EXHIBIT 10.1
FIRST AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY
AGREEMENT ("Amendment"), dated as of June 25, 2004, is by and among ROBOTIC
VISION SYSTEMS, INC., a corporation organized under the laws of the State of
Delaware ("Borrower"), RVSI INVESTORS, L.L.C., a limited liability company
organized under the laws of the State of Delaware ("RI") and the other lenders
which are now or which hereafter become a party to the Credit Agreement referred
to below (collectively, "Lenders" and individually a "Lender") and PNC BANK,
NATIONAL ASSOCIATION ("PNC"), as agent for Lenders (PNC, in such capacity,
"Agent").
RECITALS
A. Agent, Lender and Borrower entered into a certain Amended and Restated
Revolving Credit and Security Agreement dated as of November 26, 2003, as same
may be amended, restated or replaced from time to time (the "Credit Agreement"),
pursuant to which Lender agreed to extend financial accommodations to Borrower
as described therein.
B. Borrower has requested and Agent and Lender have agreed to amend the
Credit Agreement as provided herein.
NOW, THEREFORE, for and in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms used herein and not otherwise
defined shall have the meanings provided for in the Credit Agreement.
2. AMENDMENT. Upon satisfaction of the conditions precedent set forth in
Section 3 of this Amendment, the Credit Agreement is hereby amended as follows:
2.1 Section 1 of the Credit Agreement is hereby amended as follows:
(a) The following definition is hereby added as follows:
"Additional Maximum Non-Guaranteed Revolving Advance
Amount" at any time shall mean an amount equal to the
aggregate amount of gross cash proceeds ("Sale
Proceeds") of all sales of Common Stock received by
Borrower on or before July 31, 2004 at a per share sales
price equal to or greater than $2.00 per share (after
taking into account the value of any and all warrants or
other rights, if any, issued by Borrower in favor of the
purchaser of such Common Stock), up to $2,000,000. All
Sale Proceeds shall be delivered to Agent immediately
upon receipt by Borrower and such proceeds shall be
applied as follows: first, to ratably repay interest due
in respect of the Revolving Advances, to be distributed
to each Lender pro rata according to the applicable
Commitment Percentage of such Lender; second, to ratably
repay principal due in respect of the Revolving
Advances, to be distributed to each Lender pro rata
according to the applicable Commitment Percentage of
such Lender; and third, to any other Obligation until
paid in full.
(b) The definition of "Indebtedness" is hereby restated in its
entirety to read as follows:
"Indebtedness" of a Person at a particular date shall
mean all obligations of such Person which in accordance
with GAAP would be classified upon a balance sheet as
liabilities (except capital stock and surplus earned or
otherwise) and in any event, without limitation by
reason of enumeration, shall include all indebtedness,
debt and other similar monetary obligations of such
Person whether direct, contingent or guaranteed, all
premiums, if any, which are currently due with respect
to such indebtedness and any cash payments or other
amounts payable in connection with such indebtedness and
all indebtedness secured by a Lien on assets owned by
such Person, whether or not such indebtedness actually
shall have been created, assumed or incurred by such
Person. Any indebtedness of such Person resulting from
the acquisition by such Person of any assets subject to
any Lien shall be deemed, for the purposes hereof, to be
the equivalent of the creation, assumption and incurring
of the indebtedness secured thereby, whether or not
actually so created, assumed or incurred.
(c) The definition of "Lien" is hereby restated in its
entirety to read as follows:
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, encumbrance, security
interest, lien (whether statutory or otherwise), Charge,
claim, option, reservation, right of way, easement or
defect of any kind or preference, or priority or other
security agreement or preferential arrangement held or
asserted in respect of any asset of any kind or nature
whatsoever including, without limitation, any
conditional sale or other title retention agreement, any
exclusive license, any easement, right of way or other
encumbrance relating to real property, any lease having
substantially the same economic effect as any of the
foregoing, and the filing of, or agreement to give, any
financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction.
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(d) The definition of "Maximum Loan Amount" is hereby restated
in its entirety to read as follows:
"Maximum Loan Amount" shall mean an amount up to
$16,000,000 plus the unpaid amount of the Aggregate
Capitalized Interest, if any, less the amount of any
permanent reductions of the Maximum Non-Guaranteed
Revolving Advance Amount or the Maximum Export-Related
Revolving Advance Amount pursuant to Section 2.14
hereof.
(e) The definition of "Maximum Non-Guaranteed Revolving
Advance Amount" is hereby restated in its entirety to read as
follows:
"Maximum Non-Guaranteed Revolving Advance Amount" at any
time shall mean $4,000,000, plus the Additional Maximum
Non-Guaranteed Revolving Advance Amount, plus the unpaid
amount of the Aggregate Capitalized Interest, if any,
less the then outstanding Non-Guaranteed Letter of
Credit Usage, subject to the permanent reductions to the
Maximum Non-Guaranteed Revolving Advance Amount pursuant
to Section 2.14 hereof.
(f) The definition of "Pro Rata Share" is hereby restated in
its entirety to read as follows:
"Pro Rata Share" shall mean, (a) with respect to EXIM, a
fraction (expressed as a percentage), the numerator of
which is the amount of Borrower's aggregate export sales
and the denominator of which is Borrower's aggregate
export and non-export sales, each as calculated for the
then-current calendar month and each of the five (5)
immediately preceding calendar months and (b) with
respect to Lenders, a fraction (expressed as a
percentage), the numerator of which is the amount of
Borrower's aggregate non-export sales and the
denominator of which is Borrower's aggregate export and
non-export sales, each as calculated for the
then-current calendar month and each of the five (5)
immediately preceding calendar months.
(g) The definition of "Registration Rights Agreement" is
hereby reinstated in its entirety to read as follows:
"Registration Rights Agreement" shall mean (i) that
certain Registration Rights Agreement dated November 26,
2003 between Borrower and RI, as amended, restated or
otherwise modified from time to time, and (ii) that
certain Registration Rights Agreement dated June 25,
2004 between Borrower and RI, as amended, restated or
otherwise modified from time to time.
(h) The following definition is hereby added as follows:
"SEG" shall mean Borrower's Semiconductor Equipment
Group line of business.
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2.2 Section 2.1(a) is hereby restated in its entirety to read as
follows:
2.1 (a) Non-Guaranteed Revolving Advances. Subject to the
terms and conditions set forth in this Agreement, each Lender,
severally and not jointly, will make loans (the "Non-Guaranteed
Revolving Advances") to Borrower in aggregate amounts outstanding at
any time equal to such Lender's Commitment Percentage of the lesser
of (x) the Maximum Non-Guaranteed Revolving Advance Amount or (y) an
amount equal to the sum of:
(i) up to 85% of the value of all Eligible Receivables
other than EXIM Bank Guaranteed Receivables to the extent that
the Export-Related Revolving Advances have not been
permanently terminated; plus
(ii) the amount by which the sum of Sections
2.2(a)(y)(i), (ii) and (iii)(without taking into account the
$10,000,000 limitation set forth in Section 2.2(a)(y)(iii))
exceeds $10,000,000; plus
(iii) $1,500,000, minus
(iv) the outstanding Non-Guaranteed Letter of Credit
Usage, minus
(v) such other reserves as Agent in good faith may
reasonably deem proper and necessary from time to time.
The amount derived from (x) the sum of Sections
2.1(a)(y)(i),(ii) and (iii), minus (y) the sum of Sections
2.1(a)(y)(iv) and (v) at any time and from time to time shall be
referred to as the "Non-Guaranteed Formula Amount". The
Non-Guaranteed Revolving Advances shall be evidenced by one or more
secured promissory notes (collectively, as each may be amended,
restated, modified and/or replaced from time to time, the
"Non-Guaranteed Revolving Notes") substantially in the form attached
hereto as Exhibit 2.1(a).
2.3 Section 2.14 is hereby restated in its entirety to read as
follows:
2.14 Reductions of the Revolving Credit; Optional Prepayments;
Mandatory Prepayments
(a) Borrower may at any time and from time to time, upon
not less than ten (10) Business Days' written notice to Agent,
elect to reduce permanently and terminate the Maximum
Non-Guaranteed Revolving Advance Amount without premium or
penalty in whole or in part (except for the Termination Fee),
provided that (i) any such partial reductions shall be in a
minimum
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amount of $500,000, in integral multiples of $500,000, (ii)
for any partial reductions or terminations, Borrower
contemporaneously therewith permanently reduces and terminates
the Maximum Export-Related Revolving Advance Amount in an
amount equal to the Pro Rata Share, (iii) and provided,
further, that any amounts so terminated may not be reinstated.
In connection with any such reduction, Borrower shall pay to
Agent the principal amount of the Non-Guaranteed Revolving
Advances or the Maximum Export-Related Advance Amount, as the
case may be, to the extent subject to reduction, together with
all accrued but unpaid interest on such amounts to the date of
prepayment, and all other amounts payable with respect to such
amounts, if any, to the date of prepayment, including the
Termination Fee.
(b) Intentionally Omitted.
(c) When Borrower sells or otherwise disposes of any
Collateral (other than sales or dispositions permitted under
Section 7.1(b) hereof) in any single transaction or series of
related transactions, the net proceeds of such sale (i.e.,
gross proceeds less the reasonable costs of such sales or
other dispositions) shall be delivered promptly to Agent but
in no event more than one (1) Business Day following receipt
of such net proceeds, and until the date of payment, such
proceeds shall be held in trust for Agent, and such proceeds
shall be applied as follows: first, to ratably repay interest
due in respect of the Revolving Advances, to be distributed to
each Lender pro rata according to the applicable Commitment
Percentage of such Lender; second, to ratably repay principal
due in respect of the Revolving Advances, to be distributed to
each Lender pro rata according to the applicable Commitment
Percentage of such Lender; and third, to any other Obligation
until paid in full. Upon application of the proceeds described
above, the applicable Maximum Non-Guaranteed Revolving Advance
Amount and the Maximum Guaranteed Revolving Advance Amount
shall be permanently reduced in an amount equal to the
applicable Pro Rata Share. Nothing herein shall be deemed to
be implied consent to any such sale otherwise prohibited by
the terms and conditions hereof.
2.4 Section 4.2(b) is hereby restated in its entirety to read as
follows:
(b) Borrower shall (i) promptly notify Agent in writing upon
acquiring or otherwise obtaining any Collateral after the date
hereof consisting of Deposit Accounts, Investment Property,
Letter-of-Credit Rights, Tangible Chattel Paper (excluding any
checks or other items of payment) or Electronic Chattel Paper
(excluding any wire transfers, automated clearing house electronic
funds transfers or depository transfer
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checks) (as such terms are defined from time to time in the
UCC) each having a value in excess of One Hundred Thousand
Dollars ($100,000) and, upon the request of Agent, promptly
execute such other documents, and do such other acts or things
deemed appropriate by Agent to deliver to Agent control with
respect to such Collateral; (ii) promptly notify Agent in
writing upon acquiring or otherwise obtaining any Collateral
after the date hereof consisting of Documents or Instruments
and, upon the request of Agent, promptly execute such other
documents, and do such other acts or things deemed appropriate
by Agent to deliver to Agent possession of such Documents
which are negotiable and Instruments, and, with respect to
nonnegotiable Documents, to have such nonnegotiable Documents
issued in the name of Agent; (iii) with respect to Collateral
in the possession of a third party, other than Certificated
Securities and Goods covered by a Document, obtain an
acknowledgment from the third party that it is holding the
Collateral for the benefit of Agent; (iv) promptly notify
Agent in writing upon incurring or otherwise obtaining a
Commercial Tort Claim having a value in excess of $250,000
after the date hereof against any third party, of the details
thereof in the form of an amendment to Schedule 5.2(c) hereto,
and do such other acts or things deemed appropriate by Agent
to give Agent a security interest in such Commercial Tort
Claim; (v) not change its state of incorporation or
organization or type of organization; and (vi) not change its
legal name without providing Agent with at least 30 days'
prior written notice.
2.5 Section 6.6 is hereby restated in its entirety to read as
follows:
6.6 Fixed Charge Coverage Ratio. Maintain during each
period consisting of four (4) consecutive fiscal quarters of
Borrower on a consolidated basis a Fixed Charge Coverage Ratio
for the period ending on each of the dates set forth below not
less than the ratio set forth opposite such period end date:
Period End Date Coverage Ratio
---------------------------------------------------
March 30, 2004 - (2.5)
June 30, 2004 - (4.5)
September 30, 2004 - (1.0)
December 31, 2004 - 1.00
March 30, 2005 - 1.50
June 30, 2005 - 1.50
September 30, 2005 - 2.00
December 31, 2005 and thereafter - 2.00
Notwithstanding the foregoing, for the period ending December
31, 2003, the Fixed Charge Coverage Ratio shall be calculated
for the fiscal quarter ending on such date rather than on the
prior four fiscal quarters, for the period ending March 30,
2004, the Fixed Charge Coverage Ratio shall be
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calculated for period of two (2) consecutive fiscal quarters
ending on such date rather than on the prior four fiscal
quarters, and for the period ending June 30, 2004, the Fixed
Charge Coverage Ratio shall be calculated for period of three
(3) consecutive fiscal quarters ending on such date rather
than on the prior four fiscal quarters.
2.6 The following section is hereby inserted as Section 6.14:
6.14 Sale of SEG. Borrower shall use its best efforts to sell
or cause the sale of SEG as soon as practicable and the net proceeds
of such sale shall be applied in accordance with the provisions of
Section 2.14 hereof. The foregoing shall not be deemed to be implied
consent by Agent or any Lender to any such sale of SEG.
2.7 Section 7.1 (b) is hereby restated in its entirety to read as
follows:
(b) Sell, lease, transfer or otherwise dispose of any of its
material properties or assets, except for (i) sales of Inventory in
the ordinary course of its business, (ii) nonexclusive licenses of
intangible assets and (iii) sales or dispositions of obsolete or
unnecessary Equipment or Inventory; or
2.8 Section 7.4 is hereby restated in its entirety to read as
follows:
7.4 Investments. Purchase or acquire obligations or stock of,
or any other interest in, any Person (such purchases or acquisitions
collectively, "Investments"), except (a) obligations issued or
guaranteed by the United States of America or any agency thereof,
(b) commercial paper with maturities of not more than 180 days and a
published rating of not less than A-1 or P-1 (or the equivalent
rating), (c) certificates of deposit and bankers' acceptances having
maturities of not more than 180 days and repurchase agreements
backed by United States government securities of a commercial bank
if (i) such bank has a combined capital and surplus of at least
$500,000,000, or (ii) its debt obligations, or those of a holding
company of which it is a Subsidiary, are rated not less than A (or
the equivalent rating) by a nationally recognized investment rating
agency, (d) U.S. money market funds that invest solely in
obligations issued or guaranteed by the United States of America or
an agency thereof, (e) Investments in Foreign Subsidiaries in an
aggregate amount at all times for Borrower not to exceed $1,000,000
in any single calendar year, (f) as set forth on Schedule 7.4 and
(g) Investments in addition to the Investments otherwise permitted
hereunder not to exceed $25,000 in the aggregate.
2.9 Section 7.8 is hereby restated in its entirety to read as
follows:
7.8 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness (exclusive of trade debt) except in respect of (a) the
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Obligations owing to Lenders, (b) Indebtedness incurred for capital
expenditures permitted under Section 7.6 hereof, (c) Indebtedness
existing on the Closing Date and listed on Schedule 7.8 hereto, (f)
guarantees permitted under Section 7.3 hereof, (g) Indebtedness on
account of Current Liabilities (other than for money borrowed)
incurred in the normal and ordinary course of business, (h)
Indebtedness in an amount not to exceed $556,630 representing
increases of principal amounts owing under certain promissory notes
issued by Borrower in favor of former shareholders of Auto Image ID,
Inc., in connection with Borrower's acquisition of such company and
identified on Schedule 7.8 hereto, and (i) unsecured Indebtedness in
addition to the Indebtedness otherwise permitted hereunder not to
exceed $200,000 in the aggregate.
2.10 Section 10.5 is hereby restated in its entirety to read as
follows:
10.5 Borrower fails or neglects to perform, keep or observe
any term, provision, condition or covenant herein contained (other
than those listed in Sections 6.5, 6.6, 10.1, 10.3 and 10.6 or
Article IX), or contained in any Other Documents or any other
agreement or arrangement, now or hereafter entered into between
Borrower and Agent or any Lender, and the same shall remain
unremedied for fifteen (15) days after notice to Borrower from Agent
of the occurrence of such failure or neglect;
2.11 Section 13.1 is hereby restated in its entirety to read as
follows:
13.1 Term. Unless sooner terminated as herein provided, this
Agreement, which shall inure to the benefit of and shall be binding
upon the respective successors and permitted assigns of Borrower,
Agent and each Lender, shall become effective on the date hereof and
shall continue in full force and effect until the earlier to occur
of (i) November 30, 2005 or (ii) the closing of the sale of SEG (the
"Termination Date"). Borrower may terminate this Agreement at any
time upon ninety (90) days' prior written notice upon payment in
full of the Obligations and any applicable prepayment fees set forth
in Section 2.14 herein.
2.12 The following Schedules are hereby restated in their entirety
as set forth below:
(a) Schedule 4.5 in the form attached hereto as Exhibit C.
(b) Schedule 4.19 in the form attached hereto as Exhibit D.
(c) Schedule 5.2(a) in the form attached hereto as Exhibit E.
(d) Schedule 5.2(c) in the form attached hereto as Exhibit F.
(e) Schedule 5.2(d) in the form attached hereto as Exhibit G.
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(f) Schedule 5.4 in the form attached hereto as Exhibit H.
(g) Schedule 5.8(b) in the form attached hereto as Exhibit I.
(h) Schedule 5.8(d) in the form attached hereto as Exhibit J.
(i) Schedule 5.11(a) in the form attached hereto as Exhibit K.
(j) Schedule 5.11(b) in the form attached hereto as Exhibit L.
(k) Schedule 7.4 in the form attached hereto as Exhibit M.
3. CONDITIONS PRECEDENT. The amendments set forth in Section 2 above shall
be effective upon the execution and delivery of this Amendment by Borrower,
Agent and Lender and the delivery to Agent of the following, all in form and
substance acceptable to Agent and Lender:
(a) required third party consents, including that of Agent and
the Export-Import Bank of the United States ("EXIM");
(b) all outstanding landlord waivers (including the location
at 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx) to have been delivered to
Agent in connection with the Credit Agreement, or, in the
alternative, the establishment of adequate reserves in a manner
satisfactory to Agent and Lender;
(c) a warrant in favor of RI for an aggregate 450,000 shares
of Borrower's Common Stock in the form attached as Exhibit A hereto;
(d) Amended and Restated Non-Guaranteed Revolving Credit Note
in the form attached as Exhibit B hereto;
(e) Registration Rights Agreement between Borrower and RI
dated as of even date herewith;
(f) control agreements for all Borrower depository accounts
held at financial institutions other than those held with Agent;
(g) opinion of Borrower's outside counsel;
(h) Reaffirmation of that certain Subordination, Forbearance
and Waiver of Offset Rights Agreement dated April 11, 2003 executed
by Xxx X. Xxxxx and Borrower; and
(i) such other documents as Agent and Lender may reasonably
request.
4. TERMINATION OF NOVEMBER 26, 2003 SIDE LETTER. Borrower by its execution
hereof acknowledges and agrees that the letter agreement dated November 26, 2003
entered into by and between Borrower, Agent and Lender providing for a one-year
extension of
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the Termination Date and an increase in capital expenditures is hereby
terminated and is of no further force or effect.
5. EXPENSES. Borrower shall pay all fees, costs and expenses incurred by,
or charged by Agent, Lender and EXIM in connection with this Amendment and the
agreements, documents and other items contemplated hereunder.
6. REAFFIRMATION OF GRANTS OF SECURITY INTERESTS. Borrower heretofore or
hereafter expressly acknowledges and agrees that all collateral, security
interests, liens, pledges and mortgages heretofore or hereafter granted to Agent
and Lender including, without limitation, such collateral, security interests,
liens, pledges and mortgages granted under the Credit Agreement and all
supplements thereto, or any of the Other Documents and all supplements thereto,
extend to and secure all of the obligations of Borrower to Agent and Lender, now
existing or hereafter arising including, without limitation, those arising in
connection with the Credit Agreement, as amended by this Amendment, upon the
terms set forth in such agreements, all of which security interests, liens,
pledges and mortgages are hereby ratified, reaffirmed, confirmed and approved.
7. MISCELLANEOUS.
7.1 Limited Nature of Amendment. The parties hereto acknowledge and
agree that the terms and provisions of this Amendment amend, add to and
constitute a part of the Credit Agreement. Except as expressly waived or
modified and amended by the terms of this Amendment, all of the other
terms and conditions of the Credit Agreement and all documents executed in
connection therewith or referred to or incorporated therein remain in full
force and effect and are hereby ratified, reaffirmed, confirmed and
approved.
7.2 Conflict. If there is an express conflict between the terms of
this Amendment and the terms of the Credit Agreement, or any of the other
agreements or documents executed in connection therewith or referred to or
incorporated therein, the terms of this Amendment shall govern and
control.
7.3 Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original.
7.4 Representations and Warranties. Borrower represents and warrants
to Agent and Lender as follows: (A) Borrower has all necessary corporate
power and authority to execute and deliver this Amendment and perform its
obligations hereunder; (B) this Amendment and the Credit Agreement, as
amended hereby, constitute the legal, valid and binding obligations of
Borrower and are enforceable against Borrower in accordance with their
terms; and (C) all representations and warranties of Borrower in all
contained in the Credit Agreement, the Other Documents and all other
agreements, instruments and other writings relating thereto are true and
complete in all material respects as of the date hereof.
7.5 Release and Waiver. Borrower hereby acknowledges and agrees that
it has no defenses, offsets, recoupment, claims or counterclaims against
or with respect to
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Agent or any Lender or against the enforcement of the Credit Agreement or
any of the Other Documents, as modified hereby, and that the Agent and
each Lender have not waived any of their respective rights or remedies
under any such documents (individually and collectively "Defenses").
Borrower hereby forever releases and discharges each Released Party
(defined below), jointly and severally, from any and all claims, demands,
controversies, actions, causes of action, obligations, liabilities, costs,
expenses, fees (including attorneys' and other professionals' fees, costs
and expenses), and damages of whatsoever character, nature and kind, at
law or in equity, which Borrower may now have against the Released
Parties, or any of them, or which Borrower ever had, or which Borrower,
its respective representatives, successors or assigns hereafter can, shall
or may have, arising from or related in any way to the Credit Agreement,
this Amendment or any of the Other Documents, or for, upon, or by reason
of any other matter, cause or thing whatsoever, whether or not related in
any way to the Credit Agreement, this Amendment or any of the Other
Documents, arising or relating to the period prior to the date hereof
(individually and collectively "Liabilities"). It is the intention of the
parties hereto that the foregoing acknowledgment and release shall be
effective as a bar to all Defenses and Liabilities, past and present,
known and unknown, suspected and unsuspected arising from or in any way
related to any act or omission) of any kind whatsoever, by any Released
Party in any capacity whatsoever, occurring or commencing prior to the
date hereof, including without limitation any act or omission, or series
of similar or related acts or omissions, commencing prior to the date
hereof and continuing after the date hereof. "Released Party" means (i)
Agent, (ii) each Lender, (iii) each direct and indirect member of each
Lender, (iv) each direct and indirect affiliate of Agent, each Lender and
each direct and indirect member of each Lender, (v) each officer,
director, member, partner, equity owner, agent, servant, employee,
attorney and other representative of each of the Released Parties
identified in clauses (i) through (iv) of this sentence, and (vi) each
successor and assign of each Released Party.
7.6 Governing Law. This Amendment shall be governed by and construed
in accordance with the internal laws (as opposed to conflicts of law
provisions) of the State of New York.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the parties has signed this Amendment as of
the day and year first above written.
BORROWER:
ROBOTIC VISION SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
AGENT:
PNC BANK, NATIONAL ASSOCIATION, as Agent
By: /s/ Xxxxxxx XxXxxxxxx
-------------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Vice President
LENDER:
RVSI INVESTORS, L.L.C., as Lender
By: EGI-FUND (02-04) INVESTORS,
L.L.C., its Managing Member
By: /s/ Xxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
