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
