Exhibit 10.2
PRA INTERNATIONAL, INC.
FIRST AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
AND CERTAIN OTHER LOAN DOCUMENTS
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND
CERTAIN OTHER LOAN DOCUMENTS (this "AMENDMENT") is dated as of May 17, 2004 and
entered into by and among PRA International, Inc., a Delaware corporation
("COMPANY"), PRA Holdings, Inc., a Delaware corporation ("HOLDINGS"), PRA Sub,
Inc., a Delaware corporation ("PRA SUB"), the Subsidiary Guarantors listed on
the signature pages hereof, the financial institutions listed on the signature
pages hereof and ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent
for Lenders ("ADMINISTRATIVE AGENT"), and is made with reference to (i) that
certain Amended and Restated Credit Agreement dated as of December 23, 2003 (the
"CREDIT AGREEMENT"), by and among Company, the financial institutions from time
to time party thereto ("LENDERS"), Co-Lead Arranger and Syndication Agent,
Co-Documentation Agents and Administrative Agent, (ii) that certain Amended and
Restated Holdings Pledge Agreement dated as of December 23, 2003 (the "HOLDINGS
PLEDGE AGREEMENT"), executed by Holdings, PRA Sub and Administrative Agent, and
(iii) that certain Amended and Restated Security Agreement dated as of December
23, 2003 (the "SECURITY AGREEMENT"), executed by Company, Subsidiary Guarantors
and Administrative Agent. Capitalized terms used herein without definition shall
have the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Company and Lenders desire to amend the Credit Agreement
and certain other Loan Documents (i) to allow Company to enter into certain
foreign credit facilities to be secured under the Collateral Documents, and (ii)
to make certain other amendments as set forth below; and
WHEREAS, on the date hereof, ▇▇▇▇▇ Fargo Bank, National Association
is assigning $2,500,000 of its outstanding Tranche A Term Loan to CIBC, Inc.;
Wachovia Bank, National Association is assigning $1,250,000 of its outstanding
Tranche A Term Loan and $1,250,000 of its outstanding Tranche B Term Loan to
CIBC, Inc.; CIBC, Inc. is making a Tranche A Term Loan in the amount of
$1,666,667, a Tranche B Term Loan in the amount of $3,333,333 and a Revolving
Loan Commitment in the amount of $5,000,000; and the aggregate Revolving Loan
Commitment is being reduced to $23,750,000;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
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SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: DEFINITIONS
Subsection 1.1 of the Credit Agreement is hereby amended by adding
thereto the following definitions, which shall be inserted in proper
alphabetical order:
"CANADIAN CREDIT AGREEMENT" means that certain Credit Facility
Agreement dated as of May 17, 2004 by and between Pharmaceutical Research
Associates International, Inc. and Canadian Imperial Bank of Commerce, as
lender, as such agreement may be amended, supplemented, or otherwise
modified from time to time.
"CANADIAN SUBSIDIARY GUARANTORS" means Pharmaceutical Research
Associates Inc. and Pharm Research Associates RX, Inc.
"FIRST AMENDMENT EFFECTIVE DATE" means the effective date of that
certain First Amendment to Amended and Restated Credit Agreement and
Certain Other Loan Documents dated as of May 17, 2004 and entered into by
and among Company, Holdings, PRA Sub, the Subsidiary Guarantors listed on
the signature pages thereof, the financial institutions listed on the
signature pages thereof and Administrative Agent.
"FOREIGN BORROWERS" means Pharmaceutical Research Associates
International, Inc. and the U.K. Borrowers.
"FOREIGN FACILITIES GUARANTY" means that certain Foreign Facilities
Guaranty dated as of May 17, 2004 by Holdings, PRA Sub, Company, and
Subsidiary Guarantors, as such agreement may be amended, supplemented, or
otherwise modified from time to time.
"INTERCREDITOR AGREEMENT" means that certain Intercreditor Agreement
dated as of May 17, 2004 by and among Administrative Agent, Wachovia Bank,
National Association, acting through its London branch, in its capacity as
lender under the U.K. Credit Agreement, and Canadian Imperial Bank of
Commerce, in its capacity as lender under the Canadian Credit Agreement,
as such agreement may be amended, supplemented, or otherwise modified from
time to time.
"U.K. BORROWERS" means, collectively, Pharmaceutical Research
Associates, GMBH and Pharm Research Associates (UK) Limited.
"U.K. CREDIT AGREEMENT" means that certain Multi-Currency Revolving
Cash Advance, Letter of Credit and Sterling Overdraft Facilities Agreement
dated May 17, 2004 by and among Pharmaceutical Research Associates, GMBH
and Pharm Research Associates (U.K.) Limited, as co-borrowers, and
Wachovia Bank, National
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Association, acting through its London branch, as lender, as such
agreement may be amended, supplemented, or otherwise modified from time to
time.
1.2 AMENDMENTS TO SECTION 2: AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
A. Subsection 2.1A(i) of the Credit Agreement is hereby amended
by deleting the second sentence thereof and substituting the following therefor:
"Canadian Imperial Bank of Commerce agrees to lend to Company on the
First Amendment Effective Date, a Tranche A Term Loan in amount equal to
$1,666,667. The amount of each Lender's Tranche A Term Loan Commitment as
of the First Amendment Effective Date is set forth opposite its name on
Schedule 2.1 annexed hereto and the aggregate amount of the Tranche A Term
Loan Commitments as of the First Amendment Effective Date is $20,666,667;
provided that the Tranche A Term Loan Commitments of Lenders shall be
adjusted to give effect to any assignments of the Tranche A Term Loan
Commitments pursuant to subsection 10.1B."
B. Subsection 2.1A(ii) of the Credit Agreement is hereby amended
by deleting the third sentence thereof and substituting the following therefor:
"Canadian Imperial Bank of Commerce agrees to lend to Company on the
First Amendment Effective Date, a Tranche B Term Loan in amount equal to
$3,333,333. The amount of each Lender's Tranche B Term Loan Commitment as
of the First Amendment Effective Date is set forth opposite its name on
Schedule 2.1 annexed hereto and the aggregate amount of the Tranche B Term
Loan Commitments as of the First Amendment Effective Date is $43,133,333;
provided that the Tranche B Term Loan Commitments of Lenders shall be
adjusted to give effect to any assignments of the Tranche B Term Loan
Commitments pursuant to subsection 10.1B."
C. Subsection 2.1A(iii) of the Credit Agreement is hereby
amended by deleting the second sentence thereof and substituting the following
therefor:
"The original amount of each Revolving Lender's Revolving Loan
Commitment as of the First Amendment Effective Date is set forth opposite
its name on Schedule 2.1 annexed hereto and the aggregate original amount
of the Revolving Loan Commitments as of the First Amendment Effective Date
is $23,750,000; provided that the Revolving Loan Commitment of Revolving
Lenders shall be adjusted to give effect to any assignments of the
Revolving Loan Commitments pursuant to subsection 10.1B and shall be
reduced from time to time by the amount of any reductions thereto made
pursuant to subsection 2.4."
D. Subsection 2.4A of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting the following therefor:
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"A. SCHEDULED PAYMENTS OF TERM LOANS.
(i) Scheduled Payments of Tranche A Term Loans. Company shall make
principal payments on the Tranche A Term Loans in installments on the
dates and in the amounts set forth below:
Scheduled
Date Repayment
---- ---------
March 31, 2004 $ 0
June 30, 2004 $ 42,735
September 30, 2004 $ 542,735
December 31, 2004 $ 542,735
March 31, 2005 $ 814,103
June 30, 2005 $ 814,103
September 30, 2005 $ 814,103
December 31, 2005 $ 814,103
March 31, 2006 $1,356,838
June 30, 2006 $1,356,838
September 30, 2006 $1,356,838
December 31, 2006 $1,356,838
March 31, 2007 $1,356,838
June 30, 2007 $1,356,838
September 30, 2007 $1,356,838
December 31, 2007 $1,356,838
March 31, 2008 $1,356,838
June 30, 2008 $1,356,838
September 30, 2008 $1,356,838
December 23, 2008 $1,356,838
; provided that the scheduled installments of principal of the Tranche A
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche A Term Loans in
accordance with subsection 2.4B(iv); and provided, further that the
Tranche A Term Loans and all other amounts owed hereunder with respect to
the Tranche A Term Loans shall be paid in full no later than December 23,
2008, and the final installment payable by Company in respect of the
Tranche A Term Loans on such date shall be in an amount, if such amount is
different from that specified above, sufficient to repay all amounts owing
by Company under this Agreement with respect to the Tranche A Term Loans.
(ii) Scheduled Payments of Tranche B Term Loans. Company shall make
principal payments on the Tranche B Term Loans in installments on the
dates and in the amounts set forth below:
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Scheduled
Date Repayment
---- ---------
March 31, 2004 $ 0
June 30, 2004 $ 8,354
September 30, 2004 $ 108,354
December 31, 2004 $ 108,354
March 31, 2005 $ 108,354
June 30, 2005 $ 108,354
September 30, 2005 $ 108,354
December 31, 2005 $ 108,354
March 31, 2006 $ 108,354
June 30, 2006 $ 108,354
September 30, 2006 $ 108,354
December 31, 2006 $ 108,354
March 31, 2007 $ 108,354
June 30, 2007 $ 108,354
September 30, 2007 $ 108,354
December 31, 2007 $ 108,354
March 31, 2008 $ 108,354
June 30, 2008 $ 108,354
September 30, 2008 $ 108,354
December 31, 2008 $ 108,354
March 31, 2009 $10,293,651
June 30, 2009 $10,293,651
September 30, 2009 $10,293,651
December 23, 2009 $10,293,651
; provided that the scheduled installments of principal of the Tranche B
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche B Term Loans in
accordance with subsection 2.4B(iv); and provided, further that the
Tranche B Term Loans and all other amounts owed hereunder with respect to
the Tranche B Term Loans shall be paid in full no later than December 23,
2009, and the final installment payable by Company in respect of the
Tranche B Term Loans on such date shall be in an amount, if such amount is
different from that specified above, sufficient to repay all amounts owing
by Company under this Agreement with respect to the Tranche B Term Loans."
E. Subsections 2.4B(iii)(a), (b), (c) and (d) of the Credit
Agreement are hereby amended by inserting the word "Domestic" before the words
"Subsidiary" and "Subsidiaries" each time they appear therein.
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1.3 AMENDMENTS TO SECTION 6: COMPANY'S AFFIRMATIVE COVENANTS
A. Subsection 6.10 of the Credit Agreement is hereby amended by
deleting the phrase "At all times after the date that is 90 days after the
Closing Date" contained therein and substituting the following therefor:
"At all times after the date that is 20 days after the First
Amendment Effective Date (or such later date as agreed by Administrative
Agent in it sole discretion)"
B. Subsection 6.11 of the Credit Agreement is hereby amended by
deleting the phrase "From and after the date that is 90 days after the Closing
Date" contained therein and substituting the following therefor:
"From and after the date that is 60 days after the First Amendment
Effective Date (or such later date as agreed by Administrative Agent in it
sole discretion)"
C. Subsection 6.13B of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting the following therefor:
"B. "Within 90 days of the First Amendment Effective Date or such
later date agreed by Administrative Agent in its sole discretion,
(i) Company shall, and shall cause each of its Domestic
Subsidiaries to, execute and deliver to Administrative Agent one or more
Foreign Pledge Agreements with respect to 65% of the Capital Stock owned
by Company or a Domestic Subsidiary of all Foreign Subsidiaries organized
under the laws of Canada and the United Kingdom with respect to which
Administrative Agent deems a Foreign Pledge Agreement necessary or
advisable to perfect or otherwise protect the First Priority Liens granted
to Administrative Agent on behalf of Lenders in such Capital Stock, and
take all such other actions under the laws of such jurisdictions as
Administrative Agent may deem necessary or advisable to perfect or
otherwise protect such Liens; provided, however, that no action shall be
required to be taken by any Loan Party with respect to the Capital Stock
of any Foreign Subsidiary pursuant to this subsection in the event that
Company and Administrative Agent agree in good faith that the pledge of
such Capital Stock would result in an unreasonable tax liability to any
Loan Party or would otherwise be unduly costly or impracticable; provided
further, that Lenders and Administrative Agent acknowledge that no Foreign
Pledge Agreements or other actions shall be deemed necessary or advisable
in respect of pledged Capital Stock owned as of the First Amendment
Effective Date by Company or a Domestic Subsidiary of any Foreign
Subsidiary organized under the laws of France, Germany or Spain; and
(ii) Company shall, and shall cause each of its Subsidiaries to,
deliver to Administrative Agent an original executed intercompany note of
any and all Foreign Subsidiaries with Indebtedness to any Loan Party in
favor of all Loan Parties, duly endorsed in a manner satisfactory to
Administrative Agent."
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1.4 AMENDMENTS TO SECTION 7: COMPANY'S NEGATIVE COVENANTS
A. Subsection 7.1 of the Credit Agreement is hereby amended by
deleting the word "and" after subsection 7.1(x), by deleting the period after
subsection 7.1(xi) and replacing such period with a semicolon, by renumbering
subsection 7.1(xii) as 7.1(xiv) and by adding new subsections 7.1(xii) and
7.1(xiii) as follows:
"(xii) Pharmaceutical Research Associates International, Inc. may
become and remain liable with respect to Indebtedness under the Canadian
Credit Agreement in an aggregate principal amount not to exceed $3,000,000
(as such amount is permitted to increase under the Canadian Credit
Agreement as a result of currency fluctuations) and Holdings, PRA Sub,
Company, the Subsidiary Guarantors and the Canadian Subsidiary Guarantors
may become and remain liable with respect to such Indebtedness in the form
of the Liens granted by such Loan Parties to secure the obligations of
Pharmaceutical Research Associates International, Inc. thereunder;
(xiii) U.K. Borrowers may become and remain liable with respect to
Indebtedness under the U.K. Credit Agreement in an aggregate principal
amount not to exceed $6,250,000 (as such amount is permitted to increase
under the U.K. Credit Agreement as a result of currency fluctuations) and
Holdings, PRA Sub, Company and the Subsidiary Guarantors may become and
remain liable with respect to such Indebtedness in the form of the Liens
granted by such Loan Parties to secure the obligations of U.K. Borrowers
thereunder; and"
B. Subsection 7.2A(iv) of the Credit Agreement is hereby amended
to read in its entirety as follows:
"Liens on assets of Foreign Subsidiaries securing Indebtedness
permitted under subsections 7.1(v) and 7.1(xii); and"
C. Subsections 7.2C and 7.2D of the Credit Agreement are hereby
amended by deleting the phrase "subsection 7.1(v)" each time it appears
therein and substituting the phrase "subsections 7.1(v), (xii) and
(xiii)" therefor.
D. Subsection 7.3(x) of the Credit Agreement is hereby amended
by deleting it in its entirety and substituting the following therefor:
(i) "Company and its Subsidiaries may acquire by purchase or
otherwise all or substantially all of the business, property or fixed
assets of, or Capital Stock of, any Person or any division or line of
business of any Person (each a "PERMITTED ACQUISITION"); provided that
either (a) (1) such Person, division or line of business is engaged in the
businesses engaged in by Company and its Subsidiaries on the Closing Date
or similar or related businesses, (2) Consolidated EBITDA of such Person,
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division or line of business (calculated in accordance with the definition
thereof with respect to such Person, division or line of business) shall
be positive for the most recently completed twelve-month period and
Company shall have delivered to Administrative Agent financial statements
with respect to such Person, division or line of business with respect to
such twelve-month period in form and substance reasonably satisfactory to
Administrative Agent, (3) the aggregate amount of all consideration
payable by or on behalf of Company or any of its Subsidiaries in
connection with all proposed Permitted Acquisitions in Cash, property,
services, notes, bonds, debentures or other debt instruments, together
with the aggregate principal amount of all Indebtedness assumed or
Contingent Obligations incurred by Company or any of its Subsidiaries in
connection with such Permitted Acquisitions, shall not exceed $10,000,000
in any Fiscal Year, and (4) Company shall have delivered a Compliance
Certificate to Administrative Agent demonstrating that, after giving
effect to such proposed Permitted Acquisition, Company shall be in
compliance with the requirements of subsection 7.6, or (b) prior to such
acquisition, Requisite Lenders have specifically consented in writing to
the terms of such acquisition;"
E. Subsection 7.4 of the Credit Agreement is hereby amended by
deleting the word "and" after subsection 7.4(v), by deleting the period after
subsection 7.4(vi) and replacing such period with the phrase "; and", and by
adding a new subsection 7.4(vii) at the end thereof as follows:
"(vii) Holdings, PRA Sub, Company, and Subsidiary Guarantors may
become and remain liable with respect to Contingent Obligations in respect
of the Foreign Facilities Guaranty and Contingent Obligations in the form
of Liens securing Indebtedness under the Canadian Credit Agreement and the
U.K. Credit Agreement."
F. Subsection 7.9 of the Credit Agreement is hereby amended by
deleting the word "and" after clause (v) and adding the following before the
period at the end of clause (vi) thereof:
", and (vii) Indebtedness permitted under subsections 7.1(xii) and
(xiii) and Contingent Obligations permitted under subsection 7.4(vii)"
1.5 AMENDMENTS TO SECTION 9: ADMINISTRATIVE AGENT
The first paragraph of subsection 9.6 of the Credit Agreement is
hereby amended by deleting it in its entirety and substituting the following
therefor:
"Each Lender hereby further authorizes Administrative Agent, on
behalf of and for the benefit of Lenders, to enter into each Collateral
Document as secured party, to be the agent for and representative of
Lenders under each Guaranty and to enter into and be the agent for and
representative of Lenders under the Intercreditor Agreement and each
Lender agrees to be bound by the terms of each Collateral Document, each
Guaranty and the Intercreditor Agreement; provided that
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Administrative Agent shall not (i) enter into or consent to any material
amendment, modification, termination or waiver of any provision contained
in any Collateral Document or Guaranty or the Intercreditor Agreement or
(ii) release any Collateral (except as otherwise expressly permitted or
required pursuant to the terms of this Agreement or the applicable
Collateral Document), in each case without the prior consent of Requisite
Lenders (or, if required pursuant to subsection 10.6, all Lenders);
provided further, however, that, without further written consent or
authorization from Lenders, Administrative Agent may execute any documents
or instruments necessary to (a) release any Lien encumbering any item of
Collateral that is the subject of a sale or other disposition of assets
permitted by this Agreement or to which Requisite Lenders have otherwise
consented, (b) release any Subsidiary Guarantor from the Subsidiary
Guaranty if all of the Capital Stock of such Subsidiary Guarantor is sold
to any Person (other than an Affiliate of Company) pursuant to a sale or
other disposition permitted hereunder or to which Requisite Lenders have
otherwise consented or (c) subordinate the Liens of Administrative Agent,
on behalf of Lenders, to any Liens permitted by subsection 7.2; provided
that, in the case of a sale of such item of Collateral or stock referred
to in subdivision (a) or (b), the requirements of subsection 10.14 are
satisfied. Anything contained in any of the Loan Documents to the contrary
notwithstanding, Company, Administrative Agent and each Lender hereby
agree that (1) no Lender shall have any right individually to realize upon
any of the Collateral under any Collateral Document or to enforce any
Guaranty, it being understood and agreed that all powers, rights and
remedies under the Collateral Documents and the Guaranties may be
exercised solely by Administrative Agent for the benefit of Lenders in
accordance with the terms thereof, and (2) in the event of a foreclosure
by Administrative Agent on any of the Collateral pursuant to a public or
private sale, Administrative Agent or any Lender may be the purchaser of
any or all of such Collateral at any such sale and Administrative Agent,
as agent for and representative of Lenders (but not any Lender or Lenders
in its or their respective individual capacities unless Requisite Lenders
shall otherwise agree in writing) shall be entitled, for the purpose of
bidding and making settlement or payment of the purchase price for all or
any portion of the Collateral sold at any such public sale, to use and
apply any of the Obligations as a credit on account of the purchase price
for any collateral payable by Administrative Agent at such sale."
1.6 SUBSTITUTION OF SCHEDULE
Schedule 2.1 to the Credit Agreement is hereby amended by deleting
said Schedule 2.1 in its entirety and substituting in place thereof a new
Schedule 2.1 in the form of Schedule 2.1 to this Amendment.
1.7 LIMITED WAIVER
Subject to the terms and conditions set forth herein and in reliance
on the representations and warranties of Company herein contained, Lenders
hereby waive compliance with the provisions of subsections 6.10, 6.11 and 6.13
of the Credit Agreement for the period from and including March 23, 2004 to and
including May 17, 2004. Without limiting the generality of the provisions of
subsection 10.6 of the Credit Agreement, the
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waiver set forth above shall be limited precisely as written and relates solely
to the noncompliance by Company with the provisions of subsections 6.10, 6.11
and 6.13 of the Credit Agreement in the manner and to the extent described
above, and nothing herein shall be deemed to constitute a waiver of compliance
by Company with respect to (i) subsections 6.10, 6.11 and 6.13 of the Credit
Agreement in any other instance or (ii) any other term, provision or condition
of the Credit Agreement or any other instrument or agreement referred to
therein.
SECTION 2. AMENDMENTS TO THE AMENDED AND RESTATED HOLDINGS
PLEDGE AGREEMENT
2.1 AMENDMENTS TO SECTION 2: SECURITY FOR OBLIGATIONS
Section 2 of the Holdings Pledge Agreement is hereby amended by
deleting it in its entirety and substituting the following therefor:
" SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement secures, and the
Pledged Collateral pledged by each Pledgor is collateral security for, the
prompt payment or performance in full when due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or
otherwise (including without limitation the payment of amounts that would
become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)), of all
obligations and liabilities of every nature of any Pledgor now or
hereafter existing under or arising out of or in connection with the
Guaranty and the Foreign Facilities Guaranty, in each case together with
all extensions or renewals thereof, whether for principal, interest
(including without limitation interest that, but for the filing of a
petition in bankruptcy with respect to Company, any Foreign Borrower or
any other Pledgor, would accrue on such obligations, whether or not a
claim is allowed against Company or any other Pledgor for such interest in
the related bankruptcy proceeding), reimbursement of amounts drawn under
Letters of Credit, payments for early termination of Lender Interest Rate
Agreements, fees, expenses, indemnities or otherwise, whether voluntary or
involuntary, direct or indirect, absolute or contingent, liquidated or
unliquidated, whether or not jointly owed with others, and whether or not
from time to time decreased or extinguished and later increased, created
or incurred, and all or any portion of such obligations or liabilities
that are paid, to the extent all or any part of such payment is avoided or
recovered directly or indirectly from Secured Party or any Lender or
Interest Rate Exchanger as a preference, fraudulent transfer or otherwise,
and all obligations of every nature of Pledgors now or hereafter existing
under this Agreement (all such obligations of such Pledgor being the
"SECURED OBLIGATIONS")."
2.2 AMENDMENTS TO SECTION 16: SECURED PARTY AS AGENT
Subsection 16(a) of the Holdings Pledge Agreement is hereby amended
by deleting it in its entirety and substituting the following therefor:
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"(a) Secured Party has been appointed to act as Secured Party
hereunder by Lenders and, by their acceptance of the benefits hereof,
Interest Rate Exchangers. Secured Party shall be obligated, and shall have
the right hereunder, to make demands, to give notices, to exercise or
refrain from exercising any rights, and to take or refrain from taking any
action (including without limitation the release or substitution of
Pledged Collateral), solely in accordance with this Agreement and the
Credit Agreement; provided that Secured Party shall exercise, or refrain
from exercising, any remedies provided for in Section 11 hereof in
accordance with the instructions of (i) Requisite Lenders, or (ii) after
payment in full of all Obligations under the Credit Agreement and the
other Loan Documents, the cancellation or expiration of all Letters of
Credit and the termination of the Commitments and after payment in full of
all obligations under the Canadian Credit Agreement and under the U.K.
Credit Agreement, the cancellation or expiration of all letters of credit
and letters of guarantee issued under the Canadian Credit Agreement and
letters of credit and guarantees issued under the U.K. Credit Agreement
and all bankers' acceptances issued under the Canadian Credit Agreement
and the termination of the commitments under the Canadian Credit Agreement
and under the U.K. Credit Agreement, the holders of a majority of (A) the
aggregate notional amount under all Lender Interest Rate Agreements
(including Lender Interest Rate Agreements that have been terminated) or
(B) if all Lender Interest Rate Agreements have been terminated in
accordance with their terms, the aggregate amount then due and payable
(exclusive of expenses and similar payments but including any early
termination payments then due) under such Lender Interest Rate Agreements
(Requisite Lenders or, if applicable, such holders being referred to
herein as "REQUISITE OBLIGEES"). In furtherance of the foregoing
provisions of this Section 16(a), each Interest Rate Exchanger, by its
acceptance of the benefits hereof, agrees that it shall have no right
individually to realize upon any of the Pledged Collateral hereunder, it
being understood and agreed by such Interest Rate Exchanger that all
rights and remedies hereunder may be exercised solely by Secured Party for
the benefit of Lenders and Interest Rate Exchangers in accordance with the
terms of this Section 16(a)."
2.3 GENERAL AMENDMENTS
On and after the First Amendment Effective Date, (a) each reference
in the Holdings Pledge Agreement to "Secured Party" shall mean ▇▇▇▇▇ Fargo Bank,
National Association as agent for and representative of (i) the Lenders party to
the Credit Agreement, (ii) any Interest Rate Exchangers (as defined in the
Holdings Pledge Agreement), (iii) Canadian Imperial Bank of Commerce, as the
lender under the Canadian Credit Agreement and (iv) Wachovia Bank, National
Association, acting through its London branch, as the lender under the U.K.
Credit Agreement; (b) each reference in the Holdings Pledge Agreement to
"Requisite Lenders" shall mean Requisite Facilities Lenders (as such term is
defined in the Intercreditor Agreement); and (c) each reference in the Holdings
Pledge Agreement to "Lenders" (except in the preliminary statements thereto)
shall mean Lenders, U.K. Lender (as such term is defined in the Intercreditor
Agreement) and Canadian Lender (as such term is defined in the Intercreditor
Agreement).
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SECTION 3. AMENDMENTS TO THE AMENDED AND RESTATED SECURITY AGREEMENT
3.1 AMENDMENTS TO SECTION 2: SECURITY FOR OBLIGATIONS
Section 2 of the Security Agreement is hereby amended by deleting it
in its entirety and substituting the following therefor:
"SECTION 2. SECURITY FOR OBLIGATIONS.
This Agreement secures, and the Collateral assigned by each
Grantor is collateral security for, the prompt payment or performance in
full when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including without
limitation the payment of amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy
Code), of all Secured Obligations of such Grantor. "SECURED OBLIGATIONS"
means:
(a) with respect to Company, all obligations and liabilities
of every nature of Company now or hereafter existing under or arising out
of or in connection with the Credit Agreement, the other Loan Documents,
any Lender Interest Rate Agreement and the Foreign Facilities Guaranty,
and
(b) with respect to each Subsidiary Grantor and Additional
Grantor, all obligations and liabilities of every nature of such Grantors
now or hereafter existing under or arising out of or in connection with
the Subsidiary Guaranty and the Foreign Facilities Guaranty;
in each case together with all extensions or renewals thereof, whether for
principal, interest (including without limitation interest that, but for
the filing of a petition in bankruptcy with respect to Company, any
Foreign Borrower or any other Grantor, would accrue on such obligations,
whether or not a claim is allowed against Company or such Grantor for such
interest in the related bankruptcy proceeding), reimbursement of amounts
drawn under Letters of Credit, payments for early termination of Lender
Interest Rate Agreements, fees, expenses, indemnities or otherwise,
whether voluntary or involuntary, direct or indirect, absolute or
contingent, liquidated or unliquidated, whether or not jointly owed with
others, and whether or not from time to time decreased or extinguished and
later increased, created or incurred, and all or any portion of such
obligations or liabilities that are paid, to the extent all or any part of
such payment is avoided or recovered directly or indirectly from Secured
Party or any Lender or Interest Rate Exchanger as a preference, fraudulent
transfer or otherwise, and all obligations of every nature of Grantors now
or hereafter existing under this Agreement."
3.2 AMENDMENTS TO SECTION 20: SECURED PARTY AS AGENT
The first paragraph of Section 20 of the Security Agreement is
hereby amended by deleting it in its entirety and substituting the following
therefor:
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"Secured Party has been appointed to act as Secured Party hereunder
by Lenders and, by their acceptance of the benefits hereof, Interest Rate
Exchangers. Secured Party shall be obligated, and shall have the right
hereunder, to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking any action
(including without limitation the release or substitution of Collateral),
solely in accordance with this Agreement and the Credit Agreement;
provided that Secured Party shall exercise, or refrain from exercising,
any remedies provided for in Section 15 hereof in accordance with the
instructions of (i) Requisite Lenders or (ii) after payment in full of all
Obligations under the Credit Agreement and the other Loan Documents, the
cancellation or expiration of all Letters of Credit and the termination of
the Commitments and after payment in full of all obligations under the
Canadian Credit Agreement and under the U.K. Credit Agreement, the
cancellation or expiration of all letter of guarantee and letters of
credit issued under the Canadian Credit Agreement and letters of credit
and guarantees issued under the U.K. Credit Agreement and all bankers'
acceptances issued under the Canadian Credit Agreement and the termination
of the commitments under the Canadian Credit Agreement and under the U.K.
Credit Agreement, the holders of a majority of (A) the aggregate notional
amount under all Lender Interest Rate Agreements (including Lender
Interest Rate Agreements that have been terminated) or (B) if all Lender
Interest Rate Agreements have been terminated in accordance with their
terms, the aggregate amount then due and payable (exclusive of expenses
and similar payments but including any early termination payments then
due) under such Lender Interest Rate Agreements (Requisite Lenders or, if
applicable, such holders being referred to herein as "REQUISITE
OBLIGEES"). In furtherance of the foregoing provisions of this Section 20,
each Interest Rate Exchanger, by its acceptance of the benefits hereof,
agrees that it shall have no right individually to realize upon any of the
Collateral hereunder, it being understood and agreed by such Interest Rate
Exchanger that all rights and remedies hereunder may be exercised solely
by Secured Party for the benefit of Lenders and Interest Rate Exchangers
in accordance with the terms of this Section 20."
3.3 GENERAL AMENDMENTS
On and after the First Amendment Effective Date, (a) each reference
in the Security Agreement to "Secured Party" shall mean ▇▇▇▇▇ Fargo Bank,
National Association as agent for and representative of (i) the Lenders party to
the Credit Agreement, (ii) any Interest Rate Exchangers (as defined in the
Security Agreement), (iii) Canadian Imperial Bank of Commerce, as the lender
under the Canadian Credit Agreement and (iv) Wachovia Bank, National
Association, acting through its London branch, as the lender under the U.K.
Credit Agreement; (b) each reference in the Security Agreement to "Requisite
Lenders" shall mean Requisite Facilities Lenders (as such term is defined in the
Intercreditor Agreement); and (c) each reference in the Security Agreement to
"Lenders" (except in the preliminary statements thereto) shall mean Lenders,
U.K. Lender (as such term is defined in the Intercreditor Agreement) and
Canadian Lender (as such term is defined in the Intercreditor Agreement).
13
SECTION 4. CONDITIONS TO EFFECTIVENESS
Sections 1, 2, and 3 of this Amendment shall become effective only
upon the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "FIRST AMENDMENT
EFFECTIVE DATE"):
A. On or before the First Amendment Effective Date, each Loan Party
shall deliver to Lenders (or to Administrative Agent for Lenders) the following,
each, unless otherwise noted, dated the First Amendment Effective Date:
1. Certified copies of its Certificate or Articles of
Incorporation, together with a good standing certificate from the
Secretary of State of its state of incorporation, each dated a recent date
prior to the First Amendment Effective Date;
2. A certificate, dated as of the First Amendment Effective
Date, of its corporate secretary or an assistant secretary, certifying
that there have been no changes in its Bylaws from the form of Bylaws
previously delivered to Lenders;
3. Resolutions of its Board of Directors approving and
authorizing the execution, delivery, and performance of this Amendment and
approving and authorizing the execution, delivery and payment of the
Notes, certified as of the First Amendment Effective Date by its corporate
secretary or an assistant secretary as being in full force and effect
without modification or amendment;
4. Signature and incumbency certificates of its officers
executing this Amendment and the Notes delivered hereunder; and
5. Executed copies of this Amendment and any Notes
requested by any of the Lenders.
B. On or before the First Amendment Effective Date, Administrative
Agent shall have received executed counterparts of this Amendment from
Supermajority Lenders and each Lender increasing its Commitments.
SECTION 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, Company represents and
warrants to each Lender that the following statements are true, correct and
complete:
A. CORPORATE POWER AND AUTHORITY. Each Loan Party has all
requisite corporate power and authority to enter into this Amendment and to
carry out the transactions contemplated by, and perform its obligations under,
the Credit Agreement, the Holdings Pledge Agreement and the Security Agreement,
in each case as amended by this Amendment (the "AMENDED AGREEMENTS").
14
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of
this Amendment and the performance of the Amended Agreements have been duly
authorized by all necessary corporate action on the part of each Loan Party, as
the case may be.
C. NO CONFLICT. The execution and delivery by each Loan Party of
this Amendment and the performance by each Loan Party of the Amended Agreements
do not and will not (i) violate any provision of any law or any governmental
rule or regulation applicable to any Loan Party, the Certificate or Articles of
Incorporation or Bylaws of any Loan Party or any order, judgment or decree of
any court or other agency of government binding on any Loan Party, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of Company or any of its
Subsidiaries, (iii) result in or require the creation or imposition of any Lien
upon any of the properties or assets of any Loan Party (other than Liens created
under any of the Loan Documents in favor of Administrative Agent on behalf of
Lenders, Canadian Lender and U.K. Lender), or (iv) require any approval of
stockholders or any approval or consent of any Person under any Contractual
Obligation of Company or any of its Subsidiaries.
D. GOVERNMENTAL CONSENTS. The execution and delivery by each Loan
Party of this Amendment and the performance by each Loan Party of the Amended
Agreements do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any federal, state or
other governmental authority or regulatory body.
E. BINDING OBLIGATION. This Amendment has been duly executed and
delivered by each Loan Party and this Amendment and each of the Amended
Agreements are the legally valid and binding obligations of each Loan Party
party thereto, enforceable against Company in accordance with their respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the First Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
G. ABSENCE OF DEFAULT. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Potential Event of
Default.
SECTION 6. ACKNOWLEDGEMENT AND CONSENT
Each Loan Party hereby acknowledges and agrees that any of the
Guaranties and Collateral Documents (each, a "CREDIT SUPPORT DOCUMENT") to which
it is a party or otherwise bound shall continue in full force and effect and
that all of its obligations
15
thereunder shall be valid and enforceable and shall not be impaired or limited
by the execution or effectiveness of this Amendment, except in each case to the
extent expressly modified hereby. Each Loan Party represents and warrants that
all representations and warranties contained in the Amended Agreement and the
Credit Support Documents to which it is a party or otherwise bound are true,
correct and complete in all material respects on and as of the First Amendment
Effective Date to the same extent as though made on and as of that date, except
to the extent such representations and warranties specifically relate to an
earlier date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
Each Loan Party (other than Company) acknowledges and agrees that
(i) notwithstanding the conditions to effectiveness set forth in this Amendment,
such Loan Party is not required by the terms of the Credit Agreement or any
other Loan Document to consent to the amendments to the Credit Agreement
effected pursuant to this Amendment and (ii) nothing in the Credit Agreement,
this Amendment or any other Loan Document shall be deemed to require the consent
of such Loan Party to any future amendments to the Credit Agreement.
The parties hereby acknowledge that Pharm. Research Associates,
Inc., a Delaware corporation ("PHARM") has been dissolved and agree that Pharm
has been or is hereby released as a party from each Loan Document to which it
was a party, including, without limitation, the Subsidiary Guaranty and the
Security Agreement.
SECTION 7. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
(i) On and after the First Amendment Effective Date, each
reference in the Credit Agreement, the Security Agreement and the Holdings
Pledge Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Credit Agreement, the Security
Agreement or the Holdings Pledge Agreement, as the case may be, and each
reference in the other Loan Documents to the "Credit Agreement", "Security
Agreement", "Holdings Pledge Agreement", "thereunder", "thereof" or words
of like import referring to the Credit Agreement, the Security Agreement
or the Holdings Pledge Agreement, as the case may be, shall mean and be a
reference to the corresponding Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of
Administrative Agent or any Lender under, the Credit Agreement or any of
the other Loan Documents.
16
B. FEES AND EXPENSES. Company acknowledges that all
reasonable, out-of-pocket costs, fees and expenses as described in subsection
10.2 of the Credit Agreement incurred by Administrative Agent and its counsel
with respect to this Amendment and the documents and transactions contemplated
hereby shall be for the account of Company.
C. HEADINGS. Section and subsection headings in this
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given any
substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. COUNTERPARTS; EFFECTIVENESS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment (other than the
provisions of Sections 1, 2 and 3 hereof, the effectiveness of which is governed
by Section 4 hereof) shall become effective upon the execution of a counterpart
hereof by Company, each other Loan Party, Supermajority Lenders and each Lender
increasing its Commitment and receipt by Company and Administrative Agent of
written or telephonic notification of such execution and authorization of
delivery thereof.
[Remainder of page intentionally left blank]
17
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
PRA INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Title: President and Chief Executive Officer
-------------------------------------
S-1
AGREED:
PRA HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Title: President and Chief Executive Officer
-------------------------------------
PRA SUB, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Title: President and Chief Executive Officer
-------------------------------------
PHARMACEUTICAL RESEARCH ASSOCIATES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Title: President and Chief Executive Officer
-------------------------------------
INTERNATIONAL MEDICAL TECHNICAL CONSULTANTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Title: President and Chief Executive Officer
-------------------------------------
MFH, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Title: President and Chief Executive Officer
-------------------------------------
S-2
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
individually and as Administrative Agent
By: /s/ ▇▇▇▇ HUKART
---------------------------------
Name: ▇▇▇▇ Hukart
------------------------------
Title: Vice President
------------------------------
S-3
BNP PARIBAS,
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Managing Director
--------------------------------
and
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Director
--------------------------------
S-4
GENERAL ELECTRIC CAPITAL
CORPORATION,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Duly Authorized Signatory
--------------------------------
S-5
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Vice President
--------------------------------
S-6
CIBC, INC.,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Executive Director
--------------------------------
CIBC World Markets Corp., as Agent
S-7
SCHEDULE 2.1
LENDERS' COMMITMENTS AND PRO RATA SHARES
Tranche A Pro Rata Share Tranche B Pro Rata Share US Revolving Pro Rata Share
Term Loan (re: Tranche A Term Loan (re: Tranche B Loan (re: US Rev.
Lender Commitment Term Loans) Commitment Term Loans) Commitment Loans)
▇▇▇▇▇
Fargo
Bank,
National
Association $ 294,117.66 1.423149948% $ 20,777,941.18 48.171424672% $ 3,676,470.58 15.479876126%
Wachovia
Bank,
National
Association $ 8,250,000.00 39.919354839% $ 3,725,000.00 8.636012365% $ 6,250,000.00 26.315789474%
BNP
Paribas $ 3,352,941.17 16.223908897% $ 7,023,529.41 16.283298483% $ 4,411,764.71 18.575851411%
General
Electric
Capital
Corporation $ 3,352,941.17 16.223908897% $ 7,023,529.41 16.283298483% $ 4,411,764.71 18.575851411%
CIBC,
Inc. $ 5,416,666.67 26.209677419% $ 4,583,333.33 10.625965997% $ 5,000,000.00 21.052631579%
-------------- -------------- ------------ ------------- ------------- --------------
Total $ 20,666,666.67 100% $ 43,133,333.33 100% $ 23,750,000.00 100%
Schedule 2.1