VIRBAC CORPORATION PAGE 25
Exhibit 10 Amendment to Credit Agreement
FOURTH AMENDMENT TO
CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT, made and entered into as of
the ____ day of August, 2002, by and between VIRBAC CORPORATION, a Delaware
corporation ("Virbac"), PM RESOURCES, INC., a Missouri corporation ("PM
Resources"), ST. XXX LABORATORIES, INC., a California corporation ("St. XXX"),
FRANCODEX LABORATORIES, INC., a Kansas corporation ("Francodex"), and VIRBAC AH,
INC., a Delaware corporation ("Virbac AH," and collectively with Virbac, PM
Resources, St. XXX and Francodex referred to herein as the "Borrowers"), and
FIRST BANK, a Missouri state banking corporation ("Bank").
WITNESSETH:
WHEREAS, Borrowers heretofore jointly and severally executed and
delivered to Bank a Revolving Credit Note dated September 7, 1999, in the
principal amount of up to Ten Million Dollars ($10,000,000.00), payable to the
order of Bank as therein set forth, which Revolving Credit Note has been most
recently amended and restated by that certain Revolving Credit Note dated April
4, 2001 in the original principal amount of up to Twelve Million One Hundred
Thousand Dollars ($12,100,000.00) (as amended and restated, the "Note"), and
reducing as set forth therein; and
WHEREAS, the Note is described in a certain Credit Agreement dated as
of September 7, 1999 made by and among Borrowers and Bank, as previously amended
by an Amendment to Credit Agreement dated as of December 30, 1999 made by and
among Borrowers and Bank, by a Second Amendment to Credit Agreement dated as of
May 1, 2000 made by and among Borrowers and Bank, and by a Third Amendment to
Credit Agreement dated as of April 4, 2001 made by and among Borrowers and Bank
(as amended, the "Loan Agreement," all capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to them in the Loan
Agreement); and
WHEREAS, Borrowers and Bank desire to increase the amount of the loans,
to extend the maturity of the facility to July 31, 2005 and to make certain
other amendments thereto on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
provisions and agreements hereinafter set forth, the parties hereto do hereby
mutually promise and agree as follows:
1. The Note shall be amended and restated in the form of that certain
Revolving Credit Note attached hereto as Exhibit C, to amend the maximum
principal amount thereof to Twelve Million Dollars ($12,000,000.00), and to make
certain amendments as set forth therein. All references in the Loan Agreement
and the other Transaction Documents to the "Note," the "Revolving Credit Note"
and other references of similar import shall hereafter be amended and deemed to
refer to the Note in the form of the Revolving Credit Note, as amended and
restated in the form attached hereto as Exhibit C.
2. All Loans previously made under the Loan Agreement and the Note,
whether made as part of Facility A thereunder, Facility B thereunder or Facility
C thereunder, shall henceforth be combined into a
VIRBAC CORPORATION PAGE 26
Exhibit 10 Amendment to Credit Agreement
single facility, and all references in the Loan Agreement, the Note or any of
the other Transaction Documents to any of Facility A, Facility B or Facility C
or to any Facility A Loans, Facility B Loans or Facility C Loans made thereunder
shall, respectively, henceforth be amended and deemed to refer to such new
single facility established hereunder and to Loans made under such single
facility. All references to Bank's Facility A Commitment, Bank's Facility B
Commitment and Bank's Facility C Commitment shall henceforth be amended and
deemed to refer to Bank's Commitment.
3. The third paragraph beginning with the word "WHEREAS" on the first
page of the Loan Agreement shall be deleted in its entirety and in its place
shall be substituted the following:
WHEREAS, Borrowers, including Virbac AH and Francodex which
have been added as parties to the credit facilities, have requested
that the aggregate amount thereof be amended to an aggregate principal
amount of up to Twelve Million Dollars ($12,000,000.00) and otherwise
amended on the terms and conditions set forth herein, with such loans
to mature on July 31, 2005; and
4. Section 1 of the Loan Agreement shall be deleted in its entirety and
in its place shall be substituted the following:
The "Term" of this Agreement shall commence on the date hereof
and shall end on July 31, 2005, unless earlier terminated upon the
occurrence of an Event of Default under this Agreement, or unless
subsequently extended by Bank, in its sole discretion and without
obligation to do so, pursuant to the terms of Section 3.16 herein.
5. The definition of "Bank's Commitment" in Section 2 of the Loan
Agreement shall be deleted in its entirety and in its place shall be substituted
the following:
Bank's Commitment shall have the meaning ascribed hereto in
Section 3.1(a).
6. The definition of "Floating Rate Margin" in Section 2 of the Loan
Agreement shall be deleted in its entirety and in its place shall be substituted
the following:
Floating Rate Margin shall mean Negative One Percent (-1.00%)
up to and including October 31, 2002, and thereafter, commencing on the
first day of the second month following each fiscal quarter-end or
fiscal year-end, the "Floating Rate Margin" shall (based upon Virbac's
ratio of Consolidated EBITDA to Consolidated Debt Service as of the end
of the immediately preceding quarter (or fiscal year) determined by
reference to Virbac's quarter-end (or fiscal year-end) financial
statements for such preceding fiscal quarter-end (or fiscal year-end)),
(i.e., for the period beginning November 1, 2002 by referencing
Virbac's September 30, 2002 fiscal quarter-end financial statements),
mean the following:
(i) Negative One-Half of One Percent (-0.50%), if Virbac's
ratio of Consolidated EBITDA to Consolidated Debt Service shall be less
than 2.5 to 1.0 as determined pursuant to Section 7.1(i)(i) by
reference to Virbac's most recent quarter-end (or fiscal year-end)
financial statements,
VIRBAC CORPORATION PAGE 27
Exhibit 10 Amendment to Credit Agreement
(ii) Negative Three-Fourths of One Percent (-0.75%), if
Virbac's ratio of Consolidated EBITDA to Consolidated Debt Service
shall be greater than or equal to 2.5 to 1.0 but less than 3.0 to 1.0
as determined pursuant to Section 7.1(i)(i) by reference to Virbac's
most recent quarter-end (or fiscal year-end) financial statements, or
(iii) Negative One Percent (-1.00%), if Virbac's ratio of
Consolidated EBITDA to Consolidated Debt Service shall be greater than
or equal to 3.0 to 1.0 as determined pursuant to Section 7.1(i)(i) by
reference to Virbac's most recent quarter-end (or fiscal year-end)
financial statements,
The interest rate on any Prime Loan shall be adjusted automatically on
and as of the effective date of any change in the Floating Rate Margin
pursuant to this definition.
7. The definition of "Letter of Credit Commitment Fee Rate" in Section
2 of the Loan Agreement shall be deleted in its entirety and in its place shall
be substituted the following:
Letter of Credit Commitment Fee Rate shall mean One Percent
(1.00%) per annum for all Letters of Credit issued up to and including
October 31, 2002, and thereafter, commencing on the first day of the
second month following each fiscal quarter-end or fiscal year-end, the
"Letter of Credit Commitment Fee Rate" shall (based upon Virbac's ratio
of Consolidated EBITDA to Consolidated Debt Service as of the end of
the immediately preceding quarter (or fiscal year) determined by
reference to Virbac's quarter-end (or fiscal year-end) financial
statements for such preceding fiscal quarter-end (or fiscal year-end)),
(i.e., for each Letter of Credit issued after the period beginning
November 1, 2002 by referencing Virbac's September 30, 2002 fiscal
quarter-end financial statements), mean the following:
(i) One and One-Fourth of One Percent (1.25%), if Virbac's
ratio of Consolidated EBITDA to Consolidated Debt Service shall be less
than 2.50 to 1.0 as determined pursuant to Section 7.1(i)(i) by
reference to Virbac's most recent quarter-end (or fiscal year-end)
financial statements, and
(iii) One Percent (1.00%), if Virbac's ratio of Consolidated
EBITDA to Consolidated Debt Service shall be greater than or equal to
2.50 to 1.0 as determined pursuant to Section 7.1(i)(i) by reference to
Virbac's most recent quarter-end (or fiscal year-end) financial
statements.
The Letter of Credit Commitment Fee Rate shall be fixed for each Letter
of Credit issued by Bank hereunder in accordance with the foregoing on
the date of issuance of each such Letter of Credit.
8. The definition of "LIBOR Loan" in Section 2 of the Loan Agreement
shall be deleted in its entirety and in its place shall be substituted the
following:
LIBOR Loan shall mean a portion of a Loan in an original
principal amount of not less
VIRBAC CORPORATION PAGE 28
Exhibit 10 Amendment to Credit Agreement
than $500,000.00 which bears interest at the applicable LIBOR Rate for
an Interest Period applicable to such Loan as selected by Borrowers in
a Borrowing Notice.
9. The definition of "LIBOR Margin" in Section 2 of the Loan Agreement
shall be deleted in its entirety and in its place shall be substituted the
following:
LIBOR Margin shall mean One and Three-Fourths Percent (1.75%)
up to and including October 31, 2002, and thereafter, commencing on the
first day of the second month following each fiscal quarter-end or
fiscal year-end, the "LIBOR Margin" shall, based upon Virbac's ratio of
Consolidated EBITDA to Consolidated Debt Service as of the end of the
immediately preceding quarter (or fiscal year) determined by reference
to Virbac's quarter-end (or fiscal year-end) financial statements for
such preceding fiscal quarter-end or fiscal year-end, (i.e., for the
period beginning November 1, 2002 by referencing Virbac's September 30,
2002 fiscal quarter-end financial statements), mean the following:
(i) Two and One-Fourth Percent (2.25%), if Virbac's ratio of
Consolidated EBITDA to Consolidated Debt Service shall be less than 2.5
to 1.0 as determined pursuant to Section 7.1(i)(i) by reference to
Virbac's most recent quarter-end (or fiscal year-end) financial
statements,
(ii) Two Percent (2.00%), if Virbac's ratio of Consolidated
EBITDA to Consolidated Debt Service shall be greater than or equal to
2.5 to 1.0 but less than 3.0 to 1.0 as determined pursuant to Section
7.1(i)(i) by reference to Virbac's most recent quarter-end (or fiscal
year-end) financial statements, or
(iii) One and Three-Fourths Percent (1.75%), if Virbac's ratio
of Consolidated EBITDA to Consolidated Debt Service shall be greater
than or equal to 3.0 to 1.0 as determined pursuant to Section 7.1(i)(i)
by reference to Virbac's most recent quarter-end (or fiscal year-end)
financial statements,
The LIBOR Margin shall be determined for each LIBOR Loan for its
Interest Period as of the date two (2) Eurodollar Business Days prior
to the beginning of such Interest Period after the receipt by Bank of
the Borrowing Notice required by Section 3.2. All changes in the LIBOR
Margin shall be effective from the date of determination pursuant to
this definition for any new LIBOR Loan or new Interest Period
commencing on or after such date and shall not be retroactively
applied.
10. The definition of "Loan" in Section 2 of the Loan Agreement shall
be deleted in its entirety and in its place shall be substituted the following:
Loan shall have the meaning ascribed thereto in Section
3.1(a), and Loans shall mean any or all of the foregoing, whether made
as a Prime Loan or a LIBOR Loan.
11. Section 3.1(a) of the Loan Agreement shall be deleted in its
entirety and in its place shall be substituted the following:
VIRBAC CORPORATION PAGE 29
Exhibit 10 Amendment to Credit Agreement
(a) Revolving Credit Loans. Subject to the terms and
conditions hereof, during the Term of this Agreement, Bank hereby
agrees to make such loans (individually, a "Loan" and collectively, the
"Loans") to Borrowers, jointly and severally, as any of the Borrowers
may from time to time request pursuant to Section 3.2 and in Bank's
discretion, to issue Letters of Credit for the account of the
Borrowers, or any of them, upon any Borrower's execution of a Letter of
Credit Application therefor pursuant to Section 3.3 (subject to Bank's
approval of the form of the Letters of Credit requested to be issued).
The maximum aggregate principal amount of Loans plus the face amount of
issued and outstanding Letters of Credit which Bank, cumulatively, may
be required to have outstanding hereunder at any one time shall not
exceed the lesser of Twelve Million Dollars ($12,000,000.00) (the
"Bank's Commitment"), or (ii) the Borrowing Base (as hereinafter
defined). Subject to the terms and conditions hereof, Borrowers may
jointly and severally borrow, repay and reborrow such sums from Bank,
provided, however, that the aggregate principal amount of all Loans
outstanding hereunder plus the face amount of Letters of Credit issued
and outstanding hereunder at any one time shall not exceed the lesser
of the Bank's Commitment or the then current Borrowing Base. The Loans
may be either (a) a Prime Loan, (b) a LIBOR Loan or (c) any combination
thereof, as determined by the Borrowers and notified to the Bank in
accordance with Section 3.2 herein, provided, however, that the amount
of any Loan under this Section 3.1(a) which is a LIBOR Loan shall be
for an aggregate principal amount of at least $500,000.00 or any larger
multiple of $100,000.00.
12. Section 3.1(b) of the Loan Agreement is hereby deleted in its
entirety and is left blank intentionally.
13. Section 3.1(c) of the Loan Agreement shall be deleted in its
entirety and in its place shall be substituted the following:
(c) Borrowing Base. For purposes of computing the amount of
the Loans available under this Section 3.1, the "Borrowing Base" shall
mean the sum of:
(i) Seventy-Five Percent (75%) of the face amount of
Eligible Accounts of each of the Borrowers, plus
(ii) the lesser of (A) Fifty Percent (50%) of the
Eligible Inventory of each of the Borrowers, or (B)
$6,000,000.00.
14. Section 3.1(d) of the Loan Agreement shall be deleted in its
entirety and in its place shall be substituted the following:
(d) Borrowing Base Certificate. Borrowers shall deliver to
Bank on the twenty-eighth (28th) day of each month, commencing in the
month of August, 2002, a borrowing base certificate in the form of
Exhibit A attached to the Fourth Amendment to Credit Agreement dated as
of August ___, 2002 made by and among Borrowers and Banks (the "Fourth
Amendment") and incorporated herein by reference (a "Borrowing Base
Certificate") setting forth:
VIRBAC CORPORATION PAGE 30
Exhibit 10 Amendment to Credit Agreement
(i) the Borrowing Base and its components as of the
end of the immediately preceding month;
(ii) he aggregate principal amount of all outstanding
Loans and the aggregate face amount of all issued and
outstanding Letters of Credit; and
(iii) the difference, if any, between the Borrowing
Base and the aggregate principal amount of all outstanding
Loans plus the aggregate face amount of all issued and
outstanding Letters of Credit.
The Borrowing Base shown in such Borrowing Base Certificate shall be
and remain the Borrowing Base hereunder until the next Borrowing Base
Certificate is delivered to Bank, at which time the Borrowing Base
shall be the amount shown in such subsequent Borrowing Base
Certificate. Each Borrowing Base Certificate shall be certified
(subject to normal year-end adjustments) as to truth and accuracy by
the President, principal financial officer or controller of each of the
Borrowers.
All references in the Loan Agreement and the other Transaction Documents to the
"Borrowing Base Certificate" and other references of similar import shall
hereafter be amended and deemed to refer to a Borrowing Base Certificate in the
form of the Borrowing Base Certificate, as amended and restated in the form
attached hereto as Exhibit A.
15. Section 3.1(e) of the Loan Agreement shall be deleted in its
entirety and in its place shall be substituted the following:
(e) Mandatory Repayments. If at any time the Borrowing Base as
shown on the most recent Borrowing Base Certificate should be less than
the aggregate principal amount of all outstanding Loans plus the
aggregate face amount of all issued and outstanding Letters of Credit,
Borrowers shall be automatically required (without demand or notice of
any kind by Bank, all of which are hereby expressly waived by
Borrowers) jointly and severally to immediately repay the Loans in an
amount sufficient to reduce such aggregate principal amount of
outstanding Loans plus the outstanding face amount of Letters of Credit
to the amount of the Borrowing Base.
16. Section 3.1(f) of the Loan Agreement is hereby deleted in its
entirety and is left blank intentionally.
17. Section 3.1(g) of the Loan Agreement is hereby deleted in its
entirety and is left blank intentionally.
18. Section 3.1(h) of the Loan Agreement is hereby deleted in its
entirety and is left blank intentionally.
VIRBAC CORPORATION PAGE 31
Exhibit 10 Amendment to Credit Agreement
19. Section 3.2 of the Loan Agreement shall be deleted in its entirety
and in its place shall be substituted the following:
3.2 Procedure for Borrowing. Subject to the terms and
conditions hereof, Bank shall cause the Loans to be made to Borrowers,
and shall convert outstanding Prime Loans to LIBOR Loans or vice versa
or shall continue any outstanding LIBOR Loan as a LIBOR Loan for a new
Interest Period, at any time and from time to time during the Term of
this Agreement upon timely prior oral or written notice ("Borrowing
Notice") from any of the Borrowers to Bank specifying:
(i) the desired amount of the Loan requested which in the case
of a LIBOR Loan shall be in a principal amount of at least Five Hundred
Thousand Dollars ($500,000.00);
(ii) whether such Loan shall be a new Loan, or a conversion of
all or a portion of any presently outstanding Loan from the Prime Rate
to the LIBOR Rate, or vice versa, or a continuation of an expiring
LIBOR Loan for a new Interest Period;
(iii) if a new Loan, whether such Loan is to be a Prime Loan
or a LIBOR Loan;
(iv) in the case of a LIBOR Loan, the duration of the Interest
Period applicable thereto, subject to the provisions of the definition
of Interest Period;
(v) the date on which the proceeds of any new Loan are to be
made available to any of the Borrowers or the date on which the new
interest rate is to take effect for any outstanding Loan being
converted or continued by Borrowers, which shall be a Business Day;
(vi) that on the date of, and after giving effect to, such
Loan, no Default or Event of Default under this Agreement has occurred
and is continuing; and
(vii) that on the date of, and after giving effect to, such
Loan, all of the representations and warranties of Borrowers contained
in this Agreement are true and correct in all material respects as if
made on the date of such Loan.
A Borrowing Notice shall not be required in connection with a Prime
Loan made to cover any overdraft in Virbac's operating account on a
day-to-day basis as set forth herein. A Borrowing Notice, if in
writing, shall be in the form of the notice attached as Exhibit B to
the Fourth Amendment. Each Borrowing Notice must be received by Bank
not later than 10:00 a.m. (St. Louis time) on the Business Day on which
a Prime Loan is to be established, and not later than 10:00 a.m. (St.
Louis time) on the second Eurodollar Business Day prior to the date on
which a LIBOR Loan is to be established or continued, as the case may
be; provided, however, that notwithstanding the foregoing, in addition
to and without limiting the rights and remedies of the Bank under
Section 8 hereof, so long as any Default or Event of Default under this
VIRBAC CORPORATION PAGE 32
Exhibit 10 Amendment to Credit Agreement
Agreement has occurred and is continuing, Borrowers shall not be
permitted to renew any LIBOR Loan as a LIBOR Loan or to convert any
Prime Loan into a LIBOR Loan. If the Bank does not receive a Borrowing
Notice for the continuation of an existing LIBOR Loan for a new
subsequent Interest Period pursuant to the preceding sentence within
the applicable time limits specified therein, Borrowers shall be deemed
to have elected to convert such LIBOR Loan on the last day of the
current Interest Period with respect thereto to a Prime Loan in the
principal amount of such expiring LIBOR Loan on such date. All Loans
which bear interest at a particular LIBOR Rate for a particular
Interest Period shall constitute a single LIBOR Loan. Borrowers may not
have outstanding and Banks shall not be obligated to make more than
three (3) LIBOR Loans at any one time. A Borrowing Notice shall not be
revocable by Borrowers. Subject to the terms and conditions hereof,
provided that Bank has received the Borrowing Notice, Bank shall
(unless Bank determines that any applicable condition specified in
Section 4 has not been satisfied) pay to Borrowers, or any of them, the
Loan proceeds of any new Loan in immediately available funds not later
than 2:00 p.m. (St. Louis time) on the Business Day specified in said
Borrowing Notice. Each of the Borrowers hereby authorizes Bank to
reasonably rely on telephonic, telegraphic, telecopy, telex or written
instructions of any person identifying himself as a person authorized
to request a Loan or make a repayment hereunder, and on any signature
which Bank believes to be genuine, and Borrowers shall be bound thereby
in the same manner as if such person were actually authorized or such
signature were genuine. Borrowers further request and authorize Bank,
in Bank's sole and absolute discretion, to make a Prime Loan to
Borrowers hereunder at the end of each day in which Borrowers shall
have an overdraft (negative ledger balance) in Virbac's operating
account (Account No. 9800801785) with Bank after crediting all deposits
received in immediately available funds and debiting all withdrawals
made and checks presented against such account and honored by Bank as
of such date and after funding any advances to or receiving any
collected balances on such day from the "zero balance" operating
accounts of PM Resources (Account No. 9800802535), St. XXX (Account No.
9800805419), Virbac AH (Account No. 9821908926) and Francodex (Account
No. 9821909433) with Bank to cover withdrawals made and checks
presented on such date and after crediting all deposits received in
immediately available funds on such date, which Prime Loan shall be in
the amount of such overdraft without any other request or authorization
therefor from Borrowers and without notice to Borrowers. Similarly,
Borrowers request that Bank apply any collected balances (after funding
advances to or receiving collections from the "zero balance" accounts
of PM Resources, St. XXX, Virbac AH and Francodex) in excess of a
mutually predetermined amount remaining at the end of any day in
Virbac's operating account to the repayment of the principal balance of
Borrowers' Obligations outstanding as Prime Loans under the Note.
Borrowers also hereby agree jointly and severally to indemnify Bank and
hold Bank harmless from and against any and all claims, demands,
damages, liabilities, losses, costs and expenses (including, without
limitation, Attorneys' Fees) relating to or arising out of or in
connection with the acceptance of instructions for making Loans or
repayments hereunder. Contemporaneously with the execution of the
Fourth Amendment (amending this Agreement), Borrowers shall execute and
deliver to Bank a Note of Borrowers dated as of August ___, 2002 and
payable jointly and severally to the order of Bank in the original
principal amount of Twelve Million Dollars ($12,000,000.00) in the form
attached as Exhibit C to such Fourth Amendment and incorporated herein
by reference (as the same may from time to time be amended, modified,
extended or renewed, the "Note").
All references in the Loan Agreement and the other Transaction Documents to a
"Borrowing Notice" and other references of similar import shall hereafter be
amended and deemed to refer to a Borrowing Notice in the form of the Borrowing
Notice, as amended and restated in the form attached hereto as Exhibit B.
VIRBAC CORPORATION PAGE 33
Exhibit 10 Amendment to Credit Agreement
20. Section 3.3(a)(iii) of the Loan Agreement shall be deleted in its
entirety and in its place shall be substituted the following:
(iii) the aggregate undrawn face amount of all outstanding
Letters of Credit plus the outstanding principal amount of all Loans
shall not at any one time exceed the lesser of (a) the Borrowing Base
or (b) the Bank's Commitment;
21. The last sentence of Section 3.3(c) of the Loan Agreement shall be
deleted in its entirety and in its place shall be substituted the following:
In the event any payment under a Letter of Credit is made by Bank prior
to receipt of payment from Borrowers, such payment by Bank shall
constitute a request by Borrowers for a Loan as a Prime Loan under
Section 3.1(a) above.
22. Section 3.4 of the Loan Agreement shall be deleted in its entirety
and in its place shall be substituted the following:
3.4 Interest Rates.
(a) Each Loan shall bear interest prior to maturity at a rate
per annum equal to such of the following as any of the Borrowers shall
select in the applicable Borrowing Notice to Bank:
(i) the Prime Rate plus Floating Rate Margin, each in
effect from time to time during the period when such Loan is
outstanding, with changes in the interest rate taking effect
on the date a change in the Floating Rate Margin occurs
pursuant to the definition thereof or the date a change in the
Prime Rate is made effective generally by Bank; or
(ii) the LIBOR Rate applicable for an Interest Period
selected by any Borrower for such Loan in the Borrowing Notice
applicable for such Loan.
(b) Blank Intentionally.
(c) From and after the maturity of the Note, whether by reason
of acceleration or otherwise, the entire unpaid principal balance of
each Loan shall bear interest, payable upon demand, until paid at a
rate per annum equal to Three and One-Half Percent (3.50%) over and
above the Prime Rate, fluctuating as aforesaid.
(d) Interest shall be computed with respect to all Loans on an
actual day, 360-day year.
23. Section 3.16 of the Loan Agreement shall be deleted in its entirety
and in its place shall be substituted the following:
VIRBAC CORPORATION PAGE 34
Exhibit 10 Amendment to Credit Agreement
3.16 Maturity. All Loans not paid prior to July 31, 2005,
together with all accrued and unpaid interest thereon, shall be due and
payable on July 31, 2005 (as from time to time extended, if any,
pursuant to this Section, the "Maturity Date"); provided, however, that
in the event Bank, in its sole and absolute discretion, shall deliver
to Borrowers a written notice signed by Bank on or before the date one
year prior to the then current Maturity Date (and prior to any
subsequent Maturity Date thereafter if extended under this Section
3.16) of Bank's intention to extend the term of this Agreement for an
additional year, then the Maturity Date of this Agreement shall be
extended for a period of one additional year following the then current
Maturity Date. Following any such extension of the Maturity Date by
Bank, all of the outstanding principal and all accrued and unpaid
interest, fees and other amounts due under this Agreement and the Note
shall be due and payable on such new Maturity Date, unless it is again
extended by Bank, in its sole and absolute discretion, under the
foregoing sentence.
24. Subparts (ii), (iii) and (iv) of Section 7.1(a) of the Loan
Agreement shall be deleted in their entirety and in their place shall be
substituted the following:
(ii) As soon as available and in any event within thirty (30)
days after the end of each of the first three (3) fiscal quarters of
each fiscal year of Virbac, the consolidated balance sheets of Virbac
and its Consolidated Subsidiaries as of the end of each such fiscal
quarter and the related consolidated statements of income, retained
earnings and cash flows for such fiscal quarter and for the portion of
Virbac's fiscal year ended at the end of such fiscal quarter, all with
consolidating disclosures and setting forth in each case in comparative
form, the figures for the corresponding fiscal quarter and the
corresponding portion of Virbac's previous fiscal year, all certified
(subject to normal year-end adjustments) as to fairness of
presentation, Generally Accepted Accounting Principles and consistency
by the principal financial officer or controller of Virbac;
(iii) [Blank intentionally];
(iv) As soon as available and in any event within thirty (30)
days after the end of each fiscal quarter, a certificate of the
principal financial officers or controllers of Borrowers in the form
attached hereto as Exhibit E and incorporated herein by reference,
accompanied by supporting financial work sheets where appropriate;
25. Subpart (iv) of Section 7.2(c) of the Loan Agreement shall be
deleted in its entirety and in its place shall be substituted the following:
(iv) PM Resources may sell any portion of the undeveloped St. Louis,
Missouri real property owned by PM Resources provided that the greater
of (A) twenty-five percent (25%) of the net sales proceeds therefrom or
(B) $500,000.00 shall be paid to Bank in connection with any such sale
for application as a prepayment against the then outstanding principal
balance of the Loans, and
26. Section 7.3 of the Loan Agreement shall be deleted in its entirety
and in its place shall be
VIRBAC CORPORATION PAGE 35
Exhibit 10 Amendment to Credit Agreement
substituted the following:
7.3 Use of Proceeds. Borrowers agree that (i) the proceeds of
the Loans will be used solely to refinance existing indebtedness of
Borrowers and for Borrowers' working capital requirements; (ii) none of
such proceeds will be used in violation of any applicable law or
regulation; and (iii) none of the Borrowers will engage principally, or
as one of its important activities, in the business of extending credit
for the purpose of purchasing or carrying "margin stock" within the
meaning of Regulation U of The Board of Governors of the Federal
Reserve System, as amended.
27. Section 9.9 of the Loan Agreement shall be deleted in its entirety
and in its place shall be substituted the following:
9.9 Bank's Books and Records. Bank's books and records showing
the account between Borrowers and Bank shall be admissible in evidence
in any action or proceeding and shall constitute prima facie proof
thereof. Bank shall record, and prior to any transfer of any of its
Notes shall endorse on the schedules forming a part thereof,
appropriate notations to evidence (i) the date and amount of each
conversion of any portion of any Loan to a LIBOR Loan and the principal
amount, applicable LIBOR Rate, and the applicable Interest Period with
respect thereto, and (ii) the date and amount of each payment of
principal made by Borrowers with respect to each such Loan. Bank is
hereby irrevocably authorized by Borrowers so to endorse its Note and
to attach to and make a part of such Note a continuation of any such
schedule as and when required; provided, however that the joint and
several obligations of Borrowers to repay the Loans made by Bank
hereunder shall be absolute and unconditional, notwithstanding any
failure of Bank to endorse or any mistake by Bank in connection with
endorsement on the schedules attached to its Note.
28. In consideration of Bank's agreement to amend the Loan Agreement
and Note as set forth herein, Borrowers agree to jointly and severally pay to
Bank an amendment fee in the amount of $5,000.00, which amendment fee is due and
payable on the date hereof and shall be fully earned on the date hereof.
Borrowers further jointly and severally agree to reimburse Bank, upon demand,
for all reasonable out-of-pocket costs and expenses (including reasonable legal
fees and expenses of the attorneys for the Bank) incurred by Bank in the
preparation, negotiation and execution of this Fourth Amendment to Credit
Agreement and all other documents, instruments and agreements relating to this
Fourth Amendment to Credit Agreement with the Bank.
29. The agreements of Bank contained herein are expressly conditioned
upon deliver by Borrowers of the following:
(a) the executed original of this Fourth Amendment to Credit
Agreement;
(b) the executed original of the amended and restated Note;
(c) a copy of resolutions of the Board of Directors of each of the
Borrowers, duly adopted, which authorize the execution, delivery and performance
of this Fourth Amendment to Credit Agreement and the amended and restated Note
and the other Transaction Documents, certified by the Secretary of each such
VIRBAC CORPORATION PAGE 36
Exhibit 10 Amendment to Credit Agreement
Borrower;
(d) the written consent to these amendments signed by Xxxxx
Xxxxxxxxxx as holder of the subordinated debt, which consent shall be in form
and substance acceptable to Bank;
(e) such other documents as Bank may reasonably request; and
(f) payment by Borrowers of the amendment fee required under
paragraph 28 above.
30. Borrowers hereby represent and warrant to Bank that:
(a) The execution, delivery and performance by Borrowers of this
Fourth Amendment to Credit Agreement and the amended and restated Note are
within the corporate powers of Borrowers, have been duly authorized by all
necessary corporate action and require no action by or in respect of, or filing
with, any governmental or regulatory body, agency or official. The execution,
delivery and performance by Borrowers of this Fourth Amendment to Credit
Agreement and the amended and restated Note do not conflict with, or result in a
breach of the terms, conditions or provisions of, or constitute a default under
or result in any violation of, and none of the Borrowers is now in default under
or in violation of, the terms of the Articles of Incorporation or Bylaws of such
Borrower, any applicable law, any rule, regulation, order, writ, judgment or
decree of any court or governmental or regulatory agency or instrumentality, or
any agreement or instrument to which any of the Borrowers is a party or by which
any of them is bound or to which any of them is subject;
(b) This Amendment to Credit Agreement and the amended and restated
Note have been duly executed and delivered and constitute the legal, valid and
binding obligations of Borrowers enforceable in accordance with their terms; and
(c) As of the date hereof, all of the covenants, representations
and warranties of Borrowers set forth in the Loan Agreement are true and correct
and no "Event of Default" (as defined therein) under or within the meaning of
the Loan Agreement has occurred and is continuing.
31. All references in the Loan Agreement to "this Agreement" and any
other references of similar import shall henceforth mean the Loan Agreement as
amended by this Fourth Amendment to Credit Agreement.
32. This Fourth Amendment to Credit Agreement and the amended and
restated Note shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that Borrowers may
not assign, transfer or delegate any of their rights or obligations hereunder.
33. This Fourth Amendment to Credit Agreement and the amended and
restated Note shall be governed by and construed in accordance with the internal
laws of the State of Missouri.
34. In the event of any inconsistency or conflict between this Fourth
Amendment to Credit Agreement and the Loan Agreement, the terms, provisions and
conditions of this Fourth Amendment to Credit
VIRBAC CORPORATION PAGE 37
Exhibit 10 Amendment to Credit Agreement
Agreement shall govern and control.
35. The Loan Agreement, as hereby amended and modified, and the amended
and restated Note, as hereby amended and restated, are and shall remain the
binding obligations of Borrowers and all of the provisions, terms, stipulations,
conditions, covenants and powers contained therein shall stand and remain in
full force and effect, except only as the same are herein and hereby
specifically varied or amended, and the same are hereby ratified and confirmed.
If any installment of principal or interest on the amended and restated Note
shall not be paid when due as provided in the amended and restated Note, the
holder of the amended and restated Note shall be entitled to and may exercise
all rights and remedies under the amended and restated Note and the Loan
Agreement, as amended.
36. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING PROMISES TO EXTEND OR
RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO PROTECT BORROWERS AND BANK FROM ANY
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED BY BORROWERS AND BANK
COVERING SUCH MATTERS ARE CONTAINED IN THE LOAN AGREEMENT, AS AMENDED BY THIS
AGREEMENT, WHICH CONSTITUTES A COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENTS BETWEEN BORROWERS AND BANK EXCEPT AS BORROWERS AND BANK MAY LATER
AGREE IN WRITING TO MODIFY. THE LOAN AGREEMENT, AS AMENDED BY THIS AGREEMENT,
EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES HERETO AND
SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS (ORAL OR WRITTEN) RELATING TO
THE SUBJECT MATTER HEREOF.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as
of the date first written above on this _____ day of August, 2002.
VIRBAC CORPORATION
PM RESOURCES, INC.
ST. XXX LABORATORIES, INC.
VIRBAC AH, INC.
FRANCODEX LABORATORIES, INC.
By:
-----------------------------------------
Xxxxxx Xxxxxxxx, Chief Financial Officer
FIRST BANK
By:
-----------------------------------------
Xxxxx X. Xxxxxx, Vice President
VIRBAC CORPORATION PAGE 38
Exhibit 10 Amendment to Credit Agreement
CONSENT TO FOURTH AMENDMENT TO
CREDIT AGREEMENT
The undersigned hereby consents to the terms of that certain Fourth
Amendment to Credit Agreement (the "Amendment"), a copy of which has been
provided to the undersigned, and the undersigned acknowledges that the execution
and delivery by Virbac Corporation (formerly known as Agri-Nutrition Group
Limited), PM Resources, Inc., Virbac AH, Inc., St. XXX Laboratories, Inc. and
Francodex Laboratories, Inc. of said Amendment will not affect or impair the
undersigned's obligations to and agreements with Bank under that certain
Subordination and Standby Agreement executed as of May 8, 1998 by the
undersigned (and as of May 14, 1998 by the Borrowers) in favor of Bank (the
"Subordination Agreement"), which obligations and agreements are hereby ratified
and confirmed. The undersigned further acknowledges and agrees that (i) all
references in the Subordination Agreement to the "Loan Agreement" and other
references of similar import shall henceforth mean the amended and restated
Credit Agreement dated as of September 7, 1999, as previously amended from time
to time, as this date amended by the Amendment, and as the same may from time to
time be further amended; and (ii) all references in the Subordination Agreement
to the "Senior Indebtedness" and other references of similar import shall
henceforth mean and include as Senior Indebtedness, the $12,000,000.00 amended
and restated Revolving Credit Note, as the same may from time to time be further
amended, and the Subordinated Indebtedness of the undersigned is and shall
remain subordinated to such Senior Indebtedness.
Dated: as of August ___, 2002.
-------------------------------
Xxxxx X. Xxxxxxxxxx
VIRBAC CORPORATION PAGE 39
Exhibit 10 Amendment to Credit Agreement
EXHIBIT A
BORROWING BASE CERTIFICATE
This Borrowing Base Certificate is delivered pursuant to Section 3.1(d)
of that certain Credit Agreement dated September 7, 1999, by and between Virbac
Corporation, PM Resources, Inc., St. XXX Laboratories, Inc., Virbac AH, Inc.,
Francodex Laboratories, Inc. and First Bank (as amended, the "Loan Agreement").
All capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to them in the Loan Agreement.
Borrowers hereby represent and warrant to Bank that the following
information is true and correct as of _________________, 20__:
1. 75% of face amount of Eligible Accounts of PM Resources $
-------------
2. 75% of face amount of Eligible Accounts of Virbac $
-------------
3. 50% of Eligible Inventory of PM Resources, valued
at the lower of cost or market $
-------------
4. 50% of Eligible Inventory of Virbac, valued
at the lower of cost or market $
-------------
5. Sum of Items 3 and 4 above, but not to exceed $6,000,000.00 $
-------------
6. Total Borrowing Base (sum of 1, 2 and 5 above not to exceed
$12,000,000.00) $
-------------
Borrowers hereby further represent and warrant to Bank that the
following information is true and correct as of ______________________, 20___:
7. Aggregate principal amount of outstanding Loans $
-------------
8. Aggregate face amount of outstanding Letters of Credit $
-------------
9. Total Outstanding (Item 7 plus Item 8) $
-------------
VIRBAC CORPORATION PAGE 40
Exhibit 10 Amendment to Credit Agreement
10. Borrowing Base Excess (Deficit) (Item 6 minus Item 9)
(Negative amount represents mandatory repayment) $
-------------
If Item 10 above is negative, this Borrowing Base Certificate is
accompanied by the mandatory repayment required by Section 3.1(e) of the Loan
Agreement.
This Borrowing Base Certificate is dated the _____ day of
__________________, 20__.
VIRBAC CORPORATION
PM RESOURCES, INC.
ST. XXX LABORATORIES, INC.
VIRBAC AH, INC.
FRANCODEX LABORATORIES, INC.
By:
----------------------------------------
Xxxxxx Xxxxxxxx, Chief Financial Officer
VIRBAC CORPORATION PAGE 41
Exhibit 10 Amendment to Credit Agreement
EXHIBIT B
[Borrowers' Letterhead]
[Date]
First Bank
000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Vice President
Re: Credit Agreement dated September 7, 1999
(as from time to time amended, the "Agreement")
Gentlemen:
Pursuant to the Agreement, the undersigned desire to (check
one):
______ Borrow on _________________, ______, an aggregate principal
amount of $____________ as a (check one) ____ Prime
Loan or ____ LIBOR Loan for an Interest Period of
____ months.
OR
______ Convert $_________________ of its outstanding Prime Loans on
__________________, _____ to a LIBOR Loan for an
Interest Period of ______________ months.
OR
______ Convert $_____________ of its LIBOR Loan with an Interest
Period expiring on _____________, ______ to a Prime
Loan on such date and to extend $________________ of
such LIBOR Loan as a new LIBOR Loan for an Interest
Period of _____ months commencing on such date.
Accordingly, the undersigned request that you make available to the
undersigned said amount on said date.
The undersigned hereby represent and warrant to you that as of the date
hereof all of the representations and warranties of each of the undersigned
contained in the Agreement are true and correct and no Default or Event of
Default (as defined in the Agreement) has occurred and is continuing, and that
no such
VIRBAC CORPORATION PAGE 42
Exhibit 10 Amendment to Credit Agreement
Default or Event of Default will result from the loan requested hereby.
Very truly yours,
VIRBAC CORPORATION
PM RESOURCES, INC.
ST. XXX LABORATORIES, INC.
VIRBAC AH, INC.
FRANCODEX LABORATORIES, INC.
By:
-------------------------------------------
Xxxxxx Xxxxxxxx, Chief Financial Officer
VIRBAC CORPORATION PAGE 43
Exhibit 10 Amendment to Credit Agreement
EXHIBIT C
Revolving Credit Note
$12,000,000.00 St. Louis,
Missouri
August ___, 2002
FOR VALUE RECEIVED, on July 31, 2005 (or such subsequent anniversary
thereof as determined pursuant to Section 3.16 of the Loan Agreement
(hereinafter identified)), the undersigned, VIRBAC CORPORATION, a Delaware
corporation (formerly known as Agri-Nutrition Group Limited), PM RESOURCES,
INC., a
Missouri corporation, ST. XXX LABORATORIES, INC., a California
corporation, FRANCODEX LABORATORIES, INC., a Kansas corporation and VIRBAC AH,
INC., a Delaware corporation (collectively, the "Borrowers"), hereby jointly and
severally promise to pay to the order of FIRST BANK, a
Missouri state banking
corporation ("Bank"), the principal sum of Twelve Million Dollars
($12,000,000.00), or such lesser sum as may then be outstanding hereunder. The
aggregate principal amount which Bank shall be committed to have outstanding
hereunder at any one time shall not exceed the lesser of (i) Twelve Million
Dollars ($12,000,000.00), or (ii) the "Borrowing Base" (as defined in the Loan
Agreement (as hereinafter defined)), which amount may be borrowed, paid,
reborrowed and repaid, in whole or in part, subject to the terms and conditions
hereof and of the Loan Agreement hereinafter identified.
Borrowers further jointly and severally promise to pay to the order of
Bank interest on the principal amount from time to time outstanding hereunder
prior to maturity from the date disbursed until paid at the rate or rates per
annum required by the Loan Agreement or otherwise selected by any of the
Borrowers as set forth in the Loan Agreement. All accrued and unpaid interest
with respect to each principal disbursement made hereunder shall be payable on
the dates set forth in Section 3.6 of the Loan Agreement and at the maturity of
this Note, whether by reason of acceleration or otherwise. After the maturity of
this Note, whether by reason of acceleration or otherwise, interest shall accrue
and be payable on demand on the entire outstanding principal balance hereunder
until paid at a rate per annum equal to Three and One-Half Percent (3.50%) over
and above the Prime Rate, fluctuating as and when said Prime Rate shall change.
All payments hereunder (other than prepayments) shall be applied first to the
payment of all accrued and unpaid interest, with the balance, if any, to be
applied to the payment of principal. All prepayments hereunder shall be applied
solely to the payment of principal.
All payments of principal and interest hereunder shall be made in
lawful currency of the United States in Federal or other immediately available
funds at the office of Bank situated at 000 Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx
00000, or at such other place as the holder hereof shall designate in writing.
Interest shall be computed on an actual day, 360-day year basis.
Bank may record the date and amount of all loans and all payments of
principal and interest hereunder in the records it maintains with respect
thereto. Bank's books and records showing the account between Bank and Borrowers
shall be admissible in evidence in any action or proceeding and shall constitute
prima facie proof of the items therein set forth.
VIRBAC CORPORATION PAGE 44
Exhibit 10 Amendment to Credit Agreement
This Note is the Note referred to in that certain Credit Agreement
dated as of September 7, 1999 made by and between Borrowers and Bank (as the
same may from time to time be amended, the "Loan Agreement"), to which Loan
Agreement reference is hereby made for a statement of the terms and conditions
upon which the maturity of this Note may be accelerated, and for other terms and
conditions, including prepayment, which may affect this Note. All capitalized
terms used herein and not otherwise defined shall have the meanings assigned to
such terms in the Loan Agreement.
This Note is secured by that certain Security Agreement dated as of May
14, 1998 executed by Virbac Corporation in favor of Bank, by that certain
Security Agreement dated as of May 14, 1998 and executed by PM Resources, Inc.
in favor of Bank, by that certain Security Agreement dated as of May 14, 1998
executed by St. XXX Laboratories, Inc. in favor of Bank, by that certain
Security Agreement dated as of September 7, 1999 and executed by Virbac AH, Inc.
in favor of Bank and by that certain Security Agreement dated as of September 7,
1999 executed by Francodex Laboratories, Inc. in favor of Bank (as the same may
from time to time be amended, the "Security Agreements"), to which Security
Agreements reference is hereby made for a description of the security and a
statement of the terms and conditions upon which this Note is secured.
This Note is also secured by that certain Deed of Trust and Security
Agreement dated September 9, 1993 and executed by PM Resources, Inc. in favor of
Xxxxxxxxx X. Xxxxxx, as trustee for Bank (as the same may from time to time be
amended, the "Deed of Trust"), to which Deed of Trust reference is hereby made
for a description of the security and a statement of the terms and conditions
upon which this Note is secured.
This Note is also secured by that certain Agreement of Pledge dated as
of September 7, 1999 and executed by Virbac Corporation in favor of Bank and by
that certain Agreement of Pledge dated as of September 7, 1999 and executed by
Virbac AH, Inc. in favor of Bank (collectively, as the same may from time to
time be amended, the "Pledge Agreements"), to which Pledge Agreements reference
is hereby made for a description of the additional security and a statement of
the terms and conditions upon which this Note is further secured.
If any of the Borrowers shall fail to make any payment of any principal
of or interest on this Note as and when the same shall become due and payable,
or if an "Event of Default" (as defined therein) shall occur under or within the
meaning of the Loan Agreement, any of the Security Agreements, the Deed of Trust
or any of the Pledge Agreements, Bank may, at its option, terminate its
obligation to make any additional loans under this Note and Bank may further
declare the entire outstanding principal balance of this Note and all accrued
and unpaid interest thereon to be immediately due and payable.
In the event that any payment of any principal of or interest on this
Note shall not be paid when due, whether by reason of acceleration or otherwise,
and this Note shall be placed in the hands of an attorney or attorneys for
collection or for foreclosure of any of the Security Agreements, the Deed of
Trust or any of the Pledge Agreements securing payment hereof or for
representation of Bank in connection with bankruptcy or insolvency proceedings
relating hereto, Borrowers jointly and severally promise to pay, in addition to
all other amounts otherwise due hereon, the reasonable costs and expenses of
such collection, foreclosure and representation, including, without limitation,
reasonable attorneys' fees and expenses (whether or not litigation shall be
commenced in aid thereof). All parties hereto severally waive presentment for
payment, demand, protest, notice of protest and notice of dishonor.
VIRBAC CORPORATION PAGE 45
Exhibit 10 Amendment to Credit Agreement
This Note shall be governed by and construed in accordance with the
internal laws of the State of
Missouri.
VIRBAC CORPORATION
By:
-------------------------------------------
Xxxxxx Xxxxxxxx, Chief Financial Officer
PM RESOURCES, INC.
By:
-------------------------------------------
Xxxxxx Xxxxxxxx, Chief Financial Officer
ST. XXX LABORATORIES, INC.
By:
-------------------------------------------
Xxxxxx Xxxxxxxx, Chief Financial Officer
VIRBAC AH, INC.
By:
-------------------------------------------
Xxxxxx Xxxxxxxx, Chief Financial Officer
FRANCODEX LABORATORIES, INC.
By:
-------------------------------------------
Xxxxxx Xxxxxxxx, Chief Financial Officer
