Fifth Amendment To Amended and Restated Credit Agreement
Fifth
Amendment To
Amended
and Restated Credit Agreement
This
Fifth Amendment to Amended and Restated Credit Agreement (this “Fifth Amendment”) dated as of
the 31st day of December, 2009, is by and between Bioanalytical
Systems, Inc. (“Borrower”) and PNC Bank,
National Association, as successor by merger to National City
Bank (“Bank”);
Witnesseth:
Whereas,
as of January 4, 2005, the parties hereto entered into a certain Credit
Agreement, as amended (as amended, the “Agreement”);
Whereas,
the parties desire to further amend the Agreement, subject to the terms
contained therein;
Now,
Therefore, in consideration of the premises, and the mutual promises
herein contained, the parties agree that the Agreement shall be, and it hereby
is, amended as provided herein and the parties further agree as
follows:
Part I. Amendatory
Provisions
Article
1. Definition
Section
1.1 of the Agreement is hereby amended by substituting the following definition
in lieu of the like existing definition:
“Line of Credit Maturity Date”
means January 15, 2010.
Article
2. Credit
2.2 Interest; Unused Fees and Rate
Selection.
2.2.1. Line of Credit -
Interest. Section 2.2.1 of the Agreement is hereby amended by
substituting the following new Section 2.2.1 in lieu of the existing Section
2.2.1:
2.2.1
Line of Credit -
Interest. Prior to maturity or Default, the outstanding
principal balance of Advances under the Line of Credit shall bear interest at a
per annum rate equal to the LIBOR plus Nine Percent
(9%). In the event that the LIBOR shall become unavailable, the
outstanding principal balance of Advances under the Line of Credit shall bear
interest at a per annum rate equal to the Prime Rate plus Six Percent
(6%).
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Part II. Continuing
Effect
Except as
expressly modified herein:
(a) All
terms, conditions, representations, warranties and covenants contained in the
Agreement shall remain the same and shall continue in full force and effect,
interpreted, wherever possible, in a manner consistent with this Fifth
Amendment; provided, however, in the event
of any irreconcilable inconsistency, this Fifth Amendment shall
control;
(b) The
representations and warranties contained in the Agreement shall survive this
Fifth Amendment in their original form as continuing representations and
warranties of Borrower; and
(c) Capitalized
terms used in writing by Bank, and not specifically herein defined, shall have
the meanings ascribed to them in the Agreement.
In
consideration hereof, Borrower represents, warrants, covenants and agrees
that:
(aa) Each
representation and warranty set forth in the Agreement, as hereby amended,
remains true and correct as of the date hereof in all material respects, except
to the extent that such representation and warranty is expressly intended to
apply solely to an earlier date and except changes reflecting transactions
permitted by the Agreement;
(bb) There
currently exist no offsets, counterclaims or defenses to the performance of the
Obligations (such offsets, counterclaims or defenses, if any, being hereby
expressly waived);
(cc) Except
as expressly waived in writing by Bank, there has not occurred any Default or
Unmatured Default; and
(dd) After
giving effect to this Fifth Amendment and any transactions contemplated hereby,
no Default or Unmatured Default is or will be occasioned hereby or
thereby.
Part III. Conditions
Precedent
Notwithstanding
anything contained in this Fifth Amendment to the contrary, Bank shall have no
obligation under this Fifth Amendment until each of the following conditions
precedent have been fulfilled to the satisfaction of Bank:
(a) Bank
shall have received this Fifth Amendment, duly executed in the form prescribed
by Bank;
(b) Bank
shall have received a Reaffirmation of Guaranty, in the form prescribed by Bank,
duly executed by each Guarantor;
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(c) Bank
shall have received a duly executed certificate of the Secretary of Borrower (i)
certifying as to attached copies of Resolutions of the Board of Directors of
Borrower authorizing the execution, delivery and performance of this Fifth
Amendment, and (ii) certifying as complete and correct as to attached copies of
the Articles of Incorporation and By-laws of Borrower or certifying that such
Articles of Incorporation or By-laws have not been amended (except as shown)
since the previous delivery thereof to Bank;
(d) Borrower
shall have paid Bank a $5,000 non-refundable fee, which is due and payable upon
execution of this Fifth Amendment; and
(e) All
legal matters incident to this Fifth Amendment shall be reasonably satisfactory
to Bank and its counsel.
PART IV. EXPENSES
Borrower
shall reimburse Bank for all reasonable legal fees and other expenses incurred
by Bank in connection with this Fifth Amendment and the transactions
contemplated hereby. Bank is hereby authorized to debit Borrower’s
operating account maintained at Bank for such legal fees and
expenses.
PART V. ADDITIONAL EXTENSION
FEE
An additional extension fee owed to
Bank in the amount of Thirty Thousand Dollars ($30,000) shall be fully earned
and due upon execution of this Fifth Amendment; provided, however, in the event
all of the Obligations under the Agreement have been paid in full and all
remaining commitments of Bank under the Agreement have been terminated on or
before January 15, 2010, Bank agrees to waive the payment of such additional
extension fee. Otherwise, such additional extension fee shall be
payable on January 15, 2010.
PART VI. COUNTERPARTS
This Fifth Amendment may be executed in
counterparts, all of which taken together shall constitute one
agreement.
[This
Space Intentionally Left Blank]
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In
Witness Whereof, Borrower and Bank have caused this Fifth Amendment to be
executed by their respective officers duly authorized as of the date first above
written.
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“Borrower”
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Bioanalytical
Systems, Inc.
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By:
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Its:
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“Bank”
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PNC
Bank, National Association
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By:
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Its:
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