VCA ANTECH, INC.
EIGHTH AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT
This EIGHTH AMENDMENT, dated as of August 19, 2003 (this "EIGHTH
AMENDMENT") is entered into by and among VICAR OPERATING, INC., a Delaware
corporation ("COMPANY"), VCA ANTECH, INC. a Delaware corporation (formerly known
as Veterinary Centers of America, Inc., "HOLDINGS"), CERTAIN SUBSIDIARIES OF
COMPANY, as Guarantors (the "GUARANTORS"), the Lenders party hereto, ▇▇▇▇▇▇▇
▇▇▇▇▇ CREDIT PARTNERS L.P. ("GSCP"), as Co-Lead Arranger and as Sole Syndication
Agent (in such capacity, "SYNDICATION AGENT"), and ▇▇▇▇▇ FARGO BANK, N.A.
("▇▇▇▇▇ FARGO"), as Co-Lead Arranger, Administrative Agent (together with its
permitted successors in such capacity, "ADMINISTRATIVE AGENT") and as Collateral
Agent (together with its permitted successor in such capacity, "COLLATERAL
AGENT"), and is made with respect to that certain Credit and Guaranty Agreement,
dated as of September 20, 2000 (as amended through the date hereof, the "CREDIT
AGREEMENT"), by and among Company, Holdings, the Guarantors, the Lenders party
thereto from time to time, GSCP, as Sole Lead Arranger and as Sole Syndication
Agent, and ▇▇▇▇▇ Fargo, as Administrative Agent and as 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 desires to borrow from certain Lenders a new Tranche D
Term Loan, the proceeds of which shall be used to prepay the Tranche C Term
Loans to the full extent thereof;
WHEREAS, Holdings and Company have requested that Requisite Lenders agree
to make certain amendments to the Credit Agreement to permit, among other
things, the issuance of the Tranche D Term Loans.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION I. AMENDMENTS TO CREDIT AGREEMENT
A. AMENDMENTS TO SECTION 1: DEFINITIONS.
(a) Section 1.1 of the Credit Agreement is hereby amended by adding
thereto the following definitions in proper alphabetical order:
"CONTINUING DIRECTORS" means, as of any date of determination, any member
of the Board of Directors of Company who (i) was a member of such Board of
Directors immediately after the consummation of the Merger or (ii) was nominated
for
election or elected to such Board of Directors with the approval, recommendation
or endorsement of a majority of the Continuing Directors who were members of
such Board of Directors at the time of such nomination or election.
"EIGHTH AMENDMENT" means that certain Eighth Amendment to Credit and
Guaranty Agreement dated as of August 19, 2003 by and among the Company,
Holdings, the Guarantors and the Lenders and Agents party thereto.
"EIGHTH AMENDMENT DATE CERTIFICATE" shall be that certain Eighth Amendment
Date Certificate in the form of Exhibit G-4.
"EIGHTH AMENDMENT EFFECTIVE DATE" means the date of satisfaction of all of
the conditions set fort in Section II of the Eighth Amendment.
"TRANCHE D TERM LOAN" means a Tranche D Term Loan made by a Lender to
Company pursuant to Section 2.1(a)(iv).
"TRANCHE D TERM LOAN COMMITMENT" means the commitment of a Lender to make
or otherwise fund a Tranche D Term Loan and "TRANCHE D TERM LOAN COMMITMENTS"
means such commitments of all Lenders in the aggregate. The amount of each
Lender's Tranche D Term Loan Commitment, if any, is set forth on Appendix A-5 or
in the applicable Assignment Agreement, subject to any adjustment or reduction
pursuant to the terms and conditions hereof. The aggregate amount of the Tranche
D Term Loan Commitments as of the Eighth Amendment Effective Date is
$146,442,427.
"TRANCHE D TERM LOAN EXPOSURE" means, with respect to any Lender, as of any
date of determination, the outstanding principal amount of the Tranche D Term
Loans of such Lender; PROVIDED, at any time prior to the making of the Tranche D
Term Loans, the Tranche D Term Loan Exposure of any Lender shall be equal to
such Lender's Tranche D Term Loan Commitment.
"TRANCHE D TERM LOAN MATURITY DATE" means the earlier of (i) September 30,
2008, and (ii) the date that all Tranche D Term Loans shall become due and
payable in full hereunder, whether by acceleration or otherwise.
"TRANCHE D TERM LOAN NOTE" means a promissory note in the form of Exhibit
B-7, as it may be amended, supplemented or otherwise modified from time to time.
(b) Section 1.1 of the Credit Agreement is hereby further amended by
deleting the definitions of "CHANGE OF CONTROL", "CLASS", "LOAN",
"NOTE", "PRO RATA SHARE", "REQUISITE CLASS LENDERS", "REQUISITE
LENDERS", "TERM LOAN", "TERM LOAN COMMITMENT", and "TERM LOAN MATURITY
DATE" in their entirety and substituting therefor the following:
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"CHANGE OF CONTROL" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or more related transactions, of all or
substantially all of the properties or assets of Holdings and its Subsidiaries
taken as a whole, or of Company and it Subsidiaries taken as a whole, to any
Person or "person" (as such term is used in Section 13(d)(3) of the Exchange
Act), other than the Sponsor, Co-Investors and Management Investors; (ii) the
adoption of a plan relating to the liquidation or dissolution of Holdings or
Company; (iii) the consummation of any transaction (including without
limitation, any merger or consolidation), as a result of which (y) Holdings
ceases to own directly 100% of the Capital Stock of Company or (z) any Person or
"group" (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act),
other than the Sponsor, Co-Investor and Management Investors, shall have
acquired, directly or indirectly, beneficial ownership of 35% or more on a fully
diluted basis of the aggregate voting interest attributable to all outstanding
Capital Stock of Holdings or (iv) the first day on which a majority of the
members of the Board of Directors of Holdings are not Continuing Directors.
"CLASS" means (i) with respect to Lenders, each of the following classes of
Lenders: (a) Lenders having Tranche D Term Loan Exposure, and (b) Lenders having
Revolving Exposure (including Swing Line Lender), and (ii) with respect to
Loans, each of the following classes of Loans: (a) Tranche D Term Loans, and (b)
Revolving Loans (including Swing Line Loans).
"LOAN" means a Tranche D Term Loan, a Revolving Loan or a Swing Line Loan.
"NOTE" means a Tranche D Term Note, a Revolving Note or a Swing Line Note.
"PRO RATA SHARE" means (i) with respect to all payments, computations and
other matters relating to the Tranche D Term Loan of any Lender, the percentage
obtained by dividing (a) the Tranche D Term Loan Exposure of that Lender by (b)
the aggregate Tranche D Term Loan Exposure of all Lenders; and (ii) with respect
to all payments, computations and other matters relating to the Revolving
Commitment or Revolving Loans of any Lender or participations purchased therein
by any Lender or any participations in any Swing Line Loans purchased by any
Lender, the percentage obtained by dividing (a) the Revolving Exposure of that
Lender by (b) the aggregate Revolving Exposure of all Lenders. For all other
purposes with respect to each Lender, "Pro Rata Share" means the percentage
obtained by dividing (A) an amount equal to the sum of the Tranche D Term Loan
Exposure, and the Revolving Exposure of that Lender, by (B) an amount equal to
the sum of the aggregate Tranche D Term Loan Exposure, and the aggregate
Revolving Exposure of all Lenders.
"REQUISITE CLASS LENDERS" means, as at any date of determination, (i) for
the Class of Lenders having Tranche D Term Loan Exposure, Lenders holding more
than 50% of the aggregate Tranche D Term Loan Exposure of all Lenders; and (ii)
for the Class of Lenders having Revolving Exposure, Lenders having or holding
more than 50% of the aggregate Revolving Exposure of all Lenders.
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"REQUISITE LENDERS" means three or more Lenders having or holding Tranche D
Term Loan Exposure and/or Revolving Exposure and representing more than 50% of
the sum of (i) the aggregate Tranche D Term Loan Exposure of all Lenders and
(ii) the aggregate Revolving Exposure of all Lenders.
"TERM LOAN" means a Tranche D Term Loan.
"TERM LOAN COMMITMENT" means the Tranche D Term Loan Commitment of a
Lender, and "TERM LOAN COMMITMENTS" means such commitments of all Lenders in the
aggregate.
"TERM LOAN MATURITY DATE" means the Tranche D Term Loan Maturity Date.
(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" in order to correct an inadvertent deletion
from a prior amendment to the Credit Agreement:
"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."
B. AMENDMENTS TO SECTION 2.
(a) Section 2.1(a) of the Credit Agreement is hereby amended by adding a
new paragraph (iv) at the conclusion thereof as follows:
"(iv) Subject to the terms and conditions hereof, each Lender
severally agrees to make, on the Eighth Amendment Effective Date,
a Tranche D Term Loan to Company in an amount equal to such
Lender's Tranche D Term Loan Commitment. Company may make only
one borrowing under the Tranche D Term Loan Commitment which
shall be on the Eighth Amendment Effective Date. Any amount
borrowed under this Section 2.1(a)(iv) and subsequently repaid or
prepaid may not be reborrowed. Subject to Sections 2.12(a) and
2.13, all amounts owed hereunder with respect to the Tranche D
Term Loans shall be paid in full no later than the Tranche D Term
Loan Maturity Date. Each Lender's Tranche D Term Loan Commitment
shall terminate immediately and without further action on the
Eighth Amendment Effective Date after giving effect to the
funding of such Lender's Tranche D Term Loan Commitment on such
date."
(b) Section 2.1(b) of the Credit Agreement is hereby amended by adding new
paragraphs (v) and (vi) at the conclusion thereof as follows:
"(v) BORROWING MECHANICS FOR TRANCHE D TERM LOANS. Company shall
deliver to Administrative Agent a fully executed and delivered
Eighth Amendment Date
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Certificate (which shall be deemed to be a Funding Notice with
respect to the Tranche D Term Loans for all purposes hereof) no
later than three Business Days prior to the Eighth Amendment
Effective Date. Promptly upon receipt by Administrative Agent of
such certificate, Administrative Agent shall notify each Lender
of the proposed borrowing.
(vi) Each Lender shall make its Tranche D Term Loan available to
Administrative Agent not later than 12:00 p.m. (New York City
time) on the Eighth Amendment Effective Date, by wire transfer of
same day funds in Dollars, at Administrative Agent's Principal
Office. Upon satisfaction or waiver of the conditions precedent
specified herein, Administrative Agent shall make the proceeds of
the Tranche D Term Loans available to Company on the Eighth
Amendment Effective Date by causing an amount of same day funds
in Dollars equal to the proceeds of all such Loans received by
Administrative Agent from Lenders to be credited to the account
of Company at Administrative Agent's Principal Office or to such
other account as may be designated in writing to Administrative
Agent by Company."
(c) Section 2.1(d) of the Credit Agreement is hereby amended by deleting
such section in its entirety and replacing it with the following:
"(d) [RESERVED]"
(d) Section 2.5 of the Credit Agreement is hereby amended by deleting
Section 2.5 in its entirety and replacing it with the following:
"2.5 USE OF PROCEEDS. The proceeds of the Tranche D Term Loans shall
be applied by Company to prepay all outstanding Tranche C Term Loans
on the Eighth Amendment Effective Date. The proceeds of the Revolving
Loans and Swing Line Loans shall be applied by Company for working
capital and general corporate purposes of Company and its
Subsidiaries, including Permitted Acquisitions. No portion of the
proceeds of any Credit Extension shall be used in any manner that
cause or might cause such Credit Extension or the application of such
proceeds to violate Regulation T, Regulation U or Regulation X of the
Board of Governors of the Federal Reserve System or any other
regulation thereof or to violate the Exchange Act."
(e) Section 2.6(c) of the Credit Agreement is hereby amended by deleting
the last sentence thereof in its entirety and replacing it with the
following:
"If so requested by any Lender by written notice to Company (with a copy to
Administrative Agent) at least two Business Days prior to the Eighth Amendment
Effective Date, or at any time thereafter, Company shall execute and deliver to
such Lender (and/or, if applicable and if so specified in such notice, to any
Person who is an assignee of such Lender pursuant to Section 10.6) on the Eighth
Amendment Effective Date (or, if such notice is delivered after the Eighth
Amendment Effective Date, promptly after Company's receipt of such notice) a
Note or Notes to evidence such Lender's Tranche D Term Loan."
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(f) Section 2.7(a) of the Credit Agreement is hereby amended by adding a
new paragraph (v) at the conclusion thereof as follows:
"(v) in the case of Tranche D Term Loans:
(1) if a Base Rate Loan, at the Base Rate, PLUS, 1.50% per
annum; or
(2) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate,
PLUS, 2.50% per annum
(g) Section 2.11 of the Credit Agreement is hereby amended by
deleting such section in its entirety and replacing it with the
following:
"
FISCAL QUARTER ENDING TRANCHE D TERM LOAN INSTALLMENTS
------------------------------- ----------------------------------
September 30, 2003 $369,805
December 31, 2003 $369,805
March 31, 2004 $369,805
June 30, 2004 $369,805
September 30, 2004 $369,805
December 31, 2004 $369,805
March 31, 2005 $369,805
June 30, 2005 $369,805
September 30, 2005 $369,805
December 31, 2005 $369,805
March 31, 2006 $369,805
June 30, 2006 $369,805
September 30, 2006 $369,805
December 31, 2006 $17,704,372
March 31, 2007 $17,704,372
June 30, 2007 $17,704,372
September 30, 2007 $17,704,372
December 31, 2007 $17,704,372
March 31, 2008 $17,704,372
June 30, 2008 $17,704,372
September 30, 2008 $17,704,358
Notwithstanding the foregoing, (x) such Installments shall be reduced in
connection with any voluntary or mandatory prepayments of the Tranche D
Term Loans, in accordance with Sections 2.12, 2.13 and 2.14 as applicable;
and (y) the Tranche D Term Loans, together with all other amounts owed
hereunder with respect thereto, shall, in any event, be paid in full no
later than the Tranche D Term Loan Maturity Date."
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(h) Section 2.13 of the Credit Agreement is hereby amended by deleting the
last sentence of subsection (d) in its entirety and replacing it with
the following:
"Notwithstanding any of the foregoing to the contrary, on the date of
receipt by Company of the proceeds of the Tranche D Term Loans, Company shall
prepay in full the outstanding Tranche C Term Loans in an amount equal to the
net proceeds of the Tranche D Term Loans."
(i) Section 2.13 of the Credit Agreement is hereby amended by deleting
subsection (h) thereof in its entirety and replacing it with the
following:
"(h) Notwithstanding the foregoing, upon receipt of the Tranche D Term
Loans Company shall, without further notice, prepay in full all
outstanding Tranche C Term Loans."
(j) Section 2.14(a) of the Credit Agreement is hereby amended by deleting
such section and replacing it with the following:
"(a) APPLICATION OF VOLUNTARY PREPAYMENTS BY TYPE OF LOANS. Any
prepayment of any Loan pursuant to Section 2.12(a) shall be
applied as specified by Company in the applicable notice of
prepayment; PROVIDED, in the event Company fails to specify the
Loans to which any such prepayment shall be applied, such
prepayment shall be applied as follows:
FIRST, to repay outstanding Swing Line Loans to the full extent
thereof;
SECOND, to repay outstanding Revolving Loans to the full extent
thereof; and
THIRD, to repay the Tranche D Term Loans on a pro rata basis (in
accordance with the outstanding principal amounts) and shall be
further applied on a pro rata basis to each scheduled Installment
of principal of the Tranche D Term Loans.
Any prepayment of Tranche D Term Loan pursuant to Section 2.12(a)
shall be further applied on an pro rata basis to reduce the scheduled
remaining installments of principal on Tranche D Term Loans."
(k) Section 2.14(b) of the Credit Agreement is hereby amended by deleting
such section and replacing it with the following:
"(b) APPLICATION OF MANDATORY PREPAYMENTS BY TYPE OF LOANS. Any amount
required to be paid pursuant to Sections 2.13(a) through 2.13(e)
shall be applied as follows:
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FIRST, to prepay Tranche D Term Loans on a pro rata basis (in
accordance with the outstanding principal amounts) and shall be
further applied on a pro rata basis to each scheduled Installment
of principal of the Tranche D Term Loans;
SECOND, to prepay the Swing Line Loans to the full extent thereof
and to permanently reduce the Revolving Commitments by the amount
of such prepayment;
THIRD, to prepay the Revolving Loans to the full extent thereof
and to further permanently reduce the Revolving Commitments by
the amount of such prepayment; and
FOURTH, to further permanently reduce the Revolving Commitments
to the full extent thereof."
C. AMENDMENTS TO SECTION 6.
(a) Section 6.1 of the Credit Agreement is hereby amended by deleting
subsection (s) and replacing it with the following:
"(s) other unsecured indebtedness of Holdings and its Subsidiaries
(other than with respect to Permitted Seller Notes), in an aggregate
amount not to exceed at any time $10,000,000; and"
(b) Section 6.2 of the Credit Agreement is hereby amended by (i) deleting
the word "and" at the conclusion of Section 6.2(m); (ii) deleting "." at
the conclusion of Section 6.2(n) and replacing it with ";" and (iii) adding
a new paragraph (o) at the conclusion thereof as follows:
"(o) Liens on assets acquired pursuant to a Permitted Acquisition, so
long as the fair market value of any assets subject to such Liens at
any time does not exceed in the aggregate $2,000,000."
(c) Section 6.9(h) of the Credit Agreement is hereby amended by deleting
such section in its entirety and replacing it with the following:
"(h) Permitted Acquisitions, the consideration for which constitutes
$40,000,000 or less in the aggregate in any Fiscal Year; PROVIDED,
that $5,000,000 of any unutilized amount for any Fiscal Year may be
utilized in the next immediately succeeding Fiscal Year (but not in
any Fiscal Years thereafter); PROVIDED, FURTHER, HOWEVER, that with
respect to any acquisition the consideration of which is greater than
$12,500,000, Company shall not make such acquisition without the prior
consent of Administrative Agent and Syndication Agent, such consent
not to be unreasonably withheld. In addition, with respect to
Permitted Acquisitions of any additional portion or all of the Capital
Stock in any of the Permitted Partially-Owned Subsidiaries the
8
consideration shall not exceed $2,500,000 in the aggregate in any
Fiscal Year; PROVIDED, that all Permitted Acquisitions of any
additional portion or all of the Capital Stock in any of the Permitted
Partially-Owned Subsidiaries shall reduce the $40,000,000 amount set
forth above on a dollar for dollar basis;"
D. AMENDMENTS TO SECTION 10.
(a) Section 10.6(c)(ii) of the Credit Agreement is hereby amended by
deleting the proviso beginning with "provided, further" at the
conclusion thereof in its entirety and replacing it with the
following:
"; PROVIDED, FURTHER, each such assignment pursuant to this Section
10.6(c)(ii) shall be in an aggregate amount of not less than
$1,000,000 (or such lesser amount as may be agreed to by Company and
Administrative Agent or as shall constitute the aggregate amount of
the Tranche D Term Loans of the assigning Lender) with respect to the
assignment of the Tranche D Term Loans."
(b) Section 10.18 of the Credit Agreement is hereby amended by adding the
following paragraph at the conclusion thereof as follows:
"Notwithstanding anything to the contrary set forth herein, each party (and
each of their respective employees, representatives or other agents) may
disclose to any and all persons, without limitations of any kind, the tax
treatment and tax structure of the transactions contemplated by this Agreement
and all materials of any kind (including opinions and other tax analyses) that
are provided to any such party relating to such tax treatment and tax structure.
However, any information relating to the tax treatment or tax structure shall
remain subject to the confidentiality provisions hereof (and the foregoing
sentence shall not apply) to the extent reasonably necessary to enable the
parties hereto, their respective Affiliates, and their and their respective
Affiliates' directors and employees to comply with applicable securities laws.
For this purpose, "tax structure" means any facts relevant to the federal income
tax treatment of the transactions contemplated by this Agreement but does not
include information relating to the identity of any of the parties hereto or any
of their respective Affiliates."
E. AMENDMENTS TO ANNEXES AND EXHIBITS. The Credit Agreement is hereby
amended by adding thereto Appendix ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and Exhibit G-4 in the form
of ANNEX A, ANNEX B and ANNEX C, respectively.
SECTION II. CONDITIONS PRECEDENT TO EFFECTIVENESS
The effectiveness of the amendments set forth at Section I hereof is
subject to the satisfaction, or waiver, of the following conditions on or before
the date hereof (the "EIGHTH AMENDMENT EFFECTIVE DATE"):
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(a) Company, Holdings, Requisite Lenders and the Tranche D Term Loan
Lenders shall have indicated their consent by the execution and delivery of the
signature pages hereof to the Administrative Agent.
(b) Company shall have delivered to Administrative Agent a fully executed
and delivered Eighth Amendment Date Certificate (which shall be deemed to be a
Funding Notice with respect to the Tranche D Term Loans for all purposes
hereof).
(c) Company shall have paid all fees and other amounts due and payable on
or prior to the Eighth Amendment Effective Date, including, to the extent
invoiced, reimbursement or other payment of all out-of-pocket expenses required
to be reimbursed or paid by the Company hereunder or under any other Credit
Document.
(d) Administrative Agent and the Lenders shall have received originally
executed copies of the favorable written opinion of Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇, LLP, special counsel for the Credit Parties, as to such matters as
Administrative Agent may reasonably request, dated the Eighth Amendment
Effective Date and otherwise in form and substance reasonably satisfactory to
Administrative Agent.
(e) On or before the Eighth Amendment Effective Date the Company shall have
made a voluntary payment of the Tranche C Term Loans in an amount of not less
than $20,000,000, such voluntary prepayment to be applied on a pro rata basis to
the remaining scheduled Installments of principal of the Tranche C Term Loans.
(f) Administrative Agent and Lenders shall have received such other
documents and information regarding Credit Parties and the Credit Agreement as
Administrative Agents or Lenders may reasonably request.
Upon the effectiveness of this Eighth Amendment pursuant to the conditions
set forth in this Section II, all outstanding amounts under the Tranche C Term
Loans shall be paid and satisfied in full and if the Company so requests, each
Lender who has previously received a Tranche C Term Loan Note shall deliver such
Note to the Company for cancellation.
SECTION III. REPRESENTATIONS AND WARRANTIES
A. CORPORATE POWER AND AUTHORITY. Each Credit Party has all requisite
corporate power and authority to enter into this Eighth Amendment and to carry
out the transactions contemplated by, and perform its obligations under the
Credit Agreement and the other Credit Documents.
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this Eighth
Amendment and the performance of the Credit Agreement and the other Credit
Documents have been duly authorized by all necessary corporate or partnership
(as applicable) action on the part of each Credit Party.
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C. NO CONFLICT. The execution and delivery by each Credit Party of this
Eighth Amendment and the performance by each Credit Party of the Credit
Agreement and the other Credit Documents do not (i) violate (A) any provision of
any law, statute, rule or regulation, or of the certificate or articles of
incorporation or partnership agreement, other constitutive documents or by-laws
of each Credit Party or any of its Subsidiaries except to the extent such
violation could not reasonably be expected to have a Material Adverse Effect,
(B) any applicable order of any court or any rule, regulation or order of any
Governmental Authority except to the extent such violation could not reasonably
be expected to have a Material Adverse Effect or (C) any provision of any
indenture, certificate of designation for preferred stock, agreement or other
instrument to which each Credit Party or any of its Subsidiaries is a party or
by which any of them or any of their property is or may be bound except to the
extent such violation could not reasonably be expected to have a Material
Adverse Effect, (ii) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a default under any such
indenture, certificate of designation for preferred stock, agreement or other
instrument, where any such conflict, violation, breach or default referred to in
clause (i) or (ii) of this Section III.C., individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect, (iii) result in
or require the creation or imposition of any Lien upon any of the properties or
assets of each Credit Party (other than any Liens created under any of the
Credit Documents in favor of Collateral Agent on behalf of Lenders), or (iv)
require any approval of stockholders or partners or any approval or consent of
any Person under any contractual obligation of each Credit Party, except for
such approvals or consents which will be obtained on or before the Eighth
Amendment Effective Date.
D. GOVERNMENTAL CONSENTS. No action, consent or approval of, registration
or filing with or any other action by any Governmental Authority is required in
connection with the execution and delivery by each Credit Party of this Eighth
Amendment and the performance by each Credit Party of the Credit Agreement and
the other Credit Documents, except for such actions, consents and approvals the
failure to obtain or make which could not reasonably be expected to result in a
Material Adverse Effect or which have been obtained and are in full force and
effect.
E. BINDING OBLIGATION. This Eighth Amendment and the Credit Agreement have
been duly executed and delivered by each Credit Party and each constitutes a
legal, valid and binding obligation of each Credit Party enforceable against
each Credit Party in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization or other similar
laws affecting creditors' rights generally and except as enforceability may be
limited by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT AGREEMENT.
The representations and warranties contained in Section 4 of the Credit
Agreement are and will be true, correct and complete in all material respects on
and as of the Eighth Amendment Effective 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 they were true, correct
and complete in all material respects on and as of such earlier date.
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G. ABSENCE OF DEFAULT. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Eighth
Amendment that would constitute an Event of Default or a Default.
SECTION IV. ACKNOWLEDGMENT AND CONSENT
Each of Holdings and each Domestic Subsidiary of Holdings (other than
Company and certain Permitted Partially-Owned Subsidiaries) has (i) guaranteed
the Obligations and (ii) created Liens in favor of Lenders on certain Collateral
to secure its obligations under the Credit Agreement and the Collateral
Documents subject to the terms and provisions of the Credit Agreement. Each of
Holdings and each Domestic Subsidiary of Holdings who has guaranteed the
Obligations together with the Company are collectively referred to herein as the
"CREDIT SUPPORT PARTIES", and the Credit Agreement and the Collateral Documents
are collectively referred to herein as the "CREDIT SUPPORT DOCUMENTS".
Each Credit Support Party hereby acknowledges that it has reviewed the
terms and provisions of the Credit Agreement and this Eighth Amendment and
consents to the amendment of the Credit Agreement effected pursuant to this
Eighth Amendment. Each Credit Support Party hereby confirms that each Credit
Support Document to which it is a party or otherwise bound and all Collateral
encumbered thereby will continue to guarantee or secure, as the case may be, to
the fullest extent possible in accordance with the Credit Support Documents the
payment and performance of all "Obligations" under each of the Credit Support
Documents, as the case may be (in each case as such terms are defined in the
applicable Credit Support Document), including without limitation the payment
and performance of all such "Obligations" under each of the Credit Support
Documents, as the case may be, in respect of the Obligations of the Company now
or hereafter existing under or in respect of the Credit Agreement and hereby
pledges and assigns to the Collateral Agent, and grants to the Collateral Agent
a continuing lien on and security interest in and to all Collateral as
collateral security for the prompt payment and performance in full when due of
the "Obligations" under each of the Credit Support Documents to which it is a
party (whether at stated maturity, by acceleration or otherwise).
Each Credit Support Party acknowledges and agrees that any of the Credit
Support Documents to which it is a party or otherwise bound shall continue in
full force and effect and that all of its obligations thereunder shall be valid
and enforceable and shall not be impaired or limited by the execution or
effectiveness of this Eighth Amendment. Each Credit Support Party represents and
warrants that all representations and warranties contained in the Credit
Agreement, this Eighth Amendment and the Credit Support Documents to which it is
a party or otherwise bound are true, correct and complete in all material
respects on and as of the Eighth Amendment Effective 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 they were
true, correct and complete in all material respects on and as of such earlier
date.
Each Credit Support Party acknowledges and agrees that (i) notwithstanding
the conditions to effectiveness set forth in this Eighth Amendment, such Credit
Support Party is not required by the terms of the Credit Agreement or any other
Credit Document to consent to the
12
amendments to the Credit Agreement effected pursuant to this Eighth Amendment
and (ii) nothing in the Credit Agreement, this Eighth Amendment or any other
Credit Document shall be deemed to require the consent of such Credit Support
Party to any future amendments to the Credit Agreement.
SECTION V. MISCELLANEOUS
A. BINDING EFFECT. This Eighth 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.
B. SEVERABILITY. 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.
C. REFERENCE TO CREDIT AGREEMENT. On and after the Eighth Amendment
Effective 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
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 Eighth Amendment.
D. EFFECT ON CREDIT AGREEMENT. Except as specifically amended by this
Eighth Amendment, the Credit Agreement and the other Credit Documents shall
remain in full force and effect and are hereby ratified and confirmed.
E. EXECUTION. The execution, delivery and performance of this Eighth
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.
F. HEADINGS. Section headings herein are included herein for convenience of
reference only and shall not constitute a part hereof for any other purpose or
be given any substantive effect.
G. APPLICABLE LAW. THIS EIGHTH 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.
H. COUNTERPARTS. This Eighth 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,
13
this Eighth 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.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
BY:------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer and President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BY:------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer and
Assistant Secretary
HOLDINGS: VCA ANTECH, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
BY:------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer and President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BY:------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer and
Assistant Secretary
GUARANTORS: AAH MERGER CORPORATION
ACADEMY ANIMAL, INC.
▇▇▇▇▇▇▇▇ ANIMAL HOSPITAL, INC.
ANIMAL CENTER, INC.
ANIMAL CLINIC OF SANTA ▇▇▇▇, INC.
APEX VETERINARY HOSPITAL, INC.
ASSOCIATES IN PETCARE, S.C.
BERWIN VETERINARIAN HOSPITAL, INC.
▇▇▇▇▇ ANIMAL HOSPITAL, INC.
S-1
CACOOSING ANIMAL HOSPITAL, LTD.
CACOOSING PET CARE & NUTRITION CENTER, INC.
CLARMAR ANIMAL HOSPITAL, INC.
CORNERSTONE VETERINARY HOSPITAL, INC.
C.V.T., INC.
▇▇▇▇▇▇▇▇ VETERINARY CLINIC, INC.
DIAGNOSTIC VETERINARY SERVICE, INC.
EAGLE PARK ANIMAL CLINIC, INC.
EAGLE RIVER VETERINARY HOSPITAL, INC.
EDGEBROOK, INC.
FLORIDA VETERINARY LABORATORIES, INC.
FOX CHAPEL ANIMAL HOSPITAL, INC.
FREEHOLD VETERINARY HOSPITAL, P.A.
▇▇▇▇ ANIMAL HOSPITAL, INC.
GOLDEN MERGER CORPORATION
H.B. ANIMAL CLINICS, INC.
INDIANA VETERINARY DIAGNOSTIC LAB, INC.
KIRKWOOD ANIMAL HOSPITAL
- LEA M.E. ▇▇▇▇▇, VMD., P.A.
KIRKWOOD ANIMAL HOSPITAL
BOARDING & GROOMING, INC.
LAKE ▇▇▇▇▇▇▇ VETERINARY CLINIC, INC.
LAKEWOOD ANIMAL HOSPITAL, INC.
▇▇▇▇▇▇▇ VETERINARY HOSPITAL, INC.
▇▇▇▇▇▇▇▇▇ VETERINARY CLINIC, INC.
MAIN STREET SMALL ANIMAL HOSPITAL, INC.
▇▇▇▇▇▇ ANIMAL HOSPITAL
M.S. ANIMAL HOSPITALS, INC.
NEWARK ANIMAL HOSPITAL, INC.
NORTH COAST VETERINARY MEDICAL GROUP
NORTH ROCKVILLE VETERINARY HOSPITAL, INC.
NORTHERN ANIMAL HOSPITAL, INC.
NORTHSIDE ANIMAL HOSPITAL, P.C.
▇▇▇▇▇ ANIMAL HOSPITAL, INC.
OCEAN BEACH VETERINARY HOSPITAL, INC.
S-2
OLD TOWN VETERINARY HOSPITAL, INC.
PETS' RX, INC.
PETS' RX NEVADA, INC.
PPI OF PENNSYLVANIA, INC.
PRESTON PARK ANIMAL HOSPITAL, P.C.
PRINCETON ANIMAL HOSPITAL, INC.
PROFESSIONAL VETERINARY SERVICES, INC.
RIVIERA ANIMAL HOSPITAL, INC.
ROSSMOOR - EL DORADO ANIMAL HOSPITAL, INC.
SILVER SPUR ANIMAL HOSPITAL, INC.
SOUTH COUNTY VETERINARY CLINIC, INC.
SOUTHEAST AREA VETERINARY MEDICAL CENTER, P.C.
SPANISH RIVER ANIMAL HOSPITAL, INC.
TAMPA ANIMAL MEDICAL CENTER, INC.
TANGLEWOOD PET HOSPITAL, INC.
TEMPE VETS, A PROFESSIONAL CORP
THE PET PRACTICE (FLORIDA), INC.
THE PET PRACTICE (ILLINOIS), INC.
THE PET PRACTICE (MASSACHUSETTS), INC.
THE PET PRACTICE OF MICHIGAN, INC.
TOMS RIVER VETERINARY HOSPITAL, P.A.
UNIVERSITY PET CLINIC, INC.
VCA - ▇▇▇▇▇, INC.
VCA ALABAMA, INC.
VCA ALBANY ANIMAL HOSPITAL, INC.
VCA ALBUQUERQUE, INC.
VCA ALL PETS ANIMAL COMPLEX, INC.
VCA ALPINE ANIMAL HOSPITAL, INC.
VCA ▇▇▇▇▇▇▇▇ OF CALIFORNIA ANIMAL
HOSPITAL, INC.
VCA ANIMAL HOSPITALS, INC.
VCA APAC ANIMAL HOSPITAL, INC.
VCA CACOOSING ANIMAL HOSPITAL, INC.
VCA CASTLE ▇▇▇▇▇▇▇ VETERINARY HOSPITAL, INC.
VCA CENTERS-TEXAS, INC.
VCA CENVET, INC.
VCA CLARMAR ANIMAL HOSPITAL, INC.
S-3
VCA CLINICAL VETERINARY LABS, INC.
VCA CLINIPATH LABS, INC.
VCA CLOSTER, INC.
VCA ▇▇▇▇▇▇▇▇ ANIMAL HOSPITAL, INC.
VCA DOVER ANIMAL HOSPITAL, INC.
VCA EAGLE RIVER ANIMAL HOSPITAL, INC.
VCA EAST ANCHORAGE ANIMAL HOSPITAL, INC.
VCA EMERGENCY PET CLINIC, INC.
VCA GREATER SAVANNAH ANIMAL HOSPITAL, INC.
VCA HOWELL BRANCH ANIMAL HOSPITAL, NC.
VCA KANEOHE ANIMAL HOSPITAL, INC.
VCA LAKESIDE ANIMAL HOSPITAL, INC.
VCA LAMB AND ▇▇▇▇▇▇▇ ANIMAL HOSPITAL, INC.
VCA ▇▇▇▇▇▇▇ ANIMAL HOSPITAL, INC.
VCA ▇▇▇▇▇ ANIMAL HOSPITAL, INC.
VCA MARINA ANIMAL HOSPITAL, INC.
VCA ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ ANIMAL HOSPITAL, INC.
VCA MISSION, INC.
VCA NORTHBORO ANIMAL HOSPITAL, INC.
VCA NORTHWEST VETERINARY DIAGNOSTICS, INC.
VCA OF COLORADO-▇▇▇▇▇▇▇▇, INC.
VCA OF NEW YORK, INC.
VCA OF SAN ▇▇▇▇, INC.
VCA OF ▇▇▇▇▇▇▇▇, INC.
VCA PROFESSIONAL ANIMAL LABORATORY, INC.
VCA REAL PROPERTY ACQUISITION CORPORATION
VCA REFERRAL ASSOCIATES ANIMAL HOSPITAL, INC.
VCA ▇▇▇▇▇▇ ANIMAL HOSPITAL, INC.
VCA - ROSSMOOR, INC.
VCA SILVER SPUR ANIMAL HOSPITAL, INC.
VCA SOUTH SHORE ANIMAL HOSPITAL, INC.
VCA SQUIRE ANIMAL HOSPITAL, INC.
▇-▇
▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ANIMAL HOSPITAL, INC.
VCA TEXAS MANAGEMENT, INC.
VCA WYOMING ANIMAL HOSPITAL, INC.
VETERINARY HOSPITALS, INC.
W.E. ▇▇▇▇▇▇▇▇, D.V.M. WORTH ANIMAL CHARTERED
WEST LOS ANGELES VETERINARY MEDICAL GROUP, INC.
WEST SHORE VETERINARY HOSPITAL, INC.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, LTD.
▇▇▇▇▇▇▇, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
BY:------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer and President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BY:------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer and
Assistant Secretary
VCA VILLA ANIMAL HOSPITAL, L.P.
By: VCA Animal Hospitals, Inc.,
General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
BY:------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer and President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BY:------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer and
Assistant Secretary
S-5
VETERINARY CENTERS OF AMERICA-TEXAS, L.P.
By: VCA Centers-Texas, Inc.,
General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
BY:------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer and President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BY:------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer and
Assistant Secretary
ANIMAL CENTER, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer and
Assistant Secretary
ASSOCIATES IN PET CARE, S.C.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer and
Assistant Secretary
KIRKWOOD ANIMAL HOSPITAL - LEA M.E. ▇▇▇▇▇,
V.M.D., P.A.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer and
Assistant Secretary
▇-▇
▇▇▇▇ ▇▇▇▇▇▇ SMALL ANIMAL HOSPITAL, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer and
Assistant Secretary
SOUTHEAST AREA VETERINARY MEDICAL CENTER, P.C.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer and
Assistant Secretary
VCA ASSOCIATE ANIMAL HOSPITAL, L.P.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer and
Assistant Secretary
VCA HERITAGE ANIMAL HOSPITAL, L.P.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer and
Assistant Secretary
S-7
TOMS RIVER VETERINARY HOSPITAL, P.A.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer and
Assistant Secretary
S-8
SOLE SYNDICATION AGENT,
CO-LEAD ARRANGER,
A LENDER AND A TRANCHE D
TERM LOAN LENDER: ▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.,
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:--------------------------------
Authorized Signatory
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
S-9
ADMINISTRATIVE AGENT,
COLLATERAL AGENT, CO-
LEAD ARRANGER, A LENDER
AND A TRANCHE D TERM LOAN
LENDER: ▇▇▇▇▇ FARGO BANK, N.A.
/s/ S. ▇▇▇▇▇▇▇ St. Geme
By:--------------------------------
Name: S. ▇▇▇▇▇▇▇ St. Geme
Title: Vice President
S-10
ANNEX A TO
EIGHTH AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT
APPENDIX A-5 TO CREDIT AGREEMENT
TRANCHE D TERM LOAN TRANCHE D TERM LOAN
Lender COMMITMENTS COMMITMENT PRO RATA SHARE
----------------------------------- --------------------------- ------------------------------
▇▇▇▇▇▇▇ Sachs Credit Partners $ 120,746,750.00 82.5 %
▇▇▇▇▇ Fargo Bank, N.A. $ 25,695,677.00 17.5 %
ANNEX A-1
ANNEX B TO
EIGHTH AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT
EXHIBIT B-7 TO CREDIT AGREEMENT
TRANCHE D TERM LOAN NOTE
$[1][___,___,___]
[2][MM/DD/YY]
New York, New York
FOR VALUE RECEIVED, VICAR OPERATING, INC., a Delaware corporation
("COMPANY"), promises to pay [NAME OF LENDER] ("PAYEE") or its registered
assigns the principal amount of [1][DOLLARS] ($[1][___,___,___]) in the
installments referred to below.
Company also promises to pay interest on the unpaid principal amount
hereof, from the date hereof until paid in full, at the rates and at the times
which shall be determined in accordance with the provisions of that certain
Credit and Guaranty Agreement, dated as of September 20, 2000 (as it may be
amended, supplemented or otherwise modified, the "CREDIT AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined), by and among VICAR OPERATING, INC., a Delaware corporation
("COMPANY"), VCA ANTECH, INC. a Delaware corporation (formerly known as
Veterinary Centers of America, Inc., "HOLDINGS"), CERTAIN SUBSIDIARIES OF
COMPANY, as Guarantors, the Lenders party thereto from time to time, ▇▇▇▇▇▇▇
SACHS 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 ▇▇▇▇▇ FARGO BANK, N.A. ("▇▇▇▇▇ FARGO"), as Administrative Agent
(together with its permitted successors in such capacity, "ADMINISTRATIVE
AGENT") and as Collateral Agent (together with its permitted successor in such
capacity, "COLLATERAL Agent").
Company shall make principal payments on this Note as set forth in Section
2.12 of the Credit Agreement.
This Note is one of the "Tranche D Term Loan Notes" in the aggregate
principal amount of $[ ] and is issued pursuant to and entitled to the benefits
of the Credit Agreement, to which reference is hereby made for a more complete
statement of the terms and conditions under which the Term Loan evidenced hereby
was made and is to be repaid.
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States of America in same day funds at the
Principal Office of Administrative Agent or at such other place as shall be
designated in writing for such purpose in
-------------
[1] Lender's Tranche D Term Loan Commitment
[2] Date of Issuance
ANNEX B-1
accordance with the terms of the Credit Agreement. Unless and until an
Assignment Agreement effecting the assignment or transfer of the obligations
evidenced hereby shall have been accepted by Administrative Agent and recorded
in the Register, Company, each Agent and Lenders shall be entitled to deem and
treat Payee as the owner and holder of this Note and the obligations evidenced
hereby. Payee hereby agrees, by its acceptance hereof, that before disposing of
this Note or any part hereof it will make a notation hereon of all principal
payments previously made hereunder and of the date to which interest hereon has
been paid; provided, the failure to make a notation of any payment made on this
Note shall not limit or otherwise affect the obligations of Company hereunder
with respect to payments of principal of or interest on this Note.
This Note is subject to mandatory prepayment and to prepayment at the
option of Company, each as provided in the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES THEREOF.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner provided
in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this Note
or the Credit Agreement shall alter or impair the obligations of Company, which
are absolute and unconditional, to pay the principal of and interest on this
Note at the place, at the respective times, and in the currency herein
prescribed.
Company promises to pay all costs and expenses, including reasonable
attorneys' fees, all as provided in the Credit Agreement, incurred in the
collection and enforcement of this Note. Company and any endorsers of this Note
hereby consent to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment, protest, demand
notice of every kind and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demand hereunder.
ANNEX B-2
IN WITNESS WHEREOF, Company has caused this Note to be duly executed and
delivered by its officer thereunto duly authorized as of the date and at the
place first written above.
VICAR OPERATING, INC.
By:
----------------------------------
Title:
ANNEX B-3
ANNEX C TO
EIGHTH AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT
EXHIBIT G-4 TO CREDIT AGREEMENT
EIGHTH AMENDMENT DATE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFY AS FOLLOWS:
1. We are, respectively, the chief executive officer and the chief
financial officer of VCA ANTECH, INC., ("HOLDINGS") and VICAR OPERATING, INC.,
("COMPANY").
2. Pursuant to Section 2.1 of the Credit and Guaranty Agreement, dated as
of September 20, 2000 (as it may be amended, supplemented or otherwise modified,
the "CREDIT AGREEMENT"; the terms defined therein and not otherwise defined
herein being used herein as therein defined), by and among VICAR OPERATING,
INC., a Delaware corporation ("COMPANY"), VCA ANTECH, INC. a Delaware
corporation (formerly known as Veterinary Centers of America, Inc., "HOLDINGS"),
CERTAIN SUBSIDIARIES OF COMPANY, as Guarantors, the Lenders party thereto from
time to time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇▇ FARGO BANK, N.A. ("▇▇▇▇▇ FARGO"), as
Administrative Agent (together with its permitted successors in such capacity,
"ADMINISTRATIVE AGENT") and as Collateral Agent (together with its permitted
successor in such capacity, "COLLATERAL Agent"), Company requests that Lenders
make the following Loans to Company on ______ __, 2003 (the "EIGHTH AMENDMENT
EFFECTIVE DATE"):
Tranche D Term Loans: $[ ]
Base Rate Loans
3. We have reviewed the terms of Section 3 of the Credit Agreement and
Section II of the Eighth Amendment and the definitions and provisions contained
in such Credit Agreement relating thereto, and in our opinion we have made, or
have caused to be made under our supervision, such examination or investigation
as is necessary to enable us to express an informed opinion as to the matters
referred to herein.
4. Based upon our review and examination described in paragraph (3) above,
we certify, on behalf of Company, that as of the date hereof:
(i) as of the Eighth Amendment Effective Date, the representations and
warranties contained in each of the Credit Documents are true, correct and
complete in all respects on and as of the Eighth Amendment Effective Date to the
same extent as though made on and as of such 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
respects on and as of such earlier date;
ANNEX C-1
(ii) as of the Eighth Amendment Effective Date, no injunction or other
restraining order shall have been issued and no hearing to cause an injunction
or other restraining order to be issued shall be pending or noticed with respect
to any action, suit or proceeding seeking to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result of, the
borrowing contemplated hereby; and
(iii) as of the Eighth Amendment Effective Date, no event has occurred
and is continuing or would result from the consummation of the borrowing
contemplated hereby that would constitute an Event of Default or a Default.
5. Each Credit Party has requested Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, LLP to
deliver to Agents and Lenders on the Eighth Amendment Effective Date favorable
written opinions setting forth such matters as Syndication Agent and
Administrative Agent may reasonably request.
[Remainder of page intentionally left blank.]
ANNEX C-2
The foregoing certifications are made and delivered as of [MM/DD/YY].
VCA ANTECH, INC.
--------------------------------
Title: Chief Executive Officer
VICAR OPERATING, INC.
--------------------------------
Title: Chief Financial Officer
ANNEX C-3