured Committed Revolver Loan
Agreement dated as of May 1, 1997 (hereinafter, the "REVOLVER AGREEMENT") and a
certain Unsecured Committed Revolver Promissory Note dated as of May 1, 1997
(hereinafter, the "NOTE") in the original principal amount of $8,000,000.00 made
payable by the Borrower to the order of the Bank; and
WHEREAS, the Borrower has requested and the Bank has agreed to restructure
the terms and provisions of the Loan Arrangement, including, without limitation,
(i) an extension of the Expiration (as defined in the Revolver Agreement) from
May 31, 2000 through April 1, 2003; (ii) a change in the interest rate options
available to the Borrower from the Prime Rate (as defined in the Revolver
Agreement) and the Market Rate (as defined in the Revolver Agreement) to the
Domestic Rate (as defined hereunder) and the LIBOR Rate (as defined hereunder)
and (iii) a change in the applicable financial covenants, as set forth herein;
Accordingly, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed by and among
the Bank and the Borrower as follows:
1. All references to the "Note" in the Revolver Agreement shall mean
the Note, as amended by that certain First Amendment to Unsecured
Committed Revolver Promissory Note dated March 6, 2000.
2. The term "Loans" as set forth in Section 1.0 of Article I of the
Revolver Agreement is hereby deleted in its entirety and replaced
with the following:
" "Loans" shall mean Domestic Rate Loans, LIBOR Rate Loans and
Standby Letters of Credit issued by the Bank from time to time
hereunder".
3. The terms "Domestic Rate Loan" and "LIBOR Rate Loan" shall have the
meanings ascribed to such terms within Exhibit A, attached to and
made a part hereof. All other terms so defined within Exhibit A are
hereby incorporated by reference.
4. The terms "Market Rate", "Market Rate Loan", "Prime Rate", and
"Prime Rate Loan" as set forth in the Revolver Agreement are hereby
deleted in their entirety.
5. The last sentence of Section 2.1 of Article II of the Revolver
Agreement is hereby deleted in its entirety and replaced with the
following:
" The principal amount of the Revolver shall be payable upon the
earlier of either (a) the expiration of this Agreement on April 1,
2003 (the "Expiration") or (b) upon the occurrence of an Event of
Default (subject to and as provided herein)."
6. Section 2.2 and 2.5 of Article II of the Revolver Agreement and
Subsections (1), and (2) of Section 2.3 of Article II of the
Revolver Agreement are hereby deleted in their entirety. All terms
and conditions relating to the advances of Loans under the Revolver
Agreement, the applicable rate of interest accruing on outstanding
loans, and the repayment of such Loans shall be governed by the
terms and provisions set forth within Exhibit A, attached hereto and
made a part hereof.
7. Subsection (4) of Section 2.3 of Article II of the Revolver
Agreement is hereby deleted in its entirety and replaced with the
following:
"Default Rate. Any principal amount not paid immediately upon
acceleration by reason of an Event of Default shall bear interest
thereafter, until paid, at a rate equal to the aggregate of the
Domestic Rate plus four (4%) percent per annum (the "Default
Rate")."
8. Section 3.0 of Article III of the Revolver Agreement is hereby
deleted in its entirety and replaced with the following:
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"The proceeds of the Loans hereunder shall be used only for the
purpose of supporting acquisition financing, letters of credit, and
working capital requirements."
9. The date of the consolidated balance sheet set forth in Section 5.4
of Article V of the Revolver Agreement shall be changed from "June
29, 1996" to "June 26, 1999" and the date of the Borrower's Form
10-K shall be changed from "1996" to "1999".
10. The date of the Borrower's Form 10-K set forth in Article V, Section
5.7 of the Revolver shall be changed from "1996" to "1999".
11. All references to the "Acquisition Transaction" shall hereby be
deleted in the entirety.
12. Section 8.0 of Article VIII of the Revolver is hereby deleted in its
entirety and replaced with the following:
"So long as the Note shall remain unpaid or the Bank shall have any
commitment under this Agreement:
1. The Borrower will maintain Minimum Working Capital of not less
than $18,000,000.00 at the end of each of Borrower's fiscal
quarter.
2. The Borrower will maintain at all times a Maximum Debt to
Tangible Net Worth ratio of no more than: 1.50:1 from and
after December 31, 1999.
3. As of March 31, 1999, the Borrower will maintain a Tangible
Net Worth of not less than $30,000,000.00. Thereafter, the
Borrower's Tangible Net Worth will increase (as of the end of
each of the Borrower's quarters) by a minimum of an aggregate
of 40% of the prior quarter's Net Income.
4. The Borrower will maintain Minimum Debt Service Coverage
defined as the ratio of aggregate Net Income of the Borrower
plus aggregate depreciation, plus aggregate amortization, less
aggregate Capital Expenditures not financed on a
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long-term basis to Current Maturities of Long Term Debt of the
Borrower of 1.75:1. This covenant shall be tested on a rolling
quarterly basis for a four fiscal quarter period.
5. The Borrower will not suffer a negative Net Income for two
fiscal quarters during any fiscal year.
All of the foregoing covenants shall be tested as of the last
day o f each of the Borrower's fiscal quarters commencing with
the Borrower's fiscal quarter first ending on March __, 2000.
Capitalized terms otherwise not defined herein shall be
defined in accordance with GAAP."
13. Subsection (5) of Section 9.0 of Article IX of the Revolver
Agreement is hereby deleted in its entirety and replaced with the
following:
"There exists any Event of Default as defined under that certain
loan arrangement by and between ASTeX Realty Corp. and the Bank
evidenced by, among other documents, instruments and agreements,
that certain Loan Agreement dated as of March 6, 2000, and that
certain Note dated as of March 6, 2000 in the original principal
amount of $10,000,000.00."
14. Section 11.1 of Article XI of the Revolver Agreement is hereby
deleted in its entirety and replaced with the following:
"Each notice, demand, election or request provided for or permitted
to be given pursuant to this Agreement or any other Loan Document
(hereinafter in this Section referred to as "Notice") must be in
writing and shall be deemed to have been properly given or served by
personal delivery or by sending same by overnight courier or by
depositing same in the United States Mail, postpaid and registered
or certified, return receipt requested, and addressed as follows:
If to the Bank;
Citizens Bank of Massachusetts
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxxxxx Xxxxx, Vice President
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With a copy to:
Xxxxxx & Xxxxxxxxxx LLP
Xxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx, Esquire
If to the Borrower:
Applied Science and Technology, Inc.
00 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Senior Vice President and
Chief Financial Officer
With a copy to:
Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx & Xxxxx, PC
1 Financial Center
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esquire
Each Notice shall be effective upon being personally delivered or
upon being sent by overnight courier or upon being deposited in the
United States Mail as aforesaid. The time period in which a response
to such Notice must be given or any action taken with respect
thereto (if any), however, shall commence to run from the date of
receipt if personally delivered or sent by overnight courier, or if
so deposited in the United States Mail, the earlier of three (3)
Business Days following such deposit or the date of receipt as
disclosed on the return receipt. Rejection or other refusal to
accept or the inability to deliver because of changed address for
which no Notice was given shall be deemed to be receipt of the
Notice sent. By giving at least thirty (30) days' prior Notice
thereof, the Borrower or the Bank shall have the right from time to
time and at any time during the term of this Agreement to change
their respective addresses and each shall have the right to specify
as its address any other address within the United States of
America."
15. The Borrower hereby ratifies, confirms, and reaffirms all of the
terms and conditions of the Revolver Agreement, and all of the other
documents, instruments, and agreements evidencing the Loan
Arrangement including, without limitation, the Note. In addition,
the Borrower acknowledges and agrees that the Bank is not agreeing
by this First Amendment to Unsecured Committed Revolver Loan
Agreement to amend, modify, or alter any of the terms and conditions
of the Loan Arrangement except to the extent provided herein.
16. Any determination that any provision of this First Amendment to
Unsecured Committed Revolver Loan Agreement or any application
hereof is invalid, illegal or unenforceable in any respect and in
any instance
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shall not effect the validity, legality, or enforceability of such
provision in any other instance, or the validity, legality or
enforceability of any other provisions of this First Amendment to
Unsecured Committed Revolver Loan Agreement.
17. The Borrower shall pay on demand all costs and expenses of the Bank,
including, without limitation, reasonable attorneys' fees in
connection with the preparation, negotiation, execution and delivery
of this First Amendment to Unsecured Committed Revolver Loan
Agreement.
18. The Borrower warrants and represents that the Borrower has consulted
with independent legal counsel of the Borrower's selection in
connection with this First Amendment to Unsecured Committed Revolver
Loan Agreement and is not relying on any representations or
warranties of the Bank or its counsel in entering into this First
Amendment to Unsecured Committed Revolver Loan Agreement.
19. The Borrower acknowledges, confirms and agrees that it has no
offsets, defenses, claims or counterclaims against the Bank with
respect to any of the Borrower's liabilities and obligations to the
Bank under the Loan Arrangement, and to the extent that the Borrower
has any such claims under the Loan Arrangement, the Borrower
affirmatively WAIVES and RENOUNCES such claims as of the date
hereof.
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IN WITNESS WHEREOF, this First Amendment to Unsecured Committed Revolver
Loan Agreement has been executed as a sealed instrument as of the date first set
forth above.
WITNESS: BORROWER
/s/ X. X. Xxxxx APPLIED SCIENCE AND TECHNOLOGY, INC.
------------------
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
Acknowledged and Agreed to:
CITIZENS BANK OF MASSACHUSETTS
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------
Title: Vice President
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