Exhibit 10.15
SIXTH AMENDMENT
TO CREDIT AGREEMENT,
CONSENTS AND
WAIVER
This SIXTH
AMENDMENT TO CREDIT AGREEMENT, CONSENT AND WAIVER, dated as of
April 20, 2005 (this “ Amendment ”) by and among
MWI VETERINARY SUPPLY CO. (the “ Borrower ”) and
MEMORIAL PET CARE, INC. (the “ Subsidiary Borrower
” and collectively with the Borrower, the “
Borrowers ”), the Lenders (as defined below) and BANK
OF AMERICA, N.A., as agent for the Lenders (in its capacity as
agent, the “ Agent ”), is made with reference to
that certain Credit Agreement, dated as of June 18, 2002, by
and among the Borrowers, the financial institutions from time to
time party thereto (the “ Lenders ”) and the
Agent, as amended by that certain First Amendment to Credit
Agreement, dated as of August 13, 2002, that certain Second
Amendment to Credit Agreement, dated as of December 19, 2003, that
certain Third Amendment to Credit Agreement, dated as of September
1, 2004, that certain Fourth Amendment to Credit Agreement, dated
as of September 29, 2004, and that certain Fifth Amendment to
Credit Agreement, dated as of March 28, 2005 (as so amended and as
otherwise modified prior to the date hereof, the “ Credit
Agreement ”). Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the
Credit Agreement.
RECITAL
WHEREAS, the
Borrower has informed the Agent and the Lenders that Holdings
proposes to consummate a Qualified Public Offering and desires to
use the net proceeds thereof to redeem all of the outstanding
Holdings Preferred Stock (as hereinafter defined), to pay all
accrued dividends on such Holdings Preferred Stock, and to pay a
fee in connection with the termination of the Management Agreement,
and to contribute the balance of the net proceeds of the Qualified
Public Offering to the Borrower which will use such contributed
proceeds to repay the Revolving Loans;
WHEREAS, pursuant
to the Holdings Guaranty, all net proceeds of the issuance of
equity by Holdings are required to be contributed to the Borrower
and Distributions with respect to Holdings’ Capital Stock are
prohibited;
WHEREAS, on the
terms and subject to the conditions set forth herein, the Lenders
are willing to permit the redemption of the Holdings Preferred
Stock, the payment of accrued dividends thereon and the payment of
a fee in connection with the termination of the Management
Agreement, in each case solely out of the net proceeds of the
Qualified Public Offering;
WHEREAS, pursuant
to Section 11.1 of the Credit Agreement, the Borrowers and the
Lenders desire to amend the Credit Agreement as set forth below in
connection with the proposed consummation of a Qualified Public
Offering;
NOW, THEREFORE, in
consideration of the premises and the agreements, provisions and
covenants herein contained, the parties hereto agree as
follows:
AGREEMENT
1.
Amendments.
To Annex A of
the Credit Agreement. (a) Annex A of the Credit
Agreement is hereby amended to delete the definitions of “
Adjusted Net Earnings from Operations, ” “
Change of Control, ” and “ Fixed Charges
” in their entirety and to replace them with the
following:
“Adjusted Net Earnings from
Operations ” means, with respect to any fiscal
period, the consolidated net income of Holdings and its
Subsidiaries after provision for income taxes for such fiscal
period, as determined in accordance with GAAP and reported on the
Financial Statements for such period, excluding any and all of the
following included in such net income: (a) gain or loss
arising from the sale of any capital assets; (b) non-cash gain or
non-cash loss arising from any write-up in the book value of any
asset; (c) earnings of any Person, substantially all the assets of
which have been acquired by the Borrower in any manner, to the
extent realized by such other Person prior to the date of
acquisition; (d) earnings of any Person (other than a wholly-owned
Subsidiary) in which the Borrower has an ownership interest unless
(and only to the extent) such earnings shall actually have been
received by the Borrower in the form of cash distributions; (e)
earnings of any Person to which assets of the Borrower or any of
its Subsidiaries shall have been sold, transferred or disposed of,
or into which the Borrower or any of its Subsidiaries shall have
been merged, or which has been a party with the Borrower or any of
its Subsidiaries to any consolidation or other form of
reorganization, prior to the date of such transaction; (f) non-cash
gain or non-cash loss arising from the acquisition of debt or
equity securities of Holdings or any of its Subsidiaries or from
cancellation or forgiveness of Debt; (g) non-cash gain or non-cash
loss arising from extraordinary items, as determined in accordance
with GAAP, or from any other non-recurring transaction;
(h) unamortized transaction costs incurred in connection with
the Recapitalization to the extent the same have been reimbursed by
ABC; and (i) to the extent paid out of the net proceeds of a
Qualified Public Offering, a fee paid to BRS and ABC concurrently
with the termination of the Management Agreement and in connection
with the consummation of a Qualified Public Offering.
“ Change of
Control ” means (a) prior to consummation of a Qualified
Public Offering, the Fund shall cease to have the power to elect
(whether by ownership of Capital Stock, contract or otherwise) a
majority of the Board of Directors of Holdings, or shall cease to
own and control all of the economic and voting rights associated
with ownership of at least a majority of the Capital Stock of
Holdings, on a fully diluted basis; (b) after consummation of a
Qualified Public Offering, (i) any Person or
“group” of Persons (within the meaning of the
Securities Exchange Act of 1934, as amended) (other than the Fund)
shall acquire or become the beneficial owner of shares representing
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