FOURTH AMENDMENT AGREEMENT
This Fourth Amendment Agreement dated as of March 5, 1999 (this
"Amendment") is between Virbac AH, Inc., a Delaware corporation ("Borrower"),
and Societe Generale, New York Branch ("Bank"), and amends the Credit Agreement
dated as of July 6, 1994, as amended by the First Amendment Agreement dated as
of August 30, 1995, the Second Amendment Agreement dated as of July 6, 1997 and
the Third Amendment Agreement dated as of January 1, 1998, each between Virbac,
Inc., a Delaware corporation ("Predecessor Borrower") and Societe Generale,
Southwest Agency (as previously amended, the "Credit Agreement"). Capitalized
terms defined in the Credit Agreement and not otherwise defined or redefined
herein are used herein with the meanings so defined.
WHEREAS, on March 5, 1999 Predecessor Borrower merged (the "Merger")
with and into Agri-Nutrition Group Limited, a Delaware corporation, which as a
result of the Merger changed its name to Virbac Corporation;
WHEREAS, immediately after the Merger, Virbac Corporation contributed
all of the Predecessor Borrower's assets to Borrower (the "Contribution"), a
newly formed wholly owned subsidiary of Virbac Corporation, and Borrower assumed
all of Predecessor Borrower's duties and liabilities, including its duties and
liabilities under the Credit Agreement (the "Assumption");
WHEREAS, the Borrower has requested the Bank to amend the Credit
Agreement to set forth Bank's consent to the Merger, the Contribution and the
Assumption as hereinafter provided, and the Bank has agreed to such amendment on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Amendment of Credit Agreement.
1.1 Opening Paragraph. The opening paragraph to the Credit
Agreement is amended by replacing "Virbac, Inc." with "Virbac AH, Inc." as
Borrower.
1.2 Section 1.01. Section 1.01 of the Credit Agreement is
amended by adding a definition for "Merger Agreement" as follows:
"Merger Agreement" means that certain Agreement and Plan of
Merger dated as of October 16, 1998 between Agri-Nutrition Group Limited,
Parent, Predecessor Borrower and, by addendum, Interlab S.A.S., a French
corporation and wholly owned subsidiary of Parent ("Interlab"), as amended.
1.3 Section 4.05. Section 4.05 of the Credit Agreement is
amended to read in its entirety as follows: "After consummation of the
transactions contemplated by the Merger
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Agreement, Interlab will own approximately 60% of the issued and outstanding
common stock of Virbac Corporation. Parent is the sole stockholder of Interlab."
1.4 Section 6.01. Section 6.01(g) is amended to read in its
entirety as follows: "Upon consummation of the transactions described in the
Merger Agreement, Interlab shall cease to own 60% of the outstanding capital
stock of Virbac Corporation and Virbac Corporation shall cease to own 100% of
the outstanding capital stock of Borrower."
1.5 Section 7.08. The second sentence of Section 7.08 is
hereby amended to read in its entirety as follows: "Except for the Contribution
of rights by Virbac Corporation and the Assumption of duties by Borrower under
the Credit Agreement, which are hereby approved, Borrower may not assign its
rights or delegate its duties under the Agreement, the Notes and the other
Credit Documents."
1.6 Section 7.09. Section 7.09 of the Credit Agreement is
amended by deleting:
Virbac, Inc.
X.X. Xxx 000000
Xxxx Xxxxx, Xxxxx 00000
Attention: Mr. Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and replacing it with:
Virbac AH, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxx 00000
Attention: Xx. Xxxxxx Xxxxx
Telephone: (000) 000-0000
(000) 000-0000
Telecopy: (000) 000-0000
1.7 Exhibit A. Exhibit A attached to the Credit Agreement is
hereby replaced with Exhibit A attached to this Amendment.
1.8 Exhibit B. Exhibit B attached to the Credit Agreement is
hereby replaced with Exhibit B attached to this Amendment.
1.9 Exhibit C. Exhibit C attached to the Credit Agreement is
hereby replaced with Exhibit C attached to this Amendment.
1.10 Exhibit D. Exhibit D attached to the Credit Agreement is
hereby deleted.
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1.11 Exhibit E. Exhibit E attached to the Credit Agreement is
hereby replaced with Exhibit D attached to this Amendment.
2. Representations and Warranties. The Borrower hereby represents and
warrants to the Bank that (a) each of the representations and warranties set
forth in the Credit Agreement is true and correct as of the date of this
Amendment, (b) this Amendment, the Credit Agreement as amended by this
Amendment, and all other agreements or documents executed in connection herewith
have been duly authorized, executed and delivered by the Borrower, and
constitute the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms, subject to
applicable bankruptcy, insolvency and similar laws affecting generally the
enforcement of creditors' rights and remedies, and (c) the execution, delivery
and performance of the Credit Agreement as amended hereby is within the
corporate power and authority of the Borrower and has been duly authorized by
appropriate corporate proceedings.
3. No Default. The Borrower hereby represents and warrants to the Bank
that no Event of Default and no Default has occurred and is continuing as of the
date of this Amendment.
4. Effectiveness of Amendment. This Amendment shall be deemed to be
effective on and as of March 5, 1999 when the Bank has received the following:
(a) an original counterpart of this Amendment executed by
the Borrower;
(b) an executed Revolving Note in substantially the form
of Exhibit B attached hereto;
(c) an executed Term Note in substantially the form of
Exhibit C attached hereto;
(d) an executed Certificate of the Secretary or Assistant
Secretary of the Borrower in substantially the form of Exhibit D attached
hereto, together with copies of all Borrower documents referred to therein.
5. Counterparts. This Amendment may be executed in any number of
counterparts which together shall constitute one instrument.
6. Governing Law. This Amendment shall be governed by, and construed
and enforced in accordance with, the laws of the State of New York.
7. Preservation of Credit Agreement and Other Agreements. Except as
specifically modified by the terms of this Amendment all of the terms,
provisions, covenants, warranties and agreements contained in the Credit
Agreement and in any other agreements or documents executed in connection
therewith shall remain in full force and effect.
8. ENTIRE AGREEMENT. THIS AMENDMENT AND THE CREDIT AGREEMENT AND OTHER
CREDIT DOCUMENTS CONSTITUTE THE ENTIRE AGREEMENT AMONG THE PARTIES PERTAINING TO
THE SUBJECT MATTER HEREOF AND THEREOF AND SUPERSEDES ALL PRIOR AND
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CONTEMPORANEOUS AGREEMENTS, UNDERTAKINGS, UNDERSTANDINGS, REPRESENTATIONS OR
OTHER ARRANGEMENTS, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, OF THE PARTIES
IN CONNECTION HEREWITH EXCEPT TO THE EXTENT EXPRESSLY INCORPORATED OR
SPECIFICALLY REFERRED TO HEREIN OR THEREIN.
IN WITNESS WHEREOF, the Borrower and the Bank have caused this
Amendment to be executed by their respective officers duly authorized as of the
date first written above.
VIRBAC AH, INC.
By:
Name:
Title:
SOCIETE GENERALE, NEW YORK
BRANCH
By:
Name:
Title:
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EXHIBIT A
FORM OF NOTICE OF BORROWING
[Date]
Societe Generale, New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of July 6, 1994 (as amended,
the "Credit Agreement"), between Virbac AH, Inc., a Delaware corporation
("Borrower"), and Societe Generale, New York Branch ("Bank"). Capitalized terms
used herein but not defined herein shall have the meanings specified by the
Credit Agreement.
Pursuant to Section 2.03 of the Credit Agreement, the Borrower hereby gives to
the Bank an irrevocable request for the making of the follow Advance[s]
([collectively, the] "Requested Advance[s]") described below:
1. [Advance#1]
(a) Facility (Revolving or Term):
(b) Type (Prime, or LIBOR, or N/A):
(c) Amount:
(d) Interest Period:
(e) Date of Funding:
The Borrower certifies that the following statements are true on the date
hereof, and will be true on [each] [the] date of funding for the Requested
Advance[s]:
1. All of the representations and warranties made by the Borrower in
the Credit Documents are true and correct in all materials respects on the date
of this certificate as if made on this date.
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Societe Generale, New York Branch
[Date]
Page 2
2. There exists no Default or Event of Default and the making of the
Advance would not cause or be reasonably expected to cause a Default or Event of
Default.
Very truly yours,
VIRBAC AH, INC.
By:
Name:
Title:
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EXHIBIT B
FORM OF REVOLVING NOTE
PROMISSORY NOTE
$4,000,000 Xxxxx 0, 0000
Xxxxxx AH, Inc., a Delaware corporation ("Borrower"), for value
received, hereby promises to pay to the order of Societe Generale, New York
Branch ("Bank"), the principal sum of Four Million Dollars ($4,000,000) or, if
less, the aggregate outstanding principal amount of the Revolving Advances made
pursuant to the Credit Agreement dated as of July 6, 1994, as amended by the
First Amendment Agreement dated as of August 30, 1995, the Second Amendment
Agreement dated as of July 6, 1997, and the Third Amendment Agreement dated as
of January 1, 1998, each between Virbac, Inc. and Societe General, Southwest
Agency, and as further amended by the Fourth Amendment Agreement dated as of
March 5, 1999 between the Borrower and the Bank (as modified from time to time,
the "Credit Agreement"), and interest thereon as required by the Credit
Agreement.
This Promissory Note ("Note") is given in renewal and substitution for
the Promissory Note of Virbac, Inc. to the Bank dated January 1, 1998 in the
principal amount of $4,000,000, and is subject to the terms of the Credit
Agreement. Capitalized terms used herein but not defined herein shall have the
meanings specified by the Credit Agreement. Pursuant to the Credit Agreement,
the Borrower's obligations under this Note may be accelerated upon the
occurrence of an Event of Default.
The Bank shall record in its records all Revolving Advances and all
payments of principal and interest thereon. Any failure of the Bank to make such
recordings, however, shall not affect the Borrower's repayment obligations under
this Note. The Bank's records shall be presumptive evidence of the principal and
interest owed by the Borrower.
It is contemplated that because of prepayments there may be times when
no indebtedness is owed under this Note. Notwithstanding such prepayments, this
Note shall remain valid and shall be in force as to Revolving Advances made
pursuant to the Credit Agreement after such prepayments.
It is the intention of the Bank and the Borrower to conform strictly to
any applicable usury laws. Accordingly, the terms of the Credit Agreement
relating to the prevention of usury will be strictly followed.
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This Note shall be governed by, and construed and enforced in
accordance with, the laws of New York.
VIRBAC AH, INC.
By:
Name:
Title:
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EXHIBIT C
FORM OF TERM NOTE
PROMISSORY NOTE
$5,000,000 Xxxxx 0, 0000
Xxxxxx AH, Inc., a Delaware corporation ("Borrower"), for value
received, hereby promises to pay to the order of Societe Generale, New York
Branch ("Bank"), the principal sum of Five Million Dollars ($5,000,000) or, if
less, the aggregate outstanding principal amount of Term Advances made pursuant
to the Credit Agreement dated as of July 6, 1994 between the Borrower and the
Bank (as modified from time to time, the "Credit Agreement"), and interest
thereon as required by the Credit Agreement.
This Promissory Note ("Note") is given in renewal and substitution of
that certain Promissory Note dated January 1, 1998 in the original amount of
$5,000,000 from Virbac, Inc. to the Bank and is subject to the terms of the
Credit Agreement. Capitalized terms used herein but not defined shall have the
meanings specified by the Credit Agreement. Pursuant to the Credit Agreement,
the Borrower's obligations under this Note may be accelerated upon the
occurrence of an Event of Default.
The Bank shall record in its records all payments of principal and
interest thereon. Any failure of the Bank to make such recordings, however,
shall not affect the Borrower's repayment obligations under this Note. The
Bank's records shall be presumptive evidence of the principal and interest owed
by the Borrower.
It is the intention of the Bank and the Borrower to conform strictly to
any applicable usury laws. Accordingly, the terms of the Credit Agreement
relating to the prevention of usury will be strictly followed.
This Note shall be governed by, and construed and enforced in
accordance with, the laws of New York.
VIRBAC AH, INC.
By:
Name:
Title:
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EXHIBIT D
CERTIFICATE OF SECRETARY
The undersigned Secretary of VIRBAC AH, INC., a Delaware corporation
("Company"), does hereby certify to SOCIETE GENERALE, NEW YORK BRANCH (the
"Bank") in connection with the Fourth Amendment Agreement dated as of March 5,
1999 ("Agreement") amending the Credit Agreement dated as of July 6, 1994, as
amended, between the Company and the Bank, as follows:
1. Attached hereto as Annex 1 is a true and correct copy of resolutions
duly adopted by the Board of Directors of the Company, and such resolutions have
not been altered, amended, rescinded or repealed and are now in full force and
effect.
2. The copies of the Certificate of Incorporation and the Bylaws of the
Company attached as Annexes 2 and 3, respectively, hereto, are true and correct,
have not been altered, amended, rescinded or repealed and are now in full force
and effect.
3. The person who, as an officer of the Company, signed the Agreement
was at the time of such signing and delivery and is now duly elected, qualified
and acting as such officer, and the signature appearing on such document is the
genuine signature of such officer.
4. The Company is duly organized and existing under the laws of the
State of Delaware, all franchise and other taxes required to maintain its
corporate existence have been paid when due and no such taxes are delinquent; no
proceedings are pending for the forfeiture of its Certificate of Incorporation
or for its dissolution, voluntarily or involuntarily.
5. There is no provision in the Certificate of Incorporation or Bylaws
of the Company limiting the power of the Board of Directors of the Company to
pass the resolutions referenced in paragraph 1.
6. The following persons are as of the date hereof duly elected,
qualified and acting officers of the Company holding the offices set forth
below, and the signature appearing next to such person's name is such person's
genuine signature:
Name Signature Office
Xxxxx X. Xxxxx President
Xxxxxx X. Xxxxxxxxx Vice President and Secretary
IN WITNESS WHEREOF, I have hereunto signed my name as of the day of
March 1999.
Xxxxxx X. Xxxxxxxxx
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