SECOND AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT, made and entered into as of the 6th day of March, 1997, by and
between PM RESOURCES, INC., a Missouri corporation and ZEMA CORPORATION, a
Delaware corporation ("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 31, 1996, in the
principal amount of up to Six Million Nine Hundred Thousand Dollars
($6,900,000.00), payable to the order of Bank as therein set forth (the
"Note"); and
WHEREAS, the Note is described in an Amended and Restated
Revolving Credit Agreement dated July 14, 1995 made by and among Borrowers and
Bank, as amended by an Amendment to Amended and Restated Revolving Credit
Agreement dated as of May 31, 1996 made by and among Borrowers and Bank (as
amended, the "Loan Agreement"); and
WHEREAS, Borrowers 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:
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
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.
2. 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, Borrowers have applied for a joint and
several revolving credit loan from Bank in an aggregate principal
amount of up to Six Million Nine Hundred Thousand Dollars
($6,900,000.00) for a period of time up to and including March 31,
1998, as extended thereafter in Bank's discretion for subsequent one
year periods, One Million Six Hundred Thousand Dollars ($1,600,000.00)
of which shall be
subject to a Borrowing Base (as set forth herein) ("Facility A"), and
the remaining Five Million Three Hundred Thousand Dollars
($5,300,000.00) of which shall be a reducing revolving credit line from
Bank ("Facility B"); and
3. 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 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 3.9
herein.
4. Section 3.9 of the Loan Agreement shall be deleted
in its entirety and in its place shall be substituted the following:
3.9 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 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 3.9)
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.
5. Borrowers hereby represent and warrant to Bank that:
(a) The execution, delivery and performance by Borrowers of this Second
Amendment to Amended and Restated Revolving 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 Second Amendment to Amended and Restated Revolving 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 neither 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 either of the Borrowers is a party or by which either of them is bound
or to which either of them is subject;
(b) This Second Amendment to Amended and Restated Revolving 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.
6. 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 Amended and Restated
Revolving Credit Agreement.
7. This Second Amendment to Amended and Restated Revolving
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 its rights or obligations hereunder.
8. This Second Amendment to Amended and Restated Revolving
Credit Agreement shall be governed by and construed in accordance with the
internal laws of the State of Missouri.
9. In the event of any inconsistency or conflict between this
Second Amendment to Amended and Restated Revolving Credit Agreement and the
Loan Agreement, the terms, provisions and conditions of this Second Amendment
to Amended and Restated Revolving Credit Agreement shall govern and control.
10. 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.
11. 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 6th day of March, 1997.
PM RESOURCES, INC.
By:
Xxxxxx X. Xxxxxxxxx, Vice President
and Treasurer
ZEMA CORPORATION
By:
Xxxxxx X. Xxxxxxxxx, Secretary
FIRST BANK
By:
Xxxxxx X. Xxxx, Vice President
CONSENT TO SECOND AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT
The undersigned hereby consents to the terms of the foregoing
Second Amendment to Amended and Restated Revolving Credit Agreement and the
amended and restated Revolving Credit Note referenced therein, and
acknowledges that the execution and delivery by PM Resources, Inc. of said
Second Amendment and said Note will not affect or impair the undersigned's
obligations to and agreements with Bank under (i) that certain Guaranty dated
July 14, 1995 made by the undersigned in favor of Bank, (ii) that certain
Agreement of Pledge (Third Party) dated July 14, 1995 made by the undersigned
in favor of Bank, or (iii) that certain Subordination Agreement dated July 14,
1995 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 "Amended and
Restated Revolving Credit Agreement" and other references of similar import
shall henceforth mean the Amended and Restated Revolving Credit Agreement as
amended by the foregoing Second Amendment to Amended and Restated 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 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
EXHIBIT C
Revolving Credit Note
$6,900,000.00 St. Louis, Missouri
March 6, 1997
FOR VALUE RECEIVED, on March 31, 1998 (or such subsequent
anniversary thereof as determined pursuant to Section 3.9 of the Loan
Agreement (hereinafter identified)), the undersigned, PM RESOURCES, INC., a
Missouri corporation, and ZEMA CORPORATION, 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 Six Million Nine Hundred Thousand Dollars ($6,900,000.00), or
such lesser sum as may then be outstanding hereunder. The aggregate principal
amount which Bank shall be committed to have outstanding under Facility A
hereunder at any one time shall not exceed the lesser of (i) One Million Six
Hundred Thousand Dollars ($1,600,000.00), 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.
The aggregate principal amount which Bank shall be committed to have
outstanding under Facility B hereunder at any one time shall not exceed Five
Million Three Hundred Thousand Dollars ($5,300,000.00) as reduced from time to
time pursuant to Section 3.1(b) of the Loan Agreement hereinafter identified,
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 either
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 (a) 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, (b) if such disbursement
is a Treasury Rate Loan, such accrued interest shall also be payable on the
last day of the Interest Period with respect thereto, and (c) 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
Borrowers shall be admissible in evidence in any action or proceeding and
shall constitute prima facie proof of the items therein set forth.
This Note is the Note referred to in that certain Amended and
Restated Revolving Credit Agreement dated July 14, 1995 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 July 14, 1995 and executed by PM Resources, Inc. in favor of Bank and by
that certain Security Agreement dated as of July 14, 1995 executed by Zema
Corporation 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
(Third Party) dated July 14, 1995 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 either 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, either of the Security
Agreements, the Deed of Trust 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 either of the Security
Agreements, the Deed of Trust or the Pledge Agreement 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.
This Note shall be governed by and construed in accordance
with the internal laws of the State of Missouri.
PM RESOURCES, INC.
By:
Xxxxxx X. Xxxxxxxxx, Vice President
and Treasurer
ZEMA CORPORATION
By:
Xxxxxx X. Xxxxxxxxx, Secretary
