EXHIBIT 10.32.1
AMENDMENT NUMBER ONE
TO INTERCREDITOR AND SUBORDINATION AGREEMENT
This AMENDMENT NUMBER ONE TO INTERCREDITOR AND SUBORDINATION (this
"Amendment") is entered into as of December 20, 2004, among ▇▇▇▇▇ FARGO
FOOTHILL, INC., a California corporation, as the arranger and administrative
agent and senior secured lender (the "Original Lender") under and pursuant to
the Original Loan Agreement, HSBC BANK USA, solely in its capacity as collateral
agent under the Indenture Loan Documents (in such capacity, together with its
successors and assigns (if any) in such capacity, the "Collateral Agent"),
PHIBRO ANIMAL HEALTH CORPORATION, a New York corporation (the "Parent" ) and
those certain subsidiaries of the Parent signatory hereto (the "Subsidiaries";
and, together with the Parent, the "Credit Parties"). All capitalized terms used
in this Amendment and not otherwise defined herein shall have the meanings
assigned to them in the below-defined Intercreditor Agreement.:
WHEREAS, the Original Lender, Collateral Agent and Credit Parties are
parties to that certain Intercreditor and Subordination Agreement (the
"Intercreditor Agreement"), dated as of October 21, 2003; and
WHEREAS, the Original Lender, Collateral Agent and Credit Parties have
agreed to amend the Intercreditor Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Amendment of the Intercreditor Agreement.
(a) Recital A. of the Intercreditor Agreement is hereby
amended and restated in its entirety to read as follows:
"A. Certain of the Credit Parties, certain other foreign
subsidiaries (the "Foreign Indenture Obligors") of the Parent
(including, among others, Philipp Brothers Netherlands III
B.V. (the "Dutch Issuer" and, together with the Parent, the
"Issuers")), the Collateral Agent, and HSBC, in its capacity
as Trustee (in such capacity, together with its successors and
assigns (if any) in such capacity, the "Trustee"), have
entered into an Indenture, dated as of October 21, 2003, as
amended by that certain First Supplemental Indenture dated as
of June 25, 2004 and that certain Second Supplemental
Indenture dated as of December 8, 2004 (as amended, restated,
supplemented or otherwise modified from time to time in
conformance with the provisions of this Agreement, the
"Indenture"), pursuant to which the Issuers have issued
127,491 Units (and, together with any additional units that
may be issued from time to time thereunder or exchanged
therefor or for such
additional units, the "Units"), consisting of $103,207,000
aggregate principal amount of 13.0% Senior Secured Notes due
2007 issued by the Parent (and, together with any additional
notes that may be issued by the Parent from time to time
thereunder or exchanged therefor or for such additional notes,
the "U.S. Notes") and $24,284,000 aggregate principal amount
of 13.0% Senior Secured Notes due 2007 issued by the Dutch
Issuer (and, together with any additional notes that may be
issued by the Dutch Issuer from time to time thereunder or
exchanged therefor or for such additional notes, the "Dutch
Notes" and, together with the U.S. Notes, the "Notes"). The
repayment of the Indenture Secured Obligations (as hereinafter
defined) is secured by, among other things, security interests
in and liens on the assets and properties described in the
Domestic Collateral Agreements (as defined in the Indenture)
dated as of the date hereof (in each case, as amended,
restated, supplemented or otherwise modified from time to time
in conformance with the provisions of this Agreement, the
"Indenture Domestic Collateral Agreements" and, together with
the Indenture and all Control Agreements (as defined in the
U.S. Security Agreement (as defined in the Indenture))
executed and delivered in connection therewith, the "Indenture
Agreements"), made by certain of the Credit Parties in favor
of the Collateral Agent for the benefit of the Collateral
Agent, the Trustee, and the Noteholders."
(b) Recital B. of the Intercreditor Agreement is hereby
amended and restated in its entirety to read as follows:
"B. The Credit Parties and the Original Lender
have entered into a Loan and Security Agreement dated as of
October 21, 2003 (as amended, restated, supplemented or
otherwise modified from time to time in conformance with the
provisions of this Agreement, the "Original Loan Agreement")
and the Credit Parties and the Original Lender have entered
into those certain guaranties, guarantor security agreements
(as amended, restated, supplemented or otherwise modified from
time to time in conformance with the provisions of this
Agreement, the "Security Documents") pursuant to which the
Original Lender agreed, upon the terms and conditions stated
therein, to make loans and advances to and to issue letters of
credit for the account of the Credit Parties up to the
principal amount of $40,000,000 (of which no more than
$22,500,000 would be available for the issuance of letters of
credit and no more than $17,500,000 would be available for
advances), together with the fees, interest, expenses and
other obligations due under the Original Loan Agreement. The
repayment of the Obligations (as that term is defined in the
Original Loan Agreement) is secured by first priority security
interests in and liens on the Collateral (as defined below)."
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(c) Section 1.03 of the Intercreditor Agreement hereby is
amended by amending and restating the defined term "Maximum Lender Priority Debt
Amount" to read as follows:
""Maximum Lender Priority Debt Amount" means, as of
any date of determination, (a) the undrawn amount of all
outstanding letters of credit plus unreimbursed drawings in
respect thereof that are Loan Agreement Secured Obligations as
of such date up to, but not in excess of, $22,500,000, plus
(b) the principal amount of Advances (as that term is defined
in the Original Loan Agreement) or revolving loans under any
Loan Agreement as of such date up to, but not in excess of,
$17,500,000, plus (c) any premium, interest, fees, attorneys'
fees, costs, charges, expenses, indemnities, and all other
amounts payable under a Loan Agreement or other Lender Loan
Documents or in respect of the Loan Agreement Secured
Obligations (including, without duplication, all guaranties in
respect thereof), plus (d) the Bank Product Obligations not to
exceed the Bank Product Reserve; and including, for each
amount specified in clauses (a), (b), (c), and (d) all amounts
accruing on or after the commencement of any Insolvency
Proceeding relating to any Credit Party or any other Person
irrespective of whether a claim for all or any portion of such
amount is allowable or allowed in any Insolvency Proceeding."
(d) Section 5.02(d) of the Intercreditor Agreement is
hereby amended and restated in its entirety to read as follows:
"(d) Notwithstanding anything to the contrary herein,
in no event shall Indebtedness represented by any units or
notes issued pursuant to the Indenture, including any Units or
Notes (or represented by any other evidence of indebtedness
for borrowed money under the Units, the Notes, the Indenture
or the guarantees related thereto) at any time exceed an
aggregate principal amount equal to $127,491,000."
2. Choice of Law. The validity of this Amendment, its
construction, interpretation and enforcement, and the rights of the parties
hereunder, shall be determined under, governed by, and construed in accordance
with the laws of the State of New York.
3. Counterparts; Telefacsimile or Electronic Mail Execution. This
Amendment may be executed in any number of counterparts and by different parties
and separate counterparts, each of which when so executed and delivered, shall
be deemed an original, and all of which, when taken together, shall constitute
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Amendment by telefacsimile or electronic mail shall be effective as
delivery of a manually executed counterpart of this Amendment. Any party
delivering an executed counterpart of this Amendment by telefacsimile or
electronic mail
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also shall deliver a manually executed counterpart of this Amendment but the
failure to deliver a manually executed counterpart shall not affect the
validity, enforceability, and binding effect of this Amendment.
4. Effect on Intercreditor Agreement.
(a) The Intercreditor Agreement, as amended hereby, shall
be and remain in full force and effect in accordance with its terms and hereby
is ratified and confirmed in all respects. The modifications herein are limited
to the specifics hereof, shall not apply with respect to any facts or
occurrences other than those on which the same are based, shall not excuse
future non-compliance with the Intercreditor Agreement, and shall not operate as
a consent to any further or other matter, under the Intercreditor Agreement.
(b) Upon and after the effectiveness of this Amendment,
each reference in the Intercreditor Agreement to "this Agreement", "hereunder",
"herein", "hereof" or words of like import referring to the Intercreditor
Agreement shall mean and be a reference to the Intercreditor Agreement as
modified hereby.
(c) To the extent that any terms and conditions in the
Intercreditor Agreement shall contradict or be in conflict with any terms or
conditions of the Intercreditor Agreement, after giving effect to this
Amendment, such terms and conditions are hereby deemed modified or amended
accordingly to reflect the terms and conditions of the Intercreditor Agreement
as modified hereby.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above.
ORIGINAL LENDER: ▇▇▇▇▇ FARGO FOOTHILL, INC.,
a California corporation,
as Agent and a Lender
under the Original Loan Agreement
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Vice President
COLLATERAL HSBC BANK USA,
AGENT: solely in its capacity as Collateral Agent (and not
individually)
under the Indenture
By: /s/ Herawattee Alli
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Name: Herawattee Alli
Title: Assistant Vice President
PHIBRO ANIMAL HEALTH CORPORATION, INC.,
a New York corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
Title:
PHIBRO ANIMAL HEALTH HOLDINGS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
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Title:
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PRINCE AGRIPRODUCTS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
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Title:
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PHIBRO-TECH, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
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Title:
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PHIBRO ANIMAL HEALTH U.S., INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
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Title:
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PHIBROCHEM, INC.,
a New Jersey corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
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Title:
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WESTERN MAGNESIUM CORP.,
a California corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
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Title:
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CP CHEMICALS, INC.,
a New Jersey corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
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Title:
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PHIBRO CHEMICALS, INC.,
a New York corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
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Title:
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