Exhibit 10.13
Loan No. ____________
TERM PROMISSORY NOTE
--------------------
$4,000,000.00 May 12, 2003
FOR VALUE RECEIVED, 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"), promises to pay to the order of U.S. Bank National
Association, a national banking association (the "Bank") at the Bank's office at
0000 Xxxxxx Xxxxxx, Xxxxx, XX 00000, or at such other address as the holder
hereof may from time to time designate in writing, the principal sum of FOUR
MILLION AND NO/100 DOLLARS ($4,000,000.00) together with interest from the date
the proceeds of the loan (the "Loan") evidenced by this Term Promissory Note
(this "Note") are initially disbursed until maturity on the principal balance
from time to time remaining unpaid hereon at the rate of 5.77% per annum
(computed on the basis of a 360-day year of twelve (12) consecutive thirty
(30)-day months) in installments as follows: (i) interest only in advance at the
rate of $641.11 per day shall be due and payable on the date the proceeds of the
Loan are initially disbursed to or for the benefit of Borrower (including,
without limitation, disbursement into an escrow for the benefit of Borrower) for
the period beginning on the date of such disbursement and ending on May 31,
2003; (ii) fifty-nine (59) installments of principal and interest in the amount
of $76,904.14 each shall be payable commencing on July 1, 2003 and continuing on
the first day of each and every succeeding month until and including May 1, 2008
and (iii) on June 1, 2008, all then unpaid principal and interest hereon shall
be due and payable.
The obligations of PVPL, ProConn and Exact under this Note shall be joint
and several. Each of PVPL, ProConn and Exact hereby represent, warrant and
covenant for the benefit of Bank that it is the intention of each of PVPL,
ProConn and Exact that this Note be fully enforceable against each of them in
accordance with its terms to the same extent as if such party had been the only
party identified as "Borrower" hereunder.
If any payment shall not be paid when due and shall remain unpaid for ten
(10) days, Borrower shall pay an additional charge equal to five percent (5.00%)
of the delinquent payment or the highest additional charge permitted by law,
whichever is less.
There shall be no prepayment of this Note; provided, however, the Bank may
consider requests for its consent with respect to prepayment of the Term Note,
without incurring an obligation to do so, and Borrower acknowledges that in the
event that such consent is granted, Borrower shall be required to pay the Bank,
upon prepayment of all or part of the principal amount before final maturity, a
Prepayment Fee equal to the maximum of (a) zero, or (b) that amount, calculated
on any prepayment date, which is derived by subtracting: (a) the principal
amount of this Note or portion of this Note to be prepaid from (b) the Net
Present Value of this Note or portion of this Note to be prepaid on such date of
prepayment. Net Present Value shall mean the amount which is derived by summing
the present values of each prospective payment of principal and interest which,
without such full or partial prepayment, could otherwise have
1
been received by the Bank over the shorter of the remaining contractual life of
this Note or next repricing date if the Bank had instead initially invested the
Note proceeds at the Initial Money Market Rate. The individual discount rate
used to present value each prospective payment of interest and/or principal
shall be the Money Market Rate at Prepayment for the maturity matching that of
each specific payment of principal and/or interest. Initial Money Market Rate
shall mean the rate per annum, determined solely by the Bank, on the first day
of the term of the Note or as mutually agreed upon by Borrower and the Bank, as
the rate at which the Bank would be able to borrow funds in Money Markets for
the amount of the Note and with an interest payment frequency and principal
repayment schedule equal to the Note and for a term as may be arranged and
agreed upon by Borrower and the Bank. Such a rate shall include FDIC insurance,
reserve requirements and other explicit or implicit costs levied by any
regulatory agency. Borrower acknowledges that the Bank is under no obligation to
actually purchase and/or match funds for the Initial Money Market Rate of the
Term Note. Money Market Rate at Prepayment shall mean that zero-coupon rate,
calculated on the date of prepayment, and determined solely by the Bank, as the
rate in which the Bank would be able to borrow funds in Money Markets for the
prepayment amount matching the maturity of a specific prospective Note payment
or repricing date. Such a rate shall include FDIC insurance, reserve
requirements and other explicit or implicit costs levied by any regulatory
agency. A separate Money Market Rate at Prepayment will be calculated for each
prospective interest and/or principal payment date. Money Markets shall mean one
or more wholesale funding mechanisms available to the Bank, including negotiable
certificates of deposit, eurodollar deposits, bank notes, fed funds, interest
rate swaps, or others. In calculating the amount of such a prepayment fee, the
Bank is hereby authorized by Borrower to make such assumptions regarding the
source of funding, redeployment of funds and other related matters, as the Bank
may deem appropriate. If Borrower fails to pay any Prepayment Fee when due, the
amount of such Prepayment Fee shall thereafter bear interest until paid at the
default rate specified in the Note (computed on the basis of a 360-day year,
actual days elapsed). Any prepayment of principal shall be accompanied by a
payment of interest accrued to date thereon; and said prepayment shall be
applied to the principal installments in the inverse order of their maturities.
All prepayments shall be in an amount of at least $100,000 or if less, the
remaining entire principal balance of the Loan.
If the Bank at any time accelerates this Note after an Event of Default
(defined below), then Borrower shall be obligated to pay the Prepayment Fee in
accordance with the foregoing paragraph. The Prepayment Fee shall not be payable
with respect to condemnation awards or insurance proceeds from fire or other
casualty which the Bank applies to prepayment, nor with respect to Borrower's
prepayment of the Note in full during the last month of the term of this Note
unless an Event of Default has occurred. Borrower expressly acknowledges that
the Prepayment Fee is not a penalty but is intended solely to compensate the
Bank for the loss of its bargain and the reimbursement of internal expenses and
administrative fees and expenses incurred by the Bank.
This Note is the "Term Note" referred to in and issued under and subject to
the Amended and Restated Loan Agreement (the "Loan Agreement") between Borrower
and the Bank of even date herewith. All capitalized terms used in this Note,
except terms otherwise defined herein, shall have the same meaning as such terms
have in the Loan Agreement. The Loan is secured, in part, by a certain Deed of
Trust, Security Agreement, Assignment of Leases and Rents and
2
Fixture Filing (the "Deed of Trust") covering the real property owned by PVPL
and other assets (the "Property") described therein, by a certain Security
Agreements covering certain equipment owned by Borrower and by certain other
documents executed and delivered in connection herewith and in connection with
the Loan Agreement (collectively, the "Loan Documents").
Each of the following shall constitute an Event of Default ("Event of
Default") hereunder and under the Deed of Trust:
(a) Failure of or refusal by Borrower to make any payment of principal,
interest, or any Prepayment Fee due under this Note or any other obligation due
the Bank when due, and such failure or refusal shall continue for a period of
three (3) days after written notice is given to Borrower by the Bank specifying
such failure; provided, however, this three-day grace period shall not be
available to Borrower more than once per year; or
(b) Failure of Borrower within the time required by the Deed of Trust to
make any payment for taxes, insurance or for reserves for such payments, or any
other payment necessary to prevent the filing of any lien, and such failure
shall continue for a period of ten (10) days after written notice is given to
Borrower by the Bank specifying such failure; or
(c) Failure by Borrower to observe or perform any obligations of Borrower
to the Bank on or with respect to any transactions, debts, undertakings or
agreements other than the transaction evidenced by this Note; or
(d) Failure of Borrower to make any payment or perform any obligation
under any superior liens or encumbrances on the Property, within the time
required thereunder, or commencement of any suit or other action to foreclose
any superior liens or encumbrances; or
(e) Failure by Borrower to observe or perform any of its obligations under
any of the lease agreements covering the Property; or
(f) The Property is transferred or any agreement to transfer any part or
interest in the Property in any manner whatsoever is made or entered into
without the prior written consent of the Bank; or
(g) Filing by Borrower of a voluntary petition in the Bankruptcy or filing
by Borrower of any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, or similar
relief for itself under any present or future federal, state or other statute,
law or regulation relating to the Bankruptcy, insolvency or other relief for
debtors, or the seeking, consenting to, or acquiescing by Borrower in the
appointment of any trustee, receiver, custodian, conservator or liquidator for
Borrower, any part of the Property, or any of the income or rents of the
Property, or the making by Borrower of any general assignment for the benefit of
creditors, or the inability of or failure by Borrower to pay its debts generally
as they become due, or the insolvency on a balance sheet basis or business
failure of Borrower, or the making or suffering of a preference within the
meaning of federal the Bankruptcy law or the making of a fraudulent transfer
under applicable federal or state law, or
3
concealment by Borrower of any of its property in fraud of creditors, or the
imposition of a lien upon any of the property of Borrower which is not
discharged in the manner permitted by the Deed of Trust, or the giving of notice
by Borrower to any governmental body of insolvency or suspension of operations;
or
(h) Filing of a petition against Borrower seeking any reorganization,
arrangement, composition, readjustment, liquidation, or similar relief under any
present or future federal, state or other law or regulation relating to the
Bankruptcy, insolvency or other relief for debts, or the appointment of any
trustee, receiver, custodian, conservator or liquidator of Borrower, of any part
of the Property or of any of the income or rents of the Property, unless such
petition shall be dismissed within sixty (60) days after such filing, but in any
event prior to the entry of an order, judgment or decree approving such
petition; or
(i) The institution of any proceeding for the dissolution or termination
of Borrower voluntarily, involuntarily, or by operation of law, or the death of
Borrower; or
(j) A material adverse change occurs in the assets, liabilities or net
worth of Borrower or any of the guarantors of the indebtedness evidenced by this
Note from the assets, liabilities or net worth of Borrower or any of the
guarantors of the indebtedness evidenced by this Note previously disclosed to
the Bank; or
(k) Any warranty, representation or statement furnished to the Bank by or
on behalf of Borrower under this Note, the Deed of Trust, the Loan Agreement or
any of the Loan Documents shall prove to have been false or misleading in any
material respect; or
(1) Failure of Borrower to observe or perform any other covenant or
condition contained in this Note and such failure shall continue for thirty (30)
days after notice is given to Borrower specifying the nature of the failure. No
notice of default and no opportunity to cure shall be required if during the
prior twelve (12) months the Bank has already sent a notice to Borrower
concerning default in performance of the same obligation; or
(m) Failure of Borrower to observe or perform any other obligation under
the Deed of Trust, the Loan Agreement or any of the Loan Documents when such
observance or performance is due, and such failure shall continue beyond the
applicable cure period set forth in the Loan Documents, or if the default cannot
be cured within such applicable cure period, if Borrower fails within such time
to commence and pursue curative action with reasonable diligence or fails at any
time after expiration of such applicable cure period to continue with reasonable
diligence all necessary curative actions. No notice of default and no
opportunity to cure shall be required if during the prior twelve (12) months the
Bank has already sent a notice to Borrower concerning default in performance of
the same obligation; or
(n) Any of the foregoing events occur with respect to any tenant of the
Property, with respect to any guarantor of any of Borrower's obligations in
connection with the indebtedness evidenced by this Note or with respect to any
guarantor of any tenant's obligations relating to the Property, or such
guarantor dies or becomes incompetent.
4
Upon the occurrence of any Event of Default, the Bank shall have the option
to declare the entire amount of principal and interest due under this Note
immediately due and payable without notice or demand, and the Bank may exercise
any of its rights under this Note, under the Deed of Trust, under the Loan
Agreement and under the Loan Documents. After acceleration or maturity, Borrower
shall pay interest on the outstanding principal balance of this Note at the rate
of five percent (5.00%) per annum above the Bank's prime interest rate in effect
from time to time, or fifteen percent (15.00%) per annum, whichever is higher,
provided that such interest rate shall not exceed the maximum interest rate
permitted by law.
All payments of the principal and interest on this Note shall be made in
coin or currency of the United States of America which at the time shall be the
legal tender for the payment of public and private debts.
If this Note is placed in the hands of an attorney for collection, Borrower
agrees to pay reasonable attorneys' fees and costs incurred by the Bank in
connection therewith, and in the event suit or action is instituted to enforce
or interpret this Note (including without limitation efforts to modify or vacate
any automatic stay or injunction), the prevailing party shall be entitled to
recover all expenses reasonably incurred at, before or after trial and on
appeal, whether or not taxable as costs, or in any the Bankruptcy proceeding, or
in connection with post-judgment collection efforts, including, without
limitation, attorneys' fees, witness fees (expert and otherwise), deposition
costs, copying charges and other expenses.
This Note shall be governed and construed in accordance with the laws of
the State of Nebraska applicable to contracts made and to be performed therein
(excluding choice-of-law principles). Borrower hereby irrevocably submits to the
jurisdiction of any state or federal court sitting in Omaha, Nebraska in any
action or proceeding brought to enforce or otherwise arising out of or relating
to this Note, and hereby waives any objection to venue in any such court and any
claim that such forum is an inconvenient forum.
This Note is given in a commercial transaction for business purposes.
This Note may be declared due prior to its expressed maturity date, all in
the events, on the terms, and in the manner provided for in the Deed of Trust.
Borrower and all sureties, endorsers, guarantors and other parties now or
hereafter liable for the payment of this Note, in whole or in part, hereby
severally (a) waive demand, notice of demand, presentment for payment, notice of
nonpayment, notice of default, protest, notice of protest, notice of intent to
accelerate, notice of acceleration and all other notices, and further waive
diligence in collecting this Note or in enforcing any of the security for this
Note; (b) agree to any substitution, subordination, exchange or release of any
security for this Note or the release of any party primarily or secondarily
liable for the payment of this Note; (c) agree that the Bank shall not be
required to first institute suit or exhaust its remedies hereon against Borrower
or others liable or to become liable for the payment of this Note or to enforce
its rights against any security for the payment of this Note; and (d) consent to
any extension of time for the payment of this Note, or any installment hereof,
made by agreement by the Bank with any person now or
5
hereafter liable for the payment of this Note, even if Borrower is not a party
to such agreement.
Borrower authorizes the Bank or its agent to insert in the spaces provided
herein the appropriate interest rate and the payment amounts as of the date of
the initial advance hereunder.
All agreements between Borrower and the Bank, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that in no
contingency, whether by reason of demand or acceleration of the final maturity
of this Note or otherwise, shall the interest contracted for, charged, received,
paid or agreed to be paid to the Bank exceed the maximum amount permissible
under the applicable law. If from any circumstance whatsoever, interest would
otherwise be payable to the Bank in excess of the maximum amount permissible
under applicable law, the interest payable to the Bank shall be reduced to the
maximum amount permissible under applicable law; and if from any circumstance
the Bank shall ever receive anything of value deemed interest by applicable law
in excess of the maximum amount permissible under applicable law, an amount
equal to the excessive interest shall be applied to the reduction of the
principal hereof and not to the payment of interest, or if such excessive amount
of interest exceeds the unpaid balance of principal hereof, such excess shall be
refunded to Borrower. All interest paid or agreed to be paid to the Bank shall,
to the extent permitted by applicable law, be amortized, prorated, allocated,
and spread throughout the full period (including any renewal or extension) until
payment in full of the principal so that the interest hereon for such full
period shall not exceed the maximum amount permissible under applicable law. The
Bank expressly disavows any intent to contract for, charge or receive interest
in an amount which exceeds the maximum amount permissible under applicable law.
In determining the highest lawful rate, all fees and other charges contracted
for, charged or received by the Bank in connection with the Loan evidenced by
this Note which are either deemed interest by applicable law or required by
applicable law to be deducted from the principal balance of this Note to
determine the rate of interest hereon shall be taken into account. This
paragraph shall control all agreements between Borrower and the Bank.
This Notice is Provided Pursuant to Nebraska Revised Statutes 45-1,112 et. seq.
NOTICE - WRITTEN AGREEMENTS. 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;
EXECUTION PAGE FOLLOWS]
6
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR
ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
Executed as of the date first written above.
BORROWER:
Professional Veterinary Products, Ltd.,
a Nebraska corporation
By: /s/ Xx. Xxxxxx X. Xxxxxxx
-------------------------------------
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. Xxxxxxx
-------------------------------------
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. Xxxxxxx
-------------------------------------
Xx. Xxxxxx X. Xxxxxx, its President
[EXECUTION PAGE OF TERM PROMISSORY NOTE]
7
