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Exhibit 10.7
AMENDMENT NO. 6
AND
WAIVER TO AND UNDER
THE REVOLVING CREDIT AGREEMENT
AMENDMENT NO. 6 AND WAIVER (this "Amendment and Waiver"), dated as
of April 22, 1999, to and under the Credit Agreement, dated as of March 18,
1998, by and among ROBOTIC VISION SYSTEMS, INC., a Delaware corporation (the
"Borrower"), the Lenders party thereto and THE BANK OF NEW YORK, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent") as heretofore amended and as may heretofore be amended, modified and
supplemented from time to time (the "Credit Agreement").
RECITALS
A. Capitalized terms used herein which are not defined herein shall
have the respective meanings ascribed thereto in the Credit Agreement.
B. As more fully described in Amendment No. 3, certain Forbearance
Events of Default have occurred and are continuing.
C. The Borrower has requested that the Administrative Agent and the
Lenders agree (i) to amend certain provisions of the Credit Agreement and (ii)
to waive the Forbearance Events of Default, in each case to the extent and in
the manner set forth below, and the Administrative Agent and the Lenders
executing this Amendment and Waiver are willing to do so subject to the terms
and conditions hereof.
In consideration of the covenants, conditions and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
SECTION 1. Waivers. The Administrative Agent, the Lenders and the
Borrower hereby acknowledge the occurrence and continuance of the Forbearance
Events of Default, in each case, as described in Amendment No. 3 and as amended
by Amendment No. 5. Subject to the satisfaction of the conditions set forth in
Section 3 hereof, the Administrative Agent and the Lenders hereby waive each of
the Forbearance Events of Default.
SECTION 2. Amendments to Credit Agreement.
(a) Section 1.1 of the Credit Agreement is hereby amended by
adding the following new definitions in appropriate
alphabetical order:
"Amendment No. 6": shall mean that certain Amendment No. 6 and
Waiver to and under the Credit Agreement, dated as of April
22, 1999.
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"Amendment No. 6 Effective Date": shall have the meaning set
forth in Section 3 of Amendment No. 6.
(b) The definition of Consolidated EBITDA is hereby amended
in its entirety to read as follows:
"Consolidated EBITDA" means, for any period, net income of the
Borrower and the Subsidiaries, determined on a consolidated
basis in accordance with GAAP for such period plus (i) the sum
of, without duplication, each of the following of the Borrower
and the Subsidiaries on a consolidated basis in accordance
with GAAP, each to the extent utilized in determining net
income for such period (a) interest expense, (b) provision for
income taxes, (c) depreciation, amortization and other
non-cash charges and non-recurring charges, and (d)
extraordinary losses from sales, exchanges and other
dispositions of property not in the ordinary course of
business, minus (ii) the sum of, without duplication, each of
the following with respect to the Borrower and the
Subsidiaries on a consolidated basis in accordance with GAAP,
to the extent utilized in determining such net income: (a)
extraordinary gains from sales, exchanges and other
dispositions of property not in the ordinary course of
business, and (b) other non-recurring items.
(c) Section 3.1(a) of the Credit Agreement is hereby amended
by deleting clause (i) thereof in its entirety and
inserting in lieu thereof the following:
"(i) ABR Advance shall bear interest, from and after the
Amendment No. 6 Effective Date, at a rate per annum equal to
the Alternate Base Rate plus 2%, provided that upon the
permanent reduction of the Aggregate Revolving Commitment (x)
to $30,000,000 or less, each ABR Advance shall bear interest,
from and after such date, at a rate per annum equal to the
Alternate Base Rate plus 1-1/2% and (y) to $25,000,000 or
less, each ABR Advance shall bear interest, from and after
such date, at a rate per annum equal to the Alternate Base
Rate plus 1%.
(d) Section 3.1 of the Credit Agreement is hereby amended by
inserting the following new subsection (e) at the end
thereof:
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"(e) Notwithstanding anything herein to the contrary,
from and after the Amendment No. 6 Effective Date, all
Revolving Loans shall be made or maintained as ABR
Advances and may not be converted to Eurodollar
Advances."
(e) Section 7.1(j) of the Credit Agreement is hereby amended
by deleting the number "10" appearing therein and
inserting in lieu thereof the number "20".
(f) Section 7.1(l) of the Credit Agreement is hereby amended
by deleting the words "the second to last Business Day
in each week" appearing therein and inserting in lieu
therefore the words "twenty (20) days prior to the
beginning of each fiscal quarter" and by deleting the
word "and" at the end thereof.
(g) Section 7.1(m) of the Credit Agreement is hereby amended
in its entirety to read as follows:
"(m) monthly, a status update on the Borrower's efforts to
obtain subordinated financing and/or equity investments and
not later than October 15, 1999, a written report to the
Lenders as to the Borrower's plans to refinance or resyndicate
the obligations under the Loan Documents; and"
(h) Section 7.1 of the Credit Agreement is hereby amended by
inserting the following new subsection (n) at the end
thereof:
"(n) within 75 days of the end of each fiscal quarter, a
review performed by PricewaterhouseCoopers LLP (or such other
financial consultant reasonably acceptable to the
Administrative Agent and the Required Lenders) of all of the
financial statements and reporting requirements required to be
delivered to the Agent and the Lenders under this Agreement
during the immediately preceding fiscal quarter."
(i) Section 8.14(a) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(a) Consolidated EBITDA. The Borrower shall not permit
Consolidated EBITDA to be less than the amounts set forth
below for the fiscal quarters ending on the dates set forth
below:
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Fiscal Quarter Ending Consolidated EBITDA
--------------------- -------------------
March 31, 1999 $ 200,000
June 30, 1999 $1,000,000
September 30, 1999 $2,000,000
December 31, 1999 $3,000,000"
(j) Section 8.14(b) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(b) Ratio of Total Liabilities to Tangible Net Worth. The
Borrower shall not permit the ratio of (i) Consolidated Total
Liabilities to (ii) Consolidated Tangible Net Worth to exceed,
as of the last day of each fiscal quarter set forth below, the
ratios set forth below:
Fiscal Quarter Ending Ratio
--------------------- -----
March 31, 1999 7.20 : 1.00
June 30, 1999 11.00 : 1.00
September 30, 1999 11.00 : 1.00
December 31, 1999 10.00 : 1.00"
(k) Section 8.14(c) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(c) Consolidated Working Capital. The Borrower shall not
permit Consolidated Working Capital to be less than, as of the
last day of each fiscal quarter set forth below, the amounts
opposite the dates set forth below:
Consolidated
Fiscal Quarter Ending Working Capital
--------------------- ---------------
March 31, 1999 ($4,000,000)
June 30, 1999 ($5,500,000)
September 30, 1999 ($5,500,000)
December 31, 1999 ($4,500,000)"
(l) Section 8.14(d) of the Credit Agreement is hereby
amended in its entirety to read as follows:
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"(d) Fixed Charge Coverage Ratio. The Borrower shall not
permit the ratio of (i) Consolidated EBITDA to (ii) interest
expense plus Capital Expenditures to be less than, as of the
last day of each fiscal quarter set forth below, the ratios
set forth below:
Fiscal Quarter Ending Ratio
--------------------- -----
June 30, 1999 .50 : 1.00
September 30, 1999 .75 : 1.00
December 31, 1999 1.00 : 1.00"
(m) Section 8.14(e) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(e) Consolidated Tangible Net Worth. The Borrower shall not
permit Consolidated Tangible Net Worth to be less than, as of
the last day of each fiscal quarter set forth below, the
amounts opposite the dates set forth below:
Consolidated
Fiscal Quarter Ending Tangible Net Worth
--------------------- ------------------
March 31, 1999 $10,000,000
June 30, 1999 $ 7,000,000
September 30, 1999 $ 7,000,000
December 31, 1999 $ 8,000,000"
(n) Section 8.14(f) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(f) Capital Expenditures. The Borrower shall not make any
Capital Expenditures (or incur any obligation to make any
Capital Expenditure) or permit any of its Subsidiaries to do
so, in any fiscal quarter in an aggregate amount in excess of
the amounts set forth below for such fiscal quarter (provided,
that any amounts not actually expended in a fiscal quarter may
be carried over and expended in the immediately succeeding
fiscal quarter):
Fiscal Quarter Ending Amount
--------------------- ------
March 31, 1999 $ 700,000
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June 30, 1999 $ 800,000
September 30, 1999 $1,300,000
December 31, 1999 $1,800,000"
SECTION 3. This Amendment and Waiver shall not become effective
until the date (the "Amendment No. 6 Effective Date") on which each of the
following has occurred:
(a) The Administrative Agent shall have executed this
Amendment and Waiver and shall have received the consent
thereto of each of the Lenders, the Borrower and the
Subsidiary Guarantors;
(b) After giving effect to this Amendment and Waiver (i) the
Borrower shall be in compliance with all of the terms
and provisions set forth in the Credit Agreement to be
observed and performed by it; (ii) all representations
and warranties contained in Article 4 of the Credit
Agreement shall be true and correct in all material
respects on and as of the Amendment No. 6 Effective Date
with the same effect as if made on and as of such date
except to the extent such representations and warranties
expressly relate to an earlier date; and (iii) no Event
of Default or event which upon notice or lapse of time
or both would constitute an Event of Default shall have
occurred and be continuing; and
(c) The Administrative Agent shall have received such other
documents as it shall reasonably request.
SECTION 4. The Borrower agrees to deliver to the Lenders, within
five (5) Business Days of the Amendment No. 6 Effective Date, warrants to
purchase common stock of Borrower having substantially the terms set forth on
Exhibit I to this Amendment and Waiver, provided that the failure to do so
shall, upon written notice to the Borrower, constitute an Event of Default under
the Credit Agreement.
SECTION 5. The Borrower agrees to pay to Xxxxxx, Xxxxx & Xxxxxxx LLP
all reasonable fees and disbursements of such firm in connection with the
transactions contemplated hereby promptly upon the presentation of an invoice
therefor. The Borrower authorizes and directs the Administrative Agent to debit
the Borrower's operating account (Account No. 690-0000000) and pay such amounts
no earlier than three (3) days subsequent to such presentation.
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SECTION 6. By their execution at the foot hereof, each of the
Borrower and each Subsidiary Guarantor hereby reaffirms and admits the validity
and enforce ability of the Credit Agreement and the other Loan Documents and all
of its obligations thereunder and admits that it has no defense, offset or
counterclaim thereto.
SECTION 7. This Amendment and Waiver and the consents hereto may be
executed in any number of counterparts, each of which shall be an original and
all of which shall constitute one agreement. It shall not be necessary in making
proof of this Amendment and Waiver and the consents hereto to produce or account
for more than one counterpart signed by the party to be charged.
SECTION 8. This Amendment and Waiver is being delivered in and is
intended to be performed in the State of New York and shall be construed and
enforceable in accordance with, and be governed by, the internal laws of the
State of New York without regard to principles of conflict of laws.
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ROBOTIC VISION SYSTEMS, INC.
AMENDMENT NO. 6 AND WAIVER
TO AND UNDER THE CREDIT AGREEMENT
IN WITNESS WHEREOF, the Borrower and the Administrative Agent have caused
this Amendment and Waiver to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above written.
ROBOTIC VISION SYSTEMS, INC.
By:_______________________________________
Name:_____________________________________
Title:____________________________________
THE BANK OF NEW YORK, individually
and as Administrative Agent
By:_______________________________________
Name:_____________________________________
Title:____________________________________
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ROBOTIC VISION SYSTEMS, INC.
AMENDMENT NO. 6 AND WAIVER
TO AND UNDER THE CREDIT AGREEMENT
CONSENTED TO:
FIRST UNION NATIONAL BANK
By:________________________________
Name:______________________________
Title:_____________________________
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ROBOTIC VISION SYSTEMS, INC.
AMENDMENT NO. 6 AND WAIVER
TO AND UNDER THE CREDIT AGREEMENT
CONSENTED TO:
FLEET BANK, N.A.
By:________________________________
Name:______________________________
Title:_____________________________
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ROBOTIC VISION SYSTEMS, INC.
AMENDMENT NO. 6 AND WAIVER
TO AND UNDER THE CREDIT AGREEMENT
CONSENTED TO:
SYSTEMATION ENGINEERED PRODUCTS, INC.
VANGUARD AUTOMATION, INC.
AS TO EACH OF THE FOREGOING
By:________________________________
Name:______________________________
Title:_____________________________
NORTHEAST ROBOTICS LLC
By: Robotic Vision Systems, Inc.
as Sole Member and Manager
of Acuity Imaging LLC,
as Sole Member and Manager
By:________________________________
Name:______________________________
Title:_____________________________
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ROBOTIC VISION SYSTEMS, INC.
AMENDMENT NO. 6 AND WAIVER
TO AND UNDER THE CREDIT AGREEMENT
CONSENTED TO:
ACUITY IMAGING LLC
By: Robotic Vision Systems, Inc.
as Sole Member and Manager
By:________________________________
Name:______________________________
Title:_____________________________
CIMATRIX LLC
By: Robotic Vision Systems, Inc.
as Sole Member and Manager
By:________________________________
Name:______________________________
Title:_____________________________
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SCHEDULE I
ROBOTIC VISION SYSTEMS, INC.
SUMMARY OF PROPOSED WARRANTS
As consideration for the execution of Amendment No. 6 and Waiver to
the Robotic Vision Systems, Inc. ("RVSI") Credit Agreement dated as of March 18,
1998, as amended (the "Credit Agreement"), RVSI will issue to the Lenders
warrants (the "Warrants") having substantially the following terms:
1. Warrants will be issued to purchase an aggregate maximum of 750,000
shares (on a fully diluted basis) of common stock, par value $.01
per share of RVSI (the "Warrant Shares").
2. Warrant Shares will vest, and will be exercisable as follows:
a. 250,000 Warrant Shares will vest immediately and will be
exercisable from the date of issuance of the Warrants until
April 15, 2003.
b. 250,000 Warrant Shares will vest upon the Lenders (or their
assignees) entering into an extension (of not less than one
year) of the maturity date of the Credit Agreement, and will
be exercisable from the date of vesting until April 15, 2003.
c. 250,000 shares will vest upon the Lenders (or their assignees)
entering into an additional extension (of not less than an
additional 1 year) of the maturity date of the Credit
Agreement (provided that if the initial extension in (b) above
is for not less than a 2-year period, all 500,000 shares shall
vest at that time) and shall be exercisable from the date of
vesting until to April 15, 2003.
d. Upon the occurrence of a "Change of Control" (to be defined
substantially as provided for in clauses (ii) and (iii) of the
definition of "First Exercise Date" in the Zanett Prepaid
Common Stock Purchase Warrant), the Warrants described in (b)
and (c) above shall immediately vest and shall be exercisable
from such date until April 15, 2003.
3. Exercise price of $4.02 per share for all Warrant Shares.
4. Warrants shall be issued pro rata to the Lenders based upon their
respective Revolving Commitments.
5. Warrants to contain anti-dilution provisions and to be entitled to
piggyback registration rights substantially similar to the Zanett
Incentive Stock Purchase Warrants.
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6. Warrants to be assignable only upon assignment of (and together
with) an assignment of such Lender's Revolving Commitment and Note.
7. Warrants to contain such other terms as the Lenders may reasonably
require.
