Exhibit 10.115
AMENDMENT TO LOAN AGREEMENT
THIS AMENDMENT TO LOAN AGREEMENT (this "Amendment") is made as of
the 6th day of August , 1998, by and among PHARMACEUTICAL PRODUCT DEVELOPMENT,
INC., a North Carolina corporation (together with its successors, the
"Borrower"); the subsidiaries and affiliates identified on the signature pages
hereof (collectively, the "Guarantors"); and WACHOVIA BANK, N.A., a national
banking association (together with its endorsees, successors and assigns, the
"Bank").
R E C I T A L S:
The Borrower, the Guarantors and the Bank are parties to a certain
Loan Agreement dated as of August 7, 1997 (the "Loan Agreement").
Capitalized terms used in this Amendment which are not otherwise
defined in this Amendment shall have the respective meanings assigned to them in
the Loan Agreement.
The Borrower has requested an extension of the Termination Date to
August 5, 1999 and the Bank is willing to extend the Termination Date to August
5, 1999 and to amend the Loan Agreement, subject to the terms, provisions and
conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the Recitals, the mutual
promises herein contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Borrower, the Guarantors
and the Bank, intending to be legally bound hereby, agree as follows:
SECTION 1. Recitals. The Recitals are incorporated herein by
reference and shall be deemed to be a part of this Amendment.
SECTION 2. Amendments. Effective from and after the date of this
Amendment, the Loan Agreement is hereby amended as follows:
2.1 Extension of Termination Date. The following amendments are
hereby made to the Loan Agreement, and the following agreements are hereby
entered into, with respect to the extension of the Termination Date:
(a) The Termination Date is hereby extended to August 5, 1999.
2.2 Year 2000 Compliance. The following provisions are hereby added
to the Loan Agreement:
(a) The following defined term is hereby added to Section 1 of the
Loan Agreement to read as follows:
"Year 2000 Compliant and Ready" means that (A) in all material
respects the Borrower's and its subsidiaries' hardware and software
systems with respect to the operation of its business and its general
business plan will: (i) handle date information involving any and all
dates before, during and/or after January 1, 2000, including accepting
input, providing output and performing date calculations in whole or in
part; (ii) operate accurately without interruption on and in respect of
any and all dates before, during and/or after January 1, 2000 and without
any change in performance; and (iii) store and provide date input
information without creating any ambiguity as to the century; and (B) the
Borrower has developed alternative plans to ensure business continuity in
the event of the failure of any or all of items (A)(i) through (iii)
above."
(b) Section 5 of the Loan Agreement is hereby amended to add a new
representation and warranty as Section 5.11 to read as follows (and on the date
hereof the Borrower and the Guarantors represent and warrant to the Bank that):
"5.11 Year 2000 Compliant and Ready. The Borrower has developed a
comprehensive plan (the "Y2K Plan") for insuring that the Borrower's and
its subsidiaries' software and hardware systems which impact or affect in
any material way the business operations of the Borrower and its
subsidiaries will be Year 2000 Compliant and Ready. The Borrower and its
subsidiaries have met the Y2K Plan milestones such that all hardware and
software systems will be Year 2000 Compliant and Ready in accordance with
the Y2K Plan."
(c) One new subparagraph is hereby added to Section 6.2 of the Loan
Agreement to be designated as subparagraph (d) and to read as follows:
"(d) Third Party Assessments. Promptly upon the receipt
thereof, a copy of any third party assessments of the Borrower's Y2K
Plan together with any recommendations made by such third party with
respect to Year 2000 compliance."
(d) Section 6 of the Loan Agreement is hereby amended to add a new
covenant regarding Year 2000 compliance as new Section 6.13 to read as follows:
"6.13 Year 2000 Compliance. The Borrower and its subsidiaries will
meet the milestones contained in the Y2K Plan and will have all hardware
and software systems which are essential to everyday operations Year 2000
Compliant and Ready (including all internal and external testing) on or
before June 30, 1999."
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SECTION 3. Conditions to Effectiveness. The effectiveness of this
Amendment and the obligations of the Bank hereunder are subject to receipt by
the Bank of the following:
(a) an original Amendment, duly executed by the Borrower and the
Guarantors;
(b) a certificate of incumbency satisfactory to the Bank, certifying
as to the names, true signatures and incumbency of the officer or officers
of the Borrower and the Guarantors authorized to execute and deliver this
Amendment;
(c) such other documents or items as the Bank or its counsel may
reasonably request.
The effectiveness of this Amendment and the obligations of the Bank hereunder
are further subject to the condition that no Event of Default or event or
condition which with notice or lapse of time, or both, would constitute an Event
of Default under the Loan Agreement, as hereby amended, shall have occurred and
be continuing, and the representations and warranties contained in Section 5 of
the Loan Agreement, as amended herein, are true on and as of the date hereof.
SECTION 4. No Other Amendment. Except for the amendments set forth
above, the Loan Agreement shall remain unchanged and in full force and effect.
This Amendment is not intended to effect, nor shall it be construed as, a
novation. The Loan Agreement and this Amendment shall be construed together as a
single agreement. Nothing herein contained shall waive, annul, alter, limit,
diminish, vary or affect any provision, condition, covenant or agreement
contained in the Loan Agreement, except as herein amended, nor affect or impair
any rights, powers or remedies under the Loan Agreement as hereby amended. The
Bank does hereby reserve all of its rights and remedies against all parties who
may be or may hereafter become secondarily liable for the repayment of the Loan.
The Borrower and the Guarantors promise and agree to perform all of the
requirements, conditions, agreements and obligations under the terms of the Loan
Agreement, as hereby amended, the Loan Agreement, as amended, being hereby
ratified and affirmed. The Borrower and Guarantors hereby expressly agree that
the Loan Agreement, as amended, is in full force and effect and confirm that
they have no set off, counterclaim or defense with respect to the Loan
Agreement, the Loan, the Note, the Guaranty contained in the Loan Agreement or
the Guaranteed Obligations.
SECTION 5. Representations and Warranties. The Borrower and the
Guarantors hereby represent and warrant to the Bank as follows:
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(a) No Event of Default or event or condition which with notice or
lapse or time, or both, would constitute an Event of Default under the
Loan Agreement, as hereby amended, has occurred and is continuing on the
date hereof.
(b) The representations and warranties contained in Section 5 of the
Loan Agreement, as amended herein, are true on and as of the date of this
Amendment.
(c) This Amendment has been duly authorized, validly executed and
delivered by one or more authorized officers of the Borrower and the
Guarantors, and constitutes the legal, valid and binding obligation of the
Borrower and Guarantors enforceable against them in accordance with its
terms.
(d) The execution and delivery of this Amendment and the Borrower's
and the Guarantors' performance hereunder do not and will not require the
consent or approval of any regulatory authority or governmental authority
or agency having jurisdiction over the Borrower or any Guarantor, nor be
in contravention of or in conflict with the Articles of Incorporation or
Bylaws of the Borrower or any Guarantor, or the provision of any statute,
or any judgment, order or indenture, instrument, agreement or undertaking
to which the Borrower or any Guarantor is party or by which the Borrower's
or a Guarantor's assets or properties are or may become bound.
SECTION 6. Counterparts. This Amendment may be executed in
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same agreement.
SECTION 7. Governing Law. This Amendment shall be deemed to be made
pursuant to the laws of the State of North Carolina with respect to agreements
made and to be performed wholly in the State of North Carolina and shall be
construed, interpreted, performed and enforced in accordance therewith.
SECTION 8. Costs and Expenses. The Borrower shall pay any and all
out-of-pocket expenses in connection with the preparation, execution and
delivery of this Amendment, including, without limitation, the fees and expenses
of the Bank's counsel in connection therewith.
SECTION 9. Entire Agreement. This Amendment contains the entire
agreement of the parties with respect to the subject matter hereof, and there
are no representations, inducements or other provisions among the parties
regarding such subject matter
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other than those expressed herein in writing. All changes, additions or
deletions to this Amendment must be in writing and signed by all parties.
IN WITNESS WHEREOF, the parties hereto have caused their respective
duly authorized officers or representatives to execute and deliver this
Amendment as of the day and year first above written.
BORROWER:
ATTEST: PHARMACEUTICAL PRODUCT DEVELOPMENT, INC.
/s/ Xxxx Xxxxxxxxx Secretary By: /s/ Xxxx Xxxxxx
Title: VP, CFO
[CORPORATE SEAL]
BANK:
WACHOVIA BANK, N.A.
By: /s/ Xxxxx Xxxxxxx
Title: Senior Vice President
GUARANTORS:
ATTEST: PPD PHARMACO, INC.
/s/ Xxxx Xxxxxxxxx By: /s/ Xxxx Xxxxxx
___________ Secretary Title: Vice President
[Corporate Seal]
ATTEST: APBI ENVIRONMENTAL SCIENCES GROUP, INC.
/s/ Xxxx Xxxxxxxxx By: /s/ Xxxx Xxxxxx
___________ Secretary Title: Assistant Vice President
[Corporate Seal]
