1
Exhibit 10.6
AMENDMENT NO. 5
AND
FORBEARANCE TO AND UNDER
THE REVOLVING CREDIT AGREEMENT
AMENDMENT NO. 5 AND FORBEARANCE (this "Amendment and Forbearance"),
dated as of March 16, 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 or are anticipated to occur
in the future.
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 forbear from exercising rights under the Loan Documents with respect to 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 Forbearance 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. Forbearance. (a) The Administrative Agent, the Lenders
and the Borrower hereby acknowledge the occurrence and continuance of, or the
future occurrence of, the Forbearance Events of Default, in each case, as
described in Amendment No. 3 and as amended hereby. Subject to the satisfaction
of the conditions set forth in Section 3 hereof and so long as no Event of
Default (other than the Forbearance Events of Default) shall have occurred and
be continuing under the Credit Agreement, the Administrative Agent and the
Lenders hereby agree to forbear, until the expiration of the Forbearance Period,
from commencing any lawsuit or taking any action to enforce any of their
respective rights and remedies under the Loan Documents (including, without
limitation, disposing of or collecting upon any Collateral granted to secure
payment under the Loan Documents) in connection with the Forbearance Events of
Default; provided, however, that such forbearance shall extend only to the
foregoing specific Forbearance Events of Default and not to any other Defaults
or Events of Default now existing or occurring after the Amendment No. 5
2
Effective Date and shall not in any way or manner restrict the Administrative
Agent or the Lenders from exercising any rights or remedies they may have after
the expiration or termination of the Forbearance Period.
(b) The Administrative Agent and the Lenders hereby agree that
during the Forbearance Period, the provisions of Section 3.1(b) of the Credit
Agreement shall not apply and the default rate of interest described in such
section shall not accrue and shall not be deemed to have accrued, at any time
prior to or during the Forbearance Period (although interest shall continue to
accrue at the rates otherwise applicable) as to any amounts payable or
outstanding under the Credit Agreement; provided, that during the Forbearance
Period all Revolving Loans shall be maintained as ABR Advances and may not be
converted to Eurodollar Advances.
SECTION 2. Amendments to Credit Agreement.
(a) The definition of the term "Anticipatory Events of
Default" set forth in Recital B of Amendment No. 3 is
hereby amended by deleting the date "March 19, 1999"
appearing therein and inserting in lieu thereof the date
"April 23, 1999".
(b) The definition of the term "Forbearance Period" is
hereby amended by deleting the date "March 19, 1999"
appearing in clause (i) of such definition and inserting
in lieu thereof the date "April 23, 1999".
(c) Section 1.1 of the Credit Agreement is hereby amended by
adding the following new definitions in appropriate
alphabetical order:
"Amendment No. 5": shall mean that certain Amendment No. 5 and
Forbearance to and under the Credit Agreement, dated as of
March 16, 1999.
"Amendment No. 5 Effective Date": shall have the meaning set
forth in Section 3 of Amendment No. 5.
"Section 7.12 Transaction": shall have the meaning set forth
in Section 7.12.
(d) Section 2.4(b) of the Credit Agreement is hereby amended
by deleting the word "and" immediately following
subsection (iv) thereof, by deleting the period at the
end of subsection (v) thereof and inserting in lieu
thereof a semi-colon and the word "and", and by
inserting the following new subsection (vi) at the end
thereof:
"(vi) by an amount equal to 80% of the Net Cash Proceeds with
respect to a Section 7.12 Transaction permitted by Section
8.6(f) hereof, it being understood
-2-
3
and agreed that the Borrower shall be permitted to retain the
balance thereof for working capital purposes."
(e) Article 7 of the Credit Agreement is hereby amended by
inserting the following new sections 7.11 and 7.12 at
the end thereof:
"7.11 Accounts Receivable and Inventory Review
As soon as practicable after the Amendment No. 5
Effective Date, the Borrower shall instruct
PricewaterhouseCoopers, financial consultants to the Borrower,
to commence a review of the Borrower's and its Subsidiaries'
accounts receivable and inventory, to deliver to the Lenders
copies of the report prepared in connection with such review,
and to make the Accountants available to the Lenders to
discuss such report as may reasonably be requested by the
Lenders.
7.12 Sale of Business Unit
From and after the Amendment No. 5 Effective Date, the
Borrower shall use its reasonable best efforts to effect the
sale or other disposition of the capital stock of, or
substantially all of the assets of one of its business units
in an arms-length transaction on commercially reasonable terms
for fair consideration (a "Section 7.12 Transaction"), and to
apprise the Agent and the Lenders not less than once every two
weeks as to the Borrower's efforts to effect such sale, and
the progress achieved in the consummation thereof, in each
case in such detail as the Lenders shall reasonably request."
(f) Section 8.6 of the Credit Agreement is hereby amended by
inserting the following new subsection (f) at the end
thereof:
"(f) notwithstanding anything to the contrary set forth in
this Section 8.6, and subject to the terms of Section
2.4(b)(vi) hereof, a Section 7.12 Transaction on terms
satisfactory to the Required Banks."
SECTION 3. This Amendment and Forbearance shall not become effective
until the date (the "Amendment No.5 Effective Date") on which each of the
following has occurred:
(a) The Administrative Agent shall have executed this
Amendment and Forbearance and shall have received the
consent thereto of each of the Lenders, the Borrower and
the Subsidiary Guarantors;
-3-
4
(b) (i) The Borrower shall be in compliance with all of the
terms and provisions set forth in the Credit Agreement
(excluding the Forbearance Events of Default) to be
observed and performed by it; (ii) all representations
and warranties contained in Article 4 of the Credit
Agreement (excluding the Forbearance Events of Default)
shall be true and correct in all material respects on
and as of the Amendment No. 5 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) after giving effect
to this Amendment and Forbearance, 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 (other than the Forbearance Events of
Default); and
(c) The Administrative Agent shall have received such other
documents as it shall reasonably request.
SECTION 4. The Borrower agrees to pay to Xxxxxx, Xxxxx & Xxxxxxx LLP
any 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.
SECTION 5. 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 6. This Amendment and Forbearance 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 Forbearance and the consents
hereto to produce or account for more than one counterpart signed by the party
to be charged.
SECTION 7. This Amendment and Forbearance is being delivered in and
is intended to be performed in the State of New York and shall be construed and
enforceable in
-4-
5
accordance with, and be governed by, the internal laws of the State of New York
without regard to principles of conflict of laws.
-5-
6
ROBOTIC VISION SYSTEMS, INC.
AMENDMENT NO. 5 AND FORBEARANCE
TO AND UNDER THE CREDIT AGREEMENT
IN WITNESS WHEREOF, the Borrower and the Administrative Agent have caused
this Amendment and Forbearance 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:____________________________________
-6-
7
ROBOTIC VISION SYSTEMS, INC.
AMENDMENT NO. 5 AND FORBEARANCE
TO AND UNDER THE CREDIT AGREEMENT
CONSENTED TO:
FIRST UNION NATIONAL BANK
By:________________________________
Name:______________________________
Title:_____________________________
-7-
8
ROBOTIC VISION SYSTEMS, INC.
AMENDMENT NO. 5 AND FORBEARANCE
TO AND UNDER THE CREDIT AGREEMENT
CONSENTED TO:
FLEET BANK, N.A.
By:________________________________
Name:______________________________
Title:_____________________________
-8-
9
ROBOTIC VISION SYSTEMS, INC.
AMENDMENT NO. 5 AND FORBEARANCE
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:_____________________________
-9-
10
ROBOTIC VISION SYSTEMS, INC.
AMENDMENT NO. 5 AND FORBEARANCE
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:_____________________________
-10-
