See Schedule of Additional Terms attached Revolving Credit Agreement
hereto and made a part hereof. (Pennsylvania)
THIS REVOLVING CREDIT AGREEMENT (together with all schedules and exhibits hereto
and any amendments and modifications hereto in effect from time to time, the
"Agreement") is made this 13th day of June, 1996, by and between First Union
National Bank, (the "Bank") and Premier Research Worldwide, Ltd. (the
"Borrower").
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged and intending to be legally bound hereby, the
Bank and the Borrower agree as follows:
A. Credit Accommodations. Subject to the terms and conditions hereinafter set
forth, the Bank agrees to extend to the Borrower the following credit
accommodation:
1. Revolver. A revolving credit facility (the "Revolver"), expiring on June
30, 1997 (the "Expiration Date"), under which the Bank, subject to the
following terms and conditions, will make advances to the Borrower from
time to time and the Borrower may borrow, repay, and reborrow such amounts
up to the Maximum Principal Amount. Amounts outstanding under the Revolver
shall be evidenced by a Revolving Credit Note in the form provided to the
Borrower by the Bank (together with any attachments thereto and amendments
or modifications thereto in effect from time to time, the "Note").
2. Maximum Principal Amount. The maximum aggregate principal amount of
advances to be outstanding at any time hereunder is One Million and 00/100
Dollars ($1,000,000.00) (the "Maximum Principal Amount").
3. Rate of Interest. Interest on the outstanding principal balance hereunder
shall accrue at the Bank's Prime Rate (as defined below) plus one-half of
one percent (0.500%), provided however, that following an Event of
Default, interest on the outstanding principal balance hereunder shall
accrue at the Default Rate (as defined in the Note).
4. Payment Terms.
a. Interest on the outstanding principal balance hereunder is due and
payable by the Borrower to the Bank each month commencing July 1, 1996
and on the first day of each such consecutive period thereafter; and
b. All unpaid principal and accrued, unpaid interest is due and payable in
full by the Borrower to the Bank on the Expiration Date.
5. Reduction of Revolver to $300,000.00. The Borrower shall reduce the amount
of the outstanding principal under the Revolver to $300,000.00 for one
period of thirty consecutive days during each year after the date hereof
while the Revolver is in effect.
6. Notice of the Borrowing. The Borrower shall give the Bank either (i)
written notice of the amount and date of each advance requested under the
Revolver one Business Days (as defined below) prior to the date of such
proposed advance, in the form of the "Notice of Borrowing Under Revolving
Credit" attached to the Note as Exhibit A, or (ii) if the Bank permits, in
its sole and absolute discretion, an oral request of the amount and date
of each proposed advance, provided such oral request is confirmed promptly
after the oral request by such written Notice of Borrowing Under Revolving
Credit. An oral request for an advance may be made by (i) any officer of
the Borrower listed on any borrowing resolution supplied by the Borrower
to the Bank; and/or (ii) any employee of the Borrower who has been
authorized, by oral or written notice to the Bank, to act on behalf of the
Borrower and/or who has been stated in any oral or written confirmation by
the Bank to the Borrower to be an employee believed by the Bank to be
authorized by the Borrower (the "Authorized Representative"). Any advance
made by the Bank based on a request by anyone purporting to be an
Authorized Representative shall be binding on the Borrower.
Notwithstanding the foregoing, the Bank's records of any advance made
pursuant to this Agreement shall, in the absence of manifest error, be
deemed correct and acceptable and binding upon the Borrower. Each advance
shall be in an amount equal to One Thousand and no/100 Dollars ($1,000.00)
or any whole multiple thereof, provided, however, that the outstanding
principal balance under the Revolver shall not exceed, at any time, the
Maximum Principal Amount.
7. Reduction of Commitment. The Borrower shall have the right, upon not less
than n/a Business Day(s) prior written notice to the Bank, to terminate
all or part of the unused portion of the commitment under the Revolver.
Any partial reduction of such unused commitment shall be in an amount
equal to n/a Dollars ($n/a) or any whole multiple thereof.
8. Debiting of Account. The Borrower agrees to maintain an account (the
"Account") at the Bank continuously until the Liabilities due hereunder
are paid in full. All advances made by crediting the Account or any other
account of the Borrower at the Bank shall be conclusively presumed to have
been properly authorized by the Borrower. The Bank may, and the Borrower
authorizes the Bank to, debit the Account or any other account of the
Borrower at the Bank for the amount of any payment as and when such
payment becomes due hereunder. If there are insufficient funds in the
Account at the time the Account is debited, and the debiting creates an
overdraft, the Bank may charge the Borrower, in addition to any overdraft
fee, an administrative fee in an amount established from time to time by
the Bank. The foregoing rights of the Bank to debit the Borrower's
accounts shall be in addition to, and not in limitation of, any rights of
set-off which the Bank may have hereunder or under any Loan Document, nor
shall the rights hereunder limit the Bank's recourse to any particular
source of funds or monies.
9. Definitions. The following terms used throughout this Agreement shall have
the meanings assigned below:
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1. Affiliate. The term "Affiliate" means First Union Corporation and any of
its direct or indirect affiliates and subsidiaries.
2. Business Day. The term "Business Day" means any day other than a Saturday,
Sunday, or a day on which the Bank is authorized or obligated by law or
executive order to be closed.
3. Collateral. The term "Collateral" means any and all property of any
Obligor (as defined below) now or hereafter in the possession, custody or
control of the Bank or any Affiliate including, but not limited to, any
balance or share of any deposit, trust or agency account and all
collateral described in any and all Loan Documents (as defined below), the
additional collateral described in Section I of this Agreement, any
additional collateral more fully described in the Schedule (as defined
below) and any other property of any Obligor now or hereafter subject to a
security agreement, mortgage, pledge agreement, assignment, hypothecation
or other document granting the Bank or any Affiliate a security interest
or other lien or encumbrance.
4. Consolidated. The term "Consolidated" shall mean an accounting
presentation which includes any consolidated subsidiaries of the Borrower.
5. GAAP. The term "GAAP" means generally accepted accounting principles in
effect from time to time in the United States.
6. Liabilities. The term "Liabilities" means any and all obligations and
indebtedness of every kind and description of the Borrower owing to the
Bank or to any Affiliate, whether or not under the Loan Documents, and
whether such debts or obligations are primary or secondary, direct or
indirect, absolute or contingent, sole, joint or several, secured or
unsecured, due or to become due, contractual or tortious, arising by
operation of law, by overdraft, or otherwise, or now or hereafter
existing, including, without limitation, principal, interest, fees, late
fees, expenses, attorneys' fees and costs, and/or allocated fees and costs
of the Bank's in-house counsel, that have been or may hereafter be
contracted or incurred.
7. Loan Documents. The term "Loan Documents" means this Agreement and any and
all credit accommodations, notes, loan agreements, and any other
agreements and documents, now or hereafter existing, creating, evidencing,
guarantying, securing or relating to any or all of the Liabilities,
together with all amendments, modifications, renewals, or extensions
thereof.
8. Obligor. The term "Obligor" means the Borrower, and each and every maker,
endorser, guarantor or surety of or for the Liabilities.
9. Prime Rate. The term "Prime Rate" means the rate of interest established
by the Bank as its reference rate in making loans, and is not tied to any
external rate of interest or index. The rate of interest charged hereunder
shall change automatically and immediately as of the date of any change in
the Prime Rate, without notice to the Borrower.
10. Schedule. The term "Schedule" means the Schedule of Additional Terms which
is attached hereto.
D. Fees. The Borrower shall pay the following nonrefundable fees to the Bank
with respect to the Revolver:
1. Facility Fee. A one-time facility fee ("Facility Fee") equal to n/a
percent (n/a %) of the Maximum Principal Amount of Five Thousand and
no/100 Dollars ($5,000.00) which is payable on or before the date of this
Agreement. Notwithstanding anything to the contrary in this Agreement, the
Bank may, in its sole discretion, charge the Borrower an additional
Facility Fee in the event that the Revolver is every modified, renewed or
extended;
2. Unused Commitment Fee. An unused commitment fee ("Commitment Fee") of n/a
percent (n/a%) on the average undrawn amount of the Revolver will be
payable by the Borrower to the Bank quarterly in arrears on or prior to
the fifth Business Day following the Borrower's receipt of a statement
therefor; and
3. Computation. Interest and the unused Commitment Fee, if any, shall be
calculated on the basis of a 360 day year for the actual number of days
elapsed.
E. Representations and Warranties. The Borrower represents and warrants with
respect to itself and, to the extent applicable, each of its consolidated
subsidiaries, and agrees that each such representation and warranty shall be
deemed to be restated at the time of each borrowing hereunder, that:
1. Organization; Authority. If not an individual, the Borrower is a
corporation, duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization or formation, is duly
qualified as a foreign corporation, limited partnership, or limited
liability company, and is in good standing under the laws of each
jurisdiction in which it is required to be qualified because of the
business it conducts or the property it owns, and has the necessary power
and authority to enter into and perform its obligations under the Loan
Documents and all other documents required by the Bank in connection
therewith. If an individual, the Borrower is an adult and is legally
competent. The execution and performance of the Loan Documents have been
duly authorized by all necessary proceedings on the part of the Borrower,
and, upon their execution and delivery, they will be valid, binding, and
enforceable in accordance with their terms; the Borrower's execution and
performance of the Loan Documents will not violate any orders, laws or
regulations applicable to the Borrower, any organizational documents of
the Borrower, or any instruments, indentures or agreements (including any
provisions pertaining to subordinated debt) to which the Borrower is a
party or by which the Borrower or any of its properties are bound; and all
consents, approvals, licenses, franchises, patents, trademarks and other
general intangibles required in connection with this Agreement, the other
Loan Documents, or the operation of the Borrower's business have been
obtained and are in full force and effect. The Borrower's subsidiaries and
affiliates, if any, are duly organized, validly existing, and in good
standing under the laws of the jurisdictions of their organization;
2. Use of Proceeds; No Purchases of Margin Stock. The proceeds of the
Revolver will be used only in connection with the Borrower's business, for
the following purposes: to finance accounts receivable.
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None of the proceeds of the Revolver will be used to purchase or carry any
"margin security" or extend credit for such purpose within the meaning of
Regulations G or U of the Board of Governors of the Federal Reserve
System;
3. Financial Statements. All financial statements, statements as to ownership
of the Borrower and its assets, and other statements and information
delivered to the Bank were prepared in accordance with GAAP, consistently
applied, are true and correct, and disclose all presently outstanding
indebtedness or obligations of the Borrower, including contingent
obligations, obligations under leases of property from others, and all
liens and encumbrances, including tax liens, against its properties and
assets; and there have been no adverse changes in the Borrower's financial
condition or business since the date of such statements;
4. Suits. There are no actions, suits, proceedings, or claims pending or
threatened against the Borrower or any of its property; and the Borrower's
business is in compliance with all applicable orders, laws and
regulations;
5. Defaults. The Borrower is not in default under any agreement to which the
Borrower is a party or by which the Borrower or any of its property is
bound, or under any indenture or instrument evidencing any indebtedness of
the Borrower, and neither the Borrower's execution of nor performance
under the Loan Documents will create a default or any lien or encumbrance
under any such agreement, indenture or instrument other than a lien or
encumbrance in favor of the Bank;
6. ERISA. No employee benefit plan established or maintained by the Borrower
which is subject to the Employee Retirement Income Security Act, 29 U.S.C.
ss. 1001 et seq. ("ERISA") has an accumulated funding deficiency (as such
term is defined in ERISA). No material liability to the Pension Benefit
Guaranty Corporation (or any successor thereto under ERISA) has been
incurred by the Borrower with respect to any such plan and no Reportable
Event under ERISA has occurred. The Borrower has no actual or anticipated
liability under Section 4971 of the Internal Revenue Code ("Code")
(relating to tax on failure to meet the minimum funding standard of
Section 412 of the Code) with respect to any employee benefit plan to
which it contributes but which is not maintained or established by it;
7. Tax Returns and Taxes. The Borrower has filed all federal, state and local
tax returns required to be filed and has paid all taxes, assessments and
governmental charges and levies thereon, including interest and penalties,
except where the same are being contested in good faith by appropriate
proceedings and for which adequate reserves have been set aside, and no
liens for taxes have been filed and no claims are being assessed by a
governmental authority with respect to any taxes. The charges, accruals
and reserves on the books of the Borrower with respect to taxes or other
governmental charges are adequate;
8. Compliance with Laws. The Borrower has complied with all requirements of
foreign, federal, state and local law in connection with the acquisition,
ownership and operation of the Borrower's business and property including,
without limitation, any and all applicable requirements of environmental
protection laws;
9. Environmental Compliance. To the best of the Borrower's knowledge, after
due inquiry and investigation, the Borrower and all previous owners and/or
operators of the real and/or personal property of the Borrower have not
engaged in any conduct resulting in the discharging of hazardous
substances or wastes into the atmosphere or waters, or onto lands. The
Borrower has not received a summons, citation, directive, letter, or other
communication, written or oral, from any jurisdiction, political
subdivision, agency, or instrumentality thereof, concerning any
intentional or unintentional act or omission on the Borrower's part
resulting in the discharging of hazardous substances or wastes into the
atmosphere or waters, or onto lands; and
10. Affirmation of Additional Representations and Warranties. The Borrower
hereby makes and affirms, for itself and if applicable, for its
consolidated subsidiaries, any additional representations and warranties
set forth in the Schedule.
F. Conditions.
1. Documents Required for Initial Advance. The obligation of the Bank to make
the initial advance under the Revolver is subject to the payment of fees
due to the Bank under Section D.1. and L.3. of this Agreement and to the
Bank's receipt of the following documents, duly executed and delivered by
the Obligor thereunder, and in form and substance satisfactory to the
Bank:
a. The Note(s) and this Agreement;
b. If the Borrower is a corporation, certified resolutions of the Board of
Directors of the Borrower authorizing the Borrower to borrow under the
Revolver and to execute, deliver and perform its obligations under the
Loan Documents. If the Borrower is a partnership or limited liability
company, the Borrower shall deliver to the Bank a certified document
executed by all general partners and limited partners of the Borrower
or members of the Borrower, as the case may be, authorizing the
Borrower to borrow under the Revolver and authorizing the Borrower's
execution, delivery and performance of the Loan Documents. Such
resolution or document shall contain such other provisions as shall be
required by the Bank;
c. The following security, subordination, and/or guaranty documents, and
related instruments necessary to perfect any interest in the Collateral
described therein: Ucc-1 filings on all assets, general security
agreement, landlord subordination & waiver, Guaranty of Premier
Research, L.L.C, & Premier Research Worldwide Limited, subordination
agreements from UM Holdings, Ltd, and UM Equity Corp; and
d. Such other documents as the Bank may reasonably require, including,
without limitation, proof of insurance, appraisals of real and/or
personal property, environmental analysis, other agreements,
instruments, or indentures to which an Obligor is a party, including,
without limitation, financing statements, proofs, opinions of the
Borrower's counsel and/or other professionals, guaranties and other
written assurances.
2. Requirements for Any Advance. The obligation of the Bank to make any
advance under the Revolver is subject to the payment of the fees due to
the Bank under Sections D.1., D.2. and L.3. of this Agreement and is
conditioned upon the following:
a. The representations and warranties contained in Section E hereof are
true and correct on and as of the date of each such advance, and the
Authorized Representatives previously notified and/or confirmed are the
same and have the same authority to bind the Borrower;
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b. No Event of Default described in Section J hereof, and no event which,
with the giving of notice, or the passage of time, or both, would
become an Event of Default, has occurred and is continuing; and
c. All of the Loan Documents remain in full force and effect.
G. Affirmative Covenants. The Borrower covenants and agrees that so long as
there are any outstanding Liabilities hereunder or otherwise or the Bank
shall have any obligation hereunder, the Borrower and each of its
consolidated subsidiaries (except that if this box [x] is checked, these
covenants shall not apply to such consolidated subsidiaries) shall:
1. Financial Statements. Furnish to the Bank the following financial
information: (i) not later than ninety (90) days after the end of each
fiscal year, consolidated and consolidating [ ] audited [ ] reviewed
[ ] compiled year-end financial statements for the Borrower (if the boxes
herein are left blank, then the type of financial statement shall be
determined by the Bank at its sole discretion), and if applicable, for
each of its consolidated subsidiaries, including, but not limited to,
statements of financial condition, income and cash flows, a reconciliation
of net worth, notes to financial statements (all of the above prepared in
accordance with GAAP, consistently applied, by an independent certified
public accountant acceptable to the Bank, and certified as true, correct,
and complete by the Borrower's chief financial officer) and any other
information that may assist the Bank in assessing the Borrower's financial
condition; (ii) not later than forty-five (45) days after the end of each
interim fiscal quarter, the Borrower's consolidated and consolidating
financial statements, including, but not limited to, statements of
financial condition, income and cash flows, and a reconciliation of net
worth (all of the above prepared in a format acceptable to the Bank,
certified as true, correct, and complete by the Borrower's chief financial
officer); (iii) the following statements and schedules relating to the
Borrower's business, [ ] monthly [ ] quarterly or at such other times as
may be requested by the Bank:
[ ] accounts receivable agings [ ] accounts payable agings
[ ] inventory schedules [ ] other ;
------------------------
and/or (iv) such information respecting the operations, financial or
otherwise, of the Borrower or any of its subsidiaries, as the Bank may
from time to time reasonably request;
2. Compliance Certificate. Furnish to the Bank, together with each set of
financial statements described in Paragraphs, G.1. (i) and (ii) above, a
compliance certificate signed, in the form attached hereto as Exhibit "A,"
signed by the Borrower's chief financial officer, certifying that: (i) all
representations and warranties set forth in this Agreement and in any
other Loan Document are true and correct as of the date thereof; (ii) none
of the covenants in this Agreement or in any other Loan Document has been
breached; (iii) no event has occurred which, alone, or with the giving of
notice or the passage of time, or both, would constitute an Event of
Default under this Agreement or under the other Loan Documents; and (iv)
no material adverse change has occurred in the Borrower's financial
condition;
3. Notice of Certain Events. Promptly give written notice to the Bank of (i)
the details of any Reportable Events (as defined in ERISA) which have
occurred (ii) the occurrence of any event which alone or with notice, the
passage of time, or both, would constitute an Event of Default; (iii) the
commencement of any proceeding or litigation which, if adversely
determined, would adversely affect its financial condition or ability to
conduct business; and (iv) the formation of any subsidiary of the Borrower
after the date of this Agreement, which notice shall be accompanied by the
resolution of the Board of Directors of such subsidiary authorizing such
subsidiary to execute a guaranty of the Liabilities, satisfactory in form
and substance to the Bank, together with such guaranty duly executed by
such subsidiary;
4. Preservation of Property; Insurance. Keep and maintain, and require its
subsidiaries to keep and maintain, all of its and their properties and
assets in good order and repair; maintain extended coverage, general
liability, hazard, business interruption, property and other insurance in
amounts deemed satisfactory to the Bank and as is customary for businesses
similar to the Borrower's business and deliver to the Bank certificates of
all such insurance in effect; and cause all such policies covering any
Collateral and covering business interruption to contain loss payee
endorsements in favor of the Bank and to be subject to cancellation or
reduction in coverage only upon thirty (30) days prior written notice
thereof to the Bank at its address set forth in this Agreement.
5. Taxes. Pay and discharge, and require its subsidiaries to pay and
discharge, when due, all taxes, assessments or other governmental charges
imposed on them or any of their respective properties, unless the same are
currently being contested in good faith by appropriate proceedings and
adequate reserves are maintained therefor;
6. Operation of Properties. Operate its properties, and cause those of its
subsidiaries to be operated in compliance with all applicable orders,
rules and regulations promulgated by the jurisdictions and agencies
thereof where such properties are located, and duly file or cause to be
filed such reports and/or information returns as may be required or
appropriate under applicable orders, regulations or law;
7. Access to Properties, Books and Records. Permit the Bank's representatives
and/or agents full and complete access to any or all of the Borrower's and
its subsidiaries' properties and financial records, to make extracts from
and/or audit such records and to examine and discuss the Borrower's
properties, business, finances and affairs with the Borrower's officers
and outside accountants;
8. Environmental Liens. In the event that there shall be filed a lien against
any property of the Borrower by any jurisdiction, political subdivision,
agency, or instrumentality thereof, arising from an intentional or
unintentional act or omission of the Borrower, resulting in the
discharging of hazardous substance or wastes into the atmosphere or
waters, or onto lands, then, within thirty (30) days from the date that
the Borrower is given notice that the lien has been placed against such
property, or within such shorter period of time in the event that such
jurisdiction, political subdivision, agency or instrumentality thereof
has commenced steps to cause such property to be sold pursuant to the
lien, the Borrower shall either (i) pay the claim and remove the lien from
the applicable property or (ii) furnish to such jurisdiction, political
subdivision, agency; or instrumentality thereof that imposed the lien one
of the following: (a) a bond satisfactory to such jurisdiction, political
subdivision, agency, or instrumentality thereof in the amount of the claim
out of which the lien arises, (b) a cash deposit in the amount of the
claim out of which the lien arises; or (c) other security reasonably
satisfactory to such jurisdiction, political subdivision, agency or
instrumentality thereof in an amount sufficient to discharge the claim out
of which the lien arises;
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9. Removal of Hazardous Substances. Should the Borrower cause or permit any
intentional or unintentional act or omission resulting in the discharging
of hazardous substances or wastes into the atmosphere or waters, or onto
lands, resulting in damage to the natural resources without having
obtained a permit issued by the appropriate governmental authorities, the
Borrower shall promptly clean up same in accordance with all applicable
federal, state, and local orders, statutes, laws, ordinances, rules, and
regulations; and
10. Additional Affirmative Covenants. The Borrower further affirmatively
covenants and agrees that it shall perform any other affirmative covenants
set forth in the Schedule and in the Loan Documents to which the Borrower
is a party.
H. Negative Covenants. So long as any Liabilities are outstanding, or the Bank
has any commitment to make advances hereunder, the Borrower and its
consolidated subsidiaries (except that if this box [ ] is checked, these
covenants shall not apply to such consolidated subsidiaries) shall not,
without the prior written consent of the Bank (in this section only, if a
blank in any of the following paragraphs is completed with the letters NA or
N/A, that paragraph in this section only is not applicable):
1. Incur Indebtedness; Creation of Lien. Incur, create, or assume any
indebtedness including, without limitation, obligations under capitalized
leases, except indebtedness owing to the Bank, indebtedness existing on
the date hereof and previously reported in writing to and permitted by the
Bank, indebtedness incurred for normal consumer purposes, and trade
indebtedness arising in the ordinary course of the Borrower's business;
make any loans or advances to others including, without limitation,
officers, directors, shareholders, principals, partners, members,
managers, or affiliates of the Borrower or any Obligor; or create, permit,
or suffer the creation of any liens, security interests or other
encumbrances on any of its property, real or personal, except liens,
security interests or encumbrances in favor of the Bank or existing on the
date hereof and previously reported in writing to and permitted by the
Bank;
2. Sales of Assets; Liquidation; Merger; Acquisitions. Convey, lease, sell,
transfer or assign any assets except in the ordinary course of the
Borrower's business for value received; liquidate or discontinue its
normal operations with intent to liquidate; enter into any merger or
consolidation; or acquire all or substantially all of the assets, stock or
other equity interests of another entity;
3. Payment of Dividends; Redemption of Stock. Pay any dividends, make any
withdrawal from its capital, make any other distributions and/or
repurchase, redeem, or otherwise acquire or set aside reserves to acquire,
any of its outstanding stock, partnership, member, or other equity
interests, except for such actions by any subsidiaries in favor of the
Borrower;
4. Accounts. Sell, assign, transfer or dispose of any of its accounts or
notes receivable, with or without recourse, except to the Bank;
5. Guaranty Obligations. Become a guarantor, surety, obligor or otherwise
become directly, indirectly or contingently liable for the debts or
obligations of others, except for the benefit of the Bank or its
Affiliates, and except as an endorser of checks or drafts negotiated in
the ordinary course of the Borrower's business;
6. Lease Obligations. Incur, create, or assume any commitment to make any new
Lease Payments if the aggregate amount payable thereunder in any one
fiscal year would exceed $300,000.00; "Lease Payments" shall mean any
direct or indirect payment or payments, whether as rent or otherwise,
including fees or service or finance charges, under any lease, rental or
other agreement for the use of the property of any person and/or entity
other than the Borrower whether or not such agreement contains an option
to purchase;
7. Sale-Leaseback Transactions. Enter into any sale-leaseback transaction or
any transaction howsoever termed which would have the same or
substantially the same result or effect as a sale-leaseback;
8. Prepayment of Other Indebtedness. Prepay any amounts not required to be
prepaid, except to the Bank or any Affiliate, or cause or permit to be
accelerated any amounts on any outstanding indebtedness now existing or
hereafter arising;
9. Compensation. Permit salaries, withdrawals, bonuses or other compensation
to officers, directors, shareholders, principals, partners, members,
managers, or affiliates of the Borrower to exceed the aggregate amount of
$ n/a per year;
10. Expenses for Fixed Assets. Expend for fixed assets during any one fiscal
year of the Borrower an aggregate amount exceeding $ n/a ;
11. Sales or Issuance of Equity Interest. If the Borrower is a corporation,
sell, issue, or agree to sell or issue, any equity interest (voting,
non-voting, preferred or common) of the Borrower, or purchase any such
equity interest;
12. Investments. Purchase or make any investment in the stock, securities or
evidences of indebtedness of or loan to any other person or entity
(including, without limitation, entities owned or controlled by any
officers, directors, shareholders, principals, partners, members,
managers, or affiliates of the Borrower) except (i) the United States
Government or its agencies, or (ii) certificates of deposit of United
States domestic banks having a ratio of qualifying total capital to
weighted risk assets of not less than eight (8%) percent, at least four
(4%) percent of which is Tier I capital, and total capital and surplus in
excess of $50,000,000. "Qualifying total capital" and "Tier I capital"
shall be defined from time to time pursuant to regulations published by
the Office of the Comptroller of the Currency and the Federal Deposit
Insurance Corporation;
13. Hazardous Substances. Cause or permit to exist a discharging of hazardous
substances or wastes into the atmosphere or waters, or onto lands, unless
the discharging is pursuant to and in compliance with the conditions of a
permit issued by the appropriate federal, state, or local governmental
authorities;
14. Consolidated Working Capital. Permit Consolidated Working Capital of the
Borrower and its consolidated subsidiaries (if any) at any time to be less
than $ n/a until and including n/a, and $ n/a at all times thereafter;
"Working Capital" is defined, at any date, as the excess of Current Assets
over Current Liabilities; "Current Assets" and "Current Liabilities" shall
mean all assets and liabilities which, in accordance with GAAP, should be
classified as current assets and current liabilities, respectively;
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15. Consolidated Debt Service Coverage Ratio. Permit the ratio of net income
minus dividends plus interest expense plus income tax expense plus
depreciation and amortization of the Borrower and its consolidated
subsidiaries for any period of four consecutive fiscal quarters ("current
period") to interest expense of the Borrower and its consolidated
subsidiaries for such current period plus the current portion of long term
debt and capital leases of the Borrower and its consolidated subsidiaries
(as reflected on the Borrower's consolidated financial statement as of the
end of the most recent fiscal quarter immediately preceding such current
period) to be less than n/a ;
16. Consolidated Tangible Net Worth. Permit Consolidated Tangible Net Worth at
any time to be less than $ 1,750,000.00; "Tangible Net Worth" is defined,
at any date, as (i) the aggregate amount at which all assets of the
Borrower would be shown on a balance sheet at such date after deducting
capitalized research and development costs, capitalized interest, debt
discount and expense, goodwill, patents, trademarks, copyrights,
franchises, licenses, amounts owing from officers, directors,
shareholders, principals, partners, members, managers, or affiliates of
the Borrower and any investments in any entities owned or controlled by
any of the foregoing, and such other assets as are properly classified as
"intangible assets" less (ii) the aggregate amount of indebtedness,
liabilities (including tax and other proper accruals) and reserves of the
Borrower and its consolidated subsidiaries (excluding Approved
Subordinated Debt); "Approved Subordinated Debt" means any indebtedness
for borrowed money that is permitted by this Agreement and this is owing
on the date hereof or is subordinated to the Liabilities on terms approved
in writing by the Bank;
17. Debt to Equity Ratio Requirements. Permit the ratio of Consolidated Total
Liabilities to Consolidated Tangible Net Worth at any time to exceed n/a
until and including n/a , and n/a thereafter; "Total Liabilities" is
defined, at any date, as all liabilities of the Borrower which would
properly appear on the liabilities side of a balance sheet, other than
capital stock, capital surplus, retained earnings, minority interests,
deferred credit, Approved Subordinate Debt and contingency reserves under
GAAP; and
18. Additional Negative Covenants. The Borrower and its subsidiaries shall not
undertake any activities prohibited by any other negative covenants set
forth on the Schedule.
I. Additional Collateral. As additional collateral security for the payment of
the Borrower's indebtedness and obligations to the Bank hereunder, under the
other Loan Documents, and/or otherwise, the Borrower hereby grants to the
Bank a continuing security interest in and lien of the first priority upon
and hereby assigns to the Bank all funds, balances, deposits, accounts,
certificates of deposit, securities and/or other property of any kind of the
Borrower and in which the Borrower has an interest, and the proceeds of the
foregoing, now or hereafter in the possession, custody, or control of the
Bank or any Affiliate.
J. Events of Default. Each of the following shall constitute an event of default
("Event of Default") hereunder:
1. Breach. A breach by any Obligor of any term, provision, obligation,
covenant, representation, or warranty arising under (i) this Agreement or
any other Loan Document, including, without limitation, failure to make
any payment when due hereunder or under any other Loan Document; (ii) any
present or future agreement or instrument with or in favor of the Bank
and/or any Affiliate, including the failure to make any payment when due;
or (iii) any present or future agreement or instrument for borrowed money
or other financial accommodations in any other person or entity;
2. Bankruptcy; Insolvency. (i) Any Obligor commences any bankruptcy,
reorganization, debt arrangement, or other case or proceeding under the
United States Bankruptcy Code or under any similar foreign, federal,
state, or local statute, or any dissolution or liquidation proceeding, or
makes a general assignment for the benefit of creditors, or takes any
action for the purpose of effecting any of the foregoing; (ii) any
bankruptcy, reorganization, debt arrangement, or other case or proceeding
under the United Stated Bankruptcy Code or under any similar foreign,
federal, state, or local statute, or any dissolution or liquidation
proceeding, is involuntarily commenced against or in respect of any
Obligor or an order for relief is entered in any such proceeding; (iii)
the appointment, or the filing, of a petition seeking the appointment, of
a custodian, receiver, trustee, or liquidator for any Obligor or any of
its property, or the taking of possession of any part of the property of
any Obligor at the instance of any governmental authority; or (iv) any
Obligor becomes insolvent (however defined), is generally not paying its
debts as they become due, or has suspended transaction of its usual
business;
3. Death; Reorganization. The death, dissolution, merger, consolidation, or
reorganization of any Obligor;
4. Material Misstatement. Any statement, representation or warranty made in
or pursuant to this Agreement or any other Loan Document or to induce the
Bank to enter into this Agreement shall prove to be untrue or misleading
in any material respect;
5. Material Adverse Change. The occurrence of a material adverse change in
the financial condition of any Obligor or the occurrence of any event
which, in the sole opinion of the Bank, impairs the financial
responsibility of any Obligor, including, without limitation, a change in
management or ownership of any Obligor;
6. Insecure. The Bank deems itself insecure;
7. Debt, Liens, Loans, Lease Payments. Any Obligor: (i) incurs or assumes
additional debt other than debt incurred for normal consumer purposes,
debt to the Bank and/or an Affiliate and/or trade debt in the ordinary
course of Obligor's business; (ii) makes any loans or advances to
officers, directors, shareholders, principals, partners, members,
managers, or affiliates of the Borrower or any Obligor; (iii) creates,
permits or grants any lien or security interest in or transfers any of its
property on which the Bank and/or an Affiliate has a lien and/or security
interest; or (iv) incurs, creates or assumes any commitment, either
directly or indirectly, for rent, service fees or charges or finance
charges under any lease, rental, sale-leaseback, or other agreement for
use of the property of any person and/or entity other than the Borrower;
8. Entry of Judgment. The filing, entry, or issuance of any judgment,
execution, garnishment, attachment, distraint, or lien against any Obligor
or its property; or the entry of any order enjoining or restraining any
Obligor and/or restraining or seizing any property of any Obligor;
9. Transfer of Assets. Any Obligor transfers or sells all or substantially
all of its assets, without the prior written consent of the Bank; or
10. Loan Documents. The validity or enforceability of any of the Loan
Documents is contested by an Obligor or any representative thereof.
6 of 11
K. Remedies.
1. Acceleration of Liabilities; Rights of Bank. Upon and following the
occurrence of an Event of Default described in Section J hereof (other
than the Events of Default described in Paragraph J.2.), at the Bank's
sole option, the Bank's commitment, if any, to make any further advances
or loans to the Borrower hereunder shall terminate, and all Liabilities
shall immediately become due and payable in full, all without protest,
presentment, demand or further notice of any kind to the Borrower or any
other Obligor, all of which are expressly waived. Upon and occurrence of
any Event of Default described in Paragraph J.2., immediately and
automatically, the Bank's commitment, if any, to make any further advances
or loans to the Borrower hereunder, shall terminate and all Liabilities
shall immediately become due and payable in full, all without protest,
presentment, demand or further notice of any kind to the Borrower or any
other Obligor, all of which are expressly waived. Upon and following an
Event of Default, the Bank may, at its option, exercise any and all rights
and remedies it has under this Agreement, the other Loan Documents and
under applicable law, including, without limitation, the right to charge
and collect interest on the principal portion of the Liabilities at the
Default Rate, which rate shall, at the Bank's option, apply upon and after
an Event of Default arising from failure to pay any amount when due under
any of the Loan Documents, maturity, whether by acceleration or otherwise,
and the entry of judgment with respect to any or all of the Liabilities.
Upon and following an Event of Default hereunder, the Bank may proceed to
protect and enforce the Bank's rights under any Loan Document and/or under
applicable law by action at law, in equity, or other appropriate
proceedings, including, without limitation, an action for specific
performance to enforce or aid in the enforcement of any provision
contained herein or in any other Loan Document.
2. Right of Set-off. If any of the Liabilities shall be due and payable or
any one or more Events of Default shall have occurred, whether or not the
Bank shall have made demand under any Loan Document and regardless of the
adequacy of any Collateral for the Liabilities or other means of obtaining
repayment of the Liabilities, the Bank shall have the right, without
notice to the Borrower or any other Obligor, and is specifically
authorized hereby to set-off against and apply to the then unpaid balance
of the Liabilities any items or funds of the Borrower and/or any Obligor
held by the Bank or any Affiliate, any and all deposits (whether general
or special, time or demand, matured or unmatured) or any other property of
the Borrower and/or any Obligor, including, without limitation, securities
and/or certificates of deposit, now or hereafter maintained by the
Borrower and/or any Obligor for its or their own account with the Bank or
any Affiliate, and any other indebtedness at any time held or owing by
the Bank or any Affiliate to or for the credit or the account of the
Borrower and/or any Obligor, even if effecting such set-off results in a
loss or reduction of interest or the imposition of a penalty applicable to
the early withdrawal of time deposits. For such purpose, the Bank shall
have, and the Borrower hereby grants to the Bank, a first lien on and
security interest in such deposits, property, funds, and accounts, and the
proceeds thereof. The Borrower further authorizes any Affiliate, upon and
following the occurrence of an Event of Default, at the request of the
Bank, and without notice to the Borrower, to turn over to the Bank any
property of the Borrower, including, without limitation, funds and
securities, held by the Affiliate for the Borrower's account and to debit,
for the benefit of the Bank, any deposit account maintained by the
Borrower with such Affiliate (even if such deposit account is not then due
or there results a loss or reduction of interest or the imposition of a
penalty in accordance with law applicable to the early withdrawal of time
deposits), in the amount requested by the Bank up to the amount of the
Liabilities, and to pay or transfer such amount or property to the Bank
for application to the Liabilities.
3. Confession of Judgment.
a. THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF AUTHORITY FOR ANY
ATTORNEY TO CONFESS JUDGMENT AGAINST THE BORROWER. IN GRANTING THIS
WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST THE BORROWER, THE
BORROWER, FOLLOWING CONSULTATION WITH (OR DECISION NOT TO CONSULT)
SEPARATE COUNSEL FOR THE BORROWER AND WITH KNOWLEDGE OF THE LEGAL
EFFECT HEREOF, HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY AND
UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE BORROWER HAS OR MAY HAVE
TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE
CONSTITUTIONS AND LAWS OF THE UNITED STATES OF AMERICA, THE
COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE. IT IS SPECIFICALLY
ACKNOWLEDGED BY THE BORROWER THAT THE BANK HAS RELIED ON THIS WARRANT
OF ATTORNEY IN RECEIVING THIS AGREEMENT AND AS AN INDUCEMENT TO GRANT
FINANCIAL ACCOMMODATION CONTAINED HEREIN.
b. Upon and following the occurrence of an Event of Default, the Borrower
hereby jointly and severally authorizes and empowers any attorney of
any court of record or the prothonotary or clerk of any county in
Commonwealth of Pennsylvania, or in any jurisdiction where permitted by
law or the clerk of any United States District Court, to appear for the
Borrower or any of them in any and all actions which may be brought
hereunder and enter and confess judgement against the Borrower or any
of them in favor of the Bank for such sums as are due or may become due
hereunder or under any other Loan Document, together with costs of suit
and actual collection costs including, without limitation, reasonable
attorneys' fees equal to five percent (5%) of the Liabilities then due
and owing but in no event less than $5,000, with or without
declaration, without prior notice, without stay of execution and with
release of all procedural errors and the right to issue executions
forthwith. To the extent permitted by law, the Borrower waives the
right of inquisition on any real estate levied on, voluntarily condemns
the same, authorizes the prothonotary or clerk to enter upon the writ
of execution this voluntary condemnation and agrees that such real
estate may be sold on a writ of execution; and also waives any relief
from any appraisement, stay or exemption law of any state now in force
or hereafter enacted. If a copy of this Agreement verified by affidavit
of any officer of the Bank shall have been filed in such action, it
shall not be necessary to file the original thereof as a warrant of
attorney, any practice or usage to the contrary notwithstanding. The
authority herein granted to confess judgement shall not be exhausted by
any single exercise thereof, but shall continue and may be exercised
from time to time as often as the Bank shall find it necessary and
desirable and at all time until full payment of all amounts due
hereunder and under the other Loan Documents. The Bank may confess one
or more judgments in the same or different jurisdictions for all or any
part of the obligations arising hereunder or under any other Loan
Document, without regard to whether judgment has theretofore been
confessed on more than one occasion for the same obligations. In the
event that any judgment confessed against the Borrower is stricken or
opened upon application by or on behalf of the Borrower or any Obligor
for any reason, the Bank is hereby authorized and empowered to again
appear for and confess judgment against the Borrower for any part or
all of the obligations due and owing under this Note, as herein
provided.
4. Remedies Cumulative; No Waiver. The rights, powers and remedies of the
Bank provided in this Agreement and any of the Loan Documents are
cumulative and not exclusive of any right, power or remedy provided by law
or equity. No failure or delay on the part of the Bank in the exercise of
any right, power or remedy shall operate as a waiver thereof, nor shall
any single or partial exercise preclude any other or further exercise
thereof, or the exercise of any other right, power or remedy.
7 of 11
5. Continuing Enforcement of the Loan Documents. If, after receipt of any
payment of all or any part of the Liabilities, the Bank is compelled or
agrees, for settlement purposes, to surrender such payment to any person
or entity for any reason, then this Agreement and the other Loan Documents
shall continue in full force and effect or be reinstated, as the case may
be. The provisions of this Paragraph shall survive the termination of this
Agreement and the other Loan Documents and shall be and remain effective
notwithstanding the payment of the Liabilities, the cancellation of the
Agreement, the release of any security interest, lien or encumbrance
securing the Liabilities or any other action which the Bank may have taken
in reliance upon its receipt of such payment.
L. Miscellaneous.
1. Waiver of Demand. The Borrower (i) waives demand, presentment, protest,
notice of protest, and notice of dishonor of this Agreement; (ii) consents
to any and all extensions of time, renewals, waivers, or modifications
that may be granted by the Bank with respect to the payment or other
provisions of this Agreement; and (iii) agrees that makers, endorsers,
guarantors, and sureties for the indebtedness evidenced hereby may be
added or released without notice to the Borrower and without affecting the
Borrower's liability hereunder. The liability of the Borrower hereunder
shall be absolute and unconditional.
2. Notices. Notices and communications under this Agreement shall be in
writing and shall be given by (i) hand-delivery, (ii) first class mail
(postage prepaid), (iii) reliable overnight commercial courier (charges
prepaid) or (iv) telecopy to the addresses and telecopier numbers listed
in this Agreement (provided that if no telecopier numbers appear on this
Agreement, to the telecopier numbers that the parties notify one another
of from time to time). Notice given by telecopy shall be deemed to have
been given and received when sent. Notice by overnight courier shall be
deemed to have been given and received on the date scheduled for delivery.
Notice by mail shall be deemed to have been given and received three (3)
calendar days after the date first deposited in the United States Mail.
Notice by hand-delivery shall be deemed to have been given and received
upon delivery. A party may change its address and/or telecopier number by
giving written notice to the other party as specified herein.
3. Costs and Expenses. Whether or not the transactions contemplated by the
Loan Documents are fully consummated, the Borrower shall promptly pay (or
reimburse, as the Bank may elect) all costs and expenses which the Bank
has incurred or may hereafter incur in connection with the negotiation,
preparation, reproduction, interpretation, perfection, protection of
collateral and enforcement of this Agreement and the other Loan Documents,
the collection of all amounts due under this Agreement and the other Loan
Documents, and all amendments, modifications, consents or waivers, if any,
to the Loan Documents. The Borrower's reimbursement obligations under this
Paragraph shall survive any termination of this Agreement or any other
Loan Document.
4. Payment Due on a Day Other than a Business Day. If any payment due or
action to be taken under this Agreement or any other Loan Document falls
due or is required to be taken on a day that is not a Business Day, such
payment or action shall be made or taken on the next succeeding Business
Day when the Bank is open for business and such extended time shall be
included in the computation of interest.
5. Governing Law. This Agreement and the Note shall be construed in
accordance with and governed by the substantive laws of the Commonwealth
of Pennsylvania without reference to conflict of laws principles.
6. Integration; Amendment. This Agreement and the other Loan Documents
constitute the sole agreement of the parties with respect to the subject
matter hereof and thereof and supersede all oral negotiations and prior
writings with respect to the subject matter hereof and thereof. No
amendment of this Agreement, and no waiver of any one or more of the
provisions hereof shall be effective unless set forth in writing and
signed by the parties hereto.
7. Successors and Assigns. This Agreement (i) shall be binding upon the
Borrower and the Bank and, where applicable, their respective heirs,
executors, administrators, successors and assigns, and (ii) shall inure to
the benefit of the Borrower and the Bank and, where applicable, their
respective heirs, executors, administrators, successors and permitted
assigns; provided, however, that the Borrower may not assign its rights or
obligations hereunder or any interest herein without the prior written
consent of the Bank, and any such assignment or attempted assignment by
the Borrower shall be void and of no effect with respect to the Bank. The
Bank may from time to time sell or assign, in whole or in part, or grant
participations in the Loan and/or the Agreement and/or the obligations
evidenced thereby. The Borrower authorizes the Bank to provide information
concerning the Borrower to any prospective purchaser, assignee or
participant.
8. Severability and Consistency. The illegality, unenforceability or
inconsistency of any provision of this Agreement or any instrument or
agreement required hereunder shall not in any way affect or impair the
legality, enforceability or consistency of the remaining provisions of
this Agreement or any instrument or agreement required hereunder. The Loan
Documents are intended to be consistent. However, in the event of any
inconsistencies among any of the Loan Documents, such inconsistency shall
not affect the validity or enforceability of any Loan Document. The
Borrower agrees that in the event of any inconsistency or ambiguity in any
of the Loan Documents, the Loan Documents shall not be construed against
any one party but shall be interpreted consistent with the Bank's policies
and procedures.
9. Consent to Jurisdiction and Service of Process. The Borrower irrevocably
appoints each and every owner, partner, member, manager, and/or officer of
the Borrower as its attorneys upon whom may be served, by regular or
certified mail at the address set forth in this Agreement, any notice,
process or pleading in any action or proceeding against it arising out of
or in connection with this Agreement or any of the other Loan Documents.
The Borrower hereby consents and agrees that (i) any action or proceeding
against it may be commenced and maintained in any court within the
Commonwealth of Pennsylvania or in the United State District Court for any
District of Pennsylvania by service of process on any such owner, partner,
member, manager, and/or officer and (ii) the courts of the Commonwealth of
Pennsylvania and the United States District Court for any District
Pennsylvania shall have jurisdiction with respect to the subject matter
hereof and the person of the Borrower and all collateral for the
Liabilities. The Borrower agrees that any action brought by the Borrower
shall be commenced and maintained only in a court in the Federal Judicial
District or county in which the bank has its principal place of business
in Pennsylvania.
10. Joint and Several Liability. In the event that the Borrower consists of
more than one person or entity, the Liabilities of each such person or
entity shall be joint and several and the word "Borrower" means each of
them, any of them and/or all of them.
8 of 11
11. Judicial Proceedings; Waivers.
THE BORROWER AND THE BANK ACKNOWLEDGE AND AGREE THAT (i) ANY SUIT, ACTION
OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT OR INSTITUTED BY THE
BANK OR THE BORROWER OR ANY SUCCESSOR OR ASSIGN OF THE BANK OR THE
BORROWER, ON OR WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR THE DEALINGS OF THE PARTIES WITH RESPECT HERETO, OR THERETO, SHALL BE
TRIED ONLY BY A COURT AND NOT BY A JURY AND EACH PARTY WAIVES THE RIGHT TO
TRIAL BY JURY; (ii) EACH WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER,
IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES; AND (iii) THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT
OF THIS AGREEMENT AND THE BANK WOULD NOT EXTEND CREDIT TO THE BORROWER IF
THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART OF THIS AGREEMENT.
IN WITNESS WHEREOF, the Borrower and the Bank, intending to be Legally bound
hereby, have executed this Agreement, as of the day and year first above
written.
Premier Research Worldwide, Ltd. Address: 000 Xxxxx 00xx Xxxxxx
-------------------------------------------------------------------- Xxxxxxxxxxxx, XX 00000
Corporation, Partnership or Limited Liability Company Name
By: /s/ Xxxxxx X. Xxxxx, Xx. Address: 000 Xxxxx 00xx Xxxxxx
------------------------------------------------------------------ Xxxxxxxxxxxx, XX 00000
Name & Title: Xxxxxx X. Xxxxx, Xx., Treasurer
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name & Title: Xxxxx Xxxxxx, VP
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
9 of 11
Schedule of
Additional Terms to Revolving Credit Agreement
dated ,
----------------------------------
by and between the Bank and the Borrower
10 of 11
Exhibit A
to Revolving Credit Agreement
dated ,
----------------------------------
by and between the Bank and the Borrower
COMPLIANCE CERTIFICATE OF BORROWER
FOR THE FISCAL YEAR ENDING OR
-----------------------------------------------
FOR THE FISCAL QUARTER ENDING
---------------------------------------------
This Compliance Certificate, signed by _______________________________________
(if the Borrower is an individual) the Borrower, or (if the Borrower is not an
individual) the Chief Financial Officer of the Borrower, is delivered to the
Bank pursuant to Section G.2. of the Revolving Credit Agreement (the
"Agreement").
The undersigned certifies that he/she is authorized to execute this Compliance
Certificate on behalf of the Borrower and hereby certifies on behalf of the
Borrower as follows:
i) all representations and warranties set forth in the Agreement and in any
other Loan Document (as defined in the Agreement), remain true and
correct;
ii) none of the covenants in the Agreement or in any of the other Loan
Documents has been breached; and
iii) no event has occurred which, alone, or with the giving of notice or the
passage of time, or both, would constitute an event of default (as
defined in the Agreement) under the Agreement or under any of the Loan
Documents. No material adverse change has occurred in the Borrower's
financial condition.
The foregoing representations concerning the Borrower's financial condition are
made to the Bank with the understanding that the Bank will rely on these
representations.
-------------------------------------------------
Borrower Name
By:
----------------------------------------------
Name/Title
By:
----------------------------------------------
Name/Title
Address:
-----------------------------------------
-----------------------------------------
SCHEDULE OF ADDITIONAL TERMS TO REVOLVING CREDIT AGREEMENT
AND REVOLVING CREDIT NOTE, DATED JUNE 13, 1996,
BY AND BETWEEN THE BANK AND THE BORROWER
----------------------------------------
A. Paragraph A.2. of the Agreement and Paragraph A.6. of the Note are hereby
each deleted in their entirety and the following provision is substituted in
each of their places:
Maximum Principal Amount. The maximum aggregate principal amount of advances
to be outstanding at any time hereunder (the "Maximum Principal Amount") is
the lesser of: (i) One Million Dollars ($1,000,000); or (ii) 60% of
Borrower's Eligible Accounts. The Borrower shall not request the Bank to make
any advances under the Note which, when added to the principal balance
outstanding under the Note, would cause the principal balance outstanding
under the Note to exceed the Maximum Principal Amount. In the event that the
principal balance outstanding under the Note exceeds at any time the Maximum
Principal Amount, the Borrower shall immediately, and without demand from the
Bank, pay to the Bank the amount in excess of the Maximum Principal Amount
(the "Excess") and the Borrower agrees that until such Excess is paid to the
Bank, this Note shall evidence and be enforceable with respect to any and all
amounts outstanding hereunder including such Excess.
B. The following definition is hereby added in alphabetical order to Section C.
of the Agreement:
Eligible Account. The term "Eligible Account" means each account which meets
all of the following criteria: (a) the account arose from a bona fide
outright sale of goods by the Borrower, or for services performed by the
Borrower, under an enforceable contract, within the United States for an
individual or entity located within the United States (other than the United
States Government or any state governmental body, unless the Borrower has
complied to the Bank's satisfaction with the Federal Assignment of Claims Act
or any comparable state statute) and such goods have been shipped to the
appropriate account debtor, or the sale has otherwise been consummated, or
the services have been performed for the appropriate account debtor in
accordance with such contract; (b) the title of the Borrower to the account
is absolute and is not subject to any prior assignment or encumbrance; (c)
the amount of the account shown on the books of the Borrower and on any
invoice or statement delivered to the Bank is owing to the Borrower and no
partial payment has been made thereon by any individual or entity, other than
non-refundable customer deposits; (d) the account is not a contra account and
is not subject to any claim of reduction, counterclaim, set-off, recoupment,
or any claim for credits, allowances or adjustments by the account debtor
because of returned, inferior or damaged goods or unsatisfactory services, or
for any other reason, except for customary discounts allowed for prompt
payment; (e) not more than fifty percent (50%) of the aggregate accounts due
from the account debtor remain unpaid for more than one hundred and twenty
(120) days past the invoice date; (f) the account debtor has not returned or
refused to accept or retain any of the goods or services from the sale or
furnishing of which the account arose; (g) the age of the account, calculated
from the date of the invoice therefor, is not more than ninety (90) days; (h)
the account debtor is not an employee, stockholder, affiliate or subsidiary
of the Borrower; (i) an invoice reflecting the account has been issued by the
Borrower to the account debtor, and neither the invoice nor the account
reflected on the Borrower's books has been redated; and (j) the account is
not an account that the Bank, in its sole discretion, has determined does not
constitute an Eligible Account in whole or in part, whether because the
account debtor does not meet the Bank's credit standards or otherwise.
1
C. The following representation and warranty is hereby added in numerical order
to Section E. of the Agreement:
Eligible Accounts and Borrowing Base Certificates. All accounts reported to
the Bank as Eligible Accounts in the quarterly borrowing base certificates
submitted by the Borrower or relied on by the Borrower in requesting an
advance under the Revolver meet all of the criteria set forth in the
definition of Eligible Account set forth herein, and the most recent
borrowing base certificate submitted by the Borrower to the Bank was true and
correct in all respects on the date submitted and the Borrower is not aware
of any facts or circumstances that would make such borrowing base certificate
untrue or incorrect in any respect as of the date on which it was made.
D. Paragraph G.1. of the Agreement is hereby deleted in its entirety and the
following provision is substituted in its place:
1. Financial Statements. Furnish to the Bank the following financial
information: (i) not later than one hundred and twenty (120) days after
the end of each fiscal year, consolidated and consolidating audited
year-end financial statements for the Borrower, and for each of its
consolidated subsidiaries, including, but not limited to, statements of
financial condition, income and cash flows, a reconciliation of net worth,
notes to financial statements (all of the above prepared in accordance
with GAAP, consistently applied, by an independent certified public
accountant acceptable to the Bank, and certified as true, correct, and
complete by the Borrower's chief financial officer), and any other
information that may assist the Bank in assessing the Borrower's financial
condition; (ii) not later than thirty (30) days after the end of each
interim fiscal quarter, the Borrower's consolidated and divisional
financial statements, including, but not limited to, statements of
financial condition, income and cash flows, and a reconciliation of net
worth (all of the above prepared in a format acceptable to the Bank,
certified as true, correct, and complete by the Borrower's chief financial
officer); (iii) the following statements and schedules relating to the
Borrower's business, not later than thirty (30) days identifying both
billed and unbilled amounts, (b) a borrowing base certificate presenting
eligible accounts receivable relative to outstanding advances under the
Revolver, and (c) monthly management reports, including backlog and
pipeline information, for the prior three months, as presented to the
Borrower's Board of Directors, and/or (iv) such information respecting the
operations, financial or otherwise, of the Borrower or any of its
subsidiaries, as the Bank may from time to time reasonably request;
E. The following affirmative covenant is hereby added in numerical order to
Section G. of the Agreement:
Notifications. The Borrower shall promptly notify the Bank of the following:
(i) any material adverse change in the financial condition of any account
debtor; and (ii) the rejection of any goods or services, or claims made in
respect of any Eligible Account.
F. The following language is hereby added to the end of Paragraph H.1. of the
Agreement, before the semicolon:
, provided, however, that (i) indebtedness may be incurred owing to UM
Holdings, LTD or UM Equity Corp. (the "UM Subordinated Debt"), so long as
such indebtedness outstanding at any one time does not exceed $1,000,000 in
the aggregate, and all such indebtedness is subordinated to the Liabilities,
and the holders thereof have executed a subordination agreement in form and
substance satisfactory to Bank; (ii) payments of principal and interest may
be made on the UM Subordinated Debt so long as at the time of payment and
after giving effect thereto, no Event of Default shall have occurred or event
which, with the giving of notice, passage of time or both, would constitute
an Event of Default shall have occurred and be continuing; and (iii) loans
may be made to UM Holdings, LTD, so long as the amount of any such loans
outstanding at any one time does not exceed $200,000 in the aggregate and so
long as at the time each such loan is made and after giving effect thereto,
no Event of Default shall have occurred or event which, with the giving of
notice, passage of time or both would constitute an Event of Default, shall
have occurred and be continuing:
G. The following language is hereby added to the end of Paragraph H.2. of the
Agreement, before the semicolon:
in excess of $750,000 in the aggregate, so long as at the time each such
acquisition is made and after giving effect thereto, no Event of Default
shall have occurred or event which, with the giving of notice, passage of
time or both would constitute an Event of Default, shall have occurred and be
continuing;
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H. The following language is hereby added to the end of Paragraph H.3. of the
Agreement, before the semicolon:
, provided, however, that dividends of up to $1,200,000 in the aggregate in
any fiscal year may be paid to UM Holdings, LTD in amounts not to exceed
$300,000 for the year-to-date period ending March 31, $600,000 for the
year-to-date period ending June 30, $900,000 for the year-to-date period
ending September 30, and $1,200,000 for the year-to-date period ending
December 31, so long as at the time of any such payment and after giving
effect thereto, no Event of Default shall have occurred or event which, with
the giving of notice, passage of time or both would constitute an Event of
Default, shall have occurred and be continuing;
I. The following language is hereby added to the end of Paragraph H.11. of the
Agreement, before the semicolon:
, provided, however, that the Borrower may sell or use shares so long as UM
Holdings, LTD continues at all times to own at least 60% of the Borrower's
voting shares and at least 60% of all of the Borrower's other shares, whether
preferred or common;
J. The following language is hereby added to the end of Paragraph H.12. of the
Agreement, before the semicolon:
, or (iii) repurchase agreements not exceeding 29 days in duration issued by
banks with shareholders' equity of at least $100,000,000, or (iv) notes and
other instruments generally known as "commercial paper" which arise out of
current transactions, which have maturities at the time of the issuance
thereof not exceeding nine months and which have, at the time of such
purchase, investment or other acquisition, a credit rating of A1/P1 or better
of Standard & Poor's Corporation or Xxxxx'x Investors Service, Inc.;
K. Paragraph H.14. of the Agreement is hereby deleted in its entirety and the
following provision is substituted in its place:
14. Consolidated Current Ratio. Permit the ratio of Consolidated Current
Assets to Consolidated Current Liabilities at any time to be less than
1.30 : 1.00; "Current Assets" and "Current Liabilities" shall mean all
assets and liabilities which, in accordance with GAAP, should be
classified as current assets and current liabilities, respectively;
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IN WITNESS WHEREOF, the Borrower has duly executed and delivered to the
Bank this Schedule of Additional Terms, as of the day and year first above
written.
PREMIER RESEARCH WORLDWIDE, LTD., A
DELAWARE CORPORATION
By: /s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Treasurer
Address: 000 Xxxxx 00xx Xxxxxx
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Xxxxxxxxxxxx, XX 00000
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First Union National Bank
Address: 000 Xxxxx Xxxxx Xxxxxx
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Xxxxxxxxxxxx, XX 00000
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