EXHIBIT (10-19)
THIRD MODIFICATION AGREEMENT
This third modification agreement dated March 13, 1997 ("Modification")
between Summit Bank ("Bank"), successor in interest to United Jersey
Bank/Central, N.A. and United Jersey Bank, and New Brunswick Scientific Co.,
Inc. ("Borrower").
W I T N E S S E T H
WHEREAS, United Jersey Bank/Central, N.A. and Borrower entered into an
Amended and Restated Loan and Security Agreement on February 17, 1993, as
modified pursuant to a Modification Agreement between Borrower and United Jersey
Bank/Central, N.A. dated as of June 1, 1994 and further modified pursuant to a
Second Modification Agreement between Borrower and United Jersey Bank dated
December 29, 1995 (together, the "Loan Agreement"); and
WHEREAS, the Loan Agreement sets forth the terms and conditions for a
Revolving Loan, Equipment Loan and Foreign Exchange Transaction Loan, as such
capitalized terms are more particularly described in the Loan Agreement; and
WHEREAS, Bank and Borrower desire to (a) extend the date for payment of
the Obligations defined in the Loan Agreement, (b) extend the credit
arrangements under the Loan Agreement and (c) modify certain terms affecting the
Foreign Exchange Transaction Loan, as more particularly described below;
NOW, THEREFORE, in exchange for the mutual covenants in this
Modification and for the other good and valuable consideration, receipt of which
is hereby acknowledged, the parties to this Modification agree to the following
terms, conditions and provisions:
1. Capitalized Terms. Capitalized terms used in this Modification and
not expressly defined herein shall have the meaning for such terms set forth in
the Loan Agreement.
2. Amendments to the Revolving Loan.
(A) All indebtedness under the Revolving Loan shall be payable no
later than May 31, 1998, or such earlier date determined pursuant to the Loan
Agreement, as modified hereby.
(B) The Bank shall not be required to issue Letters of Credit under
the Revolving Loan after May 31, 1998. Letters of Credit then outstanding will
be reimbursable in accordance with the terms of their issuance.
3. Amendments to the Equipment Loan. The Bank shall not be required to
make any advances under the Equipment Loan after May 31, 1998, or such earlier
date determined pursuant to the Loan Agreement, as modified hereby.
4. Amendments to the Foreign Exchange Transaction Loan.
(A) The definition of Foreign Exchange Transaction Loan as used in the
Loan Agreement is hereby deleted and replaced as follows:
"Foreign Exchange Line of Credit" means a line of credit with respect
to which Bank has agreed to enter into Foreign Exchange Contracts not
to exceed the Foreign Exchange Line Of Credit Maximum.
(B) The definition of Foreign Exchange Transaction Loan Maximum as used
in the Loan Agreement is hereby deleted and replaced as follows:
"Foreign Exchange Line of Credit Maximum" means the aggregate principal
amount of $2,500,000, but in no event shall Bank be obligated to
deliver Foreign Exchange Contracts having the same settlement date in
excess of $500,000 in the aggregate.
(C) All references in the Loan Agreement to "Foreign Exchange
Transaction Loan" shall mean "Foreign Exchange Line of Credit" and all
references to "Foreign Exchange Transaction Loan Maximum" shall mean "Foreign
Exchange Line of Credit Maximum."
(D) The Loan Agreement is amended to delete all references to the
Foreign Exchange Transaction Note. The obligation of Borrower to repay all
monies advanced by Lender to Borrower in connection with the Foreign Exchange
Line of Credit shall be evidenced by this Loan Agreement.
(E) All indebtedness under the Foreign Exchange Line of Credit shall be
payable in accordance with the terms of the particular Foreign Exchange Contract
with Bank. The Foreign Exchange Line of Credit shall terminate on May 31, 1998
or such earlier date determined pursuant to the Loan Agreement, as modified
hereby.
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5. Delivery of Renewal Notes. Simultaneously with the execution of this
Modification by Borrower, Borrower has made and delivered to Bank restatements
of the Revolving Note and Equipment Note to evidence the obligation of Borrower
to repay all monies at any time advanced by Bank in connection with,
respectively, the Revolving Loan and the Equipment Loan. Each such note amends
and restates the note it replaces but is not delivered by Borrower in payment,
satisfaction or cancellation of the Obligations evidenced thereby.
6. Affirmation; Estoppel. Except as expressly modified herein, all
terms and conditions of the Loan Agreement and each of the other Loan Documents
remain in full force and effect. Borrower affirms (a) the extent and validity of
each obligation, (b) that all Loan Documents remain enforceable as of the date
hereof, (c) that payment and performance of all Obligations continue to be
secured by all Collateral, with respect to which this Modification shall
constitute Borrower's grant and re-grant of a security in all Collateral, (d)
that all representations set forth in the Loan Agreement remain true and correct
as if stated on the date hereof, and (e) that Borrower has no knowledge of the
existence of an Event of Default under any Loan Document or an event or
condition that, with notice or passage of time, would constitute an Event of
Default. All Obligations are owed without setoff, right, claim or cause of
action of any nature whatsoever known to Borrower.
7. Conditions Precedent. Bank's performance under this Modification is
conditioned upon:
(A) Updated UCC searches showing no liens on any other Collateral;
(B) Receipt of an officer's certificate of Borrower respecting due
authorization and authority for the execution, delivery and performance of this
Modification;
(C) Payment of all fees and expenses of Bank's counsel incurred in
connection with this Modification; and
(D) Other documents, opinions, resolutions and certificates as Bank
may reasonably request.
8. Notice. The address for notices to Bank is: Summit Bank, 000 Xxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000
9. Complete Agreement. This Modification constitutes the complete,
entire final agreement of the parties regarding the subject matter hereof and
supersedes all prior agreements regarding the subject matter hereof.
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10. Jury Trial Waiver. IN ANY LITIGATION RELATING TO THIS
MODIFICATION, BANK AND BORROWER EACH WAIVE THEIR RIGHT TO TRIAL BY JURY. BANK
AND BORROWER ACKNOWLEDGE THAT THEY HAVE CONSULTED WITH THEIR RESPECTIVE COUNSEL
SPECIFICALLY ON THE RAMIFICATIONS OF WAIVING THE RIGHT TO TRIAL BY JURY PRIOR TO
AGREEING TO THIS PROVISION.
IN WITNESS WHEREOF, Bank and Borrower have caused this Modification to
the Loan Agreement to be executed as of the day and year first above written.
BORROWER:
ATTEST: NEW BRUNSWICK SCIENTIFIC CO., INC.
a New Jersey corporation
By:
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Name: Name:
Title: Title:
BANK:
ATTEST: SUMMIT BANK
By:
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Name: Name:
Title: Title:
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