SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT, made and
entered into as of the 6th day of March, 1997, by and between ST. XXX
LABORATORIES, INC., a California corporation ("Borrower") and FIRST BANK, a
Missouri state banking corporation ("Bank").
WITNESSETH:
WHEREAS, Borrower heretofore executed and delivered to Bank a
Revolving Credit Note dated May 31, 1996, in the principal amount of up to One
Million Eight Hundred Thousand Dollars ($1,800,000.00), payable to the order
of Bank as therein set forth (the "Note"); and
WHEREAS, the Note is described in a Revolving Credit Agreement
dated January 19, 1996 between Borrower and Bank, as amended by that certain
Amendment to Revolving Credit Agreement dated as of May 31, 1996 made by and
between Borrower and Bank (as amended, the "Loan Agreement"); and
WHEREAS, Borrower and Bank desire to amend the Loan Agreement
and the Note to extend the term thereof 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:
12. The Note shall be amended and restated in the form of that
certain Revolving Credit Note attached hereto as Exhibit C, to extend the
maturity thereof to March 31, 1998 and to make certain amendments as set forth
therein. All references in the Loan Agreement 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.
13. The first 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, Borrower has applied for a revolving credit
loan from Bank in the principal amount of up to One Million Eight
Hundred Thousand Dollars ($1,800,000.00) subject to a Borrowing Base
(as herein set forth) for a period of time up to and including March
31, 1998, as extended thereafter in Bank's discretion for subsequent
one year periods; and
14. Section 1 of the Loan Agreement shall be deleted in
its entirety and in its place shall be substituted the following:
- 21 -
The "Term" of this Agreement shall commence on the
date hereof and shall end on March 31, 1998, 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 3.8
herein.
15. Section 3.8 of the Loan Agreement shall be deleted
in its entirety and in its place shall be substituted the following:
3.8 Maturity. All Loans not paid prior to March 31,
1998, together with all accrued and unpaid interest thereon, shall be
due and payable on March 31, 1998 (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 Borrower 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 3.9)
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.
16. Borrower hereby represents and warrants to Bank that:
(a) The execution, delivery and performance by
Borrower of this Second Amendment to Revolving Credit Agreement and the
amended and restated Note are within the corporate powers of Borrower, 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 Borrower of this Second Amendment to
Revolving 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 Borrower is not
now in default under or in violation of, the terms of the Articles of
Incorporation or Bylaws of 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 Borrower is
a party or by which it is bound or to which it is subject;
(b) This Second Amendment to Revolving Credit
Agreement and the amended and restated Note have been duly executed and
delivered and constitute the legal, valid and binding obligations of Borrower
enforceable in accordance with their terms; and
- 22 -
(c)As of the date hereof, all of the covenants, representations and warranties
of Borrower 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.
17. All references in the Loan Agreement to "this Loan
Agreement" and any other references of similar import shall henceforth mean
the Loan Agreement as amended by this Second Amendment to Revolving Credit
Agreement.
18. This Second Amendment to Revolving 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
Borrower may not assign, transfer or delegate any of its rights or obligations
hereunder or thereunder.
19. This Second Amendment to Revolving Credit Agreement
shall be governed by and construed in accordance with the internal laws of
the State of Missouri.
20. In the event of any inconsistency or conflict between this
Second Amendment to Revolving Credit Agreement and the Loan Agreement, the
terms, provisions and conditions of this Second Amendment to Revolving Credit
Agreement shall govern and control.
21. The Loan Agreement, as hereby amended and modified, and
the Note, as amended and restated, are and shall remain the binding
obligations of Borrower 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 Note, as amended
and restated, shall not be paid when due as provided in the Note, the holder
of the Note shall be entitled to and may exercise all rights and remedies
under the Note and the Loan Agreement.
22. 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 BORROWER AND
BANK FROM ANY MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED BY
BORROWER 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 BORROWER AND BANK EXCEPT AS BORROWER 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.
- 23 -
IN WITNESS WHEREOF, the parties hereto have executed this
instrument as of the date first written above on this 6th day of March, 1997.
ST. XXX LABORATORIES, INC.
By:
Xxxx X. Xxxxxx, President
FIRST BANK
By:
Xxxxxx X. Xxxx, Vice President
- 24 -
CONSENT TO SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
The undersigned hereby consents to the terms of the foregoing
Second Amendment to Revolving Credit Agreement, and acknowledges that the
execution and delivery by St. XXX Laboratories, Inc. of said Second Amendment
will not affect or impair the undersigned's obligations to and agreements with
Bank under (i) that certain Guaranty dated January 19, 1996 made by the
undersigned in favor of Bank, (ii) that certain Agreement of Pledge (Third
Party) dated January 19, 1996 made by the undersigned in favor of Bank, or
(iii) that certain Subordination and Standby Agreement dated January 19, 1996
made by the undersigned in favor of Bank, which obligations and agreements are
hereby ratified and confirmed. The undersigned further acknowledges and agrees
that all references in the Guaranty, the Agreement of Pledge (Third Party) and
in the Subordination Agreement to the "Revolving Credit Agreement" and other
references of similar import shall henceforth mean the Revolving Credit
Agreement as amended by the foregoing Second Amendment to Revolving Credit
Agreement, as the same may from time to time be further amended and all
references in the Guaranty, the Agreement of Pledge (Third Party) and in the
Subordination and Standby Agreement to the "Note," the "Revolving Credit Note"
and other references of similar import shall henceforth mean the Revolving
Credit Note, as amended and restated, and as the same may from time to time be
further amended.
Dated: as of March 6, 1997.
AGRI-NUTRITION GROUP LIMITED
By:
Xxxxxx X. Xxxxxxxxx, Vice President
and Chief Financial Officer
- 25 -
CONSENT TO SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
The undersigned hereby consent to the terms of the foregoing
Second Amendment to Revolving Credit Agreement, and acknowledge that the
execution and delivery by St. XXX Laboratories, Inc. of said Second Amendment
will not affect or impair the undersigned's obligations to and agreements with
Bank under that certain Intercreditor Agreement dated January 19, 1996 made by
the undersigned in favor of Bank, which obligations and agreements are hereby
ratified and confirmed. The undersigned further acknowledge and agree that all
references in the Intercreditor Agreement to the "Revolving Credit Agreement"
and other references of similar import shall henceforth mean the Revolving
Credit Agreement as amended by the foregoing Second Amendment to Revolving
Credit Agreement, as the same may from time to time be further amended, and
all references in the Intercreditor Agreement to the "First Bank Note," the
"Revolving Credit Note" and other references of similar import shall
henceforth mean the Revolving Credit Note, as amended and restated, and as the
same may from time to time be further amended.
Dated: as of March 6, 1997.
Xxxx X. Xxxxxx
XXXX X. XXXXXX, INC.
By:
Xxxx X. Xxxxxx, President
- 26 -
EXHIBIT C
Revolving Credit Note
$1,800,000.00 St. Louis, Missouri
March 6, 1997
FOR VALUE RECEIVED, on March 31, 1998 (or such subsequent
anniversary thereof as determined pursuant to Section 3.8 of the Loan
Agreement (as hereinafter defined)), the undersigned, ST. XXX LABORATORIES,
INC., a California corporation ("Borrower"), hereby promises to pay to the
order of FIRST BANK, a Missouri state banking corporation ("Bank"), the
principal sum of One Million Eight Hundred Thousand Dollars ($1,800,000.00),
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) One Million Eight Hundred
Thousand Dollars ($1,800,000.00), 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.
Borrower further promises 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 per annum required by
the Loan Agreement. All accrued and unpaid interest with respect to each
principal disbursement made hereunder shall be payable monthly on the
fifteenth (15th) day of the month following the month in which such interest
accrued, commencing with the fifteenth (15th) day of the month following the
month in which any such disbursement was made, and on the fifteenth (15th) day
of each month thereafter, 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 Four and One-Eighth Percent (4.125%) 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 0000 Xxxxxx Xxxx,
Xxxxxxxxxx, 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
Borrower shall be admissible in evidence in any action or proceeding and shall
constitute prima facie proof of the items therein set forth.
- 27 -
This Note is the Note referred to in that certain Revolving
Credit Agreement dated as of January 19, 1996 made by and between Borrower 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
January 19, 1996 and executed by Borrower in favor of Bank (as the same may
from time to time be amended, the "Security Agreement"), to which Security
Agreement 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
(Third Party) dated January 19, 1996 and executed by Agri-Nutrition Group
Limited in favor of Bank (as the same may from time to time be amended, the
"Pledge Agreement"), to which Pledge Agreement 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 Borrower 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, the Security Agreement or the Pledge Agreement,
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 the Security Agreement or the
Pledge Agreement securing payment hereof or for representation of Bank in
connection with bankruptcy or insolvency proceedings relating hereto, Borrower
promises 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.
- 28 -
This Note shall be governed by and construed in accordance
with the internal laws of the State of Missouri.
ST. XXX LABORATORIES, INC.
By:
Xxxx X. Xxxxxx, President
- 29 -
