EXHIBIT 10.1
SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AGREEMENT
AGREEMENT (this "Agreement"), made as of this 26th day of
June, 1996, by and among FLEET BANK-NH, a trust company organized
under the laws of New Hampshire ("Fleet"); MELLON BANK, N.A., a
national banking association ("Mellon"); and IGI, INC., a
Delaware corporation ("IGI"), IGEN, INC., a Delaware corporation
("IGEN"), IMMUNOGENETICS, INC., a Delaware corporation
("ImmunoGen"), and BLOOD CELLS, INC., a Delaware corporation
("BCI"). Fleet and Mellon are hereinafter sometimes individually
referred to as a "Lender" and collectively referred to as the
"Lenders", and IGI, IGEN, ImmunoGen and BCI are hereinafter
sometimes individually referred to as a "Borrower" and
collectively referred to as the "Borrowers".
WITNESSETH:
WHEREAS, the Lenders and the Borrowers are parties to a
Second Amended and Restated Loan Agreement between them dated as
of December 13, 1995 (the "Original Agreement"), as amended by
First Amendment to Second Amended and Restated Loan Agreement
dated as of March 27, 1996 (the "First Amendment", and
collectively with the Original Agreement, the "Loan Agreement"),
the terms and conditions of which are hereby incorporated herein
by reference; and
WHEREAS, the Borrowers have requested certain amendments
with respect to the terms and conditions of the Loans under the
Loan Agreement; and
WHEREAS, the Lenders are willing to grant such amendments
upon the terms and conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereby agree as
follows:
1. Definitions.
Except as otherwise defined herein, all capitalized
terms used in this Agreement have the respective meanings
ascribed to them in the Loan Agreement.
2. Modification of Revolving Credit Commitment.
Section 2.01 (a) of the Loan Agreement is hereby
amended so as to read in full as follows:
"(a) Subject at all times to all of the terms and
conditions of this Agreement, the Lenders hereby severally (and
not jointly and severally) agree to extend to the Borrowers
(jointly and severally) a secured revolving credit facility, to
December 31, 1999 (the "Revolving Credit Termination Date"), in
an aggregate principal amount not to exceed, at any time
outstanding, the maximum amount available at such time as set
forth below (the "Revolving Credit Commitment"):
Time Period Maximum Amount
12/31/95 - 9/29/96 $12,000,000
9/30/96 - 12/30/96 $11,142,857
12/31/96 - 3/30/97 $10,285,714
3/31/97 - 6/29/97 $ 9,428,571
6/30/97 - 9/29/97 $ 8,571,428
9/30/97 - 12/30/97 $ 7,714,285
12/31/97 - 3/30/98 $ 6,857,142
3/31/98 - 6/29/98 $ 5,999,999
6/30/98 - 9/29/98 $ 5,142,856
9/30/98 - 12/30/98 $ 4,285,713
12/31/98 - 3/30/99 $ 3,428,570
3/31/99 - 6/29/99 $ 2,571,427
6/30/99 - 9/30/99 $ 1,714,284
9/30/99 - 12/30/99 $ 857,141
12/31/99 and thereafter - 0 -
3. Modification of Line of Credit Commitment.
The Line of Credit Termination Date is hereby extended
to June 30, 1997, and the reference to "June 30, 1996" currently
contained in Section 2.02 (a) of the Loan Agreement is hereby
amended to refer to "June 30, 1997."
4. Modification of Financial Covenant.
Section 5.09 of the Loan Agreement is hereby amended so
as to read in full as follows:
"Section 5.09. Indebtedness to Capital Base Ratio. As
at the end of each quarter of each Fiscal Year, maintain an
Indebtedness to Capital Base Ratio of not more than (a) 3.00 to 1
from September 30, 1995 through June 30, 1996, (b) 2.75 to 1 from
July 1, 1996 through September 30, 1996, (c) 2.50 to 1 from
October 1, 1996 through December 31 1996, (d) 2.00 to 1 from
January 1, 1997 through June 30, 1997, and (e) 1.50 to 1 from and
after July 1, 1997."
5. Clarification of Prior Waiver.
The waiver contained in paragraph 1 of the First
Amendment, although permanent with respect to compliance with
Section 5.09A of the Loan Agreement as of December 31, 1995,
shall only apply with respect to compliance as of such date, and
shall not constitute a waiver with respect to compliance as of
any other date.
6. No Novation; Confirmation and Reaffirmation.
(a) Each of the Borrowers hereby reaffirms all of its
representations and warranties in the Loan Agreement (as amended
hereby) and the Security Documents on and as of the date hereof,
as if expressly made on and as of the date hereof.
(b) Each of the Borrowers hereby confirms the ongoing
validity of all of the Obligations outstanding on the date hereof
(including but not limited to Obligations under the Notes), and
further acknowledges, confirms and agrees that none of the
amendments effected by this Agreement constitutes a novation of
any of the Obligations outstanding on the date hereof.
(c) Each of the Borrowers hereby reaffirms the validity
of all of the liens and security interests heretofore granted to
the Agent as collateral security for the Obligations, and
acknowledges that all of such liens and security interest, and
all collateral heretofore pledged as security for the
Obligations, continue to be and remain collateral for the
Obligations from and after the effectiveness of this Agreement.
7. Ongoing Force and Effect.
Except as and to the extent expressly provided in this
Agreement, all covenants, terms and conditions of the Loan
Agreement shall remain unchanged and in full force and effect.
All referenced to the Loan Agreement contained in the Notes and
the Security Documents shall hereafter mean and refer to the Loan
Agreement as amended by this Agreement.
8. Miscellaneous.
(a) The Borrowers will jointly and severally reimburse
the Lenders and the Agent upon demand for all out-of-pocket
costs, charges and expenses of the Lenders and the Agent
(including, without limitation, the reasonable fees and
disbursements of counsel to the Lenders and the Agent) in
connection with the preparation, execution and delivery of this
Agreement, any and all further agreements and instruments in
connection herewith, and any amendments, modifications, consents,
waivers or enforcement action in connection herewith.
(b) This Agreement shall be governed by and construed
in accordance with the laws of the State of New Hampshire
(without giving effect to principles of conflicts of laws).
(c) Neither this Agreement nor any provision hereof may
be waived, amended or modified except by means of a written
agreement signed by the party to be charged therewith, and then
only in the specific instance and for the specific purposes
stated therein.
(d) This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and assigns, except that none of the Borrowers shall
have any right to assign any of its rights or obligations
hereunder or any interest herein without the prior written
consent of the Lenders.
(e) Each of the Borrowers hereby consents to the
jurisdiction of all courts (state and federal) sitting in the
State of New Hampshire, and of all courts from which appeal may
be taken from any of such courts, for the purpose of any suit,
action or other proceeding arising out of any of its obligations
hereunder or with respect to the transactions contemplated
hereby. Each of the Borrowers hereby expressly waives any and
all objections which it may have as to venue in any of such
courts, and also hereby knowingly WAIVES TRIAL BY JURY in any
such suit, action or other proceeding.
(f) The paragraph headings in this Agreement are
included for convenience of reference only, and shall not affect
the construction or interpretation of any of the provisions
hereof.
(g) This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all
of which shall together constitute one and the same instrument.
(h) The parties acknowledge and agree that each of them
and its counsel have reviewed and negotiated the terms and
provisions of this Agreement, and have contributed to its final
form; accordingly, any rules of construction to the effect of
construing ambiguities against the drafting party shall not be
employed in the interpretation of this Agreement, which shall be
construed fairly as to all parties hereto and not in favor of or
against any particular party who might generally have been
responsible for the preparation hereof.
(i) This Agreement is intended for the sole and
exclusive benefit of the parties hereto and their respective
successors and permitted assigns, and no other person or entity
shall have any right to rely on this Agreement or to derive any
benefit herefrom absent the express written consent of the party
to be charged with such reliance or benefit.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers as of
the date first set forth above.
FLEET BANK-NH
By:_____________________________________
MELLON BANK, N.A.
By:_____________________________________
IGI, INC.
By:_____________________________________
IGEN, INC.
By:_____________________________________
IMMUNOGENETICS, INC.
By:_____________________________________
BLOOD CELLS, INC.
By:_____________________________________
STATE OF NEW HAMPSHIRE )
) ss:
COUNTY OF _____________)
On the _____ day of June, 1996, personally appeared before
me ______________________________, of Fleet Bank-NH, who
acknowledged that he is the SVP of Fleet Bank-NH, and that said
instrument was signed by him on behalf of said corporation by due
authority.
________________________________________
Notary Public
My Commission Expires:
_____________________
EXHIBIT 10.2
August 13, 1996
IGI, Inc. and Subsidiaries
Xxxxx Xxxx xxx Xxxxxxx Xxxxxx
Xxxxx, Xxx Xxxxxx 00000
Re: Third Amendment to Second Amended
and Restated Loan Agreement
Dear Sirs:
Reference is made to the Second Amended and Restated Loan
Agreement, dated as of December 13, 1995, by and among Fleet
Bank-NH, Mellon Bank, N.A., and IGI, Inc. and certain of its
subsidiaries (as heretofore amended, the "Loan Agreement"). All
capitalized terms used herein without definition have the
respective meanings ascribed to them in the Loan Agreement.
This will confirm our agreement to grant a one-time covenant
waiver under the Loan Agreement, and to amend the Loan Agreement,
as follows:
1. Certain Waiver. By their execution and delivery hereof,
the Lenders hereby irrevocably waive compliance as of June 30,
1996 with the minimum Capital Base covenant pursuant to Section
5.08 of the Loan Agreement. Such waiver shall only be applicable
in this specific instance and for the specific date, and shall
not be deemed a waiver (or an agreement to grant a waiver) with
respect to any other covenant or for any other time period.
2. Certain Amendment. Section 5.08 of the Loan Agreement
is hereby amended so as to read in full as follows:
"Section 5.08. Net Income. In each quarter of each Fiscal
Year as set forth below, achieve Net Income of not less than the
minimum amount set forth below for such fiscal quarter.
Quarter Ending Minimum Net Income
September 30, 1996 $250,000
December 31, 1996 $300,000
March 31, 1997 $500,000
June 30, 1997 $500,000
September 30, 1997 $500,000
December 31, 1997 $500,000
March 31, 1998 $625,000
and each quarter thereafter"
Except as expressly set forth herein, all of the terms and
conditions of the Loan Agreement shall remain unmodified and in
full force and effect.
Kindly confirm the Borrowers' agreement to the foregoing by
countersigning a counterpart copy of this letter in the spaces
provided below.
Very truly yours,
FLEET BANK-NH
By:_____________________________________
MELLON BANK, N.A.
By:_____________________________________
Acknowledged, Confirmed
and Agreed to:
IGI, INC.
By:______________________________________
IGEN, INC.
By:______________________________________
IMMUNOGENETICS, INC.
By:______________________________________
BLOOD CELLS, INC.
By:______________________________________
