Exhibit 10.24
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
May 14, 2003
This Third Amendment to Amended and Restated Credit Agreement is
entered into as of the date set forth above ("Amendment") by and among Kendle
International Inc., an Ohio corporation having its principal place of business
in Cincinnati, Ohio (the "Borrower"), Bank One, NA, a national banking
association, as Agent for the Lenders ("Agent"), and the Lenders identified
herein (the "Lender(s)"). This Amendment amends that certain Amended and
Restated Loan Agreement dated as of June 3, 2002 among Borrower, Agent and
Lenders, as amended pursuant to a First Amendment to Amended and Restated Loan
Agreement dated as of June 3, 2002 and a Second Amendment to Amended and
Restated Loan Agreement dated as of March 28, 2003 (as amended, the "Loan
Agreement"). Effective immediately prior to the date of this Amendment, The
Huntington National Bank has assigned all of its right, title and interest, as
Lender, in and to the Credit Agreement to Bank One, NA, pursuant to an
Assignment and Acceptance Agreement dated as of the date hereof. Capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Loan Agreement.
STATEMENT OF AMENDMENT
In consideration of their mutual agreements hereunder and under the
Loan Agreement, the Borrower, Lenders and the Agent hereby agree to amend the
Loan Agreement as follows:
1. DEFINITIONS. Section 1.1 of the Loan Agreement is amended as set
forth below.
(a) Section 1.1 of the Loan Agreement is amended by the
inclusion of the following new definitions:
"Borrowing Base Report" shall have the meaning set forth in
Section 6.1(l).
"Collateral" shall mean and include all Receivables, together
with all proceeds therefrom, in whatever form, including but not limited to:
cash, deposit accounts (whether or not comprised solely of proceeds),
certificates of deposit, negotiable instruments and other instruments for the
payment of money, and chattel paper, security agreements and any and all related
documents.
"Debtor" shall mean the account debtor with respect to any of
Borrower's or its Domestic Subsidiaries' Receivables and/or the prospective
purchaser or account debtor with respect to any contract right, and/or any party
who enters into or proposes to enter into any contract or other arrangement with
Borrower or any of its Domestic Subsidiaries pursuant to which Borrower or any
of its Domestic Subsidiaries is to deliver any personal property or perform any
service.
"Eligible Receivables" shall mean and include with respect to
Borrower (together with each Domestic Subsidiary, including without limitation,
Kendle International CPU LLC and AAC Consulting Group, Inc.), each Receivable
arising in the
ordinary course of its business and which Agent, in its reasonable credit
judgment, shall deem to be an Eligible Receivable, based on such considerations
as Agent may from time to time deem appropriate. A Receivable shall not be
deemed eligible unless such Receivable is subject to Agent's first priority
perfected security interest and no other Lien (other than Permitted Liens), and
is evidenced by an invoice or other documentary evidence satisfactory to Agent.
In addition, no Receivable shall be an Eligible Receivable if:
(i) it arises out of a sale made to an Affiliate of Borrower
or to a Person controlled by an Affiliate of Borrower;
(ii) it is due or unpaid more than sixty (60) days after the
original due date thereof;
(iii) any covenant, representation or warranty contained in
this Agreement with respect to such Receivables has been breached in any
material respect;
(iv) the Debtor shall (A) apply for, suffer, or consent to the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator of itself or of all or a substantial part of its property or call
a meeting of its creditors, (B) admit in writing its inability, or be generally
unable, to pay its debts as they become due or cease operations of its present
business, (C) make a general assignment for the benefit of creditors, (D)
commence a voluntary case under any state or federal bankruptcy laws (as now or
hereafter in effect), (E) be adjudicated a Bankrupt or insolvent, (F) file a
petition seeking to take advantage of any other law providing for the relief of
debtors, (G) acquiesce to, or fail to have dismissed within 90 days of the
filing thereof, any petition which is filed against it in any involuntary case
under such Bankruptcy laws, or (H) take any action for the purpose of effecting
any of the foregoing;
(v) the sale to the Debtor is on a bill-and-hold, guaranteed
sale, sale-and-return, sale on approval, consignment or any other repurchase or
return basis or is evidenced by chattel paper;
(vi) Agent believes, in its reasonable judgment, that
collection of such Receivable is insecure or that such Receivable may not be
paid by reason of the Debtor's financial inability to pay;
(vii) the Debtor is the United States of America, any state or
any department, agency or instrumentality of any of them, unless the Borrower
assigns its right to payment of such Receivable to Agent pursuant to the
Assignment of Claims Act of 1940, as amended (31 U.S.C. Sub-Section 3727 et seq.
and 41 U.S.C. Sub-Section 15 et seq.) or has otherwise complied with other
applicable statutes or ordinances;
(viii) the goods giving rise to such Receivable have not been
shipped to the Debtor or the services giving rise to such Receivable have not
been performed or the Receivable otherwise does not represent a final sale,
except for prebilling in the ordinary course of business;
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(ix) the Receivables of the Debtor exceed a credit limit
determined by Agent in the exercise of its discretion in a reasonable manner to
the extent such Receivable exceeds such limit;
(x) the Receivable is subject to any asserted offset,
deduction, defense, dispute, or counterclaim, the Debtor is also a creditor or
supplier of Borrower or such Domestic Subsidiary or the Receivable is contingent
in any respect or for any reason to the extent of the asserted offset,
deduction, defense, dispute or counterclaim;
(xi) any return, rejection or repossession of the merchandise
has occurred or the rendition of services has been disputed;
(xii) such Receivable is not payable to Borrower or such
Domestic Subsidiary; or
(xiii) such Receivable is not otherwise satisfactory to Agent
as determined by Agent in the exercise of its reasonable credit judgment.
"UCC" shall mean the Uniform Commerce Code as in effect in the
State of Ohio.
(b) Section 1.1 of the Loan Agreement is amended by deleting
each of the definitions of "Applicable Percentage," "Consolidated EBITDA,"
"Permitted Acquisition," "Receivables," and "Required Lenders" and substituting
therefor the following:
"Applicable Percentage" shall mean, for purposes of calculating (i)
the applicable interest rate for any day for any Eurodollar Revolving Loan or
the applicable rate of the Standby Letter of Credit Fees, (ii) the applicable
interest rate for any day for any Eurodollar Term Loan, (iii) the applicable
interest rate for any Base Rate Loan, and (iv) the applicable rate of the
Facility Fee for any day for purposes of Section 3.5(b), the appropriate
applicable percentage set forth in the table below corresponding to the Leverage
Ratio as of the most recent Calculation Date:
- --------------------------------------------------------------------------------------------------------------------
Applicable
Percentage for Applicable
Eurodollar Revolving Percentage for Applicable Applicable
Pricing Total Loans and Standby Eurodollar Term Loans Percentage Percentage
Level Leverage Ratio Letter of Credit Fees and Acquisition Loans For Base Rate Loans For Facility Fees
- ----------------------------------------------------------------------------------------------------------------------
I 1.0 to 1.0 1.00% 1.50% 0.0% 0.30%
- ----------------------------------------------------------------------------------------------------------------------
II 1.5 to 1.0 but 1.15% 1.75% 0.0% 0.35%
> 1.0 to 1.0
- ----------------------------------------------------------------------------------------------------------------------
III 2.0 to 1.0 but 1.35% 2.00% 0.0% 0.40%
> 1.5 to 1.0
- ----------------------------------------------------------------------------------------------------------------------
IV 2.5 to 1.0 but 1.60% 2.25% 0.0% 0.45%
>2.0 to 1.0
- ----------------------------------------------------------------------------------------------------------------------
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Each Applicable Percentage shall be determined and adjusted quarterly on the
date (each a "Calculation Date") five (5) Business Days after the date by which
the Borrower is required to provide an officer's certificate in accordance with
the provisions of Section 6.1 (c) for the most recently ended fiscal quarter of
the Borrower; provided, that if the Borrower fails to provide the officer's
certificate to the Agency Services Address as required by Section 6.1(c) for the
most recently ended fiscal quarter of the Borrower preceding the applicable
Calculation Date, the Applicable Percentage from such Calculation Date shall be
based on Pricing Level IV (as shown above) until the date five Business Days
following such time as an appropriate officer's certificate is provided,
whereupon the Pricing Level shall be determined by the Leverage Ratio as of the
last day of the most recently ended fiscal quarter of the Borrower preceding
such Calculation Date. Each Applicable Percentage shall be effective from one
Calculation Date until the next Calculation Date. Any adjustment in the
Applicable Percentages shall be applicable to all Loans then existing or
subsequently made or issued. Notwithstanding the foregoing, the Applicable
Percentage for Eurodollar Revolving Loans, Standby Letter of Credit Fees,
Eurodollar Term Loans, Acquisition Loans and Base Rate Loans as set forth in the
foregoing table shall, in each instance, be increased by 0.75% until such time
as it is adjusted effective on a Calculation Date upon which the Fixed Charge
Coverage Ratio as of the last day of the prior fiscal quarter of the Borrower is
greater than 1.55 to 1.00.
"Consolidated EBITDA" shall mean, for any period, the sum of (a)
Consolidated Net Income (excluding the gain, if any, recognized in connection
with the prepayment of the CPR Note) for such period, plus (b) an amount which,
in the determination of Consolidated Net Income for such period, has been
deducted for (i) Consolidated Interest Expense; (ii) Consolidated Cash Taxes;
and (iii) depreciation and amortization expense minus (c) an amount which, in
the determination of Consolidated Net Income for such period, has been added for
any non-cash income or non-cash gains plus (d) an amount which, in the
determination of Consolidated Net Income for such period, has been subtracted
for any non-cash losses, all as determined in accordance with GAAP.
"Permitted Acquisition" shall mean an acquisition by the Borrower or
any Wholly Owned Domestic Subsidiary of the Borrower of the Capital Stock or all
or substantially all of the Property of another Person (including by merger or
consolidation or by incorporation of a new Subsidiary) for up to the fair market
value of the Capital Stock or Property acquired, provided, that, (a) the Capital
Stock or Property acquired in such acquisition relates directly to or is
strategically related to the business of the Borrower or any of its Subsidiaries
as existing on the Effective Date, (b) any Indebtedness issued, incurred or
assumed by the Borrower and its Subsidiaries on a consolidated basis from such
acquisition (as permitted hereunder) shall not in the aggregate exceed
$10,000,000, (c) the Agent shall have received all items in respect of the
Capital Stock or Property acquired in such acquisition (and/or the seller
thereof) required to be delivered by the terms of Section 6.11, (d) in the case
of an acquisition of the Capital Stock of another Person, (i) the board of
directors (or other comparable governing body) of such other Person shall have
duly approved such acquisition and (ii) the Capital Stock acquired shall
constitute 100% of the Total Voting Power and ownership interest of the issuer
thereof, (e) no Default or Event of Default shall have occurred and be
continuing immediately before or immediately after giving effect to such
acquisition and
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the Borrower shall have delivered to the Agent a Pro Forma Compliance
Certificate demonstrating that, upon giving effect to such acquisition on a Pro
Forma Basis, the Borrower shall be in compliance with all of the financial
covenants set forth in Section 7.18 as of the last day of the most recent period
of four consecutive fiscal quarters of the Borrower which precedes or ends on
the date of such acquisition and with respect to which the Agent has received
the Required Financial Information, (f) the representations and warranties made
by the Credit Parties in each Credit Document shall be true and correct in all
material respects as of the date of such acquisition (as if made on such date
after giving effect thereto) except to the extent such representations and
warranties expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct in all material
respects at and as of such earlier date), (g) the aggregate consideration
(including cash, assumption of indebtedness and non-cash consideration) for any
single acquisition (or series of related acquisitions) shall not exceed
$30,000,000 and the aggregate consideration (including cash, assumption of
indebtedness and non-cash consideration) for all such acquisitions occurring
during any calendar year of the Borrower during the term hereof shall not exceed
$30,000,000, (h) the aggregate cash consideration for any single acquisition (or
series of related acquisitions) shall not exceed $20,000,000 and the aggregate
cash consideration for all such acquisitions occurring during any calendar year
of the Borrower during the term hereof shall not exceed $30,000,000; (i) the
receipt of prior written consent (which consent Lenders shall have no obligation
to give) of the Required Lenders; and (j) the sum of the principal amount of the
Term Loan, all Acquisition Loans and any Revolving Loans specific to an
acquisition shall not exceed an amount equal to two times the cash and Cash
Equivalents of the Borrower and its Subsidiaries determined on a consolidated
basis. Notwithstanding the foregoing, the acquisition by Borrower, directly or
through its subsidiaries Kendle International S.A. de C.V. and Kendle Services
S.A., de C.V., of substantially all of the assets of Informatica Clinica SC,
Estadisticos y Clinicos Asociados, S.A. and USA ECA, Inc., for an aggregate
purchase price not to exceed $3,500,000 shall, upon satisfaction of the
conditions set forth in clauses (a), (b), (e), (f) and (j) above, constitute a
"Permitted Acquisition" hereunder.
"Receivables" shall mean all accounts (as that term is defined in the
UCC), accounts receivable, chattel paper, contract rights, documents and
instruments of the Borrower or any of its Domestic Subsidiaries; all other
obligations or indebtedness owed to Borrower or any of its Domestic Subsidiaries
from whatever source arising; all guarantees of any of the foregoing and all
security therefor; all of the right, title and interest of Borrower or any of
its Domestic Subsidiaries in and with respect to the goods, services or other
property which gave rise to or which secure any of the foregoing and all
insurance policies and proceeds relating thereto; all of the foregoing whether
now owned by Borrower or any of its Domestic Subsidiaries or hereafter acquired
or in existence.
"Required Lenders" shall mean, at any time, Lenders which are then in
compliance with their obligations hereunder (as determined by the Agent) and
holding in the aggregate more than eighty percent (80%) of the total of the
Revolving Commitments held by all such Lenders. For purposes of the foregoing,
(A) the interest of any Lender holding a Loan in which any other Lender has a
Participation Interest pursuant to Section 3.13 shall be calculated net of all
such Participation Interests of
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other Lenders and (B) the Participation Interest of any Lender pursuant to
Section 3.13 in a Loan held by any other Lender shall be counted as if such
Lender holding such Participation Interest held a proportionate part of the
related Loan directly.
2. REVOLVING LOANS. The Loan Agreement is amended by deleting Section
2.1(a) in its entirety and substituting therefore the following new Section
2.1(a):
(a) "Revolving Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set forth herein,
each Lender severally agrees to make available to the Borrower such Lender's
Commitment Percentage of revolving credit loans requested by the Borrower in
Dollars ("Revolving Loans") from time to time from the Effective Date until the
Maturity Date, or such earlier date as the Revolving Commitments shall have been
terminated as provided herein; provided, that, the sum of the aggregate
principal amount of outstanding Revolving Loans plus the aggregate amount of
outstanding LOC Obligations shall not at any time exceed an amount equal to the
lesser of (i) TEN MILLION AND NO/100 DOLLARS ($10,000,000.00) or (ii) fifty
percent (50%) of the book value of Eligible Receivables as determined as of each
calendar month end (as such aggregate maximum amount may be reduced from time to
time as provided in Section 3.4, the "Revolving Committed Amount"); provided,
further, with regard to each Lender individually, that such Lender's outstanding
Revolving Loans plus Participation Interests in outstanding LOC Obligations
shall not at any time exceed such Lender's Commitment Percentage of the
Revolving Committed Amount. Revolving Loans may consist of Base Rate Loans or
Eurodollar Loans, or a combination thereof, as the Borrower may request, and may
be repaid and reborrowed in accordance with the provisions hereof; provided,
that, no more than six (6) Eurodollar Loans shall be outstanding under this
Agreement at any time. For purposes hereof, Eurodollar Loans with different
Interest Periods shall be considered as separate Eurodollar Loans, even if they
begin on the same date, although borrowings of Eurodollar Loans may, in
accordance with the provisions hereof, be combined through extensions or
conversions at the end of existing Interest Periods to constitute a single new
Eurodollar Loan with the same Interest Period. Revolving Loans hereunder may be
repaid and reborrowed in accordance with the provisions of this Agreement.
Should the outstanding amount of the Revolving Loans and outstanding LOC
Obligations exceed the Revolving Committed Amount, Borrower shall immediately,
and without demand or notice, repay such excess amount."
3. COLLATERAL. The Loan Agreement is amended by adding the following
new Sections 3.17 through and including 3.34.
3.17. Security Interest in the Collateral. To secure the prompt
payment and performance to Lenders of the Obligations, Borrower hereby assigns,
pledges and grants to Agent, for the ratable benefit of the Lenders a continuing
security interest in and to all of its Collateral, whether now owned or existing
or hereafter acquired or arising and wheresoever located. Borrower shall mark
its books and records as may be necessary or appropriate to evidence, protect
and perfect Agent's security interest and shall cause its financial statements
to reflect such security interest. Borrower shall promptly provide Agent with
written notice of all commercial tort claims, such notice to contain the case
title together with the applicable court and a brief description of the
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claim(s). Upon delivery of each such notice, Borrower shall be deemed to hereby
grant to Agent a security interest and lien in and to such commercial tort
claims and all proceeds thereof.
3.18. Perfection of Security Interest. Borrower shall take all
action that may be necessary or desirable, or that Agent may reasonably request,
so as at all times to maintain the validity, perfection, enforceability and
priority of Agent's security interest in the Collateral or to enable Agent to
protect, exercise or enforce its rights hereunder and in the Collateral,
including, but not limited to: (a) immediately discharging all Liens other than
Permitted Liens, (b) delivering to Agent, endorsed or accompanied by such
instruments of assignment as Agent may specify, and stamping or marking, in such
manner as Agent may specify, any and all chattel paper, instruments, letters of
credits and advices thereof and documents evidencing or forming a part of the
Collateral, and (c) executing and delivering financing statements, control
agreements, instruments of pledge, mortgages, notices and assignments, in each
case in form and substance satisfactory to Agent, relating to the creation,
validity, perfection, maintenance or continuation of Agent's security interest
under the UCC or other applicable law. By its signature hereto, Borrower hereby
authorizes Agent to file against Borrower, one or more financing, continuation,
or amendment statements pursuant to the UCC in form and substance satisfactory
to Agent (which statements may have a description of collateral which is broader
than that set forth herein). All charges, expenses and fees Agent may incur in
doing any of the foregoing, and any local taxes relating thereto, shall be
charged to Borrower's account as a Revolving Loan and added to the Credit
Obligations, or, at Agent's option, shall be paid to Agent immediately upon
demand.
3.19. Disposition of Collateral. Borrower will safeguard and protect
all Collateral for Agent's general account and make no disposition thereof
whether by sale, lease or otherwise except as permitted pursuant to Section 7.5
hereof.
3.20. Preservation of Collateral. Following the occurrence of a
Default or Event of Default, in addition to the rights and remedies set forth in
Section 8.2 hereof, Agent: (a) may at any time take such steps as Agent deems
necessary to protect Agent's interest in and to preserve the Collateral,
including the hiring of such security guards or the placing of other security
protection measures as Agent may deem appropriate; (b) may employ and maintain
at any of Borrower's premises a custodian who shall have full authority to do
all acts necessary to protect Agent's interests in the Collateral; and (c) shall
have, and is hereby granted (to the same extent as the Borrower), a right of
ingress and egress to the places where the Collateral is located, and may
proceed over and through any of Borrower's owned or leased property. Borrower
shall cooperate fully with all of Agent's efforts to preserve the Collateral and
will take such actions to preserve the Collateral as Agent may direct. All of
Agent's actual expenses of preserving the Collateral, including any expenses
relating to the bonding of a custodian, shall be charged to Borrower's account
as a Revolving Loan and added to the Credit Obligations.
3.21. Ownership of Collateral. With respect to the Collateral, at
the time the Collateral becomes subject to Agent's security interest: (a)
subject to Permitted Liens, Borrower shall be the sole owner of and fully
authorized and able to sell, transfer,
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pledge and/or grant a first priority security interest in each and every item of
its respective Collateral to Agent; and, except for Permitted Liens the
Collateral shall be free and clear of all Liens and encumbrances whatsoever; (b)
each document and agreement executed by Borrower or delivered to Agent in
connection with this Agreement shall be true and correct in all respects; and
(c) all signatures and endorsements of Borrower that appear on such documents
and agreements shall be genuine and Borrower shall have full capacity to execute
same.
3.22. Defense of Agent's Interests. Until (a) payment and
performance in full of all of the Credit Obligations and (b) termination of this
Agreement, Agent's interests in the Collateral shall continue in full force and
effect. During such period Borrower shall not, without Agent's prior written
consent, pledge, sell, assign, transfer, create or suffer to exist a Lien upon
or encumber or allow or suffer to be encumbered in any way except for Permitted
Liens, any part of the Collateral. Borrower shall defend Agent's interests in
the Collateral against any and all Persons whatsoever. At any time after the
occurrence and during the continuance of an Event of Default, Agent shall have
the right to take possession of the indicia of the Collateral and the Collateral
in whatever physical form contained, including without limitation: labels,
stationery, documents, instruments and advertising materials. If Agent exercises
this right to take possession of the Collateral, Borrower shall, upon demand,
assemble it in the best manner possible and make it available to Agent at a
place reasonably convenient to Agent. In addition, with respect to all
Collateral, Agent shall be entitled to all of the rights and remedies set forth
herein and further provided by the Uniform Commercial Code or other applicable
law. Borrower shall, and Agent may, at its option, instruct all suppliers,
carriers, forwarders, warehousers or others receiving or holding cash, checks,
Inventory, documents or instruments in which Agent holds a security interest to
deliver same to Agent and/or subject to Agent's order and if they shall come
into Borrower's possession, they, and each of them, shall be held by Borrower in
trust as Agent's trustee, and Borrower will immediately deliver them to Agent in
their original form together with any necessary endorsement.
3.23. Books and Records. Borrower shall (a) keep proper books of
record and account in which full, true and correct entries will be made of all
dealings or transactions of or in relation to its business and affairs; (b) set
up on its books accruals with respect to all taxes, assessments, charges, levies
and claims; and (c) on a reasonably current basis set up on its books, from its
earnings, allowances against doubtful Receivables, advances and investments and
all other proper accruals (including without limitation by reason of
enumeration, accruals for premiums, if any, due on required payments and
accruals for depreciation, obsolescence, or amortization of properties), which
should be set aside from such earnings in connection with its business. All
determinations pursuant to this subsection shall be made in accordance with, or
as required by, GAAP consistently applied in the opinion of such independent
public accountant as shall then be regularly engaged by Borrower.
3.24. Compliance with Laws. Borrower shall comply in all material
respects with all acts, rules, regulations and orders of any legislative,
administrative or judicial body or official applicable to its respective
Collateral or any part thereof or to the operation of Borrower's business the
non-compliance with which could reasonably be
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expected to have a Material Adverse Effect on Borrower. Borrower may, however,
contest or dispute any acts, rules, regulations, orders and directions of those
bodies or officials in any reasonable manner, provided that any related Lien is
inchoate or stayed and sufficient reserves are established to the reasonable
satisfaction of Agent to protect Agent's Lien on or security interest in the
Collateral. The assets of Borrower at all times shall be maintained in
accordance with the requirements of all insurance carriers which provide
insurance with respect to the assets of Borrower so that such insurance shall
remain in full force and effect.
3.25. Inspection of Premises. At all times Agent upon reasonable
notice shall have full access during normal business hours to and the right to
audit, check, inspect and make abstracts and copies from Borrower's books,
records, audits, correspondence and all other papers relating to the Collateral
and the operation of Borrower's business. Agent and its agents may enter upon
any of Borrower's premises at any time upon reasonable prior notice during
business hours and at any other reasonable time, and from time to time, for the
purpose of inspecting the Collateral and any and all records pertaining thereto
and the operation of Borrower's business.
3.26. Insurance. Borrower shall bear the full risk of any loss of
any nature whatsoever with respect to the Collateral. At Borrower's own cost and
expense in amounts and with carriers acceptable to Agent, Borrower shall keep
all its insurable properties and properties in which Borrower has an interest
insured as provided in Section 6.6 hereof.
3.27. Payment of Taxes. Borrower will pay, when due, all taxes,
assessments and other Charges lawfully levied or assessed upon Borrower or any
of the Collateral including, without limitation, real and personal property
taxes, assessments and charges and all franchise, income, employment, social
security benefits, withholding, and sales taxes. If any tax by any governmental
authority is or may be imposed on or as a result of any transaction between
Borrower and Agent which Agent may be required to withhold or pay or if any
taxes, assessments, or other Charges remain unpaid after the date fixed for
their payment, or if any claim shall be made which, in Agent's opinion, may
possibly create a valid Lien on the Collateral, Agent may without notice to
Borrower pay the taxes, assessments or other Charges and Borrower hereby
indemnifies and holds Agent harmless in respect thereof. Agent will not pay any
taxes, assessments or Charges to the extent that Borrower has contested or
disputed those taxes, assessments or Charges in good faith, by expeditious
protest, administrative or judicial appeal or similar proceeding provided that
any related tax lien is stayed and sufficient reserves are established to the
reasonable satisfaction of Agent to protect Agent's security interest in or Lien
on the Collateral. The amount of any payment by Agent under this Section 3.27
shall be charged to Borrower's account as a Revolving Loan and added to the
Credit Obligations and, until Borrower shall furnish Agent with an indemnity
therefor (or supply Agent with evidence satisfactory to Agent that due provision
for the payment thereof has been made), Agent may hold without interest any
balance standing to Borrower's credit and Agent shall retain its security
interest in any and all Collateral held by Agent.
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3.28. Receivables.
3.28.1. Nature of Receivables. Each Receivable shall be a bona
fide and valid account representing a bona fide indebtedness incurred by the
Debtor therein named, for a fixed sum as set forth in the invoice relating
thereto (provided immaterial or unintentional invoice errors shall not be deemed
to be a breach hereof) with respect to work, labor, expenses or services
theretofore rendered or contracted to be rendered in the future by Borrower as
of the date such Receivable is created. Same shall be due and owing in
accordance with the Borrower's standard terms of sale without dispute, setoff or
counterclaim except as may be stated on the accounts receivable schedules
delivered by Borrower to Agent.
3.28.2. Solvency of Debtor. Each Debtor, to the best of
Borrower's knowledge, as of the date each Receivable is created, is and will be
solvent and able to pay all Receivables on which the Debtor is obligated in full
when due or with respect to such Debtor of Borrower who are not solvent Borrower
has set up on its books and in its financial records bad debt reserves adequate
to cover such Receivables.
3.28.3. Locations of Borrower. Borrower's chief executive
office is located at the addresses set forth on the Disclosure Schedules. Until
written notice is given to Agent of any other office at which Borrower keeps its
records pertaining to Receivables, all such records shall be kept at such
executive office or its Domestic Subsidiaries' offices. The state of formation
and organizational number of Borrower and its Domestic Subsidiaries are set
forth on the Disclosure Schedules.
3.28.4. Notification of Assignment of Receivables. At any time
following the occurrence and during the continuance of an Event of Default,
Agent shall have the right to send notice of the assignment of, and Agent's
security interest in, the Receivables to any and all Debtors or any third party
holding or otherwise concerned with any of the Collateral. Thereafter, Agent
shall have the sole right to collect the Receivables, take possession of the
Collateral, or both. Agent's actual collection expenses, including, but not
limited to, stationery and postage, telephone and telegraph, secretarial and
clerical expenses and the salaries of any collection personnel used for
collection, may be charged to Borrower's account and added to the Credit
Obligations.
3.28.5. Power of Agent to Act on Borrower's Behalf. Agent
shall have the right at any time following the occurrence and during the
continuance of an Event of Default or Default, to receive, endorse, assign
and/or deliver in the name of Agent or Borrower any and all checks, drafts and
other instruments for the payment of money relating to the Receivables, and
Borrower hereby waives notice of presentment, protest and non-payment of any
instrument so endorsed. At any time following the occurrence and during the
continuance of an Event of Default or Default, Borrower hereby constitutes Agent
or Agent's designee as Borrower's attorney with power: (a) to endorse Borrower's
name upon any notes, acceptances, checks, drafts, money orders or other
evidences of payment or Collateral; (b) to sign Borrower's name on any invoice
or bill of lading relating to any of the Receivables, drafts against Debtors,
assignments and verifications of Receivables; (c) to send verifications of
Receivables to any Debtor; (d) to sign Borrower's name on all financing
statements or any other documents or
10
instruments deemed necessary or appropriate by Agent to preserve, protect, or
perfect Agent's interest in the Collateral and to file same; (e) to demand
payment of the Receivables; (f) to enforce payment of the Receivables by legal
proceedings or otherwise; (g) to exercise all of Borrower's rights and remedies
with respect to the collection of the Receivables and any other Collateral; (h)
to settle, adjust, compromise, extend or renew the Receivables; (i) to settle,
adjust or compromise any legal proceedings brought to collect Receivables; (j)
to prepare, file and sign Borrower's name on a proof of claim in Bankruptcy or
similar document against any Debtor; (k) to prepare, file and sign Borrower's
name on any notice of Lien, assignment or satisfaction of Lien or similar
document in connection with the Receivables; and (l) to do all other acts and
things necessary to carry out this Agreement. All acts of said attorney or
designee are hereby ratified and approved, and said attorney or designee shall
not be liable for any acts of omission or commission nor for any error of
judgment or mistake of fact or of law, unless done willfully maliciously or with
gross (not mere) negligence; this power being coupled with an interest is
irrevocable following the occurrence and during the continuance of an Event of
Default or Default. Agent shall have the right at any time following the
occurrence and during the continuance of an Event of Default or Default, to
change the address for delivery of mail addressed to Borrower to such address as
Agent may designate and to receive, open and dispose of all mail addressed to
Borrower.
3.28.6. No Liability. Except in the event of gross negligence
or willful misconduct by Agent, Agent shall not under any circumstances or in
any event whatsoever, have any liability for any error or omission or delay of
any kind occurring in the settlement, collection or payment of any of the
Receivables or any instrument received in payment thereof, or for any damage
resulting therefrom. Following the occurrence and during the continuance of an
Event of Default, Agent may, without notice or consent from Borrower, sue upon
or otherwise collect, extend the time of payment of, compromise or settle for
cash, credit or upon any terms any of the Receivables or any other securities,
instruments or insurance applicable thereto and/or release any obligor thereof.
3.28.7. Establishment of a Lockbox Account; Blocked Accounts.
All deposit and operating accounts of Borrower shall be maintained with Agent,
provided however, Borrower may maintain deposit accounts in local financial
institutions. At any time following the occurrence and during the continuance of
an Event of Default, upon request of Agent, (i) all proceeds of Collateral shall
be deposited by Borrower into a lockbox account with Agent ("Lockbox") and
Borrower shall execute and deliver Agent's customary lockbox agreement and (ii)
Borrower shall maintain such other "blocked accounts" ("Blocked Accounts") as
Agent may require pursuant to an arrangement with such other Agent(s) as may be
selected by Borrower and be acceptable to Agent. Borrower shall issue to any
such Agent, an irrevocable letter of instruction directing said Agent to
transfer such funds so deposited to Agent, either to any account maintained by
Agent at said Agent or by wire transfer to appropriate account(s) of Agent. All
funds deposited in such Blocked Accounts shall immediately become the property
of Agent and Borrower shall obtain the agreement by such Agent to waive any
offset rights against the funds so deposited. Agent shall not assume any
responsibility for such blocked account arrangement, including without
limitation, any claim of accord and
11
satisfaction or release with respect to deposits accepted by any Agent
thereunder. Alternatively, Agent may establish depository accounts ("Depository
Accounts") in the name of Agent at a Agent or Agents for the deposit of such
funds and Borrower shall deposit all proceeds of Collateral or cause same to be
deposited, in kind, in such Depository Accounts of Agent in lieu of depositing
same to the Blocked Accounts.
3.28.8. Adjustments. Borrower will not, without Agent's
consent, compromise or adjust any material amount of the Eligible Receivables
(or extend the time for payment thereof) or grant any additional discounts,
allowances or credits thereon except for those compromises, adjustments,
returns, extensions, discounts, credits and allowances as have been heretofore
customary in the business of Borrower. As used herein, "material amount" means
an amount, individually or in the aggregate, which exceeds 10% of the
outstanding Eligible Receivables.
3.29. Exculpation of Liability. Nothing herein contained shall
be construed to constitute Agent as Borrower's agent for any purpose whatsoever,
nor shall Agent be responsible or liable for any shortage, discrepancy, damage,
loss or destruction of any part of the Collateral wherever the same may be
located and regardless of the cause thereof. Agent shall not, whether by
anything herein or in any assignment or otherwise, assume any of Borrower's
obligations under any contract or agreement assigned to Agent, and Agent shall
not be responsible in any way for the performance by Borrower of any of the
terms and conditions thereof.
3.30. Financing Statements. Except with respect to the
financing statements filed by Agent and the financing statements directly
related to Permitted Liens, Borrower is not aware of any financing statement
covering any of the Collateral or any proceeds thereof is on file in any public
office and, in the event any such financing statement exists, such financing
statement shall be promptly terminated by Borrower.
3.31. Pledge Agreement; Account Control Agreement. Borrower
shall grant to, and at all times maintain for the benefit of, Agent, a first
security interest in cash and Cash Equivalents held in brokerage accounts with
McDonald Investments, Inc. and The Huntington National Bank, all as more fully
set forth in a Pledge Agreement in the form attached hereto as Exhibit B
("Securities Pledge Agreement") and the Account Control Agreements in the forms
attached hereto as Exhibits C-1 and C-2 ("Control Agreements").
4. BORROWING BASE CERTIFICATE. The Loan Agreement is amended by adding
the following new subsection (l) to Section 6.2 of the Loan Agreement:
"(l) Borrowing Base Certificate. Within 30 days following the end of
each calendar month and at such other times as Agent may request, a
Borrowing Base Report in the form of Exhibit D hereto, duly
completed and executed by the Chief Financial Officer or other duly
authorized officer of Borrower (a "Borrowing Base Report"); it being
acknowledged by Borrower that Agent shall be entitled to obtain a
Borrowing
12
Base Report at such other times and with such greater frequency as
Agent may request, in Agent's sole discretion.
5. FINANCIAL COVENANTS. The Loan Agreement is amended by deleting
Section 7.18 in its entirety and substituting therefore the following new
Section 7.18:
(a) Fixed Charge Coverage Ratio. Borrower shall not permit its Fixed
Coverage Ratio, as of the last day of any fiscal quarter of Borrower to
be less than the ratio listed in column (b) below for any fiscal
quarter end during the period opposite such ratio in column (a) below:
(a) (b)
For the Period Ratio
-------------- -----
March 31, 2003 0.50 to 1.00
June 30, 2003 (0.30) to 1.00
September 30, 2003 0.55 to 1.0
December 31, 2003 and thereafter 1.55 : 1.0
(b) Leverage Ratio. The Borrower will not permit the Leverage Ratio,
as of the last day of any fiscal quarter of the Borrower, (i) until such time as
the Fixed Charge Coverage Ratio for any fiscal quarter is greater than 1.55 to
1.00, to be greater than1.75 to 1.00 and (ii) after such time as the Fixed
Charge Coverage Ratio for any fiscal quarter is greater than 1.55 to 1.0, to be
greater than 2.50 to 1.00.
(c) Liquidity. The Borrower shall at all times maintain a ratio of
(i) cash and Cash Equivalents of Borrower and its Domestic Subsidiaries on a
consolidated basis to (ii) the outstanding principal amount of Acquisition Loans
and Term Loans, of not less than 1.10 to 1.00.
6. PREPAYMENT OF INDEBTEDNESS. Notwithstanding Section 7.7 of the Loan
Agreement, Lenders hereby consent to the prepayment of those certain promissory
notes issued in connection with the acquisition of Clinical and Pharmacological
Research, Inc. in the aggregate outstanding principal amount of approximately
$6,000,000 payable to the order of Dr. Thomas Clark, Yolanda F. Williams, J.
Hiller Hardie, Charles T. Clark, Jennifer M. Ogden and E. Stuart Clark
(collectively, the "CPR Notes"), provided each of the following conditions are
satisfied: (i) such prepayment occurs within 90 days following the date of this
Amendment, (ii) no Default or Event of Default exists at the time of, or will
result from, such prepayment; and (iii) such prepayment will be a compromised
payment in an amount not to exceed $4,250,000, plus accrued interest from
January 1, 2003 at 3.8% per annum, and in payment in full of the CPR Notes.
7. REAFFIRMATION OF COVENANTS, WARRANTIES AND REPRESENTATIONS; WAIVER.
Borrower hereby agrees and covenants that all representations and warranties in
the
13
Loan Agreement are true and accurate in all material respects as of the date
hereof. Borrower further reaffirms all covenants in the Loan Agreement as if
more fully set forth herein.
8. CONDITIONS PRECEDENT. Except as otherwise noted, as a condition to
the effectiveness of this Amendment, the following condition(s) shall be
satisfied:
(a) Execution and delivery to the Lenders of the Second Amended and
Restated Credit Notes, each dated as of the date of this Amendment, in the form
attached hereto as Exhibits A-1 and A-2;
(b) Execution and delivery to Agent of a Security Agreement by the
Domestic Subsidiaries in the form attached hereto as Exhibit E;
(c) Execution and delivery to Agent of a Reaffirmation Agreement by
the Guarantors and the Subsidiaries in the form attached hereto as Exhibit F;
(d) Execution and delivery to Agent of the duly executed Securities
Pledge Agreement and Control Agreements;
(e) Delivery to Agent of either (i) a certificate of the Secretary
or Assistant Secretary of Borrower (as to which Certificate there shall be no
personal, as opposed to corporate, liability) which will (A) certify the names
of the officers of Borrower authorized to sign this Amendment and any other
documents or certificates to be delivered pursuant to this Amendment by Borrower
or any of its officers together with the true signatures of such officers and
(B) contain copies of the resolutions of the Board of Directors of the Borrower
authorizing the execution, delivery and performance of the Borrower's
obligations under Amendment or (ii) an opinion of counsel to the Borrower in
form and substance reasonably satisfactory to Agent and its counsel; and
(f) Payment to the Agent, for the ratable benefit of the Lenders, of
a modification fee in the aggregate amount of $40,000, payable on the date of
this Amendment.
9. OVERDRAFT AGREEMENT. Borrower acknowledges and agrees that, promptly
following the date hereof, it will execute and deliver all agreements, documents
and instruments necessary or desirable in the reasonable opinion of Bank One, NA
London (an affiliate of Agent) to grant a security interest and lien in the
Collateral, including the cash and Cash Equivalents pledged pursuant to the
Securities Pledge Agreement, identical to the security interests and liens
created pursuant to this Amendment.
10. CLAIMS AND RELEASE OF CLAIMS BY BORROWER. The Borrower represents
and warrants that it has no claims, counterclaims, setoffs, actions or causes of
actions, damages or liabilities of any kind of nature whatsoever whether at law
or in equity, in contract or in tort, whether now accrued or hereafter maturing
(collectively, "Claims") against Agent or Lenders, any direct or indirect parent
corporation or any direct or indirect affiliates of such parent corporations, or
any of the foregoing's respective directors, officers, employees, agents,
attorneys and legal representatives, or the heirs, administrators, successors or
assigns of any of them (collectively, "Lender Parties"),
14
that directly or indirectly arise out of, are based upon or are in any manner
connected with any Prior Related Event (as defined below). As an inducement to
Lender to enter into this Agreement, Borrower on behalf of itself, and all of
its successors and assigns, hereby knowingly and voluntarily releases and
discharges all Lender Parties from any and all Claims, whether known or unknown,
that directly or indirectly arise out of, are based upon or are in any manner
connected with any Prior Related Event. As used herein, the term "Prior Related
Event" means any transaction, event, circumstance, action, failure to act,
occurrence of any sort or type, whether known or unknown, which occurred,
existed, was taken, permitted or begun at any time prior to the date of this
Amendment or occurred, existed, was taken, was permitted or begun in accordance
with, pursuant to or by virtue of any of the terms of the Loan Documents or any
documents executed in connection with the Loan Documents or which was related to
or connected in any manner, directly or indirectly to the extension of credit
represented by the Loan Documents.
11. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Borrower represents,
warrants and covenants to the Agent and Lenders (which representations,
warranties and covenants shall survive the execution and delivery of this
Amendment) as follows:
(a) The execution, delivery and performance of this Amendment have
been duly authorized by all necessary corporate actions on the part of the
Borrower; and
(b) No default exists under the Loan Agreement after giving effect
to the foregoing Amendment.
(c) Borrower shall pay all reasonable costs and expenses (including
legal fees and expenses) incurred by Agent and Lenders in connection with the
preparation of this Amendment.
12. CONFIRMATION OF LOAN AGREEMENT. The Loan Agreement, as amended by
this Amendment, shall be read, taken and construed as one and the same
instrument, respectively. Except as amended and supplemented by this Amendment,
the terms and provisions of the Loan Agreement shall remain in full force and
effect.
[SIGNATURE PAGES TO FOLLOW]
15
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
KENDLE INTERNATIONAL INC.
an Ohio corporation
By: /s/ Karl Brenkert, III
---------------------------------
Karl Brenkert, III
Senior Vice President
BANK ONE, NA KEYBANK NATIONAL ASSOCIATION
Lender and in its capacity as Agent
By: /s/ Richard B. Kuertz By: /s/ Louis A. Fender
--------------------------------- ---------------------------------
Name: Richard B. Kuertz Name: Louis A. Fender
------------------------------- -------------------------------
Title: First Vice President Title: Sr. Vice President
------------------------------ ------------------------------
16
SCHEDULE 2.1(a)
COMMITMENT PERCENTAGES
A. Commitment Percentages
Commitment Aggregate Initial Aggregate Term
Lender Percentage Committed Amount Loan Amount
------ ---------- ---------------- -----------
Bank One, NA 70% $ 7,000,000 $ 8,400,000
KeyBank National Association 30% $ 3,000,000 $ 3,600,000
100.0% $10,000,000 $12,000,000
====== =========== ===========
B. Lender Information
BANK ONE, NA
Credit Contact Operations Contact Payment Instructions
- -------------- ------------------ --------------------
Bank One Towers 312 S. Fourth Street Cincinnati, Ohio
8044 Montgomery Road Mail Code KY1-4340 ABA #044000037
OH3-4107 Louisville, Kentucky 40202 Account #151010-0510
P.O. Box 365800 Attn: Ericka Dixon Attn: Commercial Loan
Cincinnati, Ohio 45236-5800 Telephone: (502) 566-8358 Servicing
Attn: Richard B. Kuertz Facsimile: (502) 566-8621 Ref: Obligator #0000042680
Telephone: (513) 985-5113 Email: ericka_s_dixon@bankone.com
Kendle Intl.
Facsimile:(513) 985-5030
Email: rick_kuertz@bankone.com
KEYBANK NATIONAL ASSOCIATION
Credit Contact Operations Contact Payment Instructions
- -------------- ------------------ --------------------
525 Vine Street, 6th Floor 4910 Tiedeman Road Cleveland, Ohio
Cincinnati, Ohio 45202 Brooklyn, Ohio 44144 ABA #041001039
Attn: David B. Briggs, Jr. Attn: Doreen Kirk Account #3057
Telephone: (513) 762-8213 Telephone: (216) 813-1259 Attn: Loan Specialty
Facsimile: (513) 762-8222 Facsimile: (216) 813-7393 Ref: Kendle Int'l
Email: david_briggs@keybank.com
EXHIBIT A-1
SECOND AMENDED AND RESTATED REVOLVING NOTE
Cincinnati, Ohio
$7,000,000 May 14, 2003
FOR VALUE RECEIVED, the undersigned, KENDLE INTERNATIONAL INC., an Ohio
corporation (the "Borrower"), hereby promises to pay to the order of BANK ONE,
NA (the "Lender"), at the office of BANK ONE, NA., at Bank One Towers, 8044
Montgomery Road, Cincinnati, Ohio 45236-5800, Attn: Agency Services (i) on the
last day of each Interest Period (as defined in the Amended and Restated Credit
Agreement dated as of June 3, 2002, as amended pursuant to a First Amendment
dated as of June 3, 2002, a Second Amendment dated as of March 28, 2003 and a
Third Amendment dated the date hereof (as amended, modified, restated or
supplemented from time to time, the "Credit Agreement"), among the Borrower, the
several lenders from time to time party thereto and Bank One, NA, as Agent (the
"Agent")), the aggregate unpaid principal amount of all Revolving Loans to the
Borrower from the Lender pursuant to the Credit Agreement to which such Interest
Period applies and (ii) on the Revolving Maturity Date, the aggregate unpaid
principal amount of all Revolving Loans to the Borrower from the Lender pursuant
to the Credit Agreement, in each case in lawful money of the United States of
America in immediately available funds, and to pay interest from the date hereof
on the principal amount hereof from time to time outstanding, in like funds, at
said office, at the rate or rates per annum and on the dates provided in the
Credit Agreement.
The defined terms in the Credit Agreement are used herein with the same
meaning. All of the terms, conditions and covenants of the Credit Agreement are
expressly made a part of this promissory note (this "Note") by reference in the
same manner and with the same effect as if set forth herein and, subject to
Section 10.3 of the Credit Agreement, any holder of this Note is entitled to the
benefits of and remedies provided in the Credit Agreement and the other Credit
Documents.
The Borrower promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from their due
dates at the rate or rates provided in the Credit Agreement.
The Borrower and any and all sureties, guarantors and endorsers of this
Note and all other parties now or hereafter liable hereon, severally waive grace
(except grace provided pursuant to the express terms of the Credit Agreement),
presentment for payment, protest, notice of any kind (including notice of
dishonor, notice of protest, notice of intention to accelerate and notice of
acceleration but except for notice provided pursuant to the express terms of the
Credit Agreement) and diligence in collecting and bringing suit against any
party hereto, and agree (i) to all extensions and partial payments, with or
without notice, before or after maturity, (ii) to any substitution, exchange or
release of any security now or hereafter given for this Note, (iii) to the
release of any party primarily or secondarily liable hereon and (iv) that it
will not be necessary for the Agent or any Lenders, in order to enforce payment
of this Note, to first institute or exhaust their remedies against the Borrower
or any other party liable therefor
or against any security for this Note. The nonexercise by the holder of any of
its rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be endorsed by the holder hereof on the schedule attached hereto and made
a part hereof, or on a continuation thereof which shall be attached hereto and
made a part hereof, or otherwise recorded by such holder in its internal
records; provided, that, the failure of the holder hereof to make such a
notation or any error in such a notation shall not in any manner affect the
obligation of the Borrower to make payments of principal and interest in
accordance with the terms of this Note and the Credit Agreement.
This Note is one of the Revolving Notes referred to in the Credit
Agreement, which, among other things, contains provisions for the acceleration
of the maturity hereof upon the happening of certain events, for optional and
mandatory prepayment of the principal hereof prior to the maturity hereof and
for the amendment or waiver of certain provisions of the Credit Agreement, all
upon the terms and conditions therein specified. THIS NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF OHIO, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
The Borrower shall not assign or delegate any of its rights or duties
hereunder or any interest herein (whether voluntarily, by operation of law or
otherwise), except as permitted by Section 10.3 of the Credit Agreement. Any
purported assignment or delegation in violation of the foregoing shall be void.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
of and interest on this Note, all costs of collection, including reasonable
attorneys' fees.
KENDLE INTERNATIONAL INC.
By:
---------------------------------
Karl Brenkert, III
Senior Vice President
2
Loans and Payments
Unpaid
Amount Type Payments Principal Notations
Date of Loan of Loan Principal Interest Balance Made By
- ---- ------- ------- --------- -------- ------- -------
EXHIBIT A-2
SECOND AMENDED AND RESTATED REVOLVING NOTE
Cincinnati, Ohio
$3,000,000 May 14, 2003
FOR VALUE RECEIVED, the undersigned, KENDLE INTERNATIONAL INC., an Ohio
corporation (the "Borrower"), hereby promises to pay to the order of KEYBANK
NATIONAL ASSOCIATION (the "Lender"), at the office of BANK ONE, NA, at Bank One
Towers, 8044 Montgomery Road, Cincinnati, Ohio 45236-5800, Attn: Agency Services
(i) on the last day of each Interest Period (as defined in the Amended and
Restated Credit Agreement dated as of June 3, 2002, as amended pursuant to a
First Amendment dated as of June 3, 2002, a Second Amendment dated as of March
28, 2003 and a Third Amendment dated the date hereof (as amended, modified,
restated or supplemented from time to time, the "Credit Agreement"), among the
Borrower, the several lenders from time to time party thereto and Bank One, NA,
as Agent (the "Agent")), the aggregate unpaid principal amount of all Revolving
Loans to the Borrower from the Lender pursuant to the Credit Agreement to which
such Interest Period applies and (ii) on the Revolving Maturity Date, the
aggregate unpaid principal amount of all Revolving Loans to the Borrower from
the Lender pursuant to the Credit Agreement, in each case in lawful money of the
United States of America in immediately available funds, and to pay interest
from the date hereof on the principal amount hereof from time to time
outstanding, in like funds, at said office, at the rate or rates per annum and
on the dates provided in the Credit Agreement.
The defined terms in the Credit Agreement are used herein with the same
meaning. All of the terms, conditions and covenants of the Credit Agreement are
expressly made a part of this promissory note (this "Note") by reference in the
same manner and with the same effect as if set forth herein and, subject to
Section 10.3 of the Credit Agreement, any holder of this Note is entitled to the
benefits of and remedies provided in the Credit Agreement and the other Credit
Documents.
The Borrower promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from their due
dates at the rate or rates provided in the Credit Agreement.
The Borrower and any and all sureties, guarantors and endorsers of this
Note and all other parties now or hereafter liable hereon, severally waive grace
(except grace provided pursuant to the express terms of the Credit Agreement),
presentment for payment, protest, notice of any kind (including notice of
dishonor, notice of protest, notice of intention to accelerate and notice of
acceleration but except for notice provided pursuant to the express terms of the
Credit Agreement) and diligence in collecting and bringing suit against any
party hereto, and agree (i) to all extensions and partial payments, with or
without notice, before or after maturity, (ii) to any substitution, exchange or
release of any security now or hereafter given for this Note, (iii) to the
release of any party primarily or secondarily liable hereon and (iv) that it
will not be necessary for the Agent or any Lenders, in order to enforce payment
of this Note, to first institute or exhaust their remedies against the Borrower
or any other party liable therefor
or against any security for this Note. The nonexercise by the holder of any of
its rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be endorsed by the holder hereof on the schedule attached hereto and made
a part hereof, or on a continuation thereof which shall be attached hereto and
made a part hereof, or otherwise recorded by such holder in its internal
records; provided, that, the failure of the holder hereof to make such a
notation or any error in such a notation shall not in any manner affect the
obligation of the Borrower to make payments of principal and interest in
accordance with the terms of this Note and the Credit Agreement.
This Note is one of the Revolving Notes referred to in the Credit
Agreement, which, among other things, contains provisions for the acceleration
of the maturity hereof upon the happening of certain events, for optional and
mandatory prepayment of the principal hereof prior to the maturity hereof and
for the amendment or waiver of certain provisions of the Credit Agreement, all
upon the terms and conditions therein specified. THIS NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF OHIO, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
The Borrower shall not assign or delegate any of its rights or duties
hereunder or any interest herein (whether voluntarily, by operation of law or
otherwise), except as permitted by Section 10.3 of the Credit Agreement. Any
purported assignment or delegation in violation of the foregoing shall be void.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
of and interest on this Note, all costs of collection, including reasonable
attorneys' fees.
KENDLE INTERNATIONAL INC.
By:
-----------------------------------
Karl Brenkert, III
Senior Vice President
2
Loans and Payments
Unpaid
Amount Type Payments Principal Notations
Date of Loan of Loan Principal Interest Balance Made By
- ---- ------- ------- --------- -------- ------- -------
EXHIBIT B
PLEDGE AGREEMENT
KENDLE INTERNATIONAL INC., an Ohio corporation ("Pledgor") and BANK
ONE, NA, as agent on behalf of the Lenders ("Agent"), hereby agree as follows:
BACKGROUND
A. Pledgor, Agent and the Lenders named therein are parties to that
certain Amended and Restated Credit Agreement dated as of June 3, 2002 (as
amended, modified, restated or supplemented from time to time, the "Credit
Agreement").
B. The Lenders have agreed to extend credit to the Borrower, pursuant
to, and upon the terms and subject to the conditions set forth in, the Credit
Agreement. Effective as of the date hereof, the Pledgor, Agent and Lenders are
entering into a Third Amendment to Amended and Restated Credit Agreement (the
"Third Amendment").
C. As additional security for the Pledgor's obligations and as a
condition to the Lenders entering into of the Third Amendment, the Lenders are
requiring a pledge by Pledgor of certain Securities Collateral (as defined
below) to secure the Credit Obligations of Pledgor.
STATEMENT OF ACCOUNT
1. PLEDGE. Pledgor hereby pledges to Agent, on behalf of the Lenders,
and Pledgor hereby agrees as follows and grants to Agent a security interest in
the following collateral, wherever located, now existing and hereafter arising
or coming into existence (the "Securities Collateral"):
1.1 Pledgor's assets held in the following accounts and used for
the purchase, sale, and retention of, or are held in the form of, cash, mutual
funds, money market funds, stocks, bonds or any other investments: (i) McDonald
Investments, Inc. brokerage account no. 61490679 (the "KeyCorp Account") and
(ii) The Huntington National Bank account no. 5035047603 (the "Huntington
Account"); and
1.2 All income, dividends, proceeds and products of the foregoing
KeyCorp Account and Huntington Account (collectively, the "Account(s)") in
whatever form the same may be, for the purpose of securing the payment to Bank
of all of the following (collectively, the "Obligations"): (a) all Credit
Obligations; plus (b) all obligations and liabilities owing to Lenders from
Pledgor whether now existing or hereafter created. This Agreement is in addition
to any previous security interests, assignments or pledges made in favor of
Agent and Lenders, and such previous assignments and pledges will remain in full
force and effect.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS. Pledgor represents,
warrants and covenants to Agent that: (a) Pledgor is the beneficial owner of the
Securities Collateral, and has not made any prior sale, pledge, encumbrance,
assignment or other disposition of any of the Securities Collateral and the same
is free from all encumbrances and rights of setoff of any kind; (b) except as
herein provided, Pledgor will not hereafter without the prior written consent of
Agent sell, pledge, encumber, assign or otherwise dispose of any of the
Securities Collateral or permit any right of setoff, lien or security interest
to exist thereon except to Agent; (c) Pledgor will defend the Securities
Collateral against all claims and demands of all persons at any time claiming
the same or any interest therein; (d) Pledgor now keeps and will continue to
keep its books and records concerning the Securities Collateral at its principal
place of business which is Pledgor's notice address shown below; and (e) Pledgor
will furnish to Agent from time to time if and as requested current lists of the
Securities Collateral; and, if and when requested by Agent from time to time,
will furnish to it copies of all correspondence and other instruments or
writings in any way evidencing or relating to the Securities Collateral or the
proceeds thereof.
3. PAYMENT OF EXPENSES BY AGENT. At its option, Agent may discharge
taxes, liens, security interests or such other encumbrances as may attach to the
Securities Collateral. Pledgor will reimburse Agent on demand for any payment so
made or any expense incurred by Agent pursuant to the foregoing authorization,
and the Securities Collateral also will secure any advances or payments so made
or expenses so incurred by Agent.
4. FINANCING STATEMENTS; DOCUMENTS. Pledgor authorizes Agent to prepare
and file one or more financing statements pursuant to the Uniform Commercial
Code in form satisfactory to Agent, and Pledgor will pay the cost of filing
financing, continuation and termination statements in all public offices where
filing is deemed necessary or desirable by Agent. Pledgor hereby authorizes
Agent to prepare and file from time to time such supplemental assignments or
other instruments as Agent may require for the purpose of confirming Agent's
interest in the Securities Collateral. Pledgor hereby authorizes Agent to
prepare and file on behalf of Pledgor all financing statements and documents
deemed necessary or appropriate to perfect Agent's interest in the Securities
Collateral. Pledgor hereby ratifies any filing by Agent that predates the date
of this Agreement but that was intended to perfect the security interest granted
hereby.
5. DEALING WITH ACCOUNT; MINIMUM BALANCE. So long as this Agreement is
in effect and no Event of Default or Default has occurred and is continuing,
Pledgor will have the right to change the investments in the Account; provided
however, the Account shall at all times comply with the terms of the Credit
Agreement. Without the prior written consent of Agent, Pledgor shall have no
right to withdrawal of any amounts from the Accounts, including without
limitation, any income, dividends or proceeds; provided however, such
withdrawals and distributions shall be permitted without consent of Agent so
long as the respective value of the Accounts shall be not less than the
applicable Minimum Value (as defined below). Agent will have no obligation to
monitor the Account and will have no liability of any kind whatsoever for any
change in the market value of the Account. Pledgor acknowledges that Pledgor has
selected all investments in the Account without the advice or information of any
sort from Agent. Pledgor at all times will maintain the aggregate value of the
assets in the Accounts at the levels set
2
forth on Schedule B to each Account Control Agreement (the "Minimum Value"). In
the event that the aggregate value of the assets in the Accounts at any time
falls below the Minimum Value, Pledgor shall, without the necessity of notice
from Agent, immediately deposit sufficient funds in the Accounts to maintain the
Minimum Value. Agent agrees to endeavor to provide Pledgor with copies of any
notices to the respective Custodian under the Account Control Agreements.
6. DEFAULT.
6.1 Upon the occurrence of (herein referred to as an "Event of
Default"): (i) any Event of Default (as defined in the Credit Agreement, the
other Loan Documents, or any of the documents executed in connection with any of
the Obligations), (ii) any default (after giving effect to any applicable grace
or cure periods) under any such documents that does not have a defined set of
"Events of Default," Agent may exercise any one or more of the rights and
remedies granted pursuant to this Agreement or given to Agent under applicable
law, as it may be amended from time to time, including but not limited to the
right to take possession and sell or otherwise dispose of the Securities
Collateral, and, at its option, exercise any rights of ownership pertaining to
the Securities Collateral as Agent deems necessary to preserve the value and
receive the benefits of the Securities Collateral. Pledgor waives all claims for
damages by reason of any seizure, repossession, retention or sale of the
Securities Collateral under the terms of this Agreement, other than claims
arising from the gross negligence or willful misconduct of Agent.
6.2 The net proceeds arising from the disposition of the Securities
Collateral after deducting expenses incurred by Agent will be applied to the
Obligations in the order determined by Agent. If any excess remains after the
proceeds have been applied to the Obligations, the same will be paid to Pledgor
after deducting all costs and expenses of realizing on the Securities Collateral
and enforcing the Obligations of Pledgor. If after exhausting all of the
Securities Collateral, there should be a deficiency, Pledgor will be liable
therefor to Agent, provided, however, that nothing contained herein will
obligate Agent to proceed against the Securities Collateral prior to making a
claim against Pledgor or any other party obligated under the Obligations or
prior to proceeding against any other collateral for the Obligations.
7. RIGHTS OF AGENT; POWER OF ATTORNEY. Pledgor hereby irrevocably
constitutes and appoints Agent and any officer thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of Pledgor or in its name, from time
to time in Agent's discretion for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this Agreement and, without limiting the generality of the
foregoing, Pledgor hereby gives Agent the power and right, on behalf of Pledgor,
upon the occurrence and during the continuance of an Event of Default or
Default, and without notice to or assent by Pledgor, to do the following:
3
7.1 to establish and maintain the Securities Collateral, to deposit
and withdraw funds therefrom;
7.2 to receive payment of, endorse, and receipt for, any and all
monies, claims and other amounts due and to become due at any time in respect of
or arising out of the Securities Collateral;
7.3 to commence and prosecute any suits, actions or proceeding at
law or in equity in any court of competent jurisdiction to collect any of the
Securities Collateral and to enforce any other right in respect of the
Securities Collateral;
7.4 to settle, compromise or adjust any suit, action or proceeding
described above, and, in connection therewith, to give such discharges or
releases as Agent may deem appropriate; and
7.5 generally to sell, transfer, pledge, make any agreement with
respect to or otherwise deal with any of the Securities Collateral as fully and
completely as though Agent were the absolute owner thereof for all purposes, and
to do, at Agent's option, at any time, or from time to time, all acts and things
which Agent deems necessary to protect or preserve the Securities Collateral and
Agent's security interest and rights therein in order to effect the intent of
this Agreement, all as fully and effectively as Pledgor might do. Pledgor hereby
ratifies all that such attorneys will lawfully do or cause to be done by virtue
hereof. This power of attorney is a power coupled with an interest, will be
irrevocable and will terminate only upon payment in full of the Obligations and
the termination of this Agreement. The powers conferred upon Agent hereunder are
solely to protect Agent's interests in the Securities Collateral and will not
impose any duty upon it to exercise any such powers. Agent will have no
obligation to preserve any rights of any third parties in the Securities
Collateral. Agent will be accountable only for amounts that it actually receives
as a result of the exercise of such powers, and neither it nor any of the
officers, directors, employees or Agent or any Lender will be responsible to
Pledgor for any action taken or omitted to be taken in good faith or in reliance
on the advice of counsel except for its own gross negligence or willful
misconduct.
8. GENERAL.
8.1 DEFINITIONS. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Credit Agreement.
8.2 WAIVER. No delay or omission on the part of Agent to exercise
any right or power arising from any Event of Default will impair any such right
or power or be considered a waiver of any such right or power or a waiver of any
such Event of Default or an acquiescence therein, nor will the action or
non-action of Agent in case of such Event of Default impair any right or power
arising as a result thereof or affect any subsequent default or any other
default of the same or a different nature.
4
8.3 NOTICES. All notices, demands, requests, consents or approvals
required hereunder will be in writing and shall be provided in accordance with
the terms of the Credit Agreement.
8.4 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and
inure to the benefit of Pledgor and Agent and their respective successors and
assigns, provided, however, that Pledgor may not assign this Agreement in whole
or in part without the prior written consent of Agent and Agent at any time may
assign this Agreement in whole or in part. All references herein to the
"Pledgor" and "Agent" will be deemed to apply to Pledgor and Agent and their
respective heirs, administrators, successors and assigns.
8.5 JOINT AND SEVERAL OBLIGATIONS. If this Pledge Agreement is
executed by more than one person or entity as the "Pledgor," the obligations of
such persons or entities hereunder will be joint and several. Unless otherwise
specified herein, any reference to "Pledgor" will mean each such person or
entity executing this Pledge Agreement individually and all of such persons or
entities collectively.
8.6 MODIFICATIONS. This Pledge Agreement and the Exhibits attached
hereto constitute the entire agreement of the parties and supersede all prior
negotiations, agreement and understanding regarding the subject matter hereof.
No modification or waiver of any provision of this Agreement nor consent to any
departure by Pledgor therefrom, will be established by conduct, custom, or
course of dealing; and no modification will in any event be effective unless the
same is in writing and specifically refers to this Agreement, and then such
waiver or consent will be effective only in the specific instance and for the
purpose for which given. No notice to or demand on Pledgor in any case will
entitle Pledgor to any other or further notice or demand in the same, similar or
other circumstance.
8.7 ILLEGALITY. If fulfillment of any provision hereof or any
transaction related hereto or of any provision of this Agreement, at the time
performance of such provision is due, involves transcending the limit of
validity prescribed by law, then ipso facto, the obligation to be fulfilled will
be reduced to the limit of such validity; and if any clause or provisions herein
contained operates or would prospectively operate to invalidate this Agreement
in whole or in part, then such clause or provision only will be void, as though
not herein contained, and the remainder of this Agreement will remain operative
and in full force and effect.
8.8. GENDER, ETC. Whenever used herein, the singular number will
include the plural, the plural the singular and the use of the masculine,
feminine or neuter gender will include all genders.
8.9 HEADINGS. The headings in this Agreement are for convenience
only and will not limit or otherwise affect any of the terms hereof.
5
8.10 NO LIABILITY OF AGENT. Pledgor hereby agrees that Agent will
not be chargeable for any negligence, mistake, act or omission of any employee,
accountant, examiner, Agent or attorney employed by Agent (except for the
willful misconduct of any person, corporation, partnership or other entity
employed by Agent) in making examinations, investigations or collections, or
otherwise in perfecting, maintaining, protecting or realizing upon any lien or
security interest or any other interest in the Securities Collateral or other
security for the Obligations.
8.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed will be deemed to be an original and all of which taken
together will constitute one and the same agreement. Any party so executing this
Agreement by facsimile transmission shall promptly deliver a manually executed
counterpart, provided that any failure to do so shall not affect the validity of
the counterpart executed by facsimile transmission.
8.12 GOVERNING LAW. This Agreement has been delivered and accepted
at and will be deemed to have been made at Cincinnati, Ohio and will be
interpreted and the rights and liabilities of the parties hereto determined in
accordance with the laws of the State of Ohio, without regard to conflicts of
law principles.
8.13 JURISDICTION PLEDGOR HEREBY IRREVOCABLY AGREES AND SUBMITS TO
THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN HAMILTON
COUNTY, OHIO, OR, AT THE OPTION OF AGENT IN ITS SOLE DISCRETION, OF ANY STATE OR
FEDERAL COURT(S) LOCATED WITHIN ANY OTHER COUNTY, STATE OR JURISDICTION IN WHICH
AGENT AT ANY TIME OR FROM TIME TO TIME CHOOSES IN ITS SOLE DISCRETION TO BRING
AN ACTION OR OTHERWISE EXERCISE A RIGHT OR REMEDY, AND PLEDGOR WAIVES ANY
OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY SUCH
ACTION OR PROCEEDING.
Dated as of May 14, 2003.
PLEDGOR:
KENDLE INTERNATIONAL INC.
By:
-----------------------------------------
Karl Brenkert, III
Senior Vice President
AGENT:
BANK ONE, NA
By:
-----------------------------------------
Richard B. Kuertz
First Vice President
6
EXHIBIT C-1
ACCOUNT CONTROL AGREEMENT
KENDLE INTERNATIONAL INC. ("PLEDGOR"), BANK ONE, NA, as Agent on behalf
of the Lenders ("SECURED PARTY"), and MCDONALD INVESTMENTS, INC., in its
capacity as custodian ("CUSTODIAN"), enter into this Account Control Agreement
as of this 14th day of May, 2003.
BACKGROUND
A. Custodian has established a brokerage account #61490679 (the
"ACCOUNT") in the name of Pledgor pursuant to the institutional account
application dated June 25, 2002 (the "CUSTODIAN AGREEMENT").
B. Pledgor has granted to Secured Party a security interest in certain
investment property held in the Account, and all additions, substitutions,
replacements, proceeds, income, dividends and distributions thereon
(collectively, the "SECURITIES COLLATERAL"), pursuant to a Pledge Agreement
dated as of even date (the "PLEDGE AGREEMENT") from Pledgor to Secured Party.
C. Pledgor, Secured Party and Custodian are entering into this Account
Control Agreement to provide for the control of the Securities Collateral and to
perfect the security interest of Secured Party in the Securities Collateral, as
required by Secured Party under the Pledge Agreement.
STATEMENT OF AGREEMENT
1. AGREEMENT.
1.1 THE SECURITIES COLLATERAL. Custodian hereby represents and
warrants to Secured Party and Pledgor that (a) the Account has
been established in the name of Pledgor as recited above, and
the Securities Collateral is in its possession or in
possession of a subcustodian or clearing corporation, (b)
Exhibit A attached hereto is a complete and accurate statement
of the Account and the financial assets carried therein and
any free credit balance thereunder as of the date thereof, and
(c) Exhibit A does not reflect any financial assets which are
registered in the name of Pledgor, payable to his order, or
specially endorsed to him, which have not been endorsed to
Custodian or in blank. Custodian will treat all Securities
Collateral as financial assets under Article 8 of the Uniform
Commercial Code (as in effect in the State of Ohio ("UCC").
1.2 PRIORITY OF LIEN. Custodian hereby acknowledges the security
interest granted to Secured Party by Pledgor and that this
Agreement constitutes written notification to Custodian,
pursuant to Articles 8 and 9 of the UCC and applicable federal
regulations for the Federal Reserve Book Entry
System, of Secured Party's security interest in the Securities
Collateral. Pledgor, Secured Party and Custodian are also
entering into this Agreement to provide for Secured Party's
control of the Securities Collateral and to perfect, and
confirm the priority of, Secured Party's security interest in
the Securities Collateral. Custodian agrees to promptly make
all necessary entries or notations in its books and records to
reflect Secured Party's security interest in the Securities
Collateral. Custodian hereby agrees that it will not assert or
obtain a lien on or security interest in or right of set off
with respect to the Securities Collateral for its own benefit,
nor will it agree with any third party that it will comply
with any entitlement orders, instructions or directions of any
kind concerning the Securities Collateral originated by such
third party without the prior written consent of Secured
Party. Except for the claims and interests of Secured Party
and Pledgor in the Securities Collateral, Custodian does not
know of any claim to or interest in the Securities Collateral.
Custodian will use reasonable efforts to promptly notify
Secured Party and Pledgor if any other person claims that it
has a property interest in any of the Securities Collateral.
1.3 CONTROL. Upon receipt by Custodian of written direction from
Secured Party that an Event of Default or Default has occurred
under the Pledge Agreement and that Secured Party is thereby
exercising exclusive control over the Securities Collateral,
Custodian agrees to comply with entitlement orders,
instructions and directions of any kind with respect to the
Securities Collateral originated by Secured Party without
further consent from Pledgor, and to cease complying with
entitlement orders or other directions concerning the Account
or the Securities Collateral originated by Pledgor or his
representatives. Custodian further agrees to retain all cash
dividends and interest on the Securities Collateral in its
possession, liquidate the Securities Collateral as and to the
extent directed by Secured Party and pay over to Secured Party
all proceeds therefrom to the extent necessary to satisfy
Pledgor's obligations, without any set off or deduction.
1.4 PLEDGOR'S RIGHTS WITH RESPECT TO THE SECURITIES COLLATERAL.
Except as provided for in Section 1.3 above, Custodian shall
make trades of financial assets held in the Account at the
direction of Pledgor and comply with entitlement orders
concerning the Account from Pledgor, or his authorized
representatives, until such time as Secured Party delivers a
written notice to Custodian as described above in Section 1.3.
1.5 NO WITHDRAWALS. Custodian shall neither accept nor comply with
any entitlement order from Pledgor withdrawing any Securities
Collateral from the Account, nor deliver any financial assets
held in the Account to Pledgor, nor pay any free credit
balance or other amount owing from Custodian to Pledgor with
respect to the Securities Collateral, nor distribute any
interest, earnings or dividends on financial assets in the
Account, without the specific prior written consent of Secured
Party; provided
2
however, such withdrawals and distributions are permitted
without consent of Secured Party so long as the value of the
Account shall not be less than the amounts set forth in
Exhibit B attached hereto during the applicable periods
indicated and Custodian has not received notice from Secured
Party that an Event of Default or Default exists.
1.6 WAIVER AND SUBROGATION OF RIGHTS. Custodian hereby waives its
right to set-off any obligations of Pledgor to Custodian
against any or all cash, securities, financial assets and
other investment property held by Custodian as Securities
Collateral. Further, Custodian hereby subordinates in favor of
Secured Party any and all liens, encumbrances, claims or
security interests which Custodian may have against the
Securities Collateral, either now or in the future. Except for
payment of its customary fees and commission pursuant to
Custodian Agreement, it will not assert any lien, encumbrance,
claim or security interest against the Account or the
Securities Collateral, or against any credit balance in the
Account.
1.7 CUSTODIAN AGREEMENT. Custodian shall simultaneously send to
Secured Party copies of all notices given, statements and, if
requested, confirmations rendered pursuant to Custodian
Agreement, and shall notify Secured Party of the termination
of Custodian Agreement. Notwithstanding anything contained in
Custodian Agreement, so long as the Pledge Agreement remains
in effect, neither Pledgor nor Custodian shall terminate
Custodian Agreement without thirty (30) days' prior written
notice to the other party and Secured Party. In the event of
any conflict between the provisions of this Agreement and
Custodian Agreement, the provisions hereof shall control.
Regardless of any provision in Custodian Agreement, the State
where Secured Party's office indicated above is located shall
be deemed to be Custodian's jurisdiction for the purposes of
this Agreement and the perfection and priority of Secured
Party's security interest in the Securities Collateral. In the
event Custodian no longer serves as custodian for the
Securities Collateral, the Securities Collateral shall be
transferred (i) to a successor custodian satisfactory to
Secured Party, provided that prior to such transfer, such
successor custodian executes an agreement that is in all
material respects the same as this Agreement, or (ii) if no
satisfactory successor has been designated, then as directed
by Secured Party.
1.8 RESPONSIBILITY OF CUSTODIAN. Except as required by Section 1.3
hereof, Custodian shall have no duty to require any cash or
securities to be delivered to it or to determine that the
amount and form of assets constituting Securities Collateral
comply with any applicable requirements. Custodian may hold
the securities in bearer, nominee, federal reserve book entry,
or other form and in any securities depository or UCC clearing
corporation, with or without indicating that the securities
are subject to a security interest; provided, however, that
all Securities Collateral shall be
3
identified on Custodian's books and records as subject to
Secured Party's security interests and shall be in a form that
permits transfer to Secured Party without additional
authorization or consent of Pledgor. Custodian may rely and
shall be protected in acting upon any notice, instruction, or
other communication that it reasonably believes to be genuine
and authorized. As between Pledgor and Custodian, the terms of
Custodian Agreement shall apply with respect to any losses or
liabilities or fees, costs or expenses of such parties arising
out of matters covered by this Agreement. Pledgor agrees that
Custodian will not be liable to Pledgor for complying with
entitlement orders originated by Secured Party, unless
Custodian (i) takes the action after it is served with an
injunction or other legal process enjoining it from doing so
issued by a court of competent jurisdiction and has had a
reasonable opportunity to act on the injunction or other legal
process, or (ii) acts in collusion with Secured Party in
violating Pledgor's rights.
1.9 INDEMNITY.
1.9.1 Pledgor shall indemnify and hold Custodian harmless
from any and all losses, claims, damages,
liabilities, expenses and fees (including reasonable
attorneys' fees), resulting from the execution of or
performance under this Agreement and the delivery by
Custodian of all or any part of the Securities
Collateral to Secured Party pursuant to this
Agreement, except to the extent such losses, claims,
damages, liabilities, expenses or fees are primarily
attributable to Custodian's gross negligence or
willful misconduct. This indemnification shall
survive the termination of this Agreement.
1.9.2 Secured Party hereby agrees to indemnify and hold
harmless Custodian from and against any and all
losses, claims, damages, liabilities, expenses and
fees (including reasonable attorneys' fees) arising
out of Custodian's compliance with any instructions
from Secured Party with respect to the Securities
Collateral, except to the extent such losses, claims,
damages, liabilities, expenses or fees are primarily
attributable to Custodian's gross negligence or
willful misconduct. This indemnification shall
survive the termination of this Agreement.
1.10 TERMINATION. The rights and powers granted herein to Secured
Party have been granted in order to perfect its security
interest in the Securities Collateral, are powers coupled with
an interest and will not be affected by the bankruptcy of
Pledgor or the lapse of time. The obligations of Custodian
hereunder will continue in effect until Secured Party has
notified Custodian in writing that (a) all of the obligations
secured by Securities Collateral have been satisfied, or (b)
all of the Securities Collateral may be
4
released, whichever is sooner, and Custodian shall thereafter
be relieved of all duties and obligations hereunder. Upon
receipt by Custodian of such written notice, Secured Party
shall have no further right to originate entitlement orders
concerning the Securities Collateral.
2. GENERAL.
2.1 ENTIRE AGREEMENT. This agreement and the agreements and
instruments required to be executed and delivered hereunder
set forth the entire agreement of the parties with respect to
the subject matter hereof and supersede and discharge all
prior agreements (written or oral) and negotiations and all
contemporaneous oral agreements concerning such subject matter
and negotiations. There are no oral conditions precedent to
the effectiveness of this Agreement.
2.2 CHANGES IN WRITING. No modification, amendment or waiver of
any provision of this Agreement nor consent to any departure
by any party therefrom will be effective unless made in a
writing signed by the parties hereto, and then such waiver or
consent shall be effective only in the specific instance and
for the purpose for which given. No notice to or demand on
Pledgor in any case will entitle Pledgor to any other or
further notice or demand in the same, similar or other
circumstance.
2.3 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon
and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and
assigns; provided, however, that Pledgor may not assign this
Agreement in whole or in part without Secured Party's prior
written consent and Secured Party at any time may assign this
Agreement in whole or in part.
2.4 NOTICES. All notices, demands, requests, consents, approvals
and other communications required or permitted hereunder must
be in writing and will be effective upon receipt. Such notices
and other communications may be hand-delivered, sent by
facsimile transmission with confirmation of delivery and a
copy sent by first-class mail, or sent by nationally
recognized overnight courier service, to Pledgor's and Secured
Party's addresses as set forth in the Pledge Agreement, and to
Custodian's address as set forth below, or to such other
address as any party may give to the others in writing for
such purpose.
2.5 COUNTERPARTS. This Agreement may be signed in any number of
counterpart copies and by the parties hereto on separate
counterparts, but all such copies shall constitute one and the
same instrument. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile
5
transmission shall be effective as delivery of a manually
executed counterpart. Any party so executing this Agreement by
facsimile transmission shall promptly deliver a manually
executed counterpart, provided that any failure to do so shall
not affect the validity of the counterpart executed by
facsimile transmission.
2.6 GOVERNING LAW. This Agreement has been delivered and accepted
at and will be deemed to have been made at Cincinnati, Ohio
and will be interpreted and the rights and liabilities of the
parties hereto determined in accordance with the laws of the
State of Ohio, without regard to conflicts of law principles.
2.7 JURISDICTION. PLEDGOR AND CUSTODIAN HEREBY IRREVOCABLY AGREE
AND SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN HAMILTON COUNTY, OHIO, OR, AT THE
OPTION OF SECURED PARTY IN ITS SOLE DISCRETION, OF ANY STATE
OR FEDERAL COURT(S) LOCATED WITHIN ANY OTHER COUNTY, STATE OR
JURISDICTION IN WHICH SECURED PARTY AT ANY TIME OR FROM TIME
TO TIME CHOOSES IN ITS SOLE DISCRETION TO BRING AN ACTION OR
OTHERWISE EXERCISE A RIGHT OR REMEDY, AND PLEDGOR AND
CUSTODIAN EACH WAIVE ANY OBJECTION BASED ON FORUM NON
CONVENIENS AND ANY OBJECTION TO VENUE OF ANY SUCH ACTION OR
PROCEEDING.
[SIGNATURE PAGES TO FOLLOW]
6
Executed as of the date first written above.
SECURED PARTY: CUSTODIAN:
BANK ONE, NA, AS AGENT MCDONALD INVESTMENTS, INC.
By: By:
------------------------ -------------------------------------
Richard B. Kuertz Print Name:
First Vice President --------------------------------
Title:
----------------------------------
PLEDGOR:
KENDLE INTERNATIONAL INC.
By:
------------------------
Karl Brenkert, III
Senior Vice President
7
EXHIBIT A
[ATTACH COPY OF ACCOUNT STATEMENT/LIST OF FINANCIAL ASSETS PLEDGED]
EXHIBIT B
[MINIMUM ACCOUNT VALUE REQUIREMENT]
Period Minimum Value
------ -------------
Date hereof to 30-Jun-03 $ 6,600,000
1-Jul-03 to 30-Sep-03 $ 6,187,500
1-Oct-03 to 31-Dec-03 $ 5,775,000
1-Jan-04 to 31-Mar-04 $ 5,362,500
1-Apr-04 to 30-Jun-04 $ 4,950,000
1-Jul-04 to 30-Sep-04 $ 4,537,500
1-Oct-04 to 31-Dec-04 $ 4,125,000
1-Jan-05 to 31-Mar-05 $ 3,712,500
1-Apr-05 to 30-Jun-05 $ 3,300,000
1-Jul-05 to 30-Sep-05 $ 2,887,500
1-Oct-05 to 31-Dec-05 $ 2,475,000
1-Jan-06 to 31-Mar-06 $ 2,062,500
1-Apr-06 to 30-Jun-06 $ 1,650,000
1-Jul-06 to 30-Sep-06 $ 1,237,500
1-Oct-06 to 31-Dec-06 $ 825,000
1-Jan-07 to 31-Mar-07 $ 412,500
On and after 1-Apr-07 $ 0
EXHIBIT C-2
ACCOUNT CONTROL AGREEMENT
KENDLE INTERNATIONAL INC. ("PLEDGOR"), BANK ONE, NA, as Agent on behalf
of the Lenders ("SECURED PARTY"), and THE HUNTINGTON NATIONAL BANK, in its
capacity as custodian ("CUSTODIAN"), enter into this Account Control Agreement
as of this 14th day of May, 2003.
BACKGROUND
A. Custodian has established an account #5035047603 (the "ACCOUNT") in
the name of Pledgor pursuant to Investment Management Agreement dated July 18,
2002 (the "CUSTODIAN AGREEMENT").
B. Pledgor has granted to Secured Party a security interest in certain
investment property held in the Account, and all additions, substitutions,
replacements, proceeds, income, dividends and distributions thereon
(collectively, the "SECURITIES COLLATERAL"), pursuant to a Pledge Agreement
dated as of even date (the "PLEDGE AGREEMENT") from Pledgor to Secured Party.
C. Pledgor, Secured Party and Custodian are entering into this Account
Control Agreement to provide for the control of the Securities Collateral and to
perfect the security interest of Secured Party in the Securities Collateral, as
required by Secured Party under the Pledge Agreement.
STATEMENT OF AGREEMENT
1. Agreement.
1.1 THE SECURITIES COLLATERAL. Custodian hereby represents and
warrants to Secured Party and Pledgor that (a) the Account has
been established in the name of Pledgor as recited above, and
the Securities Collateral is in its possession or in
possession of a subcustodian or clearing corporation, (b)
Exhibit A attached hereto is a complete and accurate statement
of the Account and the financial assets carried therein and
any free credit balance thereunder as of the date thereof, and
(c) Exhibit A does not reflect any financial assets which are
registered in the name of Pledgor, payable to his order, or
specially endorsed to him, which have not been endorsed to
Custodian or in blank. Custodian will treat all Securities
Collateral as financial assets under Article 8 of the Uniform
Commercial Code (as in effect in the State of Ohio ("UCC").
1.2 PRIORITY OF LIEN. Custodian hereby acknowledges the security
interest granted to Secured Party by Pledgor and that this
Agreement constitutes written notification to Custodian,
pursuant to Articles 8 and 9 of the UCC and applicable federal
regulations for the Federal Reserve Book Entry System, of
Secured Party's security interest in the Securities
Collateral.
Pledgor, Secured Party and Custodian are also entering into
this Agreement to provide for Secured Party's control of the
Securities Collateral and to perfect, and confirm the priority
of, Secured Party's security interest in the Securities
Collateral. Custodian agrees to promptly make all necessary
entries or notations in its books and records to reflect
Secured Party's security interest in the Securities
Collateral. Custodian hereby agrees that it will not assert or
obtain a lien on or security interest in or right of set off
with respect to tthe Securities Collateral for its own
benefit, nor will it agree with any third party that it will
comply with any entitlement orders, instructions or directions
of any kind concerning the Securities Collateral originated by
such third party without the prior written consent of Secured
Party. Except for the claims and interests of Secured Party
and Pledgor in the Securities Collateral, Custodian does not
know of any claim to or interest in the Securities Collateral.
Custodian will use reasonable efforts to promptly notify
Secured Party and Pledgor if any other person claims that it
has a property interest in any of the Securities Collateral.
1.3 CONTROL. Upon receipt by Custodian of written direction from
Secured Party that an Event of Default or Default has occurred
under the Pledge Agreement and that Secured Party is thereby
exercising exclusive control over the Securities Collateral,
Custodian agrees to comply with entitlement orders,
instructions and directions of any kind with respect to the
Securities Collateral originated by Secured Party without
further consent from Pledgor, and to cease complying with
entitlement orders or other directions concerning the Account
or the Securities Collateral originated by Pledgor or his
representatives. Custodian further agrees to retain all cash
dividends and interest on the Securities Collateral in its
possession, liquidate the Securities Collateral as and to the
extent directed by Secured Party and pay over to Secured Party
all proceeds therefrom to the extent necessary to satisfy
Pledgor's obligations, without any set off or deduction.
1.4 PLEDGOR'S RIGHTS WITH RESPECT TO THE SECURITIES COLLATERAL.
Except as provided for in Section 1.3 above, Custodian shall
make trades of financial assets held in the Account at the
direction of Pledgor and comply with entitlement orders
concerning the Account from Pledgor, or his authorized
representatives, until such time as Secured Party delivers a
written notice to Custodian as described above in Section 1.3.
1.5 NO WITHDRAWALS. Custodian shall neither accept nor comply with
any entitlement order from Pledgor withdrawing any Securities
Collateral from the Account, nor deliver any financial assets
held in the Account to Pledgor, nor pay any free credit
balance or other amount owing from Custodian to Pledgor with
respect to the Securities Collateral, nor distribute any
interest, earnings or dividends on financial assets in the
Account, without the specific prior written consent of Secured
Party;
2
provided however, such withdrawals and distributions are
permitted without consent of Secured Party so long as the
value of the Account shall not be less than the amounts set
forth in Exhibit B attached hereto during the applicable
periods indicated and Custodian has not received notice from
Secured Party that an Event of Default or Default exists.
1.6 WAIVER AND SUBROGATION OF RIGHTS. Custodian hereby waives its
right to set-off any obligations of Pledgor to Custodian
against any or all cash, securities, financial assets and
other investment property held by Custodian as Securities
Collateral. Further, Custodian hereby subordinates in favor of
Secured Party any and all liens, encumbrances, claims or
security interests which Custodian may have against the
Securities Collateral, either now or in the future. Except for
payment of its customary fees and commission pursuant to
Custodian Agreement, it will not assert any lien, encumbrance,
claim or security interest against the Account or the
Securities Collateral, or against any credit balance in the
Account.
1.7 CUSTODIAN AGREEMENT. Custodian shall simultaneously send to
Secured Party copies of all notices given, statements and, if
requested, confirmations rendered pursuant to Custodian
Agreement, and shall notify Secured Party of the termination
of Custodian Agreement. Notwithstanding anything contained in
Custodian Agreement, so long as the Pledge Agreement remains
in effect, neither Pledgor nor Custodian shall terminate
Custodian Agreement without thirty (30) days' prior written
notice to the other party and Secured Party. In the event of
any conflict between the provisions of this Agreement and
Custodian Agreement, the provisions hereof shall control.
Regardless of any provision in Custodian Agreement, the State
where Secured Party's office indicated above is located shall
be deemed to be Custodian's jurisdiction for the purposes of
this Agreement and the perfection and priority of Secured
Party's security interest in the Securities Collateral. In the
event Custodian no longer serves as custodian for the
Securities Collateral, the Securities Collateral shall be
transferred (i) to a successor custodian satisfactory to
Secured Party, provided that prior to such transfer, such
successor custodian executes an agreement that is in all
material respects the same as this Agreement, or (ii) if no
satisfactory successor has been designated, then as directed
by Secured Party.
1.8 RESPONSIBILITY OF CUSTODIAN. Except as required by Section 1.3
hereof, Custodian shall have no duty to require any cash or
securities to be delivered to it or to determine that the
amount and form of assets constituting Securities Collateral
comply with any applicable requirements. Custodian may hold
the securities in bearer, nominee, federal reserve book entry,
or other form and in any securities depository or UCC clearing
corporation, with or without indicating that the securities
are subject to a
3
security interest; provided, however, that all Securities
Collateral shall be identified on Custodian's books and
records as subject to Secured Party's security interests and
shall be in a form that permits transfer to Secured Party
without additional authorization or consent of Pledgor.
Custodian may rely and shall be protected in acting upon any
notice, instruction, or other communication that it reasonably
believes to be genuine and authorized. As between Pledgor and
Custodian, the terms of Custodian Agreement shall apply with
respect to any losses or liabilities or fees, costs or
expenses of such parties arising out of matters covered by
this Agreement. Pledgor agrees that Custodian will not be
liable to Pledgor for complying with entitlement orders
originated by Secured Party, unless Custodian (i) takes the
action after it is served with an injunction or other legal
process enjoining it from doing so issued by a court of
competent jurisdiction and has had a reasonable opportunity to
act on the injunction or other legal process, or (ii) acts in
collusion with Secured Party in violating Pledgor's rights.
1.9 INDEMNITY.
1.9.1 Pledgor shall indemnify and hold Custodian harmless
from any and all losses, claims, damages,
liabilities, expenses and fees (including reasonable
attorneys' fees), resulting from the execution of or
performance under this Agreement and the delivery by
Custodian of all or any part of the Securities
Collateral to Secured Party pursuant to this
Agreement, except to the extent such losses, claims,
damages, liabilities, expenses or fees are primarily
attributable to Custodian's gross negligence or
willful misconduct. This indemnification shall
survive the termination of this Agreement.
1.9.2 Secured Party hereby agrees to indemnify and hold
harmless Custodian from and against any and all
losses, claims, damages, liabilities, expenses and
fees (including reasonable attorneys' fees) arising
out of Custodian's compliance with any instructions
from Secured Party with respect to the Securities
Collateral, except to the extent such losses, claims,
damages, liabilities, expenses or fees are primarily
attributable to Custodian's gross negligence or
willful misconduct. This indemnification shall
survive the termination of this Agreement.
1.10 TERMINATION. The rights and powers granted herein to Secured
Party have been granted in order to perfect its security
interest in the Securities Collateral, are powers coupled with
an interest and will not be affected by the bankruptcy of
Pledgor or the lapse of time. The obligations of Custodian
hereunder will continue in effect until Secured Party has
notified Custodian in writing that (a) all of the obligations
secured by Securities
4
Collateral have been satisfied, or (b) all of the Securities
Collateral may be released, whichever is sooner, and Custodian
shall thereafter be relieved of all duties and obligations
hereunder. Upon receipt by Custodian of such written notice,
Secured Party shall have no further right to originate
entitlement orders concerning the Securities Collateral.
2. GENERAL.
2.1 ENTIRE AGREEMENT. This agreement and the agreements and
instruments required to be executed and delivered hereunder
set forth the entire agreement of the parties with respect to
the subject matter hereof and supersede and discharge all
prior agreements (written or oral) and negotiations and all
contemporaneous oral agreements concerning such subject matter
and negotiations. There are no oral conditions precedent to
the effectiveness of this Agreement.
2.2 CHANGES IN WRITING. No modification, amendment or waiver of
any provision of this Agreement nor consent to any departure
by any party therefrom will be effective unless made in a
writing signed by the parties hereto, and then such waiver or
consent shall be effective only in the specific instance and
for the purpose for which given. No notice to or demand on
Pledgor in any case will entitle Pledgor to any other or
further notice or demand in the same, similar or other
circumstance.
2.3 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon
and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and
assigns; provided, however, that Pledgor may not assign this
Agreement in whole or in part without Secured Party's prior
written consent and Secured Party at any time may assign this
Agreement in whole or in part.
2.4 NOTICES. All notices, demands, requests, consents, approvals
and other communications required or permitted hereunder must
be in writing and will be effective upon receipt. Such notices
and other communications may be hand-delivered, sent by
facsimile transmission with confirmation of delivery and a
copy sent by first-class mail, or sent by nationally
recognized overnight courier service, to Pledgor's and Secured
Party's addresses as set forth in the Pledge Agreement, and to
Custodian's address as set forth below, or to such other
address as any party may give to the others in writing for
such purpose.
2.5 COUNTERPARTS. This Agreement may be signed in any number of
counterpart copies and by the parties hereto on separate
counterparts, but all such copies shall constitute one and the
same instrument. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile transmission
shall be effective as delivery of a manually
5
executed counterpart. Any party so executing this Agreement by
facsimile transmission shall promptly deliver a manually
executed counterpart, provided that any failure to do so shall
not affect the validity of the counterpart executed by
facsimile transmission.
2.6 GOVERNING LAW. This Agreement has been delivered and accepted
at and will be deemed to have been made at Cincinnati, Ohio
and will be interpreted and the rights and liabilities of the
parties hereto determined in accordance with the laws of the
State of Ohio, without regard to conflicts of law principles.
2.7 JURISDICTION. PLEDGOR AND CUSTODIAN HEREBY IRREVOCABLY AGREE
AND SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN HAMILTON COUNTY, OHIO, OR, AT THE
OPTION OF SECURED PARTY IN ITS SOLE DISCRETION, OF ANY STATE
OR FEDERAL COURT(S) LOCATED WITHIN ANY OTHER COUNTY, STATE OR
JURISDICTION IN WHICH SECURED PARTY AT ANY TIME OR FROM TIME
TO TIME CHOOSES IN ITS SOLE DISCRETION TO BRING AN ACTION OR
OTHERWISE EXERCISE A RIGHT OR REMEDY, AND PLEDGOR AND
CUSTODIAN EACH WAIVE ANY OBJECTION BASED ON FORUM NON
CONVENIENS AND ANY OBJECTION TO VENUE OF ANY SUCH ACTION OR
PROCEEDING.
[SIGNATURE PAGES TO FOLLOW]
6
Executed as of the date first written above.
SECURED PARTY: CUSTODIAN:
BANK ONE, NA, As Agent THE HUNTINGTON NATIONAL BANK
By: _______________________________ By: _________________________________
Richard B. Kuertz Print Name: _________________________
First Vice President Title: ______________________________
PLEDGOR:
KENDLE INTERNATIONAL INC.
By:
-------------------------------
Karl Brenkert, III
Senior Vice President
7
EXHIBIT A
[ATTACH COPY OF ACCOUNT STATEMENT/LIST OF FINANCIAL ASSETS PLEDGED]
EXHIBIT B
[MINIMUM ACCOUNT VALUE REQUIREMENT]
Period Minimum Value
------ -------------
Date hereof to 30-Jun-03 $ 6,600,000
1-Jul-03 to 30-Sep-03 $ 6,187,500
1-Oct-03 to 31-Dec-03 $ 5,775,000
1-Jan-04 to 31-Mar-04 $ 5,362,500
1-Apr-04 to 30-Jun-04 $ 4,950,000
1-Jul-04 to 30-Sep-04 $ 4,537,500
1-Oct-04 to 31-Dec-04 $ 4,125,000
1-Jan-05 to 31-Mar-05 $ 3,712,500
1-Apr-05 to 30-Jun-05 $ 3,300,000
1-Jul-05 to 30-Sep-05 $ 2,887,500
1-Oct-05 to 31-Dec-05 $ 2,475,000
1-Jan-06 to 31-Mar-06 $ 2,062,500
1-Apr-06 to 30-Jun-06 $ 1,650,000
1-Jul-06 to 30-Sep-06 $ 1,237,500
1-Oct-06 to 31-Dec-06 $ 825,000
1-Jan-07 to 31-Mar-07 $ 412,500
On and after 1-Apr-07 $ 0
EXHIBIT D
BORROWING BASE REPORT
As of ,
<Table>
Accounts Receivables
Total Receivables $__________
Less Ineligibles:
Over 60 Days Past Due $__________
From Affiliates $__________
Disputed/Bankrupt Debtor $__________
U.S. Govt.
Other (See Definition of
Eligible Receivables) $__________
Total Ineligible Receivables $__________
Subtotal Eligible Receivables $__________
Eligible Receivables Advance Rate 50%
Availability on Eligible Receivables $_________
Availability Excess (Shortfall) $_________
</Table>
The undersigned hereby certifies and warrants to Bank One, NA, as Agent
("Agent"), that the foregoing was prepared using books and records regularly
maintained and accurately and completely reflects the balances of the items
described above as of ___________________, ____. The undersigned further
certifies and warrants to Agent that the foregoing was prepared in accordance
with the terms and provisions of, and meets the requirements of, the Amended and
Restated Credit Agreement dated as of June 3, 2002 among Bank One, NA, as Agent,
Kendle International Inc., as borrower, and the Lenders named therein, as
amended.
IN WITNESS WHEREOF, the undersigned Borrower has caused this Borrowing
Base Report to be executed and delivered by its duly authorized officer this
_____ day of __________, 20_.
KENDLE INTERNATIONAL INC.
By: ___________________________________
Name: ________________________________
Title: ________________________________
EXHIBIT E
SECURITY AGREEMENT
Dated as of May 14, 2003
among
THE GUARANTORS NAMED HEREIN
and
BANK ONE, NA,
as Agent
TABLE OF CONTENTS
1. Security Interest in Collateral..................................1
2. Perfection of Security Interest..................................2
3. Additional Covenants.............................................2
4. Amendments, Etc...................................................2
5. Notices, Etc......................................................2
6. No Waiver; Remedies..............................................3
7. Assignments......................................................3
8. Joinder Agreement................................................3
9. Counterparts.....................................................3
10. Severability....................................................4
11. Governing Law; Submission to Jurisdiction: Venue................4
12. Survival of Agreement...........................................4
13. Entirety........................................................5
14. Headings........................................................5
i
SECURITY AGREEMENT ("Security Agreement") is entered into as of May 14,
2003, among the Subsidiaries and such other Subsidiaries as shall become parties
hereto in accordance with Section 8 hereof (such listed and other Subsidiaries
being referred to herein individually as a "Guarantor" and collectively as the
"Guarantors") and BANK ONE, NA, as Agent for the Lenders.
BACKGROUND
Reference is made to the Amended and Restated Credit Agreement dated as
of June 3, 2002 as amended pursuant to a First Amendment dated as of June 3,
2002, a Second Amendment dated as of March 28, 2003 and a Third Amendment dated
as of the date hereof (the "Third Amendment") (as amended, modified, restated or
supplemented from time to time, the "Credit Agreement"), among Kendle
International Inc. (the "Borrower"), the several lenders from time to time party
thereto (the "Lenders") and Bank One, NA, as Agent (the "Agent"). The rules of
interpretation specified in 1.4 of the Credit Agreement shall be applicable to
this Security Agreement. Terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Credit Agreement.
The Lenders have respectively agreed to extend credit to the Borrower
pursuant to, and upon the terms and subject to the conditions set forth in the
Credit Agreement. The Guarantors have each unconditionally guaranteed in full
the Credit Obligations pursuant to an Amended and Restated Guarantee Agreement
dated as of June 3, 2002 (as amended from time to time, the "Guarantee
Agreement"). The obligations of the Lenders to extend credit under the Credit
Agreement and to enter into the Third Amendment are conditioned on, among other
things, the execution and delivery by the Guarantors of this Security Agreement.
As Subsidiaries, the Guarantors acknowledge that they will derive substantial
benefits from the extension of credit to the Borrower under the Credit
Agreement. As consideration therefor and in order to induce the Lenders to make
the Loans and to enter into the Third Amendment, the Guarantors are willing to
execute and deliver this Security Agreement.
STATEMENT OF AGREEMENT
The Guarantors, intending to be legally bound, hereby agree with the
Agent, for the ratable benefit of the Lenders, as follows:
1. Security Interest in Collateral. To secure the prompt payment and
performance to Lenders of the Guarantee Obligations (as defined in the Guarantee
Agreement), each Guarantor hereby assigns, pledges and grants to Agent, for the
ratable benefit of the Lenders, a continuing security interest in and to all of
its Collateral (as defined in the Credit Agreement), whether now owned or
existing or hereafter acquired or arising and wheresoever located. Each
Guarantor shall mark its books and records as may be necessary or appropriate to
evidence, protect and perfect Agent's security interest and shall cause its
financial statements to reflect such security interest. Each Guarantor shall
promptly provide Agent with written notice of all commercial tort claims, such
notice to contain the case title together with the applicable court and a brief
description of the claim(s). Upon delivery of each such notice, such Guarantor
shall be deemed to hereby grant to Agent a security interest and lien in and to
such commercial tort claims and all proceeds thereof.
2. Perfection of Security Interest. Each Guarantor shall take all
action that may be necessary or desirable, or that Agent may reasonably request,
so as at all times to maintain the validity, perfection, enforceability and
priority of Agent's security interest in the Collateral or to enable Agent to
protect, exercise or enforce its rights hereunder and in the Collateral,
including, but not limited to: (a) immediately discharging all Liens other than
Permitted Liens, (b) delivering to Agent, endorsed or accompanied by such
instruments of assignment as Agent may specify, and stamping or marking, in such
manner as Agent may specify, any and all chattel paper, instruments, letters of
credits and advices thereof and documents evidencing or forming a part of the
Collateral, and (c) executing and delivering financing statements, control
agreements, instruments of pledge, mortgages, notices and assignments, in each
case in form and substance satisfactory to Agent, relating to the creation,
validity, perfection, maintenance or continuation of Agent's security interest
under the UCC or other applicable law. By its signature hereto, each Guarantor
hereby authorizes Agent to file against such Guarantor, one or more financing,
continuation, or amendment statements pursuant to the UCC in form and substance
satisfactory to Agent (which statements may have a description of collateral
which is broader than that set forth herein). All charges, expenses and fees
Agent may incur in doing any of the foregoing, and any local taxes relating
thereto, shall be charged to Borrower's account as a Revolving Loan and added to
the Credit Obligations, or, at Agent's option, shall be paid to Agent
immediately upon demand.
3. Additional Covenants. Each Guarantor hereby agrees to fully comply
with each of the covenants set forth in Sections 3.19 through and including 3.30
of the Loan Agreement as if fully restated in their entirety in this Security
Agreement.
4. Amendments, Etc. No amendment, modification or waiver of any
provision of this Security Agreement and no consent to any departure by any
Guarantor therefrom shall in any event be effective unless the same shall be in
writing and shall be executed and delivered in accordance with 10.6 of the
Credit Agreement, and then such amendment, modification, waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, that, this Security Agreement may be amended, modified or
waived with respect to any Guarantor, including by releasing any Guarantor
hereunder, without the approval of any other Guarantor and without affecting the
obligations of any other Guarantor hereunder.
5. Notices, Etc. Except as otherwise expressly provided herein, all
notices and other communications shall have been duly given and shall be
effective (a) when delivered, (b) when transmitted via telecopy (or other
facsimile device) to the number, with telephonic confirmation of receipt, in the
case of the Agent, set forth in 10.1 of the Credit Agreement
2
and in the case of the Guarantors, set forth on the signature pages hereof, (c)
on the Business Day following the day on which the same has been delivered
prepaid to a reputable national overnight air courier service, or (d) on the
fifth Business Day following the day on which the same is sent by certified or
registered mail, postage prepaid, in each case to the respective parties at the
address, in the case of the Agent, set forth in 10.1 of the Credit Agreement,
and, in the case of the Guarantors, set forth on the signature pages hereof, or
at such other address as such party may specify by written notice to the other
parties hereto.
6. No Waiver; Remedies. No failure on the part of the Agent or any
other Lender to exercise, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy by the Agent or any other Lender
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. All remedies hereunder and under the other Credit
Documents are cumulative and are not exclusive of any other remedies provided by
law.
7. Assignments. This Security Agreement and the terms, covenants and
conditions hereof shall be binding upon each Guarantor and its successors and
shall inure to the benefit of the Agent, the other Lenders and their respective
successors and assigns. Upon the assignment by any Lender of all or any portion
of its rights and obligations under the Credit Agreement (including all or any
portion of its Commitment, the Loans owing to it and the Note or Notes held by
it) to any other person, such other person shall thereupon become vested with
all the benefits in respect thereof granted to such Lender herein or otherwise.
None of the Guarantors shall be permitted to assign, transfer or delegate any of
its rights or obligations under this Security Agreement without the prior
written consent of the Agent and each Lender (and any such purported assignment,
transfer or delegation without such consent shall be void).
8. Joinder Agreement. Upon execution and delivery by the Agent and a
Subsidiary of a Joinder Agreement substantially in the form of Exhibit L to the
Credit Agreement, such Subsidiary shall become a Guarantor hereunder with the
same force and effect as if originally named as a Guarantor herein. The
execution and delivery of any such instrument shall not require the consent of
any other Guarantor hereunder. The rights and obligations of each Guarantor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Guarantor as a party to this Security Agreement.
9. Counterparts. This Security Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Security Agreement to produce or
account for more than one such counterpart for each of the parties hereto.
Delivery by facsimile by any of the parties hereto of an executed counterpart of
this Security Agreement shall be as effective as an original executed
counterpart hereof and shall be deemed a representation that an original
executed counterpart hereof will be delivered, but the failure to deliver a
manually executed
3
counterpart shall not affect the validity, enforceability, or binding effect of
this Security Agreement.
10. Severability. If any provision of this Security Agreement or any of
the Credit Documents is determined to be illegal, invalid or unenforceable, such
provision shall be fully severable and the remaining provisions shall remain in
full force and effect and shall be construed without giving effect to the
illegal, invalid or unenforceable provisions. The parties hereto shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
11. Governing Law; Submission to Jurisdiction: Venue.
(a) THIS SECURITY AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF OHIO WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS. Any legal action or proceeding with respect to this Security
Agreement may be brought in the courts of the State of Ohio in Hamilton County,
or of the United States for the Southern District, Western Division of Ohio,
and, by execution and delivery of this Security Agreement, each Guarantor hereby
irrevocably accepts for itself and in respect of its property, generally and
unconditionally, the nonexclusive jurisdiction of such courts. Each Guarantor
further irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to it at the address
set forth for notices pursuant to 8, such service to become effective five (5)
days after such mailing. Nothing herein shall affect the right of the Agent to
serve process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against any Credit Party in any other
jurisdiction.
(b) Each Guarantor hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Security Agreement
brought in the courts referred to in sub (a) above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum.
(c) To the extent permitted by law, each Guarantor hereby
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Security Agreement and the other
Credit Documents or the transactions contemplated hereby or thereby.
12. Survival of Agreement. All covenants, agreements, representations
and warranties made by each Guarantor herein shall be considered to have been
relied upon by the Agent and the other Lenders and shall survive the making by
the Lenders of the Loans and the execution and delivery to the Lenders of the
Notes evidencing such Loans, regardless of any investigation made by the Lenders
or the Agent or on their behalf, and
4
shall continue in full force and effect until the Guaranteed Obligations and any
other amounts payable under this Security Agreement, the Guarantee Agreement or
any other Credit Document have been indefensibly paid in full in cash and the
Commitments have been terminated.
13. Entirety. This Security Agreement, the other Credit Documents and
the Lender Hedging Agreements, if any, represent the entire agreement of the
parties hereto and thereto regarding the subject matter hereof and thereof and
supersede all prior agreements and understandings, oral or written, if any
(including any commitment letters or correspondence) relating to such subject
matters. Nothing in this Security Agreement or any other Credit Document,
expressed or implied, is intended to confer upon any party (other than the
parties hereto and thereto and the other Secured Parties) any rights, remedies,
obligations or liabilities under or by reason of this Security Agreement and the
other Credit Documents.
14. Headings. The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the meaning or
construction of any provision of this Security Agreement.
[SIGNATURE PAGES TO FOLLOW]
5
IN WITNESS WHEREOF, each party hereto has caused this Security
Agreement to be duly executed, attested and delivered by its officers thereunto
duly authorized as of the date first above written.
KENDLE U.K. INC., as Guarantor AAC CONSULTING GROUP, INC.
By: By:
------------------------------ -----------------------------------
Karl Brenkert, III Karl Brenkert, III
Senior Vice President Senior Vice President
Address: 1200 Carew Tower Address: 7361 Calhoun Place
441 Vine Street Suite 500
Cincinnati, Ohio 45202 Rockville, Maryland 20855
Telecopy: (513) 562-1789
ACER/EXCEL, INC., as Guarantor BANK ONE, NA, as Agent
By: By:
------------------------------ ----------------------------------
Karl Brenkert, III Richard B. Kuertz
Senior Vice President First Vice President
Address: 1200 Carew Tower Address: Bank One Towers
441 Vine Street 8044 Montgomery Road
Cincinnati, Ohio 45202 P.O. Box 365800
Telecopy: (513) 562-1789 Cincinnati, Ohio 45236-5800
Telecopy: (513) 985-5030
KENDLE INTERNATIONAL CPU LLC
By:
------------------------------
Karl Brenkert, III
Senior Vice President
Address: 763 Chestnut Ridge
Morgantown, West Virginia 26505
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EXHIBIT F
Reaffirmation Agreement
This REAFFIRMATION AGREEMENT (this "Agreement") dated as of May 14,
2003, made by each of the individuals, corporations and limited liability
companies identified under the caption "OBLIGORS" on the signature pages hereof
(each an "Obligor," and collectively, the "Obligors"), to, and for the benefit
of, BANK ONE, NA, as agent on behalf of the Lenders ("Agent"), is as follows:
A. Agent, Kendle International Inc., an Ohio corporation (the
"Borrower"), and the Lenders named therein ("Lenders") are parties to an Amended
and Restated Credit Agreement dated as of June 3, 2002, as amended pursuant to a
First Amendment dated as of June 3, 2002, a Second Amendment dated as of March
28, 2003 and a Third Amendment dated as of the date hereof (the "Third
Amendment") (as amended, modified, restated or supplemented from time to time,
the "Credit Agreement"). The terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Credit Agreement.
B. In connection with the Credit Agreement, the Obligors have
previously executed and delivered to the Agent, for the benefit of the Lenders,
one or more of the following agreements: (i) an Amended and Restated Guarantee
Agreement dated as of June 3, 2002 (the "Guarantee Agreement"); (ii) an Amended
and Restated Pledge and Security Agreement dated as of June 3, 2002 (the "Pledge
Agreement"); and (iii) an Amended and Restated Indemnity, Subrogation and
Contribution Agreement dated as of June 3, 2002 (the "Indemnity Agreement")
(collectively, the "Obligor Documents").
C. Contemporaneously with the execution and delivery of this Agreement,
Kendle, Agent and the Lenders are executing and delivering the Third Amendment
which amends the Credit Agreement.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in order to induce Lenders to enter into the Third
Amendment and in consideration of the mutual conditions and agreements set forth
in this Agreement, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Obligors hereby agree to and for
the benefit of Agent and the Lenders as follows.
1. Definitions. Terms used but not defined herein shall have the
respective meanings ascribed to such terms in the Credit Agreement.
2. Consent and Reaffirmation.
(a) Each Obligor hereby consents and agrees (i) to the execution and
delivery of the Third Amendment and the amendment of any other Loan
Documents in connection therewith (collectively, the "Amendment
Documents"), and (ii) that all Credit
Obligations created or existing under, pursuant to, as a result of, or
arising out of, the Credit Agreement and the Notes shall, together with
any and all additional Credit Obligations incurred under the Third
Amendment, continue in existence within the definition of "Credit
Obligations" under the Credit Agreement, which Credit Obligations each
Obligor, acknowledges, reaffirms, and confirms to Agent.
(b) Each Obligor hereby expressly acknowledges that the Third
Amendment and other Amendment Documents shall not in any manner (i)
constitute the refinancing, refunding, payment or extinguishment of the
Credit Obligations evidenced by the Credit Agreement or the Notes, (ii)
be deemed to evidence a novation of the outstanding balance of the
Credit Obligations, or (iii) affect, replace, impair, or extinguish the
creation, attachment, perfection or priority of the security interests
in, and other Liens on, the Collateral granted pursuant to ,any
agreements, instruments or other documents evidencing or creating a
Lien on the Collateral.
(c) Each Obligor hereby agrees that the Credit Documents to which
each Obligor is a party shall remain in full force and effect and are
hereby ratified and confirmed and each Obligor hereby reaffirms their
obligations under each such Credit Document and agrees that each
reference therein to the Credit Agreement shall be deemed amended to be
a reference to the Credit Agreement, as amended by the Third Amendment.
Each Obligor hereby further acknowledges and agrees that it is not
released from any, and waives any defenses it would otherwise have in
respect, of its obligations under any Credit Document to which it is a
party by reason of the execution and delivery of the Third Amendment
and the other Amendment Documents.
3. Representations and Warranties. Each Obligor represents and warrants
to Agent as follows:
(a) Authorization. Each Obligor has the power and authority to
execute, deliver and perform this Agreement and has taken all necessary
action (including obtaining approval of its stockholders or members, if
necessary) to authorize the execution, delivery, and performance of
this Agreement.
(b) Approvals. No consent, approval, or authorization of, or
declaration or filing with, any Governmental Authority, and no consent
of any other Person, is required in connection with any Obligor's
execution, delivery and performance of this Agreement.
(c) Enforceability. This Agreement has been duly executed and
delivered by each Obligor and constitutes the legal, valid and binding
obligations of such Obligor, enforceable against it in accordance with
its terms without defense, setoff or counterclaim.
(d) No Violation. No Obligor's execution, delivery, or performance
of this Agreement conflicts with, or constitutes a violation or breach
of, or constitutes a default under, or result in the creation or
imposition of any Lien upon the property of any
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Obligor by reason of the terms of: (i) any contract, mortgage, lien,
lease, agreement, indenture, or instrument to which any Obligor is a
party or which is binding upon it, (ii) any Requirement of Law
applicable to any Obligor, or (iii) if applicable, the certificate or
articles of incorporation or articles of organization, code of
regulations, by-laws or operating agreement, or any similar constituent
documents of any Obligor.
(e) Representations. The representations and warranties made
by each Obligor in the Credit Documents to which such Obligor is a
party are true and correct on and as of the date hereof with the same
force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date).
4. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be identical and all of which, when taken
together, shall constitute one and the same instrument, and any of the parties
hereto may execute this Agreement by signing any such counterpart.
5. Expenses. Without limiting any Obligor's obligations under the
Credit Documents to which it is a party, each Obligor shall pay to Agent, for
its benefit, on demand, all costs and expenses that Agent pays or incurs in
connection with the negotiation, preparation, consummation, enforcement, and
termination of this Agreement.
6. Agreement as Credit Document. This Agreement shall constitute a
Credit Document.
7. Governing Law; Submission to Jurisdiction: Venue.
(a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF OHIO WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS. Any legal action or proceeding with respect to this Agreement
may be brought in the courts of the State of Ohio in Hamilton County, or of the
United States for the Southern District, Western Division of Ohio, and, by
execution and delivery of this Agreement, each Obligor hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the nonexclusive jurisdiction of such courts. Each Obligor
further irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to it at the address
set forth for notices pursuant to the Obligor Documents, such service to become
effective five (5) days after such mailing. Nothing herein shall affect the
right of the Agent to serve process in any other manner permitted by law or to
commence legal proceedings or to otherwise proceed against any Obligor in any
other jurisdiction.
(b) Each Obligor hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Agreement brought in
the courts referred to in sub (a) above and hereby further irrevocably waives
and agrees not to plead or claim in any such court that
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any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) To the extent permitted by law, each Obligor hereby irrevocably
waives all right to trial by jury in any action, proceeding or counterclaim
arising out of or relating to this Agreement and the other Credit Documents or
the transactions contemplated hereby or thereby.
8. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the respective representatives, successors, and assigns of the
parties; provided, however, that no interest herein may be assigned by any
Obligor without prior written consent of Agent.
9. Indemnity of Bank. Each Obligor will defend, indemnify and hold
Agent and each Lender and each of the foregoing Persons' respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including reasonable attorney costs) of any
kind or nature whatsoever which may at any time (including at any time following
repayment of the Credit Obligations) be imposed on, incurred by or asserted
against any such Person in any way relating to or arising out of this Agreement,
any document contemplated by or referred to herein, any of the transactions
contemplated hereby, or any action taken or omitted by any such Person under or
in connection with any of the foregoing, including with respect to any
investigation, litigation or proceeding (including any proceeding under the
Bankruptcy Code or appellate proceeding) related to or arising out of this
Agreement (all the foregoing, collectively, the "Indemnified Liabilities");
provided, that the Obligors shall have no obligation hereunder to any
Indemnified Person with respect to Indemnified Liabilities to the extent
resulting solely from the gross negligence or willful misconduct of such
Indemnified Person, as determined by a court of competent jurisdiction in a
final non-appellate judgment or order. The agreements in this Section 9 shall
survive payment of all other Credit Obligations.
10. Waiver of Claims. Each Obligor acknowledges, represents and agrees
that it has no defenses, setoffs, claims, counterclaims or causes of action of
any kind or nature whatsoever with respect to the Credit Documents or with
respect to any acts or omissions of Agent or any Lender on or prior to the date
hereof, or any past or present officers, agents or employees of Agent or any
Lender, and each of such Persons does hereby expressly waive, release and
relinquish any and all such defenses, setoffs, claims, counterclaims and causes
of action, if any.
11. Final Agreement. This Agreement is intended by the Obligors and
Agent to be the final, complete, and exclusive expression of the agreement among
them relating to the subject matter hereof. This Agreement supersedes any and
all prior oral or written agreements relating to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed effective as of the day and year first above written.
KENDLE INTERNATIONAL CPU LLC KENDLE U.K. INC.
By: By:
----------------------------- --------------------------------
Karl Brenkert, III Karl Brenkert, III
Senior Vice President Senior Vice President
Address: 763 Chestnut Ridge Address: 1200 Carew Tower
Morgantown, West Virginia 26505 441 Vine Street
Cincinnati, Ohio 45202
Telecopy: (513) 562-1789
AAC CONSULTING GROUP, INC. ACER/EXCEL, INC.
By: By:
----------------------------- --------------------------------
Karl Brenkert, III Karl Brenkert, III
Senior Vice President Senior Vice President
Address: 7361 Calhoun Place Address: 1200 Carew Tower
Suite 500 441 Vine Street
Rockville, Maryland 20855 Cincinnati, Ohio 45202
Telecopy: (513) 562-1789
Accepted:
BANK ONE, NA, as Agent
By:
---------------------------
Richard B. Kuertz
First Vice President
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