Exhibit 4.3
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT, dated as of
November 29, 2004 (this "Second Amendment"), is entered into by and among
INTERMAGNETICS, INC., a Delaware corporation (successor in interest to
Intermagnetics General Corporation, a New York corporation) (the "Borrower"),
certain Domestic Subsidiaries of the Borrower as Guarantors (the "Guarantors"
and together with the Borrower, the "Credit Parties"), the Lenders identified on
the signature pages hereto and WACHOVIA BANK, NATIONAL ASSOCIATION, as
administrative agent for the Lenders (the "Administrative Agent").
WITNESSETH
WHEREAS, the Borrower, the Guarantors, the Administrative Agent and the
Lenders are parties to that certain Credit Agreement dated as of December
17,2003 (as previously amended and modified and as further amended, modified,
supplemented or restated from time to time, the "Credit Agreement"; capitalized
terms used herein shall have the meanings ascribed thereto in the Credit
Agreement unless otherwise defined herein);
WHEREAS, on or about the date hereof, Intermagnetics General
Corporation, a New York corporation shall be merged into Intermagnetics, Inc., a
Delaware corporation, and Intermagnetics, Inc. shall become successor in
interest to Intermagnetics General Corporation and shall assume all rights and
obligations of the Borrower under the Credit Agreement (the transactions
described in this recital, collectively the "Transactions"); and
WHEREAS, the Lenders have consented to the Transactions, subject to the
terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
AMENDMENT
1.1 Amended Definition. The definition of "Borrower" set forth in
Section 1.1 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Borrower" shall mean Intermagnetics, Inc., a Delaware corporation
(successor in interest to Intermagnetics General Corporation, a New
York corporation).
SECTION 2
CONSENT
Notwithstanding Sections 6.4 and 6.8 of the Credit Agreement and any
other terms to the contrary contained in the Credit Agreement, the Lenders
hereby consent to the Transactions. This consent shall be effective solely with
respect to the specific circumstances of the Transactions.
SECTION 3
CLOSING CONDITIONS
3.1 Closing Conditions.
This Second Amendment shall be effective as of the date hereof upon
satisfaction of the following conditions precedent, in form and substance
reasonably acceptable to the Administrative Agent:
(a) Second Amendment. The Administrative Agent shall have received
a copy of this Second Amendment duly executed by each of the Credit
Parties and the Lenders.
(b) Legal Opinion of Counsel. The Administrative Agent shall have
received an opinion of legal counsel for the Credit Parties, dated the
as of the date hereof and addressed to the Administrative Agent and the
Lenders, which opinion shall provide, among other things, that the
execution and delivery of this Second Amendment by the Credit Parties
and the consummation of the transactions contemplated hereby will not
violate any organizational document or material agreement of the Credit
Parties, and shall otherwise be in form and substance acceptable to the
Administrative Agent and the Lenders.
(c) Authority Documents. The Administrative Agent shall have
received a certificate signed by the secretary of the Intermagnetics,
Inc. attaching the following authority documents of Intermagnetics,
Inc. and certifying that the same are true and complete as of the date
hereof: (i) a copy of its articles of incorporation, (ii) a copy of the
resolutions of its board of directors, approving and adopting the
Credit Documents, (iii) a copy of its bylaws, (iv) copies of a
certificate of good standing, existence or its equivalent certified as
of a recent date by the appropriate Governmental Authority of its State
of Delaware and (v) an incumbency certificate.
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SECTION 4
MISCELLANEOUS
4.1 Amended Terms. The term "Credit Agreement" as used in each of the
Credit Documents shall hereafter mean the Credit Agreement as amended by this
Second Amendment. Except as specifically amended or modified hereby or otherwise
agreed, the Credit Agreement is hereby ratified and confirmed and shall remain
in full force and effect according to its terms.
4.2 Representations and Warranties of the Credit Parties. Each of the
Credit Parties represents and warrants to the Lenders as follows:
(a) It has taken all necessary action to authorize the execution,
delivery and performance of this Second Amendment.
(b) This Second Amendment has been duly executed and delivered by
such Person and constitutes such Person's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or Governmental Authority
or third party is required in connection with the execution, delivery
or performance by such Person of this Second Amendment.
(d) The representations and warranties of such Person set forth in
Article III of the Credit Agreement are, subject to the limitations set
forth therein, true and correct as of the date hereof (except for those
which expressly relate to an earlier date).
4.3 Reaffirmation of Credit Party Obligations.
(a) Intermagnetics, Inc., a Delaware corporation (successor in
interest to Intermagnetics General Corporation, a New York
corporation), hereby ratifies the Credit Agreement (as amended by this
Second Amendment) and the other Credit Documents and acknowledges and
reaffirms (a) that, as the Borrower, it is bound by all terms of the
Credit Agreement (as amended by this Second Amendment) and the other
Credit Documents applicable to it and (b) that, as the Borrower, it is
responsible for the observance and full performance of its respective
Credit Party Obligations.
(b) Each Guarantor hereby ratifies the Credit Agreement (as amended
by this Second Amendment) and the other Credit Documents and
acknowledges and reaffirms (a) that it is bound by all terms of the
Credit Agreement (as amended by this Second Amendment) and the other
Credit Documents applicable to it and (b) that it is responsible for
the observance and full performance of its respective Credit Party
Obligations.
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4.4 Credit Document. This Second Amendment shall constitute a Credit
Document under the terms of the Credit Agreement.
4.5 Expenses. The Borrower agrees to pay all reasonable costs and
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Second Amendment, including, without limitation,
the reasonable fees and expenses of Xxxxx & Xxx Xxxxx, PLLC, and any previously
incurred fees and expenses which remain outstanding on the date hereof.
4.6 Entirety. This Second Amendment and the other Credit Documents
embody the entire agreement between the parties hereto and supersede all prior
agreements and understandings, oral or written, if any, relating to the subject
matter hereof.
4.7 Counterparts Telecopy. This Second Amendment may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
Delivery of executed counterparts of the Second Amendment by telecopy shall be
effective as an original and shall constitute a representation that an original
shall be delivered.
4.8 Governing Law. This Second Amendment and the rights and obligations
of the parties under this Second Amendment shall be governed by, and construed
and interpreted in accordance with, the law of the State of New York.
4.9 Consent to Jurisdiction; Service of Process; Waiver of Jury Trial.
The jurisdiction, services of process and waiver of jury trial provisions set
forth in Sections 9.14 and 9.17 of the Credit Agreement are hereby incorporated
by reference, mutatis mutandis.
4.10 Further Assurances. The Credit Parties agree to promptly take such
action, upon the request of the Administrative Agent, as is reasonably necessary
to carry out the intent of this Second Amendment.
[Signature Pages Follow]
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INTERMAGNETICS, INC.
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Second Amendment to be duly executed under seal and delivered as of the
date and year first above written.
BORROWER: INTERMAGNETICS, INC., a Delaware
corporation (successor in interest to
Intermagnetics General Corporation, a
New York corporation)
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: XXXXXXX X. XXXXX
Title: EVP, CFO
GUARANTORS: INVIVO CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: XXXXXXX X. XXXXX
Title: TREASURER
IGC-POLYCOLD SYSTEMS INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: XXXXXXX X. XXXXX
Title: TREASURER
IGC-MEDICAL ADVANCES INC.,
a Wisconsin corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: XXXXXXX X. XXXXX
Title: TREASURER
SUPERPOWER INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: XXXXXXX X. XXXXX
Title: TREASURER
INTERMAGNETICS, INC.
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
GUARANTORS CONT.: INVIVO RESEARCH CORPORATION,
a California corporation,
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: XXXXXXX X. XXXXX
Title: TREASURER
MEDICAL DATA ELECTRONICS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: XXXXXXX X. XXXXX
Title: TREASURER
MRI DEVICES CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: XXXXXXX X. XXXXX
Title: TREASURER
INTERMAGNETICS, INC.
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
ADMINISTRATIVE AGENT
AND LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent and as a Lender
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: XXXXXXX XXXXXX
Title: VICE PRESIDENT
INTERMAGNETICS, INC.
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
JPMORGAN CHASE BANK, N.A.
(f/k/a JPMorgan Chase Bank)
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: XXXXXXX X. XXXXXX
Title: SENIOR VICE PRESIDENT
INTERMAGNETICS, INC.
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
KEYBANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name: XXXXX X. XXXXXXXXX
Title: VICE PRESIDENT
INTERMAGNETICS, INC.
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
COMERICA BANK
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: XXXX X. XXXXX
Title: ACCOUNT REPRESENTATIVE
