Exhibit 10.1
EXTENSION AGREEMENT
THIS EXTENSION AGREEMENT (this "Agreement") is made this 26 day of
November, 2003, by and among Professional Veterinary Products, Ltd., a Nebraska
corporation ("PVPL"), ProConn, LLC, a Nebraska limited liability company
("ProConn"), Exact Logistics, LLC, a Nebraska limited liability company
("Exact", together with PVPL and ProConn, collectively and individually herein
referred to as "Borrower") and U.S. Bank National Association, a national
banking association ("Lender").
WHEREAS, on May 12, 2003, Borrower and Lender entered into that certain
Amended and Restated Loan Agreement (the "Loan Agreement") pursuant to which
Lender agreed, among other things, to make a Revolving Loan to Borrower of up to
$17,500,000.00 as described in Section 2.1 of the Loan Agreement;
WHEREAS, the Revolving Loan is evidence by the Revolving Note dated May
12, 2003;
WHEREAS, the Revolving Loan and Revolving Note terminate on December 1,
2003 if not terminated prior thereto and any unpaid principal amount of the
Advances and all accrued but unpaid interest thereon under the Revolving Loan
shall be payable on the termination date; and
WHEREAS, Lender and Borrower desire to extend the termination date of the
Revolving Loan and the Revolving Note until February 1, 2004, as provided in
this Agreement.
NOW, THEREFORE, for good and valuable consideration as set forth herein,
Lender and Borrower agree as follows:
Section 1. Definitions. Capitalized terms not otherwise defined in this
Agreement shall have the meanings ascribed thereto in the Loan Agreement.
Section 2. Extension of Revolving Loan. The termination date of the
Revolving Loan and the Revolving Note shall be extended from December 1, 2003 to
February 1, 2004, if not terminated prior thereto pursuant to the terms of the
Loan Agreement or Revolving Note.
Section 3. Reaffirmation. Borrower represents and warrants that no Event
of Default has occurred. Borrower hereby reaffirms and ratifies, as of the date
of this Agreement, all of the provisions, representations, warranties and
covenants of the Loan Agreement and the Revolving Note, as modified hereby, the
Term Note and Collateral Agreements, as if such provisions, representations,
warranties and covenants were fully set forth herein.
Section 4. Miscellaneous.
Section 4.1. Amendments, Etc. No amendment, modification, termination or
waiver of any provision of this Agreement, the Loan Agreement, the Notes
or the Collateral
Agreements, nor consent to any departure by Borrower therefrom shall in
any event be effective unless the same shall be in writing and signed by
Lender and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. No notice
to or demand on any Borrower in any case shall entitle any Borrower to any
other or further notice or demand in similar or other circumstances.
Section 4.2. Binding Effect and Assignment. This Agreement shall
be binding upon and inure to the benefit of each Borrower and Lender, and
their respective successors and assigns, including any subsequent holder
or holders of any of the Notes or any participation interest therein
except that Borrower may not assign or transfer its rights hereunder
without the prior written consent of Lender.
Section 4.3. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Nebraska.
Section 4.4. Counterparts. This Agreement may be executed in two
or more counterparts and such counterparts shall be deemed originals and
all such counterparts shall constitute one and the same instrument.
Section 4.5. Waiver. EACH BORROWER AND LENDER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY
JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY ANY ONE OF THE PARTIES HERETO
AGAINST THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED
HEREIN OR RELATED HERETO. THIS WAIVER BY THE PARTIES HERETO TO ANY RIGHT
ANY ONE OF THEM MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN
ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, BORROWER AND LENDER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO
SEEK PUNITIVE, CONSEQUENTIAL AND INDIRECT DAMAGES FROM THE OTHER WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM
OR COUNTERCLAIM BROUGHT BY ANY ONE OF THE PARTIES HERETO AGAINST THE OTHER
OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR
RELATED HERETO. THE RECIPROCAL WAIVERS OF BORROWER AND LENDER OF ANY RIGHT
THEY MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL OR INDIRECT DAMAGES AS SET
FORTH ABOVE HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND AS AN ESSENTIAL
ASPECT OF THEIR BARGAIN.
Section 4.6. Construction. This document is an agreement between parties
who are experienced in sophisticated and complex matters similar to the
transaction contemplated
2
by this Agreement and is entered into by both parties in reliance upon the
economic and legal bargains contained herein and shall be interpreted and
construed in a fair and impartial manner without regard to such factors as
the party which prepared the instrument, the relative bargaining powers of
the parties or the domicile of any party. Lender and Borrower were each
represented by legal counsel competent in advising them of their
obligations and liabilities hereunder.
Section 4.7. Notice - Written Agreements. This Notice is Provided Pursuant
to Nebraska Revised Statutes 45-1,112 et. seq. This Agreement is a credit
agreement. A credit agreement must be in writing to be enforceable under
Nebraska Law. To protect you and us from any misunderstandings or
disappointments, any contract, promise, undertaking, or offer to forebear
repayment of money or to make any other financial accommodation in
connection with this loan of money or grant or extension of credit, or any
amendment of, cancellation of, waiver of, or substitution for any or all
of the terms or provisions of any instrument or document executed in
connection with this loan of money or grant or extension of credit, must
be in writing to be effective.
[REMAINDER OF PAGE INTENTIONALLY BLANK; SIGNATURE PAGE FOLLOWS.]
3
IN WITNESS WHEREOF, the parties have executed this Extension Agreement as
of the day and year first set forth above.
Professional Veterinary Products, Ltd.,
a Nebraska corporation
By: /s/ Xx. Xxxxxx X. Xxxxxx
------------------------
Xx. Xxxxxx X. Xxxxxx, its President
ProConn, LLC, a Nebraska limited
liability company
By: Professional Veterinary Products, Ltd.,
a Nebraska corporation, its Manager
and sole Member
By: /s/ Xx. Xxxxxx X. Xxxxxx
------------------------
Xx. Xxxxxx X. Xxxxxx, its President
Exact Logistics, LLC, a Nebraska limited
liability company
By: Professional Veterinary Products, Ltd.,
a Nebraska corporation, its Manager
and sole Member
By: /s/ Xx. Xxxxxx X. Xxxxxx
------------------------
Xx. Xxxxxx X. Xxxxxx, its President
U.S. Bank National Association, a
national banking association
By:/s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
4
