Exhibit 10.74.2
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INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT is entered into as of April 18, 2000, by
and among IMPERIAL BANK, a California banking company (the "Bank"), SYNBIOTICS
CORPORATION, a California corporation, ("Synbiotics") and KIRKEGAARD & PERRY
LABORATORIES, INC. a Maryland corporation ("KPL");
WHEREAS, Bank has made a loan to Synbiotics in the original principal
amount of $10 million pursuant to a Credit Agreement, dated April 12, 2000,
between Bank and Synbiotics (the "Credit Agreement"), which loan is secured by
certain assets of Synbiotics pursuant to a Commercial Security Agreement, dated
April 12, 2000, by and between Bank and Synbiotics (the "Bank Security
Agreement");
WHEREAS, Synbiotics is acquiring certain assets of KPL pursuant to an
Asset Purchase Agreement of even date herewith for a purchase price of up to
$6,000,000, a portion of which purchase price is evidenced by a Secured
Promissory Note, in the original purchase price of $1,000,000 made by Synbiotics
and payable to the order of KPL (the "KPL Note") and is secured by certain
assets sold by KPL to Synbiotics pursuant to a Security Agreement of even date
herewith (the "KPL Security Agreement");
WHEREAS, the parties desire to enter into this Agreement to set forth
certain rights and obligations with respect to each other.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. The parties acknowledge and agree that (a) pursuant to the KPL
Security Agreement KPL asserts a first priority perfected security interest in
all of the assets forth on Schedule 1 to the KPL Security Agreement (the "KPL
Secured Assets") and that (b) Bank asserts a second priority perfected security
interest in the KPL Secured Assets.
2. The parties acknowledge and agree that Bank asserts a first
priority security interest in all of the assets of Synbiotics other than the KPL
Secured Assets.
3. KPL acknowledges and agrees that it will not accept any payments
under the KPL Note other than the proceeds of the KPL Secured Assets if, and
only if, prior to the receipt of any such payment it receives prior written
notice ("Notice") of the occurrence of (i) a payment default by Synbiotics under
the Credit Agreement for so long as there is an outstanding amount due and
payable under the Credit Agreement or (ii) a default other than a payment
default by Synbiotics under the Credit Agreement (a "Non-Payment Default") for
so long as such Non-Payment Default remains uncured or unwaived, but in no event
longer than 180 days from occurrence of such Non-Payment Default.
4. KPL acknowledges and agrees that in the event it receives a
payment under the KPL Note other than the proceeds of the KPL Secured Assets
after it receives a Notice, it shall promptly remit such payment to Bank for so
long as (i) in the event of a payment default by Synbiotics under the Credit
Agreement, there is an outstanding amount due and payable under the Credit
Agreement or (ii) in the event of a Non-Payment Default, such Non-Payment
Default remains uncured or unwaived, but in no event longer than 180 days after
the occurrence of such Non-Payment Default. Nothing herein shall be deemed to
release, waive, limit, condition or modify any right which KPL may have to the
KPL Secured Assets or the proceeds thereof.
5. Each of KPL and Bank agrees to provide written notice to the other
of a payment default under the KPL Note or the Bank Note, respectively, within 5
days after the occurrence of such failure to make such payment when due.
Furthermore, Bank shall promptly notify KPL if any default that is the subject
of a Notice is cured.
6. This Agreement shall be governed by and construed in accordance
with the laws of the State of California (excluding the conflict rules thereof).
7. This Agreement may be executed in one or more counterparts which,
when taken together, shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the undersigned have caused this Agreement
to be duly executed and delivered in its name and on its behalf as of the date
first set forth above.
IMPERIAL BANK
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
SYNBIOTICS CORPORATION
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Vice President - Finance
KIRKEGAARD & PERRY
LABORATORIES, INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: President
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