THIRD AMENDMENT
Exhibit
10.1
THIRD AMENDMENT
THIRD AMENDMENT (this “Agreement‘”), dated as of July 9, 2009, by and among RESEARCH
PHARMACEUTICAL SERVICES, LLC, a Delaware limited liability company (successor by merger to Research
Pharmaceutical Services, Inc., a Pennsylvania corporation) (“Borrower”), and PNC BANK,
NATIONAL ASSOCIATION, as the sole lender (in such capacity, “Lender”) and as agent under
the Credit Agreement (as hereinafter defined) (in such capacity, “Agent”).
WITNESSETH:
WHEREAS, Borrower, Lender and Agent are parties to a Revolving Credit and Security Agreement
dated as of November 1, 2006 (as heretofore amended, the “Credit Agreement”);
WHEREAS, Borrower is a wholly-owned subsidiary of Research Pharmaceutical Services, Inc., a
Delaware corporation (the “Guarantor”); and
WHEREAS, Borrower, Lender and Agent have agreed to amend the Credit Agreement to provide for
(i) an increase in the Maximum Revolving Advance Amount, (ii) an increase in the applicable
interest rates and fees, (iii) an extension of the Term, (iv) changes in financial reporting
requirements and (v) certain other modifications to the Credit Agreement, all on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein (including in the
foregoing recitals), terms defined in the Credit Agreement are used herein as therein defined.
2. Amendments to Credit Agreement. The Credit Agreement is hereby
amended and supplemented as follows:
(a) The definitions of “Alternate Base Rate”, “Applicable Margin”,
“Maximum Revolving Advance Amount” and “Revolving Interest Rate” in Section 1.2
of the Credit Agreement are hereby amended and restated to read in full as follows:
“Alternate Base Rate” shall mean, for any day, a rate per annum equal to
the highest of (i) the Base Rate in effect on such day, (ii) the sum of Federal
Funds Open Rate in effect on such day plus 1/2 of 1%, and (iii) the
sum of the Daily LIBOR Rate plus 1.00%.
“Applicable Margin” shall mean (i) 1.50% in respect of Domestic Rate
Loans, and (ii) 2.50% in respect of Eurodollar Rate Loans.
“Maximum Revolving Advance Amount” shall mean $30,000,000.
“Revolving Interest Rate” shall mean an interest rate per annum equal to (a)
the sum of the Alternate Base Rate plus the Applicable Margin with respect to Domestic
Rate Loans and (b) the sum of the greater of (i) the Eurodollar Rate and (ii) two
percent (2.00%) plus the Applicable Margin with respect to any Eurodollar Loan.
(b) The following definitions of “Daily LIBOR Rate” and “Published
Rate” are added to Section 1.2 in the appropriate alphabetical order:
“Daily LIBOR Rate”: for any day, the rate per annum determined by the Agent by
dividing (x) the Published Rate by (y) a number equal to 1.00 minus the Eurocurrency
Reserve Requirements.
“Published Rate”: the rate of interest published each Business Day in the Wall
Street Journal “Money Rates” listing under the caption “London Interbank Offered
Rates” for a one month period (or, if no such rate is published therein for any
reason, then the Published Rate shall be the eurodollar rate for a one month period as
published in another publication selected by the Agent).
(c) The following new Section 2. l(c) is added to the Credit
Agreement:
“(c) For purposes of determining at any time the Formula Amount pursuant to
Section 2.1 (a), the amount of Eligible Receivables indicated on the most recent
monthly Borrowing Base Certificate delivered to and accepted by Agent in accordance
with Section 9.2 shall be used in such determination notwithstanding the subsequent
receipt of payment of any such Eligible Receivables, provided,
however, that if at the time of any such determination of the Formula Amount
Undrawn Availability is less than $5,000,000, and thereafter until such time as
Undrawn Availability has been restored to at least $5,000,000 for a period of 60
consecutive days, Eligible Receivables shall be determined based on the amount of
Eligible Receivables actually outstanding on the date of such determination after
giving effect to payments of Eligible Receivables received subsequent to the date of
the most recent Borrowing Base Certificate.”
(d) Section 3.3(b) of the Credit Agreement is amended and restated to
read in full as follows:
“(b) Facility Fee. If, for any calendar quarter during the Term, the
average daily unpaid balance of the Revolving Advances and undrawn amount of any
outstanding Letters of Credit for each day of such calendar quarter does not equal the
Maximum Revolving Advance Amount, then Borrower shall pay to Agent for the ratable
benefit of Lenders a fee at a rate equal to one half of one percent (0.50%) per annum
on the amount by which the Maximum Revolving Advance Amount exceeds such average daily
unpaid balance. Such fee shall be payable to Agent in arrears on the first day of each
calendar quarter with respect to the previous calendar quarter.”
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(e) Section 3.4 of the Credit Agreement is amended and restated to
read in full as follows:
“3.4. Collateral Evaluation Fee, Collateral Monitoring Fee and Fee Letter.
(a) Collateral Evaluation Fee, Borrower shall pay Agent a collateral
evaluation fee equal to $750 per month commencing on the first day of the month
following the Closing Date and on the first day of each month thereafter during
the Term, provided however, that such fee shall be increased to $1,000 per month
during any period when the determination of the amount of Eligible Receivables
is being made in accordance with the provisions of the proviso to Section 2. l(c).
The collateral evaluation fee shall be deemed earned in full on the date when
same is due and payable hereunder and shall not be subject to rebate or proration
upon termination of this Agreement for any reason.
(b) Collateral Monitoring Fee. Borrower shall pay to Agent on the first day of
each month following any month in which Agent performs any collateral
monitoring — namely any field examination, collateral analysis or other business
analysis, the need for which is to be determined by Agent and which monitoring
is undertaken by Agent or for Agent’s benefit — a collateral monitoring fee in an
amount equal to $850 per day for each person employed to perform such
monitoring, plus all costs and disbursements incurred by Agent in the
performance of such examination or analysis. Agent shall not conduct on-site
collateral monitoring of the nature described in this Section 3.4(b) more
frequently than four (4) times per calendar year; provided, that, if an Event of
Default shall have occurred and be continuing, there shall be no limit on the
frequency of on-site collateral monitoring of the nature described in this Section
3.4(b).”
(f) Section 7.5 of the Credit Agreement is hereby amended and
restated to read in full as follows:
“7.5. Loans. Make or have outstanding advances, loans or extensions of credit to
or for the benefit of any Person except (a) with respect to the extension of commercial
trade credit in the Ordinary Course of Business, (b) loans to employees of Borrower in the
Ordinary Course of Business not to exceed the aggregate amount of $100,000 at any time
outstanding, (c) loans from Borrower to a Domestic Subsidiary of Borrower, (d) loans by
Borrower to its Foreign Subsidiaries in an aggregate amount outstanding at any time not to
exceed the aggregate amount of loans or advances necessary to adequately fund the ongoing
operating expenses of such Foreign Subsidiaries and (e) loans, advances or extensions of
credit by Borrower to or for the benefit of Guarantor or any of its Subsidiaries (which are
not also Subsidiaries of Borrower) in an aggregate amount outstanding at any time not to
exceed $7,500,000 provided, however, that from and after any day that
Undrawn Availability is less than $5,000,000 no additional loans, advances or extensions of
credit may be made in reliance on the provisions of this clause (e) until such time as
Undrawn Availability has thereafter
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been restored to at least $5,000,000 for a period of thirty (30) consecutive days, and
provided, further, that the transfer of $2,200,000 from Borrower to
Guarantor in December, 2008 shall not be considered a loan, advance or extension of
credit for purposes of this Section 7.5.”
(g) The following new Section 7.26 is added to the Credit Agreement:
“7.26. Net Loss. Permit either Borrower and its Subsidiaries on a consolidated
basis or Guarantor and its Subsidiaries on a consolidated basis to suffer a net loss,
determined in accordance with GAAP (but excluding for such determination any
extraordinary gains or losses and any non-recurring, non-cash gains or losses), for
any fiscal year.”
(h) Section 9.7 of the Credit Agreement is hereby amended and restated to read as
follows:
“9.7. Annual Financial Statements. Furnish Agent and Lenders within one
hundred twenty (120) days after the end of each fiscal year of Guarantor, (a)
financial statements of Guarantor and its Subsidiaries on a consolidated basis
including, but not limited to, statements of income and stockholders’ equity and cash
flow from the beginning of the current fiscal year to the end of such fiscal year and
the balance sheet as at the end of such fiscal year, all prepared in accordance with
GAAP applied on a basis consistent with prior practices, and in reasonable detail and
reported upon without qualification by an independent certified public accounting firm
selected by Guarantor and satisfactory to Agent (the “Accountants”), (b) unaudited
balance sheets as at the end of such fiscal year and statements of income from the
beginning of the current fiscal year to the end of such fiscal year (i) for Borrower
and its Subsidiaries on a consolidated basis and (ii) for ReSearch Pharmaceutical
Services Netherlands BV and its Subsidiaries on a consolidated basis, all prepared in
accordance with GAAP applied on a basis consistent with prior practices, and complete
and correct in all material respects and (c) a Compliance Certificate.”
(i) Section 9.8 of the Credit Agreement is hereby amended and restated to read as
follows:
“9.8. Quarterly Financial Statements. Furnish Agent and Lenders within
sixty (60) days after the end of each fiscal quarter, (a) an unaudited balance sheet
of Guarantor and its Subsidiaries on a consolidated basis and unaudited statements of
income and cash flow of Guarantor and its Subsidiaries on a consolidated basis
reflecting results of operations from the beginning of the fiscal year to the end of
such quarter and for such quarter, prepared on a basis consistent with prior practices
and complete and correct in all material respects, subject to normal and recurring
year end adjustments that individually and in the aggregate are not material to the
business of Guarantor and its Subsidiaries, (b) unaudited balance sheets and
statements of income (i) for Borrower and its Subsidiaries on a consolidated basis and
(ii) for Research Pharmaceutical Services Netherlands BV
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and its Subsidiaries on a consolidated basis, in each case reflecting results of
operations from the beginning of the fiscal year to the end of such quarter and for
such quarter, all prepared on a basis consistent with past practices and complete and
correct in all material respects, subject to normal and recurring year end adjustments
that individually and in the aggregate are not material to the business of the
Borrower and its Subsidiaries or the business of ReSearch Pharmaceutical Services
Netherlands BV and its Subsidiaries, as the case may be and (c) a Compliance
Certificate.”
(j) Section 9.9 of the Credit Agreement is hereby amended and restated to read as
follows:
“9.9 Monthly Financial Statements. Furnish Agent and Lenders within
forty-five (45) days after the end of each month (or in the case of any month ending
on the last day of any fiscal quarter, sixty (60) days after the end of such month),
an unaudited balance sheet of Borrower and its Subsidiaries on a consolidated basis
and unaudited statement of income of Borrower and its Subsidiaries on a consolidated
basis reflecting results of operations from the beginning of the fiscal year to the
end of such month and for such month, prepared on a basis consistent with prior
practices and complete and correct in all material respects, subject to normal and
recurring year end adjustments that individually and in the aggregate are not material
to the business of Borrower and its Subsidiaries.”
(k) Section 13.1 of the Credit Agreement is hereby amended and restated to read in
full as follows:
“13.1 Term. This Agreement, which shall inure to the benefit of and shall be
binding upon the respective successors and permitted assigns of Borrower, Agent and
each Lender, shall become effective on the date hereof and shall continue in full
force and effect until October 31, 2012 (the “Term”) unless sooner terminated as
herein provided. Borrower may terminate this Agreement at any time upon ninety (90)
days’ prior written notice upon payment in full of the Obligations. In the event the
Obligations are prepaid in full prior to the last day of the Term (the date of such
prepayment hereinafter referred to as the “Early Termination Date”), Borrower shall
pay to Agent for the benefit of Lenders an early termination fee in an amount equal to
(x) $300,000 if the Early Termination Date occurs on or before October 31, 2011,
and(y) $150,000 if the Early Termination Date occurs after October 31, 2011 and before
October 31, 2012.”
3. Replacement Revolving Credit Note. Concurrently with the execution and
delivery of this Amendment, the Borrower shall execute and deliver to Lender a replacement
Revolving Credit Note in the face amount of its Commitment Percentage of the Maximum Revolving
Advance Amount (the “Replacement Revolving Credit Note”) in substitution for its existing
Revolving Credit Note, which shall be returned to the Agent for delivery to the Borrower. The
outstanding Revolving Advances of Lender shall be evidenced by its Replacement Revolving Credit
Note.
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4. Representations and Warranties. Borrower hereby represents and
warrants to Lender and Agent that:
(a) There exists no Default or Event of Default under the Credit
Agreement as amended hereby;
(b) The representations and warranties made by Borrower in the Credit
Agreement are true and correct in all material respects on and as of the date hereof as if
made on
and as of the date hereof;
(c) The execution and delivery of this Agreement and the
Replacement Revolving Credit Note by and on behalf of Borrower have been duly authorized by all
requisite action on behalf of Borrower, and this Agreement and the Replacement Revolving Credit
Note constitute the legal, valid and binding obligations of Borrower, enforceable against Borrower
in accordance with their respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting
the enforcement of creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law);
(d) The execution, delivery and performance of this Agreement will
not violate any applicable provision of law or judgment, order or regulation of any court or
of
any public or governmental agency or authority nor conflict with or constitute a breach of or
a
default under any instrument to which Borrower is a party or by which Borrower or any of its
properties is bound; and
(e) No approval, consent or authorization of, or registration,
declaration or filing with, any governmental or public body or authority, or any trustee or holder
of any indebtedness, is required in connection with the valid execution, delivery and performance
by Borrower of this Agreement and the Replacement Revolving Credit Note, except such as have been
obtained.
5. Conditions Precedent. The effectiveness of the waiver and amendments
set forth herein is subject to the fulfillment, to the satisfaction of the Agent and its
counsel, of the
following conditions precedent:
(a) Borrower shall have delivered to the Agent the following, all of which shall be in
form and substance satisfactory to the Agent and shall be duly completed and executed by all
parties:
(i) this Agreement, including the Consent of Guarantor attached hereto;
(ii) the Replacement Revolving Credit Note;
(iii) A certificate of the Secretary or Assistant Secretary of Borrower certifying (i) as
to the resolutions or other limited liability company action authorizing the execution, delivery
and performance of this Amendment, the Replacement Revolving Credit Note, and any other document
contemplated hereby, (ii) as to the incumbency and specimen
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signatures of each [officer] [member] of Borrower executing this Amendment and the Replacement
Revolving Credit Note and (iii) that there have been no changes to the organizational documents of
Borrower since the most recent date true and correct copies thereof were delivered to the Agent;
and
(iv) such additional documents, certificates and information as Agent may require
pursuant to the terms hereof or otherwise reasonably request.
(b) The representations and warranties set forth in the Credit
Agreement shall be true and correct in all material respects on and as of the date
hereof.
(c) The Borrower shall have paid to the Agent for the pro rata benefit
of the Lenders an amendment fee of $50,000.
6. Ratification; References; No Waiver. Except as expressly amended by
this Agreement, the Credit Agreement shall continue to be, and shall remain, unaltered and in
full force and effect in accordance with its terms. All references in the Credit Agreement to
“this
Agreement,” “hereof,” “hereto” and “hereunder” shall be deemed to be references to the Credit
Agreement as amended hereby, and all references in any of the Other Documents to the Credit
Agreement shall be deemed to be to the Credit Agreement as amended hereby. Except as
expressly provided in Section 2 hereof, this Agreement does not and shall not be deemed to
constitute a waiver by Agent or Lenders of any Default or Event of Default or of any of
Agent’s
or Lenders’ other rights or remedies.
7. Release. In consideration of the execution of this Agreement by Agent
and Lender, Borrower hereby releases Agent and Lender and their respective officers,
attorneys,
agents and employees from any liability, suit, damage, claim, loss or expense of any kind or
nature whatsoever and howsoever arising that Borrower ever had, now have, or may have against
Agent or Lender arising out of or relating to the Credit Agreement or Agent’s or Lender’s acts
or
omissions with respect thereto occurring prior to the date hereof. Borrower further states
that it
has carefully read the foregoing release, knows the contents thereof and grants the same as
its
own free act and deed.
8. Miscellaneous.
(a) Expenses. Borrower agrees to pay all of Agent’s reasonable
out-of-pocket expenses incurred in connection with the preparation, negotiation and execution of
this Agreement, including, without limitation, the reasonable fees and expenses of Xxxxxxx Xxxxx
Xxxxxxx & Xxxxxxxxx, LLP.
(b) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
(c) Successors and Assigns. The terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of Borrower, Agent and Lender and
their respective successors and assigns.
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(d) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which shall
constitute
one and the same instrument.
(e) Headings. The headings of any paragraph of this Agreement are
for convenience only and shall not be used to interpret any provision hereof.
(f) Modifications. No modification hereof or any agreement referred
to herein shall be binding or enforceable unless in writing and signed on behalf of the party
against whom enforcement is sought.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their proper and duly authorized officers or members, as the case may be, as of the
day and year first above written.
| RESEARCH PHARMACEUTICAL SERVICES, LLC |
||||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | XXXXXX XXXX | |||
| Title: | CFO | |||
| PNC BANK, NATIONAL ASSOCIATION, as Lender and as Agent |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | XXXXX X. XXXXXX | |||
| Title: | V/P | |||
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CONSENT OF GUARANTOR
The undersigned guarantor (the “Guarantor”) consents to the provisions of the
foregoing Second Amendment and Waiver (the “Amendment”) and confirms and agrees that: (a)
such Guarantor’s obligations under its Guaranty dated as of August 29, 2007 (as amended, the
“Guaranty”), relating to the Obligations (as defined in the Credit Agreement referred to in
the Amendment) shall be unimpaired by the Amendment; (b) such Guarantor has no defenses, setoffs,
counterclaims, discounts or charges of any kind against the Agent or any Lender, its officers,
directors, employees, agents or attorneys with respect to the Guaranty; and (c) all of the terms,
conditions and covenants in the Guaranty remain unaltered and in full force and effect and are
hereby ratified and confirmed and apply to the Obligations, as increased and modified by the
Amendment. The Guarantor certifies that all representations and warranties made in the Guaranty are
true and correct in all material respects as of the date of the amendment.
WITNESS the due execution of this Consent as of the date of the Amendment, intending to be
legally bound hereby.
| RESEARCH PHARMACEUTICAL SERVICES, INC. |
||||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | XXXXXX XXXX | |||
| Title: | CFO | |||
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AMENDED AND RESTATED REVOLVING CREDIT NOTE
| $30,000,000 | Date: July 9, 0000 | |
| Xxxxxxxxxxxx, XX |
This Revolving Credit Note is executed and delivered under and pursuant to the terms of that
certain Revolving Credit and Security Agreement dated as of November 1, 2006 (as amended, restated,
supplemented or modified from time to time, the “Loan Agreement”) by and among RESEARCH
PHARMACEUTICAL SERVICES, LLC, a Delaware limited liability company (successor by merger to ReSearch
Pharmaceutical Services, Inc.) (“Borrower”), with a place of business at 000 Xxxx Xxxxxxxxxx Xxxx,
Xxxxxxxx Xxxxxxx, XX 00000 and PNC BANK, NATIONAL ASSOCIATION (“PNC”), the various financial
institutions named therein or which hereafter become a party thereto, (together with PNC
collectively, “Lenders”) and PNC as agent for Lenders (in such capacity, “Agent”). Capitalized
terms not otherwise defined herein shall have the meanings provided in the Loan Agreement.
FOR VALUE RECEIVED, Borrower hereby promises to pay to the order of PNC, at the office of
Agent located at PNC Bank Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 or at such
other place as Agent may from time to time designate to Borrower in writing:
(i) the principal sum of Thirty Million Dollars ($30,000,000) or, if different, from
such amount, the unpaid principal balance of PNC’s Commitment Percentage of the Revolving Advances
as may be due and owing under the Loan Agreement, payable in accordance with the provisions of the
Loan Agreement, subject to acceleration upon the occurrence of an Event of Default under the Loan
Agreement or earlier termination of the Loan Agreement pursuant to the terms thereof; and
(ii) interest on the principal amount of this Note from time to time outstanding until
such principal amount is paid in full at the applicable Revolving Interest Rate in accordance with
the provisions of the Loan Agreement. In no event, however, shall interest exceed the maximum
interest rate permitted by law. Upon and after the occurrence of an Event of Default, and during
the continuation thereof, interest shall be payable at the Default Rate.
This Note is the Revolving Credit Note referred to in the Loan Agreement and is secured by the
liens granted pursuant to the Loan Agreement and the Other Documents, is entitled to the benefits
of the Loan Agreement and the Other Documents and is subject to all of the agreements, terms and
conditions therein contained. This Note amends and restates, and is in substitution for a Revolving
Credit Note from the Borrowers in the principal amount of $15,000,000 dated November 1, 2006
payable to PNC (the “Original Note”). However, without duplication, this Note shall in no way
extinguish the Borrower’s unconditional obligation to repay all indebtedness evidenced by the
Original Note.
This Note is subject to mandatory prepayment and may be voluntarily prepaid, in whole or in
part, on the terms and conditions set forth in the Loan Agreement.
If an Event of Default under Section 10.7 of the Loan Agreement shall occur, then this Note
shall immediately become due and payable, without notice, together with reasonable attorneys’ fees
if the collection hereof is placed in the hands of an attorney to obtain or enforce payment hereof.
If any other Event of Default shall occur under the Loan Agreement or any of the Loan Documents,
which is not cured within any applicable grace period, then this Note may, as provided in the Loan
Agreement, be declared to be immediately due and payable, without notice, together with reasonable
attorneys’ fees, if the collection hereof is placed in the hands of an attorney to obtain or
enforce payment hereof.
This Note shall be construed and enforced in accordance with the laws of the
Commonwealth of Pennsylvania.
Borrower expressly waives any presentment, demand, protest, notice of protest, or notice of
any kind except as expressly provided in the Loan Agreement.
| RESEARCH PHARMACEUTICAL SERVICES, LLC |
||||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | XXXXXX XXXX | |||
| Title: | CFO | |||
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