FIFTH AMENDMENT
Exhibit
10
This
Fifth Amendment (this “Amendment”) is entered into as of March 20, 2009, by and
among XXXXXX INTERNATIONAL INC., an Ohio corporation (the “Borrower”), the
Guarantors listed on the signature pages hereof, the Lenders signatory hereto,
and UBS AG, STAMFORD BRANCH, as Administrative Agent for the Lenders (in such
capacity, “Administrative Agent”).
RECITALS
WHEREAS,
the Borrower, the Guarantors, the Lenders, the Administrative Agent, UBS
SECURITIES LLC, as sole lead arranger and sole bookrunner, UBS AG, STAMFORD
BRANCH., as issuing bank and collateral agent, UBS LOAN FINANCE LLC, as
swingline lender, JPMORGAN CHASE BANK, N.A., as syndication agent, and KEYBANK
NATIONAL ASSOCIATION, BANK OF AMERICA, N.A., as successor to LaSalle Bank,
National Association, and NATIONAL CITY BANK, as co-documentation agents, are
parties to that certain Credit Agreement dated as of August 16, 2006, as amended
by that certain First Amendment to Credit Agreement dated as of December 11,
2006, as amended by that certain Second Amendment to Credit Agreement dated as
of March 30, 2007, as amended by that certain Third Amendment to Credit
Agreement dated as of December 18, 2007 and as amended by that certain Fourth
Amendment to Credit Agreement dated as of June 20, 2008 (the “Credit Agreement”)
(capitalized terms used herein without definition have the meanings
ascribed to such terms in the Credit Agreement);
WHEREAS,
the Borrower has requested certain amendments to the Credit Agreement;
and
WHEREAS,
the Administrative Agent and the Required Lenders have agreed to amend certain
sections of the Credit Agreement on the terms and subject to the conditions set
forth herein.
NOW
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the parties hereto hereby agree as follows:
Section
1. Section
References. Unless otherwise expressly stated herein, all
Section references herein shall refer to Sections of the Credit
Agreement.
Section
2. Amendment to Section 6.01(f)
(Indebtedness). Section 6.01(f) of the Credit Agreement is
hereby amended by replacing “$7.5 million” with “$12.0 million”.
Section
3. Amendment to Section
6.10(a)(ii) (Maximum Total Leverage Ratio). Section
6.10(a)(ii) of the Credit Agreement is hereby amended by deleting the table in
such section and replacing it with the following:
Test
Period
|
Leverage
Ratio
|
||
October
1, 2006
|
- |
December
31, 2006
|
3.90
to 1.0
|
January
1, 2007
|
- |
March
31, 2007
|
4.95
to 1.0
|
April
1, 2007
|
- |
June
30, 2007
|
4.95
to 1.0
|
July
1, 2007
|
- |
September
30, 2007
|
4.50
to 1.0
|
October
1, 2007
|
- |
December
31, 2007
|
3.75
to 1.0
|
January
1, 2008
|
- |
March
31, 2008
|
3.75
to 1.0
|
April
1, 2008
|
- |
June
30, 2008
|
3.50
to 1.0
|
July
1, 2008
|
- |
September
30, 2008
|
3.25
to 1.0
|
October
1, 2008
|
- |
December
31, 2008
|
3.25
to 1.0
|
January
1, 2009
|
- |
March
31, 2009
|
3.25
to 1.0
|
April
1, 2009
|
- |
June
30, 2009
|
3.25
to 1.0
|
July
1, 2009
|
- |
September
30, 2009
|
3.25
to 1.0
|
October
1, 2009
|
- |
December
31, 2009
|
3.25
to 1.0
|
January
1, 2010
|
- |
March
31, 2010
|
3.00
to 1.0
|
April
1, 2010
|
- |
June
30, 2010
|
3.00
to 1.0
|
July
1, 2010
|
- |
September
30, 2010
|
2.85
to 1.0
|
October
1, 2010
|
- |
December
31, 2010
|
2.85
to 1.0
|
January
1, 2011 and thereafter
|
2.65
to 1.0
|
Section
4. Amendment to Section 6.10(c)
(Maximum amount of Capital Expenditures). Section 6.10(c) of
the Credit Agreement is hereby amended by deleting the table in such section and
replacing it with the following:
Period
|
Amount
(in millions)
|
||
Closing
Date
|
-
|
December
31, 2006
|
$13.0
|
January
1, 2007
|
-
|
December
31, 2007
|
$15.0
|
January
1, 2008
|
-
|
December
31, 2008
|
$22.0
|
January
1, 2009
|
-
|
December
31, 2009
|
$27.0
|
January
1, 2010
|
-
|
December
31, 2010
|
$29.0
|
January
1, 2011 and thereafter
|
$30.0
|
Section
5. Amendment to Annex I
(Applicable Margin). Annex I of the Credit Agreement is hereby
amended and restated in its entirety as set forth on Annex A
hereto.
Section
6. Conditions
Precedent. The effectiveness of this Amendment is subject to
the satisfaction of each of the following conditions precedent:
(a) The
Administrative Agent shall have received all of the following, in form and
substance satisfactory to the Administrative Agent:
|
(i)
|
Amendment
Documents. This Amendment, duly executed by the Borrower
and the Guarantors (the “Amendment Documents”);
|
|
(ii)
|
Consent of Required
Lenders. The written consent of the Required Lenders to
this Amendment;
|
|
(iii)
|
Fees. The
fees, expenses and other amounts payable on the date hereof (1) referred
to in the sections below entitled “Costs and Expenses” and “Amendment
Fees” required to be reimbursed or paid by the Borrower hereunder or under
any other Loan Document and (2) as may be separately agreed by the
Borrower and the Administrative Agent;
and
|
|
(iv)
|
Additional
Information. Such additional documents, instruments and
information as the Administrative Agent may reasonably request to effect
the transactions contemplated
hereby.
|
(b) The
representations and warranties contained herein and in the Credit Agreement
shall be true and correct in all material respects as of the date hereof as if
made on the date hereof (except for those which by their terms specifically
refer to an earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such earlier
date).
(c) All
corporate proceedings taken in connection with the transactions contemplated by
this Amendment and all other agreements, documents and instruments executed or
delivered pursuant hereto, and all legal matters incident thereto, shall be
reasonably satisfactory to the Administrative Agent.
(d) No Default
or Event of Default shall have occurred and be continuing, after giving effect
to this Amendment.
Section
7. Representations and
Warranties. The Borrower hereby represents and warrants to the
Administrative Agent and the Lenders that, as of the date of and after giving
effect to this Amendment, (a) the execution, delivery and performance of this
Amendment and any and all other Amendment Documents executed and/or delivered in
connection herewith have been authorized by all requisite corporate action on
the part of the Borrower and will not violate the Borrower’s certificate of
incorporation or bylaws, (b) all representations and warranties set forth in the
Credit Agreement and in any other Loan Document are true and correct in all
material respects as if made again on and as of such date (except those, if any,
which by their terms specifically relate only to an earlier date, in which case
such representations and warranties are true and correct in all material
respects as of such earlier date), and (c) no Default or Event of Default has
occurred and is continuing.
Section
8. Survival of Representations
and Warranties. All representations and warranties made in
this Amendment or any other Loan Document shall survive the execution and
delivery of this Amendment and the other Loan Documents, and no investigation by
the
Administrative
Agent or the Lenders, or any closing, shall affect the representations and
warranties or the right of the Administrative Agent and the Lenders to rely upon
them.
Section
9. Certain
Waivers. Each of the Borrower and the Guarantors hereby agrees
that neither the Administrative Agent nor any Lender shall be liable under a
claim of, and hereby waives any claim against the Administrative Agent and the
Lenders based on, lender liability (including, but not limited to, liability for
breach of the implied covenant of good faith and fair dealing, fraud,
negligence, conversion, misrepresentation, duress, control and interference,
infliction of emotional distress and defamation and breach of fiduciary duties)
as a result of the amendments contained herein and any discussions or actions
taken or not taken by the Administrative Agent or the Lenders on or before the
date hereof or the discussions conducted in connection therewith, or any course
of action taken by the Administrative Agent or any Lender in response thereto or
arising therefrom; provided, that the
foregoing waiver shall not include the waiver of any claims which are based on
the gross negligence or willful misconduct of the Administrative Agent or any
Lender or any of their respective agents. This section shall survive the
execution and delivery of this Amendment and the other Loan Documents and the
termination of the Credit Agreement.
Section
10. Reference to
Agreement. Each of the Loan Documents, including the Credit
Agreement, and any and all other agreements, documents or instruments now or
hereafter executed and/or delivered pursuant to the terms hereof or pursuant to
the terms of the Credit Agreement as amended hereby, are hereby amended so that
any reference in such Loan Documents to the Credit Agreement, whether direct or
indirect, shall mean a reference to the Credit Agreement as amended
hereby.
Section
11. Costs and
Expenses. The Borrower shall pay on demand all reasonable
out-of-pocket costs and expenses of the Administrative Agent (including the
reasonable fees, costs and expenses of counsel to the Administrative Agent)
incurred in connection with the preparation, execution and delivery of this
Amendment.
Section
12. Amendment
Fees. Each of the Lenders consenting to this Amendment and
submitting to the Administrative Agent an executed signature page hereto on or
prior to noon New York time on Friday, March 20, 2009 shall receive, on the
effective date of this Amendment, an amendment fee equal to 0.50% of the
outstanding principal amount of Loans and Commitments held by it.
Section
13. Governing
Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section
14. Headings. Section
headings in this Amendment are included herein for convenience of reference only
and shall not constitute a part of this Amendment for any other
purposes.
Section
15. Execution. This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute
one
and the
same agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
Section
16. Limited
Effect. This Amendment relates only to the specific matters
covered herein, shall not be considered to be a waiver of any rights any Lender
may have under the Credit Agreement (other than as expressly set forth herein),
and shall not be considered to create a course of dealing or to otherwise
obligate any Lender to execute similar amendments under the same or similar
circumstances in the future.
Section
17. Ratification By
Guarantors. Each Guarantor hereby agrees to this Amendment,
and each Guarantor acknowledges that such Guarantor’s Guarantee shall remain in
full force and effect without modification thereto.
[signature
pages follow]
IN
WITNESS WHEREOF, the parties hereto have caused this amendment to be executed by
their respective officers thereunto duly authorized, as of the date first above
written.
XXXXXX
INTERNATIONAL INC.
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxx, III | |
Name: Xxxx Xxxxxxxx, III | |||
Title:
Senior Vice President and
|
|||
Chief Financial Officer |
ACER/EXCEL
INC.
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxx, III | |
Name: Xxxx Xxxxxxxx, III | |||
Title:
Senior Vice President and
|
|||
Chief Financial Officer |
AAC
CONSULTING GROUP, INC.
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxx, III | |
Name: Xxxx Xxxxxxxx, III | |||
Title:
Senior Vice President and
|
|||
Chief Financial Officer |
XXXXXX
INTERNATIONAL CPU LLC
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxx, III | |
Name: Xxxx Xxxxxxxx, III | |||
Title:
Senior Vice President and
|
|||
Chief Financial Officer |
XXXXXX
AMERICAS HOLDING INC.
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxx, III | |
Name: Xxxx Xxxxxxxx, III | |||
Title:
Senior Vice President and
|
|||
Chief Financial Officer |
XXXXXX
AMERICAS INVESTMENT INC.
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxx, III | |
Name: Xxxx Xxxxxxxx, III | |||
Title:
Senior Vice President and
|
|||
Chief Financial Officer |
XXXXXX
AMERICAS MANAGEMENT INC.
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxx, III | |
Name: Xxxx Xxxxxxxx, III | |||
Title:
Senior Vice President and
|
|||
Chief Financial Officer |
XXXXXX
DELAWARE INC.
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxx, III | |
Name: Xxxx Xxxxxxxx, III | |||
Title:
Senior Vice President and
|
|||
Chief Financial Officer |
XXXXXX
NC INC.
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxx, III | |
Name: Xxxx Xxxxxxxx, III | |||
Title:
Senior Vice President and
|
|||
Chief Financial Officer |
XXXXXX CLINICAL
DEVELOPMENT SERVICES
LIMITED (formerly known as Xxxxxxx River
Laboratories Clincial Services International
Ltd.)
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxx, III | |
Name: Xxxx Xxxxxxxx, III | |||
Title:
Senior Vice President and
|
|||
Chief Financial Officer |
UBS
AG, STAMFORD BRANCH,
as Administrative Agent
|
|||
|
By:
|
/s/ Xxxx X. Xxxxx | |
Name: Xxxx X. Xxxxx | |||
Title:
Associate Director
|
|||
By: | /s/ Xxxx X. Xxxx | ||
Name: Xxxx X. Xxxx | |||
Title: Associate Director | |||
ANNEX
A
Annex
I
Applicable
Margin
Total
Leverage Ratio
|
Revolving Loans
|
|
Eurodollar
|
ABR
|
|
Level I
|
2.50%
|
1.50%
|
>2.5:1.0
|
||
Level
II
|
2.25%
|
1.25%
|
<2.5:1.0
but
|
||
>2.0:1.0
|
||
Level
III
|
2.00%
|
1.00%
|
<2.0:1.0
|
Each
change in the Applicable Margin resulting from a change in the Total Leverage
Ratio shall be effective with respect to all Loans and Letters of Credit
outstanding on and after the date of delivery to the Administrative Agent of the
financial statements and certificates required by Section 5.01(a) or
(b) and Section 5.01(c),
respectively, indicating such change until the date immediately preceding the
next date of delivery of such financial statements and certificates indicating
another such change. Notwithstanding the foregoing, the Leverage Ratio shall be
deemed to be in Level I (i) from March 20, 2009 to the date of delivery to the
Administrative Agent of the financial statements and certificates required by
Section 5.01(a)
or (b) and
Section 5.01(c)
for the fiscal period ending Xxxxx 00, 0000, (xx) at any time during which
Borrower has failed to deliver the financial statements and certificates
required by Section
5.01(a) or (b) and Section 5.01(c),
respectively, and (iii) at any time during the existence of an Event of
Default.