FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
This First Amendment to Loan and Security Agreement made as of the
22nd day of November, 1999 (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 FIRST UNION NATIONAL BANK (the "Bank"), a national banking
association formed under the laws of the United States of America, having an
office at 000 Xxxxxx Xxxx, Xxxx Xxxxxxx, 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 (the "Agreement"); and
WHEREAS, in connection with the Borrower receiving a certain
Incremental Term Loan (as defined in the Agreement), and subject to the terms
and conditions hereinafter set forth, the parties hereto have agreed to amend
the terms of the Agreement.
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 definitions are hereby added to Subsection 1.1 of the
Agreement to read as follows:
"First Amendment": That certain First Amendment to Loan and Security Agreement
----------------
dated November 22, 1999 by and between the Borrower and the Bank.
"Borrower's Guaranty": That certain Guaranty dated November 22, 1999 from the
--------------------
1
Borrower in favor of the Bank with respect to the obligations of New Brunswick
Scientific of Delaware, Inc.
"Second Mortgage": The Mortgage executed by the Borrower, substantially in the
----------------
form of Exhibit A to the First Amendment, as may be amended, restated,
substituted for and/or extended from time to time.
2. The following definitions contained in Subsection 1.1 of the Agreement is
hereby amended to read as follows:
"Loan Documents": This Agreement, the Master Note, the Incremental Term Notes,
---------------
the Equipment Line of Credit Note, the Equipment Term Notes, the Power of
Attorney, the Mortgage, the Second Mortgage, the Assignment of Rents, each
Landlord's/Warehousemen's Agreement, the UCC-1 Financing Statements, the
Borrower's Guaranty, and any other document, instrument or writing executed and
delivered pursuant hereto or thereto (excluding Swap Agreements), and all as
amended, restated, substituted for and/or extended from time to time.
"Permitted Liens": (i) Liens with respect to equipment which is the subject of
----------------
capitalized leases or purchase money financing to the extent permitted by the
terms of Subsection 9.23(a)(ii), (ii) those Liens described in Schedule 1.1
------------
annexed hereto, (iii) Liens with respect to assets which are the subject of an
acquisition permitted by the terms hereof and securing indebtedness permit under
Subsection 9.23(a)(iii) hereof and (iv) any Liens in favor of the Bank.
"Premises": The real estate located at 00 Xxxxxxxx Xxxx, Xxxxxx, Xxx Xxxxxx, as
--------
more particularly described on Schedule A to the Mortgage and the Second
Mortgage, which description is incorporated herein by reference.
3. Subsection 8.9 of the Agreement is hereby amended to read as follows:
8.9 Title to Properties, Priority of Liens. The Borrower has good and
------------------------------------------------
marketable title in all of its properties and assets which it purports to own,
--------
free of all Liens except for Permitted Liens, and the Borrower has granted,
subject to the provisions of Subsection 6.1 hereof, to the Bank a valid
perfected first lien in the Collateral (exclusive of the Premises). With
respect to the Premises, the Borrower has granted, pursuant to the Mortgage and
the Second Mortgage, first and second mortgage liens, respectively. Since the
Mortgage and the Second Mortgage are Permitted Liens, language in the Mortgage
or the Second Mortgage stating that the Borrower is to "promptly discharge all
liens, claims and encumbrances on the Premises" is not intended to apply to the
Mortgage and the Second Mortgage.
2
4. The last sentence of Subsection 9.6 of the Agreement is hereby amended to
read as follows:
Notwithstanding the foregoing, the Borrower shall, subject to the terms,
conditions and limitations of the Mortgage and Second Mortgage, have the right
to utilize certain insurance proceeds to repair or replace damaged or destroyed
improvements at the Premises.
5. The first sentence of Subsection 9.23(o) of the Agreement is hereby
amended to read as follows:
Borrower shall, at all times, maintain a ratio of Total Net Assets of Borrower
divided by Total Assets of Borrower and Subsidiaries of not less than .60 to
1.00.
6. Borrower shall pay on demand all reasonable expenses and expenditures of
the Bank, including, without limitation, reasonable attorneys' fees and expenses
incurred or paid by the Bank in connection with this Amendment and all
other documents delivered in connection herewith.
7. This Amendment has been duly executed and delivered by the parties
hereto, and the Agreement, as amended hereby, and all other documents executed
in connection with the Agreement and this Amendment, as amended, constitute
legal, valid and binding obligations of the parties thereto in accordance with
their terms.
8. The parties hereto confirm and agree that, except as modified or changed
by virtue of this Amendment and the other documents delivered in connection
herewith, the Agreement and the other documents executed in connection with the
Agreement and this Amendment are and shall remain in full force and effect, and
that the parties hereto each are and shall be entitled to all rights and
interests and subject to all liabilities created thereunder and hereunder.
9. All capitalized terms contained in this Amendment shall have the same
meanings ascribed to them in the Agreement.
3
10. This Amendment may be executed in one or more counterparts, each of
which shall constitute one and the same Amendment.
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.
NEW BRUNSWICK SCIENTIFIC CO., INC.
BY:____________________________________
XXXX XXXXXXX, President
FIRST UNION NATIONAL BANK
BY:_____________________________________
4
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Second Amendment to Loan and Security Agreement made as of the 3rd
day of August, 2000 (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 FIRST UNION NATIONAL BANK (the "Bank"), a national banking
association formed under the laws of the United States of America, having an
office at 000 Xxxxxx Xxxx, Xxxx Xxxxxxx, 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 (the "Agreement");
WHEREAS, the Borrower is not in compliance with certain financial covenants
and anticipates not being in compliance with certain other financial covenants
contained in the Agreement as a result of unanticipated operating losses and a
certain non-cash write-down involving a certain investment of the Borrower; and
WHEREAS, the Borrower has requested the Bank, and the Bank has agreed, to waive
said noncompliance and to amend certain of said covenants, subject to the terms
and conditions hereinafter set forth.
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:
5
1. The following definitions are hereby added to Subsection 1.1 of the
Agreement to read as follows:
"Second Amendment": That certain Second Amendment to Loan and Security
-----------------
Agreement dated as June 30, 2000 by and between the Borrower and the Bank.
-------
2. Subsection 9.23(l) of the Agreement is hereby amended to read as follows:
(l) Debt Service Coverage Ratio of Borrower and Subsidiaries. Borrower and
---------------------------------------------------------
its Subsidiaries, on a consolidated basis, shall, at all times, maintain a Debt
Service Coverage Ratio of not less than 1.30 to 1.00; provided that the Bank
shall not measure such Debt Service Coverage Ratio as of September 30, 2000.
For the purposes of this Subsection 9.23(l), "Debt Service Coverage Ratio" shall
be computed on a rolling four quarter basis (excluding, however, the losses for
DGI for the fiscal year ending 1998) and shall mean the sum of net income
(adjusted for any noncash losses, to the extent of the Borrower's investment in
DGI, resulting from equity offerings of the Borrower's ownership interest in
DGI, whereby said interest is reduced from 80% to between 50% and 20%) plus
interest expense plus income tax expense minus income tax benefit plus
depreciation and amortization plus rental or lease (capital and operating)
payments payable or guaranteed by the Borrower, minus dividends paid for the
previous four consecutive quarters, plus the non-cash write-down related to the
Borrower's investment in Organica, Inc. in an amount up to $967,000 divided by
interest expense for the previous four consecutive quarters plus the current
maturities of long term debt plus current maturities of capital leases, plus
rental or lease (capital or operating) payments payable or guaranteed by the
Borrower for the previous four consecutive quarter, as reflected on the
Borrower's current financial statements. This ratio shall be tested quarterly.
3. Subsection 9.23(m) of the Agreement is hereby amended to read as follows:
(m) Net Worth of Borrower and Subsidiaries. Borrower and its Subsidiaries,
----------------------------------------
on a consolidated basis, shall at all times maintain a Net Worth of at least (i)
$28,500,000 for the period commencing on the date hereof and ending December 31,
2000 and (ii) for each fiscal year thereafter, the minimum Net Worth of the
Borrower and its Subsidiaries, on a consolidated basis, shall increase by not
less than 85% of net income for the immediately preceding fiscal year just ended
(with no reduction for losses), provided that with respect to the quarterly
period ending September 30, 2000 the Net Worth of the Borrower and its
Subsidiaries, on a consolidated basis, shall be no less than $27,750,000. For
6
the purposes of this Subsection 9.23(m), "Net Worth" shall mean total assets,
plus negative or minus positive "currency translation adjustment" as reflected
on the Borrower's balance sheet as of the end of the fiscal quarter being tested
minus Total Liabilities (as defined in Subsection 9.23(n) hereof). For the
purposes of this calculation, loans (except as permitted by Subsection
9.23(h)(i) and advances, investments and contributions to persons other than the
Borrower, shall be subtracted from total assets. This ratio shall be tested
quarterly.
4. Notwithstanding anything contained in the Agreement, based upon the
Borrower's letter dated June 30, 2000 to the Bank and accompanying work sheet
dated June 12, 2000, the Bank hereby agrees to waive the Borrower's failure to
comply with the provisions of Subsections 9.23(l) and (m) of the Agreement as of
June 30, 2000. This waiver is specifically limited to such covenants as of
such date.
5. Borrower shall pay on demand all reasonable expenses and expenditures of
the Bank, including, without limitation, reasonable attorneys' fees and expenses
incurred or paid by the Bank in connection with this Amendment and all
other documents delivered in connection herewith.
6. This Amendment has been duly executed and delivered by the parties
hereto, and the Agreement, as amended hereby, and all other documents executed
in connection with the Agreement and this Amendment, as amended, constitute
legal, valid and binding obligations of the parties thereto in accordance with
their terms.
7. The parties hereto confirm and agree that, except as modified or changed
by virtue of this Amendment and the other documents delivered in connection
herewith, the Agreement and the other documents executed in connection with the
Agreement and this Amendment are and shall remain in full force and effect, and
that the parties hereto each are and shall be entitled to all rights and
interests and subject to all liabilities created thereunder and hereunder.
7
8. All capitalized terms contained in this Amendment shall have the same
meanings ascribed to them in the Agreement.
9. This Amendment may be executed in one or more counterparts, each of which
shall constitute one and the same Amendment.
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.
NEW BRUNSWICK SCIENTIFIC CO., INC.
BY:__________________________________
FIRST UNION NATIONAL BANK
BY:__________________________________
8
