SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
SEVENTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT
This
Seventh Amendment to Loan and Security Agreement made as of the 31st day of
May,
2005 (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 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, 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 and
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 (the
“Agreement”); and
WHEREAS,
the Borrower and the Bank have agreed to, subject to the provisions hereof,
among other things, (i) extend the Termination Date; and (ii) increase the
amount available with respect to Equipment Loan Advances from $2,000,000 to
$2,500,000.
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
“Termination
Date”:
May
31, 2008 or such other date as the Bank may agree in writing to extend the
Termination Date to, without there being any obligation on the part of the
Bank
to extend the Termination Date.
2.
The
following definition is hereby added to Subsection 1.1 of the Agreement to
read
as follows:
“Seventh
Amendment”:
That
certain Seventh Amendment to Loan and Security Agreement dated as of May 31,
2005 by and between the Borrower and the Bank.
3.
Subsection
2.1(g) of the Agreement is hereby amended to read as follows:
(g)
Master
Note.
Advances under the Revolving Loan shall be evidenced by the Master Note, in
substantially to the Seventh Amendment annexed hereto as Exhibit
A,
and the
balance due from time to time on the Master Note shall be conclusively evidenced
by the Bank’s records of disbursements and repayments, subject to Subsection
2.1(f).
4.
Subsection
3.1(a) of the Agreement is hereby amended to read as follows:
(a)
General
Terms.
The
Bank agrees to lend and re-lend, to the extent repaid, to the Borrower
individual term loans from time to time in increments of $250,000.00 or more
(collectively, the “Incremental Term Loans”) up to the aggregate outstanding
principal sum of $7,692,500, pursuant to the terms hereof. If the Borrower
shall
request Incremental Term Loans which, when added to the outstanding balance
of
all other Incremental Term Loans, would result in the aggregate outstanding
principal balance of all Incremental Term Loans to exceed $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 outstanding principal amount of all Incremental
Term Loans exceed TEN MILLION 00/100 DOLLARS ($10,000,000.00). 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. As of the date of the Seventh
Amendment, the outstanding principal amount of all Incremental Term Loans is
$__________.
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5.
Subsection
3.1(g) of the Agreement is hereby amended to read as follows:
(g)
Incremental
Term Note.
The
principal amount of each Incremental Term Loan shall be evidenced by an
Incremental Term Note, substantially in the Seventh Amendment as Exhibit
B,
and the
balance due from time to time on the Incremental Term Notes shall be
conclusively evidenced by the Bank’s records, disbursements and repayments,
subject to Subsection 3.1(f) hereof.
6.
Subsection
4.1(a) of the Agreement is hereby amended to read as follows:
(a)
General
Terms.
The
Bank agrees to lend, re-lend, to the extent repaid, and make Advances (the
“Equipment Loan Advances”) to the Borrower from time to time until the
Termination Date, amounts which, when added to the outstanding balance of all
other Equipment Loan Advances (whether evidenced by the Equipment Line of Credit
Note or an Equipment Term Note), shall not exceed in the aggregate, at any
time
outstanding, the sum of TWO MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS
($2,500,000.00) (the “Equipment Loan Advance Limit”). As of the date of the
Seventh Amendment the outstanding principal amount of all Equipment Loan
Advances is $___________.
7.
Subsection
4.1(g) of the Agreement is hereby amended to read as follows:
(g)
Equipment
Line of Credit Note.
The
principal amount of the Equipment Loan Advances to be made by the Bank shall,
until converted to an Equipment Term Loan as hereinafter described, be evidenced
by a single promissory note of the Borrower (the “Equipment Line of Credit
Note”), substantially in the form attached to the Seventh Amendment as
Exhibit
C,
in the
principal face amount equal to the Equipment Loan Advance Limit. On May 31,
2006, May 31, 2007 and May 31, 2008 ("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 Seventh
Amendment as Exhibit
D.
The
Equipment Term Notes shall be dated the date of said Conversion
Date.
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8.
Borrower
shall pay simultaneously herewith (i) a fee to the Bank in the amount of
$35,000 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.
9.
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.
10.
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.
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11.
All
capitalized terms contained in this Amendment shall have the same meanings
ascribed to them in the Agreement.
12.
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.
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NEW
BRUNSWICK SCIENTIFIC CO., INC.
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BY:
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/S/
Xxxxxx Xxxxxxxxxx
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Name:
Xxxxxx Xxxxxxxxxx
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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/Xxxxxxx
Xxxxxxxx
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Name:
Xxxxxxx Xxxxxxxx
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Title:
Vice President
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