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#2102994 (116721.034)
#2102994 (116721.034)
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Fifth Amendment to Loan and Security Agreement made as of the
15th day of March, 2002 (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:
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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 and as further
amended by that certain Fourth Amendment to Loan and Security Agreement dated as
of November 13, 2001 between the same parties(the "Agreement"); and
WHEREAS, the Borrower and the Bank have agreed to, among other things,
(i) extend the Termination Date, (ii) decrease the amount available with respect
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to Incremental Term Loans from $15,000,000 to $12,500,000, (iii) increase the
amount available with respect Equipment Loan Advances from $1,000,000 to
$2,000,000, and (iv) amend certain financial covenants in the Agreement, in
accordance with the terms and conditions hereinafter described.
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 contained in Subsection 1.1 of the Agreement
are hereby amended in their entirety to read as follows
"Applicable Margin": Shall mean as follows:
WITH RESPECT TO EURODOLLAR LOANS WITH RESPECT TO PRIME RATE LOANS
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REVOLVING LOAN An additional 125 basis points a reduction of 1.25%.
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INCREMENTAL TERM LOANS An additional 125 basis points a reduction of 1.25%.
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EQUIPMENT LOAN An additional 125 basis points a reduction of 1.25%
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"Collateral": All -
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(i) inventory (as defined in the UCC) of the Borrower, wheresoever
located, whether now owned or hereafter acquired, including, without limitation,
raw materials, work in process, finished goods and materials used or consumed in
business and other goods held for sale or lease or furnished or to be furnished
under contracts of service (the "Inventory");
(ii) accounts (as defined in the UCC) of the Borrower, whether now existing
or hereafter arising, including, without limitation, all accounts receivable and
contract rights and any rights to payment for goods sold or leased or for
services rendered which are not evidenced by an instrument or chattel paper,
whether or not such rights have been earned by performance, (the "Accounts");
(iii) equipment (as defined in the UCC) of the Borrower, wheresoever
located, whether now owned or hereafter acquired, including, without limitation,
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machinery, motor vehicles, trailers, tools, trade, sales and production
equipment, furniture, furnishings, fixtures and all other goods in which the
Borrower has rights which do not constitute inventory;
(iv) instruments (as defined in the UCC) (including, without limitation,
negotiable instruments and non-negotiable instruments), chattel paper (as
defined in the UCC), letters of credit (as defined in the UCC), letter of credit
rights (as defined in the UCC), deposit accounts (as defined in the UCC), and
documents of title (as defined in the UCC), all of the Borrower (including,
without limitation, bills of lading, dock warrants, dock receipts and warehouse
receipts);
(v) general intangibles (as defined in the UCC) (including, without
limitation, payment intangibles, income tax refunds, copyrights, licenses,
rights, patents, patent rights, franchise rights, distributorship rights,
trademarks, trademark rights, formulae, customer lists and goodwill) of the
Borrower, whether now owned or existing or hereafter arising or acquired;
(vi) investment property (as defined in the UCC) of the Borrower;
(vii) interests of the Borrower in Inventory, wheresoever located, whether
now owned or existing or hereafter arising or acquired, as to which an Account,
chattel paper, instrument or general intangible has arisen; and
(viii) as to all of the foregoing (i) through (vii) inclusive, cash
proceeds, non-cash proceeds and products thereof, payments under insurance
(whether or not the Bank is the loss payee thereof or additional insured),
additions and accessions thereto, replacements and substitutions therefor, rent
proceeds arising out of rental or lease agreements and all related books,
records, journals, computer print-outs and data, of the Borrower.
"Termination Date": May 31, 2005 or such other date as the Bank may agree in
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writing to extend the Termination Date to, without there being any obligation on
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the part of the Bank to extend the Termination Date.
2. The following definitions are hereby added to Subsection 1.1 of the
Agreement to read as follows:
"Fifth Amendment": That certain Fifth Amendment to Loan and Security Agreement
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dated as March 15, 2002 by and between the Borrower and the Bank.
"UCC": Uniform Commercial Code in force and effect in the State of New Jersey
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from time to time.
3. Subsection 1.3 of the Agreement is hereby amended to read as follows:
Other Terms. Terms such as "accounts", "accounts receivable", "contract
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rights", "letters of credit", "letter of credit rights," "payment intangibles,"
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"deposit accounts," "investment property", "advices", "confirmations",
"equipment", "instruments", "chattel paper", "documents of title", "goods",
"general intangibles", "account debtors", "proceeds", "products", and the like,
shall, unless otherwise specifically defined herein, have the meanings
applicable to them for the purposes of Article 9 (Secured Transactions) of the
UCC.
4. Subsection 3.1(a) of the Agreement is hereby amended to read as follows:
(a) General Terms. The Bank agrees to lend to the Borrower individual term
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loans in increments of $250,000.00 or more (collectively, the "Incremental Term
Loans") up to the aggregate principal sum of $7,692,500, pursuant to the terms
hereof. If the Borrower shall request Incremental Term Loans which, when added
together with all other Incremental Term Loans, would result in the aggregate
principal balance of all Incremental Term Loans exceeding $7,692,500, such
requested Incremental Term Loans (collectively, the "Excess Incremental Term
Loans") shall only be made by the Bank if the Bank, in its sole and absolute
discretion, determines to honor such requests, and if the Bank so desires to
honor such requests, upon the terms and conditions imposed by the Bank, and in
no event shall the aggregate principal amount of all Incremental Term Loans
exceed TWELVE MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($12,500,000.00).
The Borrower's right to request the issuance of Incremental Term Loans from the
Bank shall terminate on the Termination Date and the Bank shall have no
obligation to make any Incremental Term Loans after such date. The outstanding
principal amount of all previous advanced Incremental Term Loans under this
Subsection 3.1(a), since April 1, 1999, shall be considered for the purposes of
determining the amount available under this Subsection 3.1(a) hereof.
5. Subsection 4.1(a) of the Agreement is hereby amended to read as follows:
(a) General Terms. The Bank agrees to lend, re-lend and make Advances (the
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"Equipment Loan Advances") to the Borrower from time to time until the
Termination Date, amounts which shall not exceed in the aggregate, at any time
outstanding, the sum of TWO MILLION AND 00/100 DOLLARS ($2,000,000.00) (the
"Equipment Loan Advance Limit").
6. Subsection 4.1(g) of the Agreement is hereby amended to read as follows:
(g) Equipment Line of Credit Note. Initially, the principal amount of the
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Equipment Loan Advances to be made by the Bank shall all be evidenced by a
single promissory note of the Borrower (the "Equipment Line of Credit Note"),
substantially in the form attached to the Fifth Amendment as Exhibit A, in the
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principal face amount equal to the Equipment Loan Advance Limit. On March 15,
2003, March 15, 2004 and May 31, 2005 ("Conversion Dates"), the outstanding
principal amount advanced by the Bank as Equipment Loan Advances since the
Closing Date or the last Conversion Date, as the case may be, shall be converted
to a term loan and evidenced by a separate promissory note of the Borrower (each
such promissory note, as it may be amended, restated, substituted or extended,
an "Equipment Term Note") in the principal face amount equal to such amount of
said Equipment Loan Advances, substantially in the form attached to the Fifth
Amendment as Exhibit B. The Equipment Term Notes shall be dated the date of
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said Conversion Date.
7. Subsection 9.11 of the Agreement is hereby amended to read as follows:
Change of Location or State of Incorporation. The Borrower shall not (i) change
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its state of incorporation or (ii) change the location of its chief executive
office and principal place of business or (iii) create any new place(s) of
business or locations or (iv) eliminate any existing place of business or
location, unless the Borrower notifies the Bank in writing thirty (30) days in
advance thereof and further provided that no change in its State of
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incorporation, location or creation of a new location may be effected before all
filings required to be made to preserve the first priority security interest of
the Bank in the Collateral shall have been made and the Borrower shall deliver
to the Bank, with respect to all new locations, a new Landlord's/Warehouseman's
Agreement, in form and substance satisfactory to the Bank, with respect to the
new location.
8. Subsection 9.23(l) of the Agreement is hereby amended to read as follows:
(l) Debt ServiceCoverage Ratio of Borrower and Subsidiaries. Borrower and
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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. For the purposes of this
Subsection 9.23(l), "Debt Service Coverage Ratio" shall be computed on a rolling
four quarter basis 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 which reduce the Borrower's ownership interest in DGI,
whereby said interest is reduced below 50% 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, 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, provided that excluded from the
foregoing calculation is payment of the outstanding principal of the Revolving
Loan with a Termination Date of May 31, 2005. This ratio shall be tested
quarterly.
9. 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,
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on a consolidated basis, shall maintain a Net Worth of at least (i) $29,000,000
as of the end of each of the first three fiscal quarters of the Borrower of
2002, (ii) $29,000,000 plus 65% of fiscal year end December 31, 2002 net income
(adjusted for any non-cash losses to the extent of the Borrower's investment in
DGI resulting from equity offerings which reduced the Borrower's ownership
interest in DGI, whereby said interest remains below 50%) tested as of December
31, 2002 (with no reduction for losses) and (iii) 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 65% of net income for the
immediately preceding fiscal year just ending (with no reduction for losses).
For the purposes of this Subsection 9.23(m), "Net Worth" shall mean (i) total
assets, plus negative or minus positive, as the case may be, "currency
translation adjustment" as reflected on the Borrower's balance sheet as of the
end of the fiscal quarter being tested plus liabilities, if any, with respect to
annual minimum pension liability as of the end of the period being tested minus
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(ii) 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)), advances, investments and contributions to persons other than the
Borrower, shall be subtracted from total assets. This ratio shall be tested
quarterly.
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10. Borrower shall pay simultaneously herewith (i) a fee to the Bank in the
amount of $29,000 and (ii) 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.
11. 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.
12. 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.
13. All capitalized terms contained in this Amendment shall have the same
meanings ascribed to them in the Agreement.
14. This Amendment may be executed in one or more counterparts, each of
which shall constitute one and the same Amendment.
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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.
NEW BRUNSWICK SCIENTIFIC CO., INC.
BY:____________________________________
XXXXXX XXXXXXXXXX, Vice President,
Finance
FIRST UNION NATIONAL BANK
BY:_____________________________________
XXXXXX XXXXX, Senior Vice President
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EXHIBIT A
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[GRAPHIC OMITED]
LINE OF CREDIT NOTE
$2,000,000.00 As of March 15, 2002
New Brunswick Scientific Co., Inc.
00 Xxxxxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
("Borrower")
First Union National Bank
000 Xxxxxx Xxxx
Xxxx Xxxxxxx, Xxx Xxxxxx 00000
("Bank")
Borrower promises to pay to the order of Bank, in lawful money of the United
States of America, in immediately available funds, at its office indicated above
or wherever else Bank may specify, the sum of TWO MILLION AND 00/100 Dollars
($2,000,000.00) or such sum as may be advanced and outstanding from time to time
with interest on the unpaid principal balance at the rate and on the terms
provided in this Note (including all renewals, extensions or modifications
hereof, this "Note").
TERMS. This Note is the "Equipment Line of Credit Note" referred to in that
certain Loan and Security Agreement dated April 1, 1999 by and between the Bank
and the Borrower (as may be amended and/or restated from time to time, the "Loan
Agreement"). The terms and conditions of the Loan Agreement (including, but not
limited to, all rights of acceleration) are hereby incorporated herein by
reference. All principal and accrued interest due hereunder which has not been
converted to an Equipment Term Note pursuant to the terms of Subsection 4.1(g)
of the Loan Agreement shall be due and payable on the Termination Date. This
Note amends, restates and is in substitution for that certain $1,000,000 Line of
Credit Note dated April 1, 1999 from the Borrower in favor of the Bank.
INTEREST AND FEE(S) COMPUTATION. The unpaid principal balance of each Advance
shall bear interest from the date such Advance is made available to the Borrower
at the Interest Rate provided in the Loan Agreement. Interest and fees, if any,
shall be computed on the basis of a 360-day year for the actual number of days
in the applicable period ("Actual/360 Computation"). The Actual/360 Computation
determines the annual effective yield by taking the stated (nominal) rate for a
year's period and then dividing said rate by 360 to determine the daily periodic
rate to be applied for each day in the applicable period. Application of the
Actual/360 Computation produces an annualized effective rate exceeding that of
the nominal rate.
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APPLICATION OF PAYMENTS. Monies received by the Bank from any source for
application toward payment of the Obligations shall be applied to accrued
interest and then to principal. If an Event of Default occurs, monies may be
applied to the Obligations in any manner or order deemed appropriate by the
Bank.
If any payment received by the Bank under this Note or other Loan Document is
rescinded, avoided or for any reason returned by the Bank because of any adverse
claim or threatened action, the returned payment shall remain payable as an
obligation of all persons liable under this Note or other Loan Documents as
though such payment had not been made.
DEFINITIONS. LOAN DOCUMENTS. The term "Loan Documents" used in this Note shall
have the same meaning ascribed to said term as in the Loan Agreement.
OBLIGATIONS. The term "Obligations" used in this Note refers to any and all
indebtedness and other obligations under this Note, all other obligations under
any other Loan Documents, and all obligations under any swap agreements (as
defined in 11 U.S.C. 101) between Borrower and the Bank whenever executed.
CERTAIN OTHER TERMS. All capitalized terms that are used, but not otherwise
defined herein, shall have the same meanings ascribed to said terms as in the
Loan Agreement.
LATE CHARGE. If any payments are not timely made, Borrower shall also pay to
the Bank a late charge equal to 5% of each payment past due for 10 or more days.
Acceptance by the Bank of any late payment without an accompanying late charge
shall not be deemed a waiver of the Bank's right to collect such late charge or
to collect a late charge for any subsequent late payment received.
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of the
Bank's reasonable expenses incurred to enforce or collect any of the
Obligations, including, without limitation, reasonable arbitration, paralegals',
attorneys' and experts' fees and expenses, whether incurred without the
commencement of a suit, in any trial, arbitration, or administrative proceeding,
or in any appellate or bankruptcy proceeding.
USURY. If at any time the effective interest rate under this Note would, but
for this paragraph, exceed the maximum lawful rate, the effective interest rate
under this Note shall be the maximum lawful rate, and any amount received by the
Bank in excess of such rate shall be applied to principal and then to fees and
expenses, or, if no such amounts are owing, returned to Borrower.
LINE OF CREDIT ADVANCES. The Bank's obligation to make Advances is governed by
the Loan Agreement. As of the date of each proposed Advance, Borrower shall be
deemed to represent that each representation made in the Loan Documents is true
as of such date.
If Borrower subscribes to the Bank's cash management services and such services
are applicable to this line of credit, the terms of such service shall control
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the manner in which funds are transferred between the applicable demand deposit
account and the line of credit for credit or debit to the line of credit.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note
and other Loan Documents shall be valid unless in writing and signed by an
officer of the Bank. No waiver by the Bank of any Default or an Event of
Default shall operate as a waiver of any other Default or Event of Default or
the same Default or Event of Default on a future occasion. Neither the failure
nor any delay on the part of the Bank in exercising any right, power, or remedy
under this Note and other Loan Documents shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
Borrower and each other person, if any, liable under this Note waives
presentment, protest, notice of dishonor, demand for payment, notice of
intention to accelerate maturity, notice of acceleration of maturity, notice of
sale and all other notices of any kind. Further, each agrees that the Bank may
extend, modify or renew this Note or make a novation of the loan evidenced by
this Note for any period and grant any releases, compromises or indulgences with
respect to any collateral securing this Note, or with respect to Borrower and
any other person, if any, liable under this Note or other Loan Documents, all
without notice to or consent of Borrower or any other person, if any, who may be
liable under this Note or other Loan Documents and without affecting the
liability of Borrower or any other person, if any, who may be liable under this
Note or other Loan Documents.
MISCELLANEOUS PROVISIONS. ASSIGNMENT. This Note and other Loan Documents shall
inure to the benefit of and be binding upon the parties and their respective
heirs, legal representatives, successors and assigns. The Bank's interests in
and rights under this Note and other Loan Documents are freely assignable, in
whole or in part, by the Bank. In addition, nothing in this Note or any of the
Loan Documents shall prohibit the Bank from pledging or assigning this Note or
any of the Loan Documents or any interest therein to any Federal Reserve Bank.
Borrower shall not assign its rights and interest hereunder without the prior
written consent of Bank, and any attempt by Borrower to assign without the
Bank's prior written consent is null and void. Any assignment shall not release
Borrower from the Obligations. APPLICABLE LAW; CONFLICT BETWEEN DOCUMENTS.
This Note and other Loan Documents shall be governed by and construed under the
laws of the State of New Jersey without regard to that state's conflict of laws
principles. If the terms of this Note should conflict with the terms of the Loan
Agreement the terms of the Loan Agreement shall control. JURISDICTION. Borrower
irrevocably agrees to non-exclusive personal jurisdiction in New Jersey.
SEVERABILITY. If any provision of this Note or of the other Loan Documents
shall be prohibited or invalid under applicable law, such provision shall be
ineffective but only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Note or other such document. PLURAL; CAPTIONS. All references in the Loan
Documents to Borrower, guarantor, person, document or other nouns of reference
mean both the singular and plural form, as the case may be, and the term
"person" shall mean any individual, person or entity. The captions contained in
the Loan Documents are inserted for convenience only and shall not affect the
meaning or interpretation of the Loan Documents.
ARBITRATION. Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any claim or controversy arising out of
or relating to the Loan Documents between parties hereto (a "Dispute") shall be
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resolved by binding arbitration conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and the Federal Arbitration Act. Disputes
may include, without limitation, tort claims, counterclaims, a dispute as to
whether a matter is subject to arbitration, claims brought as class actions, or
claims arising from documents executed in the future. A judgment upon the award
may be entered in any court having jurisdiction. Notwithstanding the foregoing,
this arbitration provision does not apply to disputes under or related to swap
agreements. SPECIAL RULES. All arbitration hearings shall be conducted in the
state named in the address of Bank first stated above. A hearing shall begin
within 90 days of demand for arbitration and all hearings shall conclude within
120 days of demand for arbitration. These time limitations may not be extended
unless a party shows cause for extension and then for no more than a total of 60
days. The expedited procedures set forth in Rule 51 et seq. of the Arbitration
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Rules shall be applicable to claims of less than $1,000,000.00. Arbitrators
shall be licensed attorneys selected from the Commercial Financial Dispute
Arbitration Panel of the AAA. The parties do not waive applicable Federal or
state substantive law except as provided herein. PRESERVATION AND LIMITATION OF
REMEDIES. Notwithstanding the preceding binding arbitration provisions, the
parties agree to preserve, without diminution, certain remedies that any party
may exercise before or after an arbitration proceeding is brought. The parties
shall have the right to proceed in any court of proper jurisdiction or by
self-help to exercise or prosecute the following remedies, as applicable: (i)
all rights to foreclose against any real or personal property or other security
by exercising a power of sale or under applicable law by judicial foreclosure
including a proceeding to confirm the sale; (ii) all rights of self-help
including peaceful occupation of real property and collection of rents, set-off,
and peaceful possession of personal property; (iii) obtaining provisional or
ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and filing an involuntary bankruptcy
proceeding; and (iv) when applicable, a judgment by confession of judgment. Any
claim or controversy with regard to any party's entitlement to such remedies is
a Dispute. WAIVER OF EXEMPLARY DAMAGES. The parties agree that they shall not
have a remedy of punitive or exemplary damages against other parties in any
Dispute and hereby waive any right or claim to punitive or exemplary damages
they have now or which may arise in the future in connection with any Dispute
whether the Dispute is resolved by arbitration or judicially. WAIVER OF JURY
TRIAL. THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY
HAVE IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY TRIAL WITH REGARD TO A
DISPUTE.
IN WITNESS WHEREOF, Borrower, on the day and year first above written, has
caused this Note to be executed under seal.
New Brunswick Scientific Co., Inc.
Taxpayer Identification Number: 00-0000000
CORPORATE By: ____________________________________
XXXX XXXXXX XXXXXXXXXX, Vice President
Finance
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EXHIBIT B
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[GRAPHIC OMITED]
(FORM OF)
TERM NOTE
$_____________ _______ __, ____
New Brunswick Scientific Co., Inc.
00 Xxxxxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
("Borrower")
First Union National Bank
000 Xxxxxx Xxxx
Xxxx Xxxxxxx, Xxx Xxxxxx 00000
(Hereinafter referred to as the "Bank")
Borrower promises to pay to the order of the Bank, in lawful money of the United
States of America, in immediately available funds, at its office indicated above
or wherever else the Bank may specify, the sum of _________________ and No/100
Dollars ($___________) or such sum as may be outstanding from time to time with
interest on the unpaid principal balance at the rate and on the terms provided
in this Note (including all renewals, extensions or modifications hereof, this
"Note").
TERMS. This Note is one of the "Equipment Term Notes" referred to in that
certain Loan And Security Agreement dated April 1, 1999 by and between the Bank
and the Borrower (including all renewals, extensions or modifications hereof,
the "Loan Agreement"). The terms and conditions of the Loan Agreement
(including, but not limited to, all rights of acceleration), are hereby
incorporated herein by reference.
INTEREST AND FEE(S) COMPUTATION. The unpaid principal balance of this Note
shall bear interest at the Interest Rate provided in the Loan Agreement.
Interest and fees, if any, and as provided for in the Loan Agreement, shall be
computed on the basis of a 360-day year for the actual number of days in the
applicable period ("Actual/360 Computation"). The Actual/360 Computation
determines the annual effective yield by taking the stated (nominal) rate for a
year's period and then dividing said rate by 360 to determine the daily periodic
rate to be applied for each day in the applicable period. Application of the
Actual/360 Computation produces an annualized effective rate exceeding that of
the nominal rate.
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PRINCIPAL PAYMENT TERMS. The principal amount of this Note shall be repaid in
sixty (60) equal monthly installments commencing on ________, and ending on
________, at which time all outstanding principal, unpaid and accrued interest,
fees and expenses, if any, shall be due and payable.
APPLICATION OF PAYMENTS. Monies received by the Bank from any source for
application toward payment of the Obligations shall be applied to accrued
interest and then to principal. If a Default occurs, monies may be applied to
the Obligations in any manner or order deemed appropriate by the Bank.
If any payment received by the Bank under this Note or other Loan Document is
rescinded, avoided or for any reason returned by the Bank because of any adverse
claim or threatened action, the returned payment shall remain payable as an
obligation of all persons liable under this Note or other Loan Documents as
though such payment had not been made.
DEFINITIONS. LOAN DOCUMENTS. The term "Loan Documents" used in this Note shall
have the same meaning ascribed to said term as in the Loan Agreement.
OBLIGATIONS. The term "Obligations" used in this Note refers to any and all
indebtedness and other obligations under this Note, all other obligations under
any other Loan Documents, and all obligations under any swap agreements (as
defined in 11 U.S.C. 101) between Borrower and the Bank whenever executed.
CERTAIN OTHER TERMS. All capitalized terms that are used, but not otherwise
defined herein, shall have the same meanings ascribed to said terms as in the
Loan Agreement.
LATE CHARGE. If any payments are not timely made, Borrower shall also pay to
the Bank a late charge equal to 5% of each payment past due for 10 or more days.
Acceptance by the Bank of any late payment without an accompanying late charge
shall not be deemed a waiver of the Bank's right to collect such late charge or
to collect a late charge for any subsequent late payment received.
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of the
Bank's reasonable expenses incurred to enforce or collect any of the
Obligations, including, without limitation, reasonable arbitration, paralegals',
attorneys' and experts' fees and expenses, whether incurred without the
commencement of a suit, in any trial, arbitration, or administrative proceeding,
or in any appellate or bankruptcy proceeding.
USURY. If at any time the effective interest rate under this Note would, but
for this paragraph, exceed the maximum lawful rate, the effective interest rate
under this Note shall be the maximum lawful rate, and any amount received by the
Bank in excess of such rate shall be applied to principal and then to fees and
expenses, or, if no such amounts are owing, returned to Borrower.
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WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note
and other Loan Documents shall be valid unless in writing and signed by an
officer of the Bank. No waiver by the Bank of any Default or Event of Default
shall operate as a waiver of any other Default or Event of Default or the same
Default or Event of Default on a future occasion. Neither the failure nor any
delay on the part of the Bank in exercising any right, power, or remedy under
this Note and other Loan Documents shall operate as a waiver thereof, nor shall
a single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or remedy.
Borrower and each other person, if any, liable under this Note waives
presentment, protest, notice of dishonor, demand for payment, notice of
intention to accelerate maturity, notice of acceleration of maturity, notice of
sale and all other notices of any kind. Further, each agrees that the Bank may
extend, modify or renew this Note or make a novation of the loan evidenced by
this Note for any period and grant any releases, compromises or indulgences with
respect to any collateral securing this Note, or with respect to Borrower and
any other person, if any, liable under this Note or other Loan Documents, all
without notice to or consent of Borrower or any other person, if any, who may be
liable under this Note or other Loan Documents and without affecting the
liability of Borrower or any other person, if any, who may be liable under this
Note or other Loan Documents.
MISCELLANEOUS PROVISIONS. ASSIGNMENT. This Note and other Loan Documents shall
inure to the benefit of and be binding upon the parties and their respective
heirs, legal representatives, successors and assigns. The Bank's interests in
and rights under this Note and other Loan Documents are freely assignable, in
whole or in part, by the Bank. In addition, nothing in this Note or any of the
Loan Documents shall prohibit the Bank from pledging or assigning this Note or
any of the Loan Documents or any interest therein to any Federal Reserve Bank.
Borrower shall not assign its rights and interest hereunder without the prior
written consent of the Bank, and any attempt by Borrower to assign without the
Bank's prior written consent is null and void. Any assignment shall not release
Borrower from the Obligations. APPLICABLE LAW; CONFLICT BETWEEN DOCUMENTS.
This Note and other Loan Documents shall be governed by and construed under the
laws of the state of New Jersey, without regard to that state's conflict of laws
principles. If the terms of this Note should conflict with the terms of the
Loan Agreement or any commitment letter that survives closing, the terms of the
Loan Agreement shall control. JURISDICTION. Borrower irrevocably agrees to
non-exclusive personal jurisdiction in the State of New Jersey. SEVERABILITY.
If any provision of this Note or of the other Loan Documents shall be prohibited
or invalid under applicable law, such provision shall be ineffective but only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Note or other such
document. PLURAL; CAPTIONS. All references in the Loan Documents to Borrower,
guarantor, person, document or other nouns of reference mean both the singular
and plural form, as the case may be, and the term "person" shall mean any
individual, person or entity. The captions contained in the Loan Documents are
inserted for convenience only and shall not affect the meaning or interpretation
of the Loan Documents.
ARBITRATION. Upon demand of any party hereto, whether made before or after
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institution of any judicial proceeding, any claim or controversy arising out of
or relating to the Loan Documents between parties hereto (a "Dispute") shall be
resolved by binding arbitration conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and the Federal Arbitration Act. Disputes
may include, without limitation, tort claims, counterclaims, a dispute as to
whether a matter is subject to arbitration, claims brought as class actions, or
claims arising from documents executed in the future. A judgment upon the award
may be entered in any court having jurisdiction. Notwithstanding the foregoing,
this arbitration provision does not apply to disputes under or related to swap
agreements. SPECIAL RULES. All arbitration hearings shall be conducted in the
state named in the address of the Bank first stated above. A hearing shall
begin within 90 days of demand for arbitration and all hearings shall conclude
within 120 days of demand for arbitration. These time limitations may not be
extended unless a party shows cause for extension and then for no more than a
total of 60 days. The expedited procedures set forth in Rule 51 et seq. of the
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Arbitration Rules shall be applicable to claims of less than $1,000,000.00.
Arbitrators shall be licensed attorneys selected from the Commercial Financial
Dispute Arbitration Panel of the AAA. The parties do not waive applicable
Federal or state substantive law except as provided herein. PRESERVATION AND
LIMITATION OF REMEDIES. Notwithstanding the preceding binding arbitration
provisions, the parties agree to preserve, without diminution, certain remedies
that any party may exercise before or after an arbitration proceeding is
brought. The parties shall have the right to proceed in any court of proper
jurisdiction or by self-help to exercise or prosecute the following remedies, as
applicable: (i) all rights to foreclose against any real or personal property or
other security by exercising a power of sale or under applicable law by judicial
foreclosure including a proceeding to confirm the sale; (ii) all rights of
self-help including peaceful occupation of real property and collection of
rents, set-off, and peaceful possession of personal property; (iii) obtaining
provisional or ancillary remedies including injunctive relief, sequestration,
garnishment, attachment, appointment of receiver and filing an involuntary
bankruptcy proceeding; and (iv) when applicable, a judgment by confession of
judgment. Any claim or controversy with regard to any party's entitlement to
such remedies is a Dispute. WAIVER OF EXEMPLARY DAMAGES. The parties agree
that they shall not have a remedy of punitive or exemplary damages against other
parties in any Dispute and hereby waive any right or claim to punitive or
exemplary damages they have now or which may arise in the future in connection
with any Dispute whether the Dispute is resolved by arbitration or judicially.
WAIVER OF JURY TRIAL. THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO BINDING
ARBITRATION THEY HAVE IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY TRIAL
WITH REGARD TO A DISPUTE.
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IN WITNESS WHEREOF, Borrower, on the day and year first above written, has
caused this Note to be executed under seal.
New Brunswick Scientific Co., Inc.
Taxpayer Identification Number: 00-0000000
CORPORATE By:____________________________________
SEAL
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