EXHIBIT 4.10
VETERINARY CENTERS OF AMERICA, INC.
FIRST AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT
The FIRST AMENDMENT, dated as of October 23, 2000 (this "AMENDMENT"), to
the Credit and Guaranty Agreement, dated as of September 20, 2000 (as amended
through the date hereof, the "CREDIT AGREEMENT"), by and among VICAR OPERATING,
INC., a Delaware corporation ("COMPANY"), VETERINARY CENTERS OF AMERICA, INC., a
Delaware corporation ("HOLDINGS"), CERTAIN SUBSIDIARIES OF COMPANY, as
Guarantors, the Lenders party thereto from time to time, XXXXXXX XXXXX CREDIT
PARTNERS L.P. ("GSCP"), as Sole Lead Arranger (in such capacity, "LEAD
ARRANGER"), and as Sole Syndication Agent (in such capacity, "SYNDICATION
AGENT"), and XXXXX FARGO BANK, N.A. ("XXXXX FARGO"), as Administrative Agent
(together with its permitted successors in such capacity, "ADMINISTRATIVE
AGENT") and as Collateral Agent (together with its permitted successor capacity,
"ADMINISTRATIVE AGENT") and as Collateral Agent (together with its permitted
successor in such capacity, "COLLATERAL AGENT"). Capitalized terms used herein
not otherwise defined herein or otherwise amended hereby shall have the meanings
ascribed thereto in the Credit Agreement.
RECITALS:
WHEREAS, Company has requested that Holdings and the Lenders agree to
make amendments to certain definitions to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: DEFINITIONS.
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A. Section 1.1 of the Credit Agreement is hereby amended by
adding thereto the following definitions in proper alphabetical order:
"FIRST AMENDMENT" means the First Amendment dated October 23,
2000 to this Agreement by and among Company, Holdings, Lenders as of
the date of such amendment and the Agents.
"FIRST AMENDMENT CLOSING DATE" has the meaning assigned to that
term in the First Amendment.
B. Section 1.1 of the Credit Agreement is hereby amended by
deleting each of the definitions of "CONSOLIDATED CAPITAL EXPENDITURES" and
"REQUISITE LENDERS" in their entirety and substituting therefor the following:
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
aggregate of the expenditures of Company and its Subsidiaries during
such period determined on a consolidated basis that, in accordance
with GAAP, are or should be included in "purchase of property and
equipment" or similar items reflected in the consolidated statement of
cash flows of Company and its Subsidiaries excluding, (i) any
acquisition of assets that constitutes a Permitted Acquisition and
(ii) any expenditures made by Company pursuant to Sections 2.13(a) and
2.13(b) hereof; provided, however, that notwithstanding any of the
foregoing to the contrary, Consolidated Capital Expenditures shall
include expenditures of Company and its Subsidiaries with respect to
assets constituting a fee interest in real property acquired by
Company in connection with a Permitted Acquisition.
"REQUISITE LENDERS" means three or more Lenders having or
holding Tranche A Term Loan Exposure, Tranche B Term Loan Exposure
and/or Revolving Exposure and representing more than 50% of the sum of
(i) the aggregate Tranche A Term Loan Exposure of all lenders, (ii)
the aggregate Tranche B Term Loan Exposure of all Lenders and (iii)
the aggregate Revolving Exposure of all Lenders.
C. Section 1.1 of the Credit Agreement is hereby further
amended by adding the following paragraph at the conclusion of the
definition of "PERMITTED ACQUISITION":
"Notwithstanding any of the foregoing to the contrary, "Permitted
Acquisition" shall not include any acquisition of any assets
constituting a fee interest in real property to the extent such
acquisition of assets is included in the calculation of Consolidated
Capital Expenditures."
SECTION 2. CONDITIONS PRECEDENT TO EFFECTIVENESS
2.1 The effectiveness of the amendments set forth at Section 1
hereof are subject to the satisfaction, or waiver, of the following conditions
on or before the date hereof (the "FIRST AMENDMENT CLOSING DATE"):
(A) The Company, Holdings and the Lenders shall have indicated
their consent by the execution and delivery of the signature pages hereof to
the Agent.
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(b) As of the First Amendment Closing Date, the representations and
warranties contained herein and in the other Credit Documents shall be true,
correct and complete in all respects on and as of the First Amendment Closing
Date to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case such representations and warranties shall have been true,
correct and complete in all respects on and as of such earlier date.
(c) As of the First Amendment Closing Date, no event shall have
occurred and be continuing that would constitute an Event of Default or a
Default.
(d) The Administrative Agent and Lenders shall have received such
other documents and information regarding Credit Parties and the Amended
Agreement as the Arrangers or Lenders may reasonably request.
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1 In order to induce Lenders to enter into this Amendment, each
applicable Credit Party represents and warrants to each Lender, as of the date
hereof and upon giving effect to this Amendment, that the representations and
warranties contained in each of the Credit Documents is true, correct and
complete in all respects on and as of the date hereof to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true, correct and complete in
all respects on and as of such earlier date.
SECTION 4. MISCELLANEOUS
4.1 This Amendment shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the benefit of the
parties hereto and the successors and assigns of Lenders. No Credit Party's
rights or obligations hereunder or any interest therein may be assigned or
delegated by any Credit Party without the prior written consent of all Lenders.
4.2 In case any provision in or obligation hereunder shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
4.3 On and after the First Amendment Closing Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Credit Agreement, and each reference in
the other Credit Documents to the "Credit
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Agreement","Thereunder","thereof" or words of like import referring to the
Credit Agreement shall mean and be a reference to the Credit Agreement as
amended by this Amendment.
4.4 Except as specifically amended by this Amendment, the Credit
Agreement and other Credit Documents shall remain in full force and effect and
are hereby ratified and confirmed.
4.5 The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any provision
of, or operate as a waiver of any right, power or remedy of any Agent or Lender
under, the Credit Agreement or any of the other Credit Documents.
4.6 Section headings herein are included herein for convenience of
reference only and shall not constitute a par hereof for any other purpose or
be given any substantive effect.
4.7 THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4.8 This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same
instrument. As set forth herein, this Amendment shall become effective upon the
execution of a counterpart hereof by each of the parties hereto and receipt by
Company, Holdings and Administrative Agent and Syndication Agent of written or
telephonic notification of such execution and authorization of delivery thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY: VICAR OPERATING, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: VP
HOLDINGS: VETERINARY CENTERS OF AMERICA,
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: VP
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SOLE SYNDICATION AGENT,
SOLE LEAD ARRANGER,
AND A LENDER: GOLDMANSACHS CREDIT PARTNERS L.P.,
By: /s/ X X XXXXXX
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Authorized Signatory
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ADMINISTRATIVE AGENT,
COLLATERAL AGENT
AND A LENDER: XXXXX FARGO BANK, N.A.
/S/ S. XXXXXXX ST. GEME
By --------------------------
Name: S. XXXXXXX ST. GEME
Title: VICE PRESIDENT
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LENDERS NATEXIS BANQUES POPULAIRES
(f/k/a/ Natexis Banque) New York Branch
/s/ Xxxx Xxxxx
By:---------------------------
Name: XXXX XXXXX
Title: Vice President
/s/ XXXXXX XXXXXX
XXXXXX XXXXXX
ASSISTANT VICE PRESIDENT
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SIERRA CLO I, LTD
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Senior Managing Director
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THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/ B. Xxxx Xxxxx
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Name: B. Xxxx Xxxxx
Title: Vice President
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OFFICER'S CERTIFICATE
This OFFICERS CERTIFICATE is delivered pursuant to Section 2 of that
certain First Amendment to Credit and Guaranty Agreement dated as of October
23, 2000 (the "Amendment") which amends that certain Credit and Guaranty
Agreement dated as of September 20, 2002 (as amended, the Credit Agreement",
capitalized terms used herein without definition having the meanings given such
terms in the Credit Agreement). The undersigned hereby certifies that
1. As of the First Amendment Closing Date, the representations and
warranties contained contained therein and in the other Credit Documents are
true, correct and complete in all respects on and as of the First Amendment
Closing Date to the same extent as though made on and as of that date, except
to the extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties are true,
correct and complete in all res[respects on and as of such earlier date.
2. As of the First Amendment Closing Date, no event has occurred and
is continuing that would constitute an Event of Default or a Default.
IN WITNESS WHEREOF, the undersigned has executed this Secretary's
Certificate as of the 6 day of December, 2000.
VETERINARY CENTERS OF AMERICA, INC.
/s/ XXXXXX X. XXXXX
BY:---------------------
Xxxxxx X. Xxxxx
President
