AMENDMENT NO. 1
EXHIBIT 10.1
AMENDMENT XX. 0
XXXXXXXXX XX. 0 (this “Amendment”), dated as of September 17, 2007 to the Loan
Agreement dated as of November 14, 2006 ( the “Loan Agreement”), 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 as “Borrower” and First National Bank of Omaha (“FNBO”), a national banking
association (“Lender”).
RECITALS
I. Capitalized terms used herein which are not otherwise defined herein shall have the respective
meanings ascribed thereto in the Loan Agreement.
II. Among other things, under Section 6.2(e) of the Loan Agreement, Borrower cannot make, create,
incur, assume, or suffer to exist any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind or restriction upon the use of any property or assets secured in accordance with
or pursuant to the Loan Agreement, except purchase money liens or security interests in an
aggregate amount less than Fifty Thousand and 00/100 Dollars ($50,000.00).
III. The Borrower has now requested that the limitation on purchase money security interest liens
described above be amended to allow the Borrower to xxxxx Xxxx’x Pet Nutrition Sales, Inc. a
purchase money security interest in all products acquired from Hill’s including but not limited to
Hill’s Prescription Diet and/or Hill’s Science Diet, together will all proceeds from the sale of
such Hill’s branded products.
Accordingly, in consideration of the Recitals and the terms and conditions herein set forth,
and for other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Borrower and Lender hereby agree as follows:
1. Section 1.2(l) of the Loan Agreement (Definitions) is amended to add the
following:
“(11) It is not a Receivable arising from any Inventory which is acquired from
Hill’s Pet Nutrition Sales, Inc. and subject to the Security Agreement dated as of
September 17, 2007 by and between Hill’s Pet Nutrition Sales, Inc. and PVPL.”
2. Section 1.2(m) of the Loan Agreement (Definitions) is amended to add the following:
“(9) It is not Inventory acquired from Hill’s Pet Nutrition Sales, Inc. and subject
to the Security Agreement dated as of September 17, 2007 by and between Hill’s Pet
Nutrition Sales, Inc. and PVPL.”
3. Section 6.2 of the Loan Agreement (Negative Covenants) is hereby amended by
restating Section 6.2 in its entirety as follows:
“Section 6.2 Liens. Borrower shall not make, create, incur, assume or suffer to
exist any mortgage, pledge, security interest, encumbrance, lien or charge of any
kind, or restriction upon the use of any property or assets secured in accordance
with or pursuant to this Agreement except (a) the security interest, liens and
encumbrances granted in connection with or pursuant to this Agreement, (b) liens for
taxes or assessments or other governmental charges to the extent not yet delinquent
or being contested in accordance with Section 5.4 above, (c) liens arising out of a
judgment against Borrower for payment of money with respect to which an appeal is
being prosecuted and a stay of execution pending such appeal has been secured, (d)
pledges or deposits to secure obligations under workmen’s compensation laws,
unemployment insurance and social security laws, or to secure the performance of
bids, tenders, contracts (other than for payment of borrowed money) or leases or to
secure statutory obligations or security or appeal bonds, or to secure indemnity,
performance or other similar bonds in the ordinary course of business consistent
with past practice and (e) except for the purchase money security interest lien
granted by Borrower to Hill’s Pet Nutrition Sales, Inc. pursuant to that Security
Agreement dated as of September 17, 2007, purchase money liens or security interests
(which term for purposes hereof shall include conditional sales agreements or other
title retention agreements or leases) upon or in property acquired after the date
hereof, in an aggregate amount less than $50,000, provided that such liens or
security interests shall extend only to the property then being acquired and fixed
improvements then or thereafter erected thereon.”
4. Effectiveness. This Amendment shall become effective when it has been executed by
the Borrower and the Lender.
5. Continuing Validity of Loan Documents. Borrower hereby (a) reaffirms and admits
the validity and enforceability of the Loan Agreement and all of the obligations of the Borrower
thereunder, (b) agrees and admits that no Borrower has any defenses to or offsets against any such
obligation and (c) certifies that, immediately after giving effect to this Amendment, (i) no
Default shall exist and (ii) each of the representations and warranties contained in the Loan
Agreement and each related document shall be true and correct with the same effect as though such
representation and warranty had been made on the date hereof, except to the extent such
representation and warranty specifically relates to an earlier date, in which case such
representation and warranty shall have been true and correct on and as of such earlier date.
6. Limitations. In all other respects, the Loan Agreement and related documents shall
remain in full force and effect, and no amendment or waiver in respect of any term or condition of
any Loan Document shall be deemed (i) to be an amendment or waiver in respect of any other term or
condition contained in any Loan Document or (ii) to prejudice any right or rights of the Lender
which it may now have or may have in the future under or in connection with the Loan Agreement or
any of the related Loan Documents.
2
7. Counterparts. This Amendment may be executed in counterpart all of which, taken
together, shall constitute one agreement.
8. Governing Law. THIS AMENDMENT IS BEING EXECUTED AND DELIVERED IN, AND IS INTENDED
TO BE PERFORMED IN, THE STATE OF NEBRASKA, AND SHALL BE CONSTRUED AND ENFORCEABLE IN ACCORDANCE
WITH, AND BE GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF NEBRASKA, WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
AS EVIDENCE of the agreement by the parties hereto to the terms and conditions
herein contained, each such party has caused this Amendment to be executed on its on its behalf.
Professional Veterinary Products, Ltd., a Nebraska corporation |
||||
By: | /s/ Xxxx X. Xxxxxxxxxx | |||
Xxxx X. Xxxxxxxxxx, its Chief Financial Officer | ||||
ProConn, LLC, a Nebraska limited liability corporation, its Manager and sole Member |
||||
By: | /s/ Xxxx X. Xxxxxxxxxx | |||
Xxxx X. Xxxxxxxxxx, its Chief Financial Officer | ||||
Exact Logistics, LLC, a Nebraska limited liability company By: Professional Veterinary Products, Ltd., a Nebraska corporation its Manager and sole Member |
||||
By: | /s/ Xxxx X. Xxxxxxxxxx | |||
Xxxx X. Xxxxxxxxxx, its Chief Financial Officer | ||||
First National Bank of Omaha, a national banking association |
||||
By: | /s/ Xxxxxx X. Xxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxx | |||
Title: | Vice President | |||
3