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EXHIBIT 10.40
SECOND AMENDENT TO
AMENDED AND RESTATED REPLACEMENT LOAN AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED REPLACEMENT LOAN
AGREEMENT (the "Agreement") is made this 30th day of December 1999, by and among
BIORELIANCE CORPORATION, a corporation organized and in good standing under the
laws of the State of Delaware, successor in interest to Microbiological
Associates, Inc. (the "Company"), BIORELIANCE TESTING AND DEVELOPMENT, INC.,
formerly known as MA BioServices, Inc., a corporation organized and in good
standing under the laws of the State of Delaware ("MA BioServices"), BIORELIANCE
MANUFACTURING, INC., formerly known as Magenta Corporation, a corporation
organized and in good standing under the laws of the State of Delaware
("Magenta") and MAGENTA VIRAL PRODUCTION, INC., a corporation organized and in
good standing under the laws of the State of Delaware ("Magenta Viral"; together
with the Company, MA BioServices and Magenta, each a "Borrower" and
collectively, the "Borrowers") and BANK OF AMERICA, N.A., successor in interest
to NATIONSBANK, N.A., each a national banking association, its successors and
assigns, (the "Lender").
RECITALS
A. The Lender has made certain loans to the Borrowers, as more fully
described in that certain Amended and Restated Replacement Loan Agreement by and
among the Borrowers and the Lender dated as of October 31, 1997 (as amended from
time to time, the "Restated Loan Agreement").
B. The Borrowers have requested and the Lender has agreed to extend the
maturity of Loan No. 2 and increase the maximum principal amount and extend the
maturity of Loan No. 3 upon the terms and subject to the conditions hereinafter
set forth.
C. All capitalized terms used herein and not otherwise defined herein
shall have the meanings given to such terms in the Restated Loan Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises, the mutual agreements
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrowers and the Lender
hereby agree as follows:
1. Recitals. The above Recitals are true and correct in all material
respects and that the same are incorporated herein and made a part hereof by
reference.
2. Line of Credit Replacement Note. From and after the effective date
hereof, all references in the Restated Loan Agreement and the Loan Documents to
Loan No. 3 and/or the Line of Credit Replacement Note shall be deemed to refer
to that certain line of credit in the current maximum principal amount of Two
Million Dollars ($2,000,000) as evidenced by that
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EXHIBIT 10.40
certain Fourth Replacement Revolving Promissory Note of even date herewith in
the maximum principal amount of Two Million Dollars ($2,000,000).
3. Funded Debt to EBIDTA. Section 5.3 of the Restated Loan Agreement is
amended and restated in its entirety as follows:
Section 5.3. Funded Debt to EBITDA. Maintain a ratio of Funded Debt
to EBITDA not greater than 3.5 to 1.0 as of the end of each fiscal
quarter, based on the four (4) quarter period ending on such date. For
purposes hereof, "Funded Debt" shall mean all senior debt, including
any and all capitalized lease obligations and all contingent
liabilities of any Borrower. For purposes hereof, "EBITDA" shall mean
earnings before interest, taxes, depreciation and amortization, all as
determined in accordance with GAAP and all as determined on a
consolidated basis for the twelve (12) month period then ending,
provided, however, for the fiscal quarter ending December 31, 1999,
EBITDA shall be based on the three (3) quarter period then ending on an
annualized basis.
4. Fixed Charge Coverage. From and after the date of this Agreement,
the following Section is added immediately after Section 5.16 of the Restated
Loan Agreement as Section 5.17:
Section 5.17 Fixed Charge Coverage Maintain a Fixed Charge Coverage
Ratio as of the end of each fiscal quarter, based on the consolidated
financial statements of the Company and its Subsidiaries of not less
than 1.25 to 1.0. For purposes hereof, the "Fixed Charge Coverage
Ratio" means at the time of determination thereof, the ratio of (a)
EBITDA, plus capital leases expenses for such period, to (b) the sum of
interest expense, plus current maturities of long term debt and capital
leases for such period. For purposes hereof, "EBITDA" shall mean
earnings before interest, taxes, depreciation and amortization, all as
determined in accordance with GAAP and all as determined on a
consolidated basis for the twelve (12) month period then ending,
provided, however, for the fiscal quarter ending December 31, 1999,
EBITDA shall be based on the three (3) quarter period then ending on an
annualized basis.
5. Loan Fee. In consideration of the Lender's agreement to extend Loan
No. 2, the Borrowers shall pay the Lender at the time of the execution of this
Agreement, a loan fee (the "Loan Fee") in the amount of one quarter of one
percent of the balance of Loan No. 2. The Loan Fee is considered earned when
paid and is not refundable.
6. Restated Note. EXHIBIT B to the Restated Loan Agreement is being
replaced in its entirety with EXHIBIT B attached hereto. The Borrowers shall
execute and deliver to the Lender on the date hereof the Restated Note in
substitution for and not satisfaction of, the issued and outstanding Line of
Credit Replacement Note, and the Restated Note shall be the "Line of Credit
Replacement Note" for all purposes of the Loan Documents. The Note being
substituted pursuant to this Agreement shall be marked "Replaced" and returned
to the Company after the execution and delivery of the Restated Line of Credit
Replacement Note to the Lender.
7. Conditions Precedent. This Agreement shall become effective on the
date the
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EXHIBIT 10.40
Lender receives the following, each of which shall be satisfactory in form and
substance to the Lender:
(a) A Fourth Replacement Revolving Promissory Note issued and
delivered by the Borrowers in the form of EXHIBIT B attached hereto and
incorporated herein by reference, payable to the order of the Lender in the
maximum principal amount of Two Million and No/100 Dollars ($2,000,000.00)
(which Fourth Replacement Revolving Promissory Note is sometimes referred to
herein as the "Restated Note");
(b) Proof that the Borrowers have paid all costs and expenses
to the Lender and its counsel in connection with this Agreement, including but
not limited to the Lender's reasonable attorneys fees invoiced as of such date;
and
(c) Such other information, instruments, opinions, documents,
certificates and reports as the Lender may in its reasonable discretion deem
necessary.
8. Counterparts. This Agreement may be executed in any number of
duplicate originals or counterparts, each of which duplicate original or
counterpart shall be deemed to be an original and all taken together shall
constitute one and the same instrument.
9. Loan Documents; Governing Law; Etc. This Agreement is one of the
Loan Documents defined in the Restated Loan Agreement and shall be governed and
construed in accordance with the laws of the State of Maryland. The headings and
captions in this Agreement are for the convenience of the parties only and are
not a part of this Agreement.
10. Acknowledgments. The Borrowers hereby confirm to the Lender the
enforceability and validity of each of the Loan Documents. In addition, the
Borrowers hereby agree to the execution and delivery of this Agreement and the
terms and provisions, covenants or agreements contained in this Agreement shall
not in any manner release, impair, lessen, modify, waive or otherwise limit the
liability and obligations of the Borrowers under the terms of any of the Loan
Documents, except as otherwise specifically set forth in this Agreement. The
Borrowers issue, remake, ratify and confirm the representations, warranties and
covenants contained in the Loan Documents. Nothing in this Agreement shall be
deemed to waive any defaults existing under any of the Loan Documents as of the
date hereof.
11. Notices. All notices, certificates or other communications under
the Loan Documents shall be deemed given when received, if given by hand or
courier, or by certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Lender: Bank of America, N.A.
0000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Patch
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EXHIBIT 10.40
With a copy to: Xxxx & Valentine, L.L.P.,
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
if to the Borrowers: BioReliance Corporation
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxx, Esq.
12. Modifications. This Agreement may not be supplemented, changed,
waived, discharged, terminated, modified or amended, except by written
instrument executed by the parties.
[Signatures are on the next page]
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EXHIBIT 10.40
IN WITNESS WHEREOF, the parties hereto have signed and sealed this
Agreement on the day and year first above written.
WITNESS/ATTEST: BIORELIANCE CORPORATION
s/Xxxxxx X. Xxxxxx By: s/Xxxxxxx X. Xxxxxx (SEAL)
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President, Finance & CFO
WITNESS/ATTEST: BIORELIANCE TESTING AND
DEVELOPMENT, INC.
s/Xxxxxx X. Xxxxxx By: s/Xxxxxxx X. Xxxxxx (SEAL)
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President, Finance & CFO
WITNESS/ATTEST: BIORELIANCE MANUFACTURING, INC.
s/Xxxxxx X. Xxxxxx By: s/Xxxxxxx X. Xxxxxx (SEAL)
----------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President, Finance & CFO
WITNESS/ATTEST: MAGENTA VIRAL PRODUCTION, INC.
s/Xxxxxx X. Xxxxxx By: s/Xxxxxxx X. Xxxxxx (SEAL)
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President, Finance & CFO
WITNESS: BANK OF AMERICA, N.A..
By: s/Xxxxxxxxx X. Xxxxx (SEAL)
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Xxxxxxxxx X. Xxxxx
Vice President
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