EXHIBIT 10.24
FIFTH AMENDMENT TO REVOLVING CREDIT
AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT (the
"Agreement") is entered into as of August 14, 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 Termination Date as set forth in Section 13.1 is hereby
deleted and replaced with the new Termination Date of August 31,
2003.
B. Pursuant to Sub-Section 2.1(a)(vii) of the Loan Agreement,
the Agent hereby establishes additional reserves in amounts equal
to: (i) 50% of past due Receivables collected by NCO Financial
Systems, Inc., and (ii) 50% of the proceeds from the sale of any
assets.
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 31, 2003 or the date that any Forbearance
Default occurs.
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) an extension fee in the amount of $12,500 (which is in
addition to and not in substitution of the Forbearance Fee as set forth in
paragraph 6 of the Fourth Amendment to Revolving Credit and Security Agreement
executed on May 30, 2003, which shall remain due and payable on the dates set
forth therein); and (iii) Agent's counsel's fees.
6. ADDITIONAL FORBEARANCE. The Borrower acknowledges that the
Lenders have agreed to extend the Termination Date as set forth herein,
notwithstanding the fact that the Borrower has failed to comply with the post
conditions set forth in paragraph 7 of the Fourth Amendment to Revolving Credit
and Security Agreement dated May 30, 2003, and the Borrower further acknowledges
the Lenders ability to exercise any and all remedies available to them based
upon such failure to comply.
7. 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.
8. 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/ XXXXXXX XXXXXXXXXX
-------------------------------------
NAME: XXXXXXX XXXXXXXXXX
TITLE: VICE PRESIDENT
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