EIGHTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
EXHIBIT
10.38
EIGHTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT
This
Eighth Amendment to Loan and Security Agreement made as of the 28th day of
December, 2006 (this “Amendment”) by and between NEW
BRUNSWICK SCIENTIFIC CO., INC.
(the
“Borrower”), a corporation organized under the laws of the State of New Jersey,
having an address at 00 Xxxxxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000-0000 and
WACHOVIA
BANK, NATIONAL ASSOCIATION
(formerly known as First Union National Bank) (the “Bank”), a national banking
association formed under the laws of the United States of America, having
an
office at 0000 Xxxxxxx 00, XX 0000, Xxxxxx, Xxx Xxxxxx 00000.
W
I T
N E S S E T H:
WHEREAS,
the Bank and the Borrower previously entered into commercial lending
arrangements in accordance with the terms and conditions of a certain Loan
and
Security Agreement dated April 1, 1999, as amended by that certain First
Amendment to Loan and Security Agreement dated as of November 22, 1999 between
the same parties, as further amended by that certain Second Amendment to
Loan
and Security Agreement dated as of June 30, 2000 between the same parties,
as further amended by that certain Third Amendment to Loan and Security
Agreement dated as of May 11, 2001 between the same parties, as further amended
by that certain Fourth Amendment to Loan and Security Agreement dated as
of
November 13, 2001 between the same parties, as further amended by that certain
Fifth Amendment to Loan and Security Agreement dated as of March 15, 2002,
as
further amended by a certain Sixth Amendment to Loan and Security Agreement
dated as of September 26, 2003 by and between the same parties and as further
amended by a certain Seventh Amendment to Loan and Security Agreement dated
as
of May 31, 2005 by and between the same parties (the “Agreement”);
and
WHEREAS,
the Borrower and the Bank have agreed to, subject to the provisions hereof,
to
amend certain financial covenants.
NOW,
THEREFORE, for and in consideration of mutual covenants and agreements herein
contained, and other good and valuable consideration, receipt of which is
hereby
acknowledged, it is agreed as follows:
1. The
following definition is hereby added to Subsection 1.1 of the Agreement to
read
as follows:
“Eighth
Amendment”:
That
certain Eighth Amendment to Loan and Security Agreement dated as of December
28,
2006 by and between the Borrower and the Bank.
2. Subsection
9.23(k) of the Agreement is hereby amended to read as follows:
(k)
Capital
Expenditures.
Enter
into any agreements to purchase or pay for or become obligated to pay for
capital expenditures during any fiscal year in an amount aggregating in excess
of $3,500,000.
3. The
first
caption and sentence of Subsection 9.23(o) of the Agreement is hereby amended
to
read as follows:
(o) Total
Assets of Borrower to Total Assets of Borrower and Subsidiaries.
Borrower shall, at all times, maintain a ratio of Total Assets of Borrower
divided by Total Assets of Borrower and Subsidiaries of not less than .50
to
1.00.
4. Borrower
shall pay all reasonable expenses and expenditures of Bank, including, without
limitation, reasonable attorneys’ fees and expenses incurred or paid by Bank in
connection with this Amendment and all other documents delivered in connection
herewith.
5. Borrower
acknowledges and represents that:
(a) the
Agreement, as amended hereby, and all other Loan Documents constitute legal,
valid and binding obligations of the parties thereto in accordance with their
terms.
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(b) the
Agreement, as amended hereby, and other Loan Documents are in full force
and
effect without any defense, claim, counterclaim, right or claim of set-off;
(c) all
representations and warranties of the Borrower contained herein and in the
other
Loan 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;
(d) Borrower
has taken all necessary action to authorize the execution and delivery of
this
Amendment;
(e) this
Amendment is a modification of an existing obligation and is not a novation,
and
except as modified by this letter, all other terms, conditions and provisions
of
the Agreement and other Loan Documents remain in full force and affect;
and
(f) no
Default or Event of Default presently exists under the Agreement or the other
Loan Documents.
6. All
capitalized terms contained in this Amendment shall have the same meanings
ascribed to them in the Agreement.
7. This
Amendment may be executed in one or more counterparts, each of which shall
constitute one and the same Amendment.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties hereunto set their hands and cause these presents
to be signed by the authorized officers on the date and year first above
mentioned.
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NEW
BRUNSWICK SCIENTIFIC CO., INC.
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BY:
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/s/
Xxxxxx Xxxxxxxx
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Name:
Xxxxxx Xxxxxxxx
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Title:
Vice President, Finance
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WACHOVIA
BANK, NATIONAL ASSOCIATION
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BY:
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/s/
Xxxxxx X. Xxxxx
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Name:
Xxxxxx X. Xxxxx
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Title:
A.V.P.
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