Exhibit 4.3
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED
LOAN AND AGENCY AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND AGENCY
AGREEMENT (this "Amendment"), dated as of May 15, 1998, is by and among
INTERMAGNETICS GENERAL CORPORATION, a New York corporation, APD CRYOGENICS INC.,
a Pennsylvania corporation, MAGSTREAM CORPORATION, a New York corporation,
MEDICAL ADVANCES, INC., a Wisconsin corporation, and INTERCOOL ENERGY
CORPORATION, a Delaware corporation (each, an "Existing Borrower" and
collectively, the "Existing Borrowers"), POLYCOLD SYSTEMS INTERNATIONAL, INC., a
Delaware corporation (the "New Borrower" and, collectively with the Existing
Borrowers, the "Borrowers"), CORESTATES BANK, N.A., and THE CHASE MANHATTAN BANK
(the "Banks").
BACKGROUND
WHEREAS, the Existing Borrowers and the Banks are parties to a Second
Amended and Restated Loan and Agency Agreement dated October 23, 1997 (as at any
time amended and/or extended, the "Loan Agreement"), pursuant to which the Banks
agreed to make available to the Existing Borrowers certain credit facilities
upon the terms and conditions specified in the Loan Agreement; and
WHEREAS, the parties wish to amend the Loan Agreement as set forth
herein to, inter alia, add the New Borrower as a Borrower under the Loan
Agreement;
NOW, THEREFORE, in consideration of the promises and mutual agreements
herein contained, the parties hereto, intending to be legally bound hereby,
agree to amend the Loan Agreement as herein stated.
1. Effect of Prior Agreements. This Amendment is intended to amend the
Loan Agreement as it has been in effect to the date hereof and as it shall be
amended on and after the date hereof. All terms used herein as defined terms
shall have the meanings ascribed to them in the Loan Agreement unless herein
provided to the contrary.
2. Amendments.
(a) The introductory paragraph of the Loan Agreement
is hereby amended and restated in its entirety as follows:
THIS SECOND AMENDED AND RESTATED LOAN AND AGENCY
AGREEMENT, dated as of October 23, 1997 (this "Agreement"), is
entered into by and among INTERMAGNETICS GENERAL CORPORATION,
a New York corporation ("IGC"), APD CRYOGENICS INC., a
Pennsylvania corporation ("APD"), MAGSTREAM CORPORATION, a New
York corporation ("MC"), MEDICAL ADVANCES, INC., a Wisconsin
corporation ("MA"), INTERCOOL ENERGY CORPORATION, a Delaware
corporation ("IEC"), and POLYCOLD SYSTEMS INTERNATIONAL, INC.,
a Delaware corporation (each, a "Borrower" and collectively,
the "Borrowers"), the banking institutions signatories hereto
and such other institutions that hereafter become a "Bank"
pursuant to Section 10.4 hereof (each, a "Bank" and
collectively, the "Banks") and CORESTATES BANK, N.A., a
national banking association ("CoreStates"), as agent for the
Banks under this Agreement (in such capacity, the "Agent").
(b) The following definitions are hereby added to
Article I of the Loan Agreement, in alphabetical order:
"L/C Agreement" shall mean an Agreement for Standby
Letter of Credit, substantially in the form of Exhibit D
hereto, and in form and substance satisfactory to the Agent.
"Letter of Credit Sublimit" shall mean Four Million
Dollars ($4,000,000).
(c) The following definitions set forth in Article I
of the Loan Agreement are hereby amended and restated in their entirety
as follows:
"Loan Documents" shall mean this Agreement, the
Notes, the L/C Agreements, and all agreements, amendments,
certificates, financing statements, schedules, reports,
notices, and exhibits now or hereafter executed or delivered
in writing in connection with any of the foregoing, as may be
in effect from time to time.
(d) A new Section 2.1(g) is hereby added to the Loan
Agreement, to read as follows:
(g) Letters of Credit.
(1) Generally. In addition to making
Revolving Credit Loans to the Borrowers as provided in this
Section 2.1, the Agent, on behalf of the Banks, shall, upon
the request of the Borrowers and subject to the terms of this
Agreement, also issue one or more letters of credit and/or
bank guarantees ("Letters of Credit") for the account of the
Borrowers, provided that in connection with each issuance of a
Letter of Credit the Borrowers shall execute and deliver to
the Agent an L/C Agreement substantially in the form of
Exhibit D hereto; and provided further, that in the event of
any conflict between the terms of any L/C Agreement and the
terms of this Agreement, the terms of this Agreement shall be
controlling. All amounts drawn under Letters of Credit shall
be deemed to be Revolving Credit Loans evidenced by the
Revolving Credit Notes, and the amount available to be
borrowed under the Revolving Credit facility, and the Letter
of Credit Sublimit, shall be reduced by the aggregate amounts
drawn and available to be drawn at any time under all
outstanding Letters of Credit. In no event shall the aggregate
amount available to be drawn on all outstanding Letters of
Credit plus the outstanding principal balance of Revolving
Credit Loans exceed the Aggregate Revolving Loan Commitment.
In no event shall the aggregate amount available to be drawn
on all outstanding Letters of Credit exceed the lesser of (i)
the Aggregate Revolving Loan Commitment, or (ii) the Letter of
Credit Sublimit. The duration of any Letter of Credit shall
not extend beyond the Revolver Termination Date. Not more than
three (3) Letters of Credit with a face amount of less than
$25,000 shall be outstanding hereunder at any one time. No
Letter of Credit in excess of $4,000,000 shall be issued by
the Agent on behalf of the Banks except upon the approval of
the Required Banks, in their sole discretion. Each Bank hereby
absolutely and unconditionally agrees to pay to the Agent such
Bank's Commitment Percentage of each disbursement made by the
Agent pursuant to a Letter of Credit and not reimbursed by the
Borrowers pursuant to Section 2.1(g)(3), or of any
reimbursement payment required to be refunded to the Borrowers
for any reason ("LC Disbursements").
(2) Issuance of Letters of Credit. Subject
to the provisions of Section 2.1(g)(1), the Agent, on behalf
of the Banks, shall issue Letters of Credit for the account of
the Borrowers, provided that the Borrowers (i) provide a
written request for each such Letter of Credit specifying the
terms thereof, including, without limitation, the amount and
the name and address of the beneficiary of such Letter of
Credit; (ii) execute and deliver to the Agent an application
for each such Letter of Credit pursuant to the form provided
for such purpose by the Agent; and (iii) execute and deliver
to the Agent such other documents and instruments which the
Agent, in its sole and absolute discretion, deems reasonable
and necessary. In connection with each Letter of Credit, the
Borrowers shall pay to the Agent, for the benefit of the
Banks, a non-refundable fee equal to: (A) for bank guarantees,
the Applicable Margin in effect on each day during the
calendar quarter, and (B) for letters of credit, such rate as
the Agent and the Borrowers may agree upon, in either case
multiplied by the amount of such Letter of Credit outstanding
each day during such calendar quarter (after giving effect to
any drawings thereunder); which fee shall be payable quarterly
in arrears. The Borrowers shall also pay to the Agent, for the
benefit of the Agent, and not for the benefit of the other
Banks, all transactional and customary fees required by the
Agent in connection with the issuance of each Letter of Credit
hereunder, including, without limitation, the Agent's standard
remittance, transfer and issuance fees, which fees may be
deducted by the Agent from the Borrowers' account as such fees
are incurred.
(3) Reimbursement. If the Agent shall make
any LC Disbursement in respect of a Letter of Credit, then
either (i) the Borrowers shall reimburse such LC Disbursement
by paying to the Agent an amount equal to such LC Disbursement
not later than 12:00 noon, Philadelphia time, on the date that
such LC Disbursement is made, if the Borrowers shall have
received notice of such LC Disbursement prior to 10:00 a.m.
Philadelphia time on such date, or, if such notice is received
by the Borrowers after 10:00 a.m. Philadelphia time on such
date, then not later than 10:00 a.m. Philadelphia time on the
Business Day immediately following the day on which the
Borrowers receive such notice; or (ii) such LC Disbursement
shall become and be deemed a Revolving Credit Loan, bearing
interest at the Adjusted Base Rate in effect at such time. The
Agent shall notify each Bank of any LC Disbursement, the
payment then due from the Borrowers in respect thereof, and
such Bank's Commitment Percentage thereof. Promptly following
receipt of such notice, each Bank shall pay to the Agent its
Commitment Percentage of the payment then due from the
Borrowers, in the same manner as provided in Section 2.3, with
respect to Loans. Promptly following receipt by the Agent of
any payment from the Borrowers pursuant to this Section
2.1(g)(3), the Agent shall distribute such payment to the
Banks, to the extent that such Banks have made payments
pursuant to this Section to reimburse the Agent. Any payment
made by a Bank pursuant to this Section to reimburse the Agent
for any LC Disbursement shall not relieve the Borrowers of
their obligations to reimburse such LC Disbursement.
(4) Obligations Absolute. The Borrowers'
obligations to reimburse LC Disbursements as provided in
Section 2.1(g)(3) shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of
validity or enforceability of any Letter of Credit or this
Agreement or any term or provision thereof; (ii) any draft or
other document presented under a Letter of Credit proving to
be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect;
(iii) payment by the Agent under a Letter of Credit against
presentation of a draft or other document that does not comply
with the terms of such Letter of Credit; or (iv) any other
event or circumstance whatsoever, whether or not similar to
any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrowers' obligations
hereunder. Neither the Agent nor the Banks, nor any of their
Affiliates, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any documents
required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising
from causes beyond the control of the Agent; provided, that
the foregoing shall not be construed to excuse the Agent from
liability to the Borrowers to the extent of any direct damages
(as opposed to consequential damages, claims in respect of
which are hereby waived by the Borrowers to the extent
permitted by applicable law) suffered by the Borrowers that
are caused by the Agent's failure to exercise care when
determining whether drafts and other documents presented under
a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of the Agent (as
finally determined by a court of competent jurisdiction), the
Agent shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with
respect to documents presented which appear on their face to
be in substantial compliance with the terms of a Letter of
Credit, the Agent may, in its sole discretion, either accept
and make payment upon such documents without responsibility
for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make
payment upon such documents if such documents are not in
strict compliance with the terms of such Letter of Credit.
Each Bank acknowledges and agrees that its obligations to make
payments to the Agent pursuant to this Section 2.1(g) are
absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and
continuance of an Event of Default or reduction or termination
of the Revolving Loan Commitments, and that each such payment
shall be made without any offset, abatement, withholding or
reduction whatsoever.
(e) Section 2.5(a) of the Loan Agreement is hereby
amended and restated in its entirety as follows:
(a) The Borrowers shall pay to the Agent for the
ratable benefit of the Banks, and as compensation for the
Banks' Revolving Loan Commitments, a fee (the "Commitment
Fee") computed at the rate per annum equal to 12.5 basis
points (0.125%) on the average daily amount of the unused
portion of the Aggregate Revolving Loan Commitment (reduced by
the amount of Letters of Credit outstanding from time to time)
accrued from and after the date hereof. The Commitment Fee
shall be payable in arrears on the first day of each January,
April, July and October, commencing October 1, 1997 (for the
three month period or portion thereof ended on the preceding
day), and on the Revolver Termination Date. Payment shall be
made to the Agent on behalf of the Banks and the Agent shall
promptly forward to each Bank the portion of the Commitment
Fee amount due such Bank. The Commitment Fee shall be
calculated on the basis of a 360 day year.
(f) Section 2.6(a) of the Loan Agreement is hereby
amended and restated in its entirety as follows:
(a) Voluntary. The Borrowers may at any time, on not
less than three (3) Business Days' written notice, terminate
or permanently reduce the Aggregate Revolving Loan Commitment
pro rata among the Banks, provided that (i) any reduction
shall be in the amount of $1,000,000 or a multiple thereof,
(ii) no such termination or reduction shall cause the sum of
the aggregate principal amount of Loans outstanding and the
aggregate face amount of any Letters of Credit then
outstanding to exceed the Aggregate Revolving Loan Commitment,
as reduced, and (iii) no termination of the Aggregate
Revolving Loan Commitment shall reduce the Aggregate Revolving
Loan Commitment to an amount which is less than the aggregate
face amount of any Letters of Credit then outstanding.
3. Joinder of New Borrower The New Borrower hereby joins in the Loan
Agreement, the Obligations thereunder, the Notes and all other Loan Documents as
a joint and several obligor thereunder and party thereto, subject to all the
terms and provisions thereof. Without limiting the foregoing, the New Borrower
expressly agrees to be jointly and severally liable for all fees under the Loan
Agreement and all other amounts of principal and charges which may be due
thereunder, and hereby ratifies all actions heretofore taken, and all
obligations incurred by the Existing Borrowers under the Loan Agreement and the
other Loan Documents executed in connection therewith.
4. Representations, Warranties and Covenants. Each Borrower hereby
affirms and reaffirms to the Banks all representations and warranties made and
to be made under the Loan Agreement, and confirms that all are true and correct
as of the date hereof and that no Default has occurred and is continuing. Each
Borrower further represents and warrants that it has the authority and legal
right to execute, deliver and carry out the terms of this Amendment, that such
actions were duly authorized by its Board of Directors and that the officers
executing this Amendment on its behalf were similarly authorized and empowered,
and that this Amendment does not contravene any provision of its Certificate or
Articles of Incorporation or Bylaws, or of any contract or agreement to which it
is a party or by which it or any of its properties is bound. Each Borrower
hereby affirms and reaffirms to the Banks all of the covenants contained in the
Loan Agreement including, without limitation, those contained in Articles V and
VI of the Loan Agreement and agrees to abide thereby until all of the
Obligations to the Banks are satisfied and/or discharged in their entirety.
5. Conditions. To induce the Banks to enter into this Amendment, the
Borrowers agree as follows:
(a) The Borrowers shall execute and deliver to the Agent, on
behalf of the Banks, this Amendment, an Allonge to Revolving Credit Note in form
and substance satisfactory to the Agent, and all other documents as the Agent
may require;
(b) The Borrowers shall deliver to the Agent, on behalf of the
Banks, certified resolutions of the Board of Directors of each Borrower
authorizing the execution and delivery of the Amendment and all other documents
executed in connection herewith and therewith, all in form and substance
satisfactory to the Agent; and
(c) Each Borrower shall deliver to the Bank an Officer's
Certificate in form and substance satisfactory to the Agent.
6. Further Assurances. Each Borrower hereby agrees to execute and
deliver to the Agent, on behalf of the Banks, such further agreements, and other
documentation as may be requested by the Agent at any time to assure the
protection and enforcement of the Banks' rights under the Loan Agreement as
amended hereby.
7. Reservation of Rights. To the extent any Event of Default exists on
the date hereof, any and all undertakings of any Bank under or pursuant to this
Amendment shall not be deemed a waiver by such Bank of any such Event of Default
or any of such Bank's rights and remedies under the Loan Agreement and/or
applicable law; and the Banks hereby reserve any and all such rights and
remedies.
8. Payment of Expenses. The Borrowers shall pay or reimburse the Agent,
on behalf of the Banks, for their respective reasonable attorneys' fees and
expenses in connection with the preparation and execution of this Amendment and
all other related documents.
9. Reaffirmation and Extension of Agreement. Except as modified by the
terms hereof, all of the terms and conditions of the Loan Agreement and all
other Loan Documents, including, without limitation, the Notes, are hereby
affirmed and shall continue in full force and effect.
10. Counterparts. This Amendment may be executed in two or more
counterparts, and by different parties on different counterparts, each of which
shall be
deemed an original and all of which, taken together, shall constitute
one and the same instrument.
11. Governing Law. This Amendment and the rights and obligations of the
parties hereunder shall be construed in accordance with and shall be governed by
the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their proper and duly authorized officers, as of the
date first above written.
INTERMAGNETICS GENERAL CORPORATION
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
APD CRYOGENICS INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
MAGSTREAM CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
MEDICAL ADVANCES, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
INTERCOOL ENERGY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
POLYCOLD SYSTEMS
INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
CORESTATES BANK, N.A.,
individually and as Agent
By: /s/ Xxx X. Xxxxx
------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
STATE OF NEW YORK )
) ss.
COUNTY OF ALBANY )
On this 20th day of May, 1998, before me personally came Xxxx X.
Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Chairman and Chief Executive Officer of Intermagnetics General Corporation,
the corporation described in and which executed the foregoing instrument and
that he signed his name thereto by order of the board of directors of said
corporation.
/s/ Xxxxx X. Xxxxxx
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.
COUNTY OF ALBANY )
On this 20th day of May, 1998, before me personally came Xxxxxxx X.
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Treasurer of APD Cryogenics Inc., the corporation described in and which
executed the foregoing instrument and that he signed his name thereto by order
of the board of directors of said corporation.
/s/ Xxxxx X. Xxxxxx
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.
COUNTY OF ALBANY )
On this 20th day of May, 1998, before me personally came Xxxxxxx X.
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Treasurer of Magstream Corporation, the corporation described in and which
executed the foregoing instrument and that he signed his name thereto by order
of the board of directors of said corporation.
/s/ Xxxxx X. Xxxxxx
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.
COUNTY OF ALBANY )
On this 20th day of May, 1998, before me personally came Xxxx X.
Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Chief Executive Officer of Medical Advances, Inc., the corporation described
in and which executed the foregoing instrument and that he signed his name
thereto by order of the board of directors of said corporation.
/s/ Xxxxx X. Xxxxxx
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.
COUNTY OF ALBANY )
On this 20th day of May, 1998, before me personally came Xxxxxxx X.
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Treasurer of InterCool Energy Corporation, the corporation described in and
which executed the foregoing instrument and that he signed his name thereto by
order of the board of directors of said corporation.
/s/ Xxxxx X. Xxxxxx
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.
COUNTY OF ALBANY )
On this 20th day of May, 1998, before me personally came Xxxx X.
Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Chairman & Chief Executive Officer of Polycold Systems International, Inc.,
the corporation described in and which executed the foregoing instrument and
that he signed his name thereto by order of the board of directors of said
corporation.
/s/ Xxxxx X. Xxxxxx
NOTARY PUBLIC
COMMONWEALTH OF PENNSYLVANIA )
) ss.
COUNTY OF LEHIGH )
On this 15th day of May, 1998, before me personally came Xxx X. Xxxxx,
to me known, who, being by me duly sworn, did depose and say that he is the Vice
President of CoreStates Bank, N.A., the corporation described in and which
executed the foregoing instrument and that he signed his name thereto by order
of the board of directors of said corporation.
/s/ Xxxxx X. Xxxxx
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.
COUNTY OF ALBANY )
On this day 5th of May, 1998, before me personally came Xxxxxxx X.
Xxxxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is the Vice President of The Chase Manhattan Bank, the corporation described in
and which executed the foregoing instrument and that he signed his name thereto
by order of the board of directors of said corporation.
/s/ Xxxxxxxxx X. Xxxxxxxxx
NOTARY PUBLIC
