THIRD AMENDMENT TO
CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT, made and entered
into as of the 1st day of February, 1999, by and between PM RESOURCES, INC., a
Missouri corporation ("PM"), AGRI-NUTRITION GROUP LIMITED, a Delaware
corporation ("Agri-Nutrition"), and ST. XXX LABORATORIES, INC., a California
corporation ("St. XXX," and collectively with PM and Agri-Nutrition referred to
herein as "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 May 14, 1998, in the
principal amount of up to Nine Million Two Hundred Thousand Dollars
($9,200,000.00), payable to the order of Bank as therein set forth, which
Revolving Credit Note was most recently amended and restated by Borrowers in a
Revolving Credit Note dated as of October 2, 1998 in the principal amount of up
to Nine Million Seven Hundred Thousand Dollars ($9,700,000.00) made by Borrowers
payable to the order of Bank as therein set forth (as amended and restated, the
"Note"); and
WHEREAS, the Note is described in a certain Credit Agreement
dated May 14, 1998 made by and among Borrowers and Bank as previously amended by
an Amendment to Credit Agreement dated as of August 6, 1998 made by and among
Borrowers and Bank and by a Second Amendment to Credit Agreement dated as of
October 2, 1998 made by and among Borrowers and Bank (as amended, the "Loan
Agreement"); and
WHEREAS, Borrowers and Bank desire to further amend the Loan
Agreement and the Note to extend the Five Hundred Thousand Dollars ($500,000.00)
temporary increase in the maximum available principal amount thereunder until
March 31, 1999 (subject to the Borrowing Base, the scheduled periodic principal
reductions set forth in Section 3.1(b) of the Loan Agreement and other terms and
conditions of the Loan Agreement) 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 extend the
increase in the maximum principal amount thereof to Nine Million Five Hundred
Fifty Thousand Dollars ($9,550,000.00) for the period of time up to and
including February 27, 1999, reducing automatically on February 28, 1999 to the
new maximum amount of Nine Million Four Hundred Thousand Dollars ($9,400,000.00)
pursuant to Section 3.1(b) of the Loan Agreement for the period up to March 31,
1999, reducing automatically on March 31, 1999 to the new maximum amount of
Eight Million Nine Hundred Thousand Dollars
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($8,900,000.00) and thereafter reducing as set forth in Section 3.1(b) of the
Loan Agreement, 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. Borrowers hereby agree that
on or before 5:00 p.m. (St. Louis time) on February 28, 1999, Borrowers shall
jointly and severally repay to Bank, without any requirement of demand or notice
from Bank, an amount equal to amount by which the outstanding principal balance
of the Note exceeds Nine Million Four Hundred Thousand Dollars ($9,400,000.00),
together with all other amounts then due under the terms of the Loan Agreement
and the Note and that on or before 5:00 p.m. (St. Louis time) on March 31, 1999,
Borrowers shall jointly and severally repay to Bank, without any requirement of
demand or notice from Bank, an amount equal to amount by which the outstanding
principal balance of the Note exceeds Eight Million Nine Hundred Thousand
Dollars ($8,900,000.00), together with all other amounts then due under the
terms of the Loan Agreement and the Note.
2. The fourth 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 have requested the consolidation
of the above described credit facilities under one borrowing base for
Agri-Nutrition and its Subsidiaries on a joint and several basis and an
extension of such joint and several loan facility from Bank in an
aggregate principal amount of up to Nine Million Five Hundred Fifty
Thousand Dollars ($9,550,000.00) for a period of time from February 1,
1999 up to and including February 27, 1999, Five Million Dollars
($5,000,000.00) of which shall be subject to a Borrowing Base (as set
forth herein) ("Facility A"), and the remaining Four Million Five
Hundred Fifty Thousand Dollars ($4,550,000.00) of which shall be a
reducing revolving credit line from Bank ("Facility B"), that on
February 28, 1999 the maximum principal amount of such loan facility
and Facility B shall reduce automatically as set forth in Section
3.1(b) herein, and on March 31, 1999 the maximum principal amount of
such loan facility shall be further reduced automatically to an
aggregate principal amount of up to Eight Million Nine Hundred Thousand
Dollars ($8,900,000.00), reducing thereafter pursuant to Section 3.1(b)
herein during the period of time from April 1, 1999 up to and including
March 31, 2001 (as of March 31, 1999, Four Million Five Hundred
Thousand Dollars ($4,500,000.00) of which shall be subject to the
Borrowing Base under Facility A, and the remaining Four Million Four
Hundred Thousand Dollars ($4,400,000.00) of which shall constitute the
reducing revolving credit line from Bank under Facility B); and
3. Subpart (n) of the definition of "Eligible Accounts" in
Section 2 of the Loan Agreement shall be deleted in its entirety and in its
place shall be substituted the following:
(n) Accounts which are not subject to a first priority perfected security
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interest in favor of Bank and Accounts which have been factored by any
of the Borrowers, including without limitation, the outstanding Account
of St. XXX due from Petsmart Inc. in an amount of up to $1,000,000.00
which may be factored by such Borrower with FB Commercial Finance, Inc.
4. The second sentence of Section 3.1(a) of the Loan Agreement
shall be deleted in its entirety and in its place shall be substituted the
following:
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 under this Facility A at any one time
shall not exceed the lesser of (i) for the period from the execution of
that certain Third Amendment to Credit Agreement dated as of February
1, 1999 made by and among Borrowers and Bank (the "Third Amendment") to
and including March 31, 1999 the amount of Five Million Dollars
($5,000,000.00), or from and after March 31, 1999 an amount of Four
Million Five Hundred Thousand Dollars ($4,500,000.00), or (ii) the
Borrowing Base (as hereinafter defined).
5. The second sentence of Section 3.1(b) of the Loan Agreement
shall be deleted in its entirety and in its place shall be substituted the
following:
The aggregate principal amount of Facility B Loans which Bank,
cumulatively, shall be required to have outstanding hereunder at any
one time shall not exceed Four Million Five Hundred Fifty Thousand
Dollars ($4,550,000.00) from the date of the Third Amendment until
February 27, 1999, which amount shall thereafter be reduced by One
Hundred Fifty Thousand Dollars ($150,000.00) on each February 28, May
31, August 31 and November 30, with the first such reduction on
February 28, 1999.
6. The last sentence of Section 3.2 of the Loan Agreement
shall be deleted in its entirety and in its place shall be substituted the
following:
Contemporaneously with the execution of the Third
Amendment, Borrowers shall execute and deliver to Bank a Note of
Borrowers dated as of February 1, 1999 and payable jointly and
severally to the order of Bank in the original principal amount of Nine
Million Five Hundred Fifty Thousand Dollars ($9,550,000.00) in the form
attached as Exhibit C to the Third Amendment and incorporated herein by
reference (as the same may from time to time be amended, modified,
extended or renewed, the "Note").
7. The Borrowing Base Certificate shall be amended and
restated in the form of that certain Borrowing Base Certificate attached hereto
as Exhibit A to incorporate the above changes. All references in the Loan
Agreement to the "Borrowing Base Certificate" and other references of similar
import shall hereafter be amended and deemed to refer to the Borrowing Base
certificate in the form attached hereto as Exhibit A.
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8. The agreements of Bank contained herein are expressly
conditioned upon deliver by Borrowers of the following:
(a) the executed original of this Third 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 Third Amendment to Credit Agreement and the amended
and restated Note and the other Transaction Documents, certified by the
Secretary of each such Borrower;
(d) the Consent of Agri-Nutrition and St. XXX in the form attached
hereto, acknowledging the amendments contained herein and the continuing
effectiveness of the Pledge Agreements, duly executed respectively by
Agri-Nutrition and St. XXX;
(e) such other documents as Bank may reasonably request; and
(f) payment by Borrowers of the amendment fee required under
paragraph 14 above.
9. Borrowers hereby represent and warrant to Bank that:
(a) The execution, delivery and performance by Borrowers of this
Third Amendment to Credit Agreement and the amended and restated
Revolving Credit 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 Third Amendment to Credit Agreement and
the amended and restated Revolving Credit 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 Third Amendment to Credit Agreement and the amended and
restated Revolving Credit 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.
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10. 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 Third Amendment to Credit Agreement.
11. This Third Amendment to Credit Agreement and the amended
and restated Revolving Credit 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.
12. This Third Amendment to Credit Agreement shall be governed
by and construed in accordance with the internal laws of the State of Missouri.
13. In the event of any inconsistency or conflict between this
Third Amendment to Credit Agreement and the Loan Agreement, the terms,
provisions and conditions of this Third Amendment to Credit Agreement shall
govern and control.
14. The Loan Agreement, as hereby amended and modified, and
the amended and restated Revolving Credit 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 Revolving Credit Note shall not be paid when due as
provided in the amended and restated Revolving Credit Note, the holder of the
amended and restated Revolving Credit Note shall be entitled to and may exercise
all rights and remedies under the amended and restated Revolving Credit Note and
the Loan Agreement, as amended.
15. 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 1st day of February, 1999.
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PM RESOURCES, INC.
By:
Xxxxxx X. Xxxxxxxxx, Vice President and Treasurer
AGRI-NUTRITION GROUP LIMITED
By:
Xxxxxx X. Xxxxxxxxx, Secretary
ST. XXX LABORATORIES, INC.
By:
Xxxxxx X. Xxxxxxxxx, Vice President,
Secretary and Treasurer
FIRST BANK
By:
Xxx X. Xxxxxxx, Vice President
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