EXHIBIT 10.2
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
dated as of June 3, 2002
among
THE PLEDGORS NAMED HEREIN
and
BANK ONE, NA
as Agent
TABLE OF CONTENTS
Page
SECTION 1.
DEFINITIONS.......................................................1
1.1 Terms Defined in the Credit
Agreement................................1
1.2 Definition of Certain Terms Used
Herein..............................1
1.3 UCC
Definitions......................................................3
1.4
Terms
Generally.....................................................3
SECTION 2
SECURITY
INTERESTS.................................................3
2.1 Security
Interests...................................................3
2.2 Continuing Liability of each
Pledgor.................................4
2.3 Delivery of Pledged
Securities.......................................4
2.4 Security Interests
Absolute..........................................5
2.5 Release of
Collateral................................................6
SECTION 3
REPRESENTATIONS AND
WARRANTIES.....................................6
3.1 Credit
Agreement.....................................................6
3.2 Pledged
Securities...................................................6
3.3 Validity, Perfection, Assignment and Priority of Security
Interests..7
3.4 Enforceability of General
Intangibles................................7
3.5 Place of Business, Location of
Collateral............................7
3.6 Trade
Names..........................................................8
3.7 Outstanding
Interests................................................8
3.8
Effectiveness.......................................................8
SECTION 4.
COVENANTS.........................................................8
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4.1
Perfection of Security
Interests....................................8
4.2 Further
Actions......................................................8
4.3 Change of Name, Identity or
Structure...............................10
4.4 Place of Business and
Collateral....................................10
4.5 Maintenance of
Records..............................................10
4.6 Compliance with
Law.................................................10
4.7 Payment of
Taxes....................................................11
4.8 Limitation on Liens on
Collateral...................................11
4.9 Maintenance of
Insurance............................................11
4.10
Limitations on Dispositions of
Collateral.........................11
4.11
Periodic
Certification............................................12
4.12
Notices...........................................................12
4.13
Change of
Law.....................................................12
4.14
Right of
Inspection...............................................12
4.15
Reimbursement
Obligation..........................................13
4.16
Amendments to
Schedules...........................................13
SECTION 5.
DISTRIBUTIONS ON PLEDGED SECURITIES; VOTING......................13
5.1 Right to Receive Distributions on Pledged Collateral;
Voting........13
SECTION 6.
REMEDIES; RIGHTS UPON DEFAULT....................................14
6.1
UCC
Rights........................................................14
6.2 Possession of
Collateral............................................15
6.3 Sale of
Collateral..................................................15
6.4 Rights of
Purchasers................................................16
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6.5 Additional Rights of the
Agent......................................16
6.6 Securities Act,
etc.................................................16
6.7 Remedies Not
Exclusive..............................................18
6.8 Waiver and
Estoppel.................................................19
6.9 Power of
Attorney...................................................19
6.10
Application of
Proceeds...........................................21
SECTION 7.
MISCELLANEOUS....................................................22
7.1
Notices.............................................................22
7.2 Survival of
Agreement...............................................22
7.3
Counterparts........................................................23
7.4 Amendments.
Etc.....................................................23
7.5
Assignments........................................................23
7.6
Severability........................................................23
7.7 Joinder
Agreement...................................................24
7.8 GOVERNING LAW; Submission to Jurisdiction;
Venue....................24
7.9
Entirety............................................................25
7.10
No Waiver;
Remedies...............................................25
7.11
Headings..........................................................25
Schedules
Schedule 1
List of Subsidiary Pledgors
Schedule 2
Chief Executive Office and Principal Place of Business
Schedule 3
Pledged Securities
Schedule 4
Trade Names, Division Names, etc.
Schedule 5
Required Filings and Recordings
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AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT (as amended,
modified, restated or supplemented from time to time, this "Pledge
Agreement")
dated as of June 3, 2002, among KENDLE INTERNATIONAL INC., an Ohio
corporation
(the "Borrower"), the Domestic Subsidiaries that are listed on
Schedule 1
hereto, and such other Domestic Subsidiaries as shall become
parties hereto in
accordance with Section 7.7 hereof (such Subsidiaries being
referred to herein
individually as a "Subsidiary Pledgor" and collectively as the
"Subsidiary
Pledgors"), and BANK ONE, NA, as Agent (as defined herein) for the
Lenders (as
defined herein). This Pledge Agreement amends and restates in its
entirety the
Pledge and Security Agreement dated as of October 13, 2000 among
Borrower, the
Subsidiary Pledgors named therein and Agent.
Reference is made to (i) the Amended and Restated Credit Agreement
dated as of 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 (the "Lenders") and Bank One, NA,
as Agent (the
"Agent"). The Lenders and Bank One 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. The obligations of the Lenders and Bank One to
extend credit
under the Credit Agreement are conditioned on, among other things,
the execution
and delivery by each of the Borrower and the Subsidiary Pledgors
(such parties
being referred to herein individually as a "Pledgor" and
collectively as the
"Pledgors") of a Pledge and Security Agreement in the form hereof.
Accordingly, the Pledgors, intending to be legally bound, hereby
agree
with the Agent, for the ratable benefit of the Secured Parties, as
follows:
SECTION 1. DEFINITIONS
1.1 Terms Defined in the Credit Agreement. Terms used herein and
not
otherwise defined herein shall have the meanings set forth in the
Credit
Agreement.
1.2 Definition of Certain Terms Used Herein. As used herein, the
following
terms shall have the following meanings:
"Account Debtor" shall mean any person who is or who may become
obligated
to any Pledgor under, with respect to or on account of any General
Intangible.
"Collateral" shall have the meaning assigned to that term in
Section 2.1.
"Contract Rights" shall mean all choses in action and causes of
action and
all other rights of any Pledgor of every kind and nature now owned
or hereafter
acquired by any Pledgor pursuant to (a) all contracts under which
General
Intangibles arise and (b) all other contract rights of any Pledgor.
"General Intangibles" of any Pledgor shall mean (a) all Capital
Stock of
any Subsidiary now owned or hereafter acquired by such Pledgor;
provided, that,
no shares of Capital Stock of any issuer organized in a
jurisdiction outside of
the United States of America shall be included hereunder to the
extent that the
aggregate amount of shares of Capital Stock of such issuer pledged
hereunder
would exceed 65% of such issuer's issued and outstanding Capital
Stock for so
long as the pledge of any greater percentage would have adverse tax
consequences
for the Borrower; (b) all general or limited partnership interests
now owned or
hereafter acquired by such Pledgor; and (c) all dividends,
liquidating
dividends, distributions, options, rights to subscribe, cash,
instruments and
other property and proceeds from time to time received, receivable
or otherwise
distributed in respect of or in exchange for any or all of such
Capital Stock
referenced in clause (a) above (and all contract rights to receive
any of the
foregoing) and (c) all rights of such Pledgor (including all choses
in action
and causes of action) under all agreements that in any way relate
to the Capital
Stock.
"Pledged Debt" shall mean (a) the debt securities listed and
described in
Part II of Schedule 3 hereto, payable to such Pledgor listed
therein, and the
instruments evidencing such debt securities, (b) all additional
debt securities
hereafter issued and payable to any Pledgor and the instruments
evidencing such
debt securities, (c) the Intercompany Notes and (d) all payments of
principal or
interest, cash, instruments or other property from time to time
received,
receivable or otherwise distributed, in respect of, in exchange for
or upon the
conversion of the debt securities referred to in clause (a), (b)
and (c) above.
"Pledged Interests" shall mean (a) the Capital Stock listed and
described
in Part I of Schedule 3 hereto, and the certificates, if any,
representing such
Capital Stock; (b) the partnership interests listed and described
in Schedule 3
hereto; (c)(i) all additional Capital Stock of any issuer of the
Pledged
Interests from time to time acquired by any Pledgor in any manner
and (ii) all
Capital Stock of any other person hereafter acquired by any Pledgor
(which
Capital Stock referred to in the foregoing clauses (i) and (ii)
shall be
considered to be Pledged Interests under this Pledge Agreement),
together in
each case with the certificates representing such additional
Capital Stock, and
(d) all dividends, liquidating dividends, stock dividends,
distributions, stock
or partnership rights, options, warrants, rights to subscribe,
cash, instruments
and other property and proceeds from time to time received,
receivable or
otherwise distributed in respect of or in exchange for any or all
of such listed
Capital Stock referenced in clause (a) above or such additional
Capital Stock
referenced in clause (b) above; provided, that, no shares of
Capital Stock of
any issuer incorporated in a jurisdiction outside of the United
States of
America shall be included hereunder to the extent that the
aggregate amount of
shares of Capital Stock of such issuer pledged hereunder would
exceed 65% of the
Capital Stock of such issuer to the extent, and for so long as, the
pledge of
any greater percentage would have adverse tax consequences for the
Borrower or
such Pledgor.
"Pledged Securities" shall mean the Pledged Interests and the
Pledged Debt.
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"Proceeds" shall mean all proceeds, including (a) whatever is
received upon
any collection, exchange, sale or other disposition of any of the
Collateral and
any property into which any of the Collateral is converted, whether
cash or
non-cash, (b) any and all payments or other property (in whatever
form) made or
due and payable on account of any insurance, indemnity, warranty or
guaranty
payable to any Pledgor with respect to any of the Collateral, (c)
any value
received as a consequence of the possession of any Collateral and
any payment
received from any insurer or other person as a result of the
destruction, loss,
theft or other involuntary conversion of whatever nature of any
asset or
property which constitutes Collateral, (d) any and all payments (in
any form
whatsoever) made or due and payable in connection with any
requisition,
confiscation, condemnation, seizure or forfeiture of all or any
part of the
Collateral by any Governmental Authority and (e) any and all other
amounts from
time to time paid or payable under or in connection with any of the
Collateral.
"Secured Obligations" of any Pledgor shall mean (a) in the case of
the
Borrower, all the Credit Obligations and (b) in the case of any
Subsidiary
Pledgor, all amounts now or hereafter payable by such Subsidiary
Pledgor under
the Guarantee Agreement, and (c) in the case of any Pledgor, all
expenses
(including reasonable counsel fees and expenses but excluding the
costs of
internal counsel) incurred in enforcing any rights of the Agent and
the Secured
Parties against such Pledgor under this Pledge Agreement.
"UCC" shall mean at any time the Uniform Commercial Code as the
same may
from time to time be in effect in the State of Ohio; provided, that
if, by
reason of mandatory provisions of law, the validity or perfection
of any
security interest granted herein is governed by the Uniform
Commercial Code as
in effect in a jurisdiction other than Ohio then, as to the
validity or
perfection of such security interest, "UCC" shall mean the Uniform
Commercial
Code in effect in such other jurisdiction.
1.3 UCC Definitions. The uncapitalized terms "account", "account
debtor",
"chattel paper", "document", "instrument", "equipment", "general
intangible",
"money", "proceeds", and "products" as used in Section 1.2 or
elsewhere in this
Pledge Agreement shall have the meanings ascribed thereto in the
UCC.
1.4 Terms Generally. The rules of interpretation specified in
Section 1.4
of the Credit Agreement shall be applicable to this Pledge
Agreement. All
references herein to Sections, Exhibits and Schedules shall be
deemed references
to Sections of, and Exhibits and Schedules to, this Pledge
Agreement unless the
context shall otherwise require.
SECTION 2. SECURITY INTERESTS
2.1 Security Interests. (a) To secure the due and punctual payment
of all
Secured Obligations of such Pledgor, howsoever created, arising or
evidenced,
whether direct or indirect, absolute or contingent, now or
hereafter existing or
due or to become
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due, in accordance with the terms thereof (i) each Pledgor hereby
grants to the
Agent, its successors and its assigns, for the ratable benefit of
the Secured
Parties, a security interest in, and (ii) each Pledgor hereby
pledges to the
Agent, its successors and assigns, for the ratable benefit of the
Secured
Parties, all of such Pledgor's right, title and interest in, to and
under the
following, whether now existing or hereafter acquired (all of which
are herein
collectively called the "Collateral"):
A. all Pledged Securities of such Pledgor;
B. all General Intangibles of such Pledgor; and
C. to the extent not otherwise included, all Proceeds and products
of
any or all of the foregoing, whether existing on the date hereof or
arising
hereafter.
(b) No Pledgor shall be required to pledge hereunder, and nothing
herein
shall be deemed to constitute a pledge hereunder of, more than 65%
of the total
capital stock of any issuer organized in a jurisdiction outside of
the United
States for so long as the pledge of any greater percentage would
have adverse
tax consequences for the Borrower or such Pledger.
2.2 Continuing Liability of each Pledgor. Anything herein to the
contrary
notwithstanding, each Pledgor shall remain liable to observe and
perform all the
terms and conditions to be observed and performed by it under any
contract,
agreement, warranty or other obligation with respect to the
Collateral, and
shall do nothing to impair the security interests herein granted.
Neither the
Agent nor any Secured Party shall have any obligation or liability
under any
such contract, agreement, warranty or obligation by reason of or
arising out of
this Pledge Agreement or the receipt by the Agent or any Secured
Party of any
payment relating to any Collateral, nor shall the Agent or any
Secured Party be
required to perform or fulfill any of the obligations of any
Pledgor with
respect to any of the Collateral, to make any inquiry as to the
nature or
sufficiency of any payment received by it or the sufficiency of the
performance
of any party's obligations with respect to any Collateral.
Furthermore, neither
the Agent nor any Secured Party shall be required to file any claim
or demand to
collect any amount due or to enforce the performance of any party's
obligations
with respect to the Collateral.
2.3 Delivery of Pledged Securities. All certificates or instruments
representing or evidencing the Pledged Securities shall be
delivered to and held
by or on behalf of the Agent, for the ratable benefit of the
Secured Parties,
pursuant hereto and shall be in suitable form for transfer by
delivery, duly
endorsed and shall be accompanied (excluding the certificates
representing the
Capital Stock of Kendle International Holdings Pty Limited) by duly
executed
instruments of transfer or assignment in blank with signatures
appropriately
guaranteed, and accompanied in each case by any required transfer
tax stamps,
all in form and substance reasonably satisfactory to the Agent. The
Agent shall
have the right, at any time after the occurrence and during the
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continuance of an Event of Default, in its discretion and without
notice to any
Pledgor, to cause any or all of the Pledged Interests and other
Pledged
Securities to be transferred of record into the name of the Agent
or its
nominee.
2.4 Security Interests Absolute. All rights of the Agent and the
Secured
Parties hereunder, and all obligations of each Pledgor hereunder,
shall be
absolute and unconditional and, without limiting the generality of
the
foregoing, shall not be released, discharged or otherwise affected
by:
(a) any extension, renewal, settlement, compromise, waiver or
release
in respect of any Secured Obligation, Note or any other document
evidencing
or securing any Secured Obligation, by operation of law or
otherwise;
(b) any modification, amendment or supplement to the Credit
Agreement,
any Note, any Collateral Document or any other document evidencing
or
securing any Secured Obligation;
(c) any release, non-perfection or invalidity of any direct or
indirect security for any Secured Obligation;
(d) any change in the existence, structure or ownership of the
Borrower, any other Pledgor or any other Credit Party, or any
Bankruptcy
Event affecting the Borrower, any other Pledgor or any other Credit
Party
or its assets or any resulting disallowance, release or discharge
of all or
any portion of the Secured Obligations;
(e) the existence of any claim, set-off or other right which any
Pledgor may have at any time against the Borrower, any other
Pledgor, any
other Credit Party, the Agent, any Secured Party or any other
corporation
or person, whether in connection herewith or any unrelated
transactions;
(f) any invalidity or unenforceability for any reason of any
Secured
Obligation relating to or against the Borrower, any other Pledgor
or any
other Credit Party, or any provision of applicable law or
regulation
purporting to prohibit the payment by the Borrower, any other
Pledgor or
any other Credit Party of the Secured Obligations;
(g) any failure by the Agent or any Secured Party (i) to file or
enforce a claim against the Borrower, any Pledgor or any other
Credit Party
or its estate (in a bankruptcy or other proceeding), (ii) to give
notice of
the existence, creation or incurrence by the Borrower, any other
Pledgor or
any other Credit Party of any new or additional indebtedness or
obligation
under or with respect to the Secured Obligations, (iii) to commence
any
action against the Borrower, any other Pledgor or any other Credit
Party,
(iv) to disclose to the Borrower, any other Pledgor or any other
Credit
Party any facts which the Agent or any Secured Party may now
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or hereafter know with regard to the Borrower, any other Pledgor or
any
other Credit Party or (v) to proceed with due diligence in the
collection,
protection or realization upon any collateral securing the Secured
Obligations; or
(h) any other act or omission to act or delay of any kind by the
Borrower, any other Pledgor, any other Credit Party, the Agent, any
Secured
Party or any other person or any other circumstance whatsoever
which might,
but for the provisions of this clause, constitute a legal or
equitable
discharge of any Pledgor's obligations hereunder.
2.5 Release of Collateral. Upon (a) the indefeasible payment in
full
in cash of all of the Secured Obligations, (b) the termination of
the
Commitments, and (c) the satisfaction by the Borrower of all terms
and
conditions hereof, the Credit Agreement, the Notes, the Collateral
Documents and all other documents or agreements governing the
Secured
Obligations, the Agent will (as soon as reasonably practicable
after
receipt of notice from any Pledgor requesting the same, but at the
expense
of such Pledgor) (i) execute and deliver to such Pledgor for each
filing
made under Section 4.1 or 4.2 to perfect the security interests
granted to
the Agent and the Secured Parties hereunder, a termination
statement
prepared by such Pledgor and furnished to the Agent to the effect
that the
Agent and the other Secured Parties no longer claim a security
interest
under such filing and (ii) deliver to such Pledgor all documents
and
instruments previously pledged to the Agent hereunder.
SECTION 3. REPRESENTATIONS AND WARRANTIES
The Pledgors jointly and severally represent and warrant to the
Agent
and each of the Secured Parties that:
3.1 Credit Agreement. All representations and warranties contained
in
the Credit Agreement that relate to such Pledgor are true and
correct. Such
Pledgor agrees to comply with each of the covenants contained in
the Credit
Agreement that imposes or purports to impose restrictions or
obligations on
such Pledgor. Each Pledgor acknowledges that any default in the due
observance or performance by such Pledgor of any covenant,
condition or
agreement contained herein may (after giving effect to any
applicable grace
or cure period) constitute an "Event of Default" under Section 8 of
the
Credit Agreement. There are no conditions precedent to the
effectiveness of
this Pledge Agreement that have not been satisfied or waived.
3.2 Pledged Securities. All Pledged Securities have been duly
authorized and validly issued by the issuers thereof and, in the
case of
Pledged Securities consisting of Capital Stock, are fully paid and
nonassessable. None of the Pledged Securities are subject to
options to
purchase or similar rights of any person. No Pledgor is or will
become a
party to or otherwise bound by any agreement, other than this
Pledge
Agreement, which restricts in any manner the rights of any present
or
future holder of any of the Pledged Interests with respect thereto.
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3.3 Validity, Perfection, Assignment and Priority of Security
Interests.
(a) By complying with Section 4.1 and by delivering all
certificates or
instruments, if any, representing or evidencing the Collateral to
the Agent,
each Pledgor will have created a valid and duly perfected security
interest in
favor of the Agent for the benefit of the Secured Parties as
security for the
due and punctual payment of all Secured Obligations of such Pledgor
in all
Collateral and identifiable Proceeds of such Collateral, as to
which a security
interest may be perfected by (i) filing UCC financing statements
and (ii)
possession. Continuing compliance by each Pledgor with the
provisions of Section
4.2 will also (A) create and duly perfect valid security interests
in all
Collateral acquired or otherwise coming into existence after the
date hereof and
in all identifiable Proceeds of such Collateral as security for the
due and
punctual payment of all Secured Obligations of such Pledgor and (B)
cause such
security interests in all Collateral and in all Proceeds which are
(I)
identifiable cash Proceeds of Collateral covered by financing
statements
required to be filed hereunder and (II) identifiable Proceeds in
which a
security interest may be perfected by such filing under the UCC.
(b) The security interests of the Agent in the Collateral rank
first in
priority, except that the priority of the security interests may be
subject to
Liens permitted under Section 7.2 of the Credit Agreement. Other
than financing
statements or other similar documents perfecting the security
interests or deed
of trust liens of the Agent and the protective filings filed by the
lessors of
certain equipment leased by the Pledgors, no financing statements,
deeds of
trust, mortgages or similar documents covering all or any part of
the Collateral
other than with respect to Liens permitted under Section 7.2 of the
Credit
Agreement are on file or of record in any government office in any
jurisdiction
in which such filing or recording would be effective to perfect a
security
interest in such Collateral, nor is any of the Collateral in the
possession of
any person (other than a Pledgor) asserting any claim thereto or
security
interest therein.
3.4 Enforceability of General Intangibles. To the knowledge of each
Pledgor, each General Intangible is a valid and binding obligation
of the
related Account Debtor in respect thereof, enforceable in
accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the enforcement
of creditors' rights generally and by general provisions of equity
(regardless
of whether such enforceability is considered in a proceeding in
equity or at
law), and complies in all material respects with applicable legal
requirements.
3.5 Place of Business, Location of Collateral. Schedule 2 correctly
sets
forth (a) each Pledgor's chief executive offices and principal
place of business
and (b) the offices of each Pledgor where records concerning
General Intangibles
are kept. No amount payable under or in connection with any of the
Collateral is
evidenced by promissory notes or other instruments other than
instruments
evidencing the Pledged Debt which have been delivered to the Agent
hereunder.
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3.6 Trade Names. Any and all trade names, division names, assumed
names or
other names under which any Pledgor transacts, or at any time
during the past
five years prior to the date hereof has transacted, business are
specified on
Schedule 4.
3.7 Outstanding Interests. The Capital Stock listed on Schedule 3
constitutes (i) 100% of the Capital Stock of all Domestic
Subsidiaries and (ii)
65% of the Capital Stock of all Foreign Subsidiaries directly owned
by any
Pledgor.
3.8 Effectiveness. The pledge and grant effected hereby is
effective to
vest in the Agent, on behalf of the Secured Parties, the rights of
the Agent in
the Collateral as set forth herein.
SECTION 4. COVENANTS
Each Pledgor covenants and agrees with the Agent that until the
conditions
for release of the Collateral set forth in Section 2.5 have been
satisfied and
the Collateral is released pursuant to Section 2.5, such Pledgor
will comply
with the following:
4.1 Perfection of Security Interests.
(a) Each Pledgor will, at its expense, cause all filings and
recordings
and other actions specified on Schedule 5 to have been completed
and filed on or
prior to the Effective Date.
(b) Each Pledgor which is the holder of Capital Stock of a Foreign
Subsidiary will pledge such Capital Stock and perfect the Agent's
security
interest therein in the case of the pledge of the Capital Stock of
any other
Foreign Subsidiary, pursuant to the terms hereof and, if required
by the laws of
the applicable jurisdiction, a pledge agreement in form and
substance
satisfactory to the Agent.
4.2 Further Actions.
(a) At all times after the Effective Date, each Pledgor will, at
its
own expense, comply with the following:
(i) as to all General Intangibles and Pledged Securities, it will
cause UCC financing statements and continuation statements to be
filed and to be
on file in all applicable jurisdictions (except with respect to
goods in
transit) as required to perfect the security interests granted to
the Agent for
the ratable benefit of the Secured Parties hereunder, to the extent
that
applicable law permits perfection. of a security interest by filing
under the
UCC;
(ii) as to all Proceeds, it will cause all UCC financing statements
and continuation statements filed in accordance with clause (i)
above to include
a
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statement or a checked box indicating that Proceeds of all items of
Collateral
described therein are covered;
(iii) upon the request of the Agent, it will ensure that the
provisions of Section 5.1(b) are complied with;
(iv) as to any Capital Stock owned or hereafter acquired by any
Pledgor, the applicable Pledgor will immediately pledge and deliver
the
corresponding certificates, upon the acquisition or certification
thereof, or
other instruments to the Agent for the benefit of the Secured
Parties as part of
the Pledged Interests duly endorsed in a manner reasonably
satisfactory to the
Agent;
(v) as to any Capital Stock of any Foreign Subsidiary owned or
hereafter acquired by any Pledgor, the applicable Pledgor will
immediately
deliver pledge agreements and other documents and instruments as
may be required
under the laws of that applicable jurisdiction, all, in form and
substance
satisfactory to the Agent, as necessary to effect the pledge of the
Capital
Stock, and perfection of the Agent's security interest therein,
under the laws
of such jurisdiction; and
(vi) as to any amount payable under or in connection with any of
the Collateral which shall be or shall become evidenced by any
promissory note,
chattel paper or other instrument, the applicable Pledgor will
immediately
pledge and deliver such note or other instrument to the Agent for
the benefit of
the Secured Parties as part of the Pledged Debt duly endorsed in a
manner
satisfactory to the Agent.
(b) Each Pledgor will, from time to time and at its own expense,
execute, deliver, file or record such financing statements pursuant
to the UCC
and such other statements, assignments, instruments, documents,
agreements or
other papers and take any other action that may be necessary or
desirable, or
that the Agent may reasonably request, in order to create,
preserve, perfect,
confirm or validate the security interests, to enable the Agent and
the Secured
Parties to obtain the full benefits of this Pledge Agreement or to
enable the
Agent to exercise and enforce any of its rights, powers and
remedies hereunder,
including, without limitation, its right to take possession of the
Collateral.
(c) To the fullest extent permitted by law, each Pledgor authorizes
the
Agent (i) to sign and file financing and continuation statements
and amendments
thereto with respect to the Collateral without its signature
thereon and (ii) to
the fullest extent permitted by law, file this Pledge Agreement in
any UCC
filing jurisdiction as a financing statement with respect to the
Collateral. In
furtherance of the foregoing, each Pledgor hereby irrevocably
constitutes and
appoints the Agent, 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 such Pledgor and in the name of such Pledgor, or in its
own name, from
rime to time in the Agent's reasonable discretion, to execute,
deliver, file or
record
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financing statements pursuant to the UCC as may be necessary or
desirable, in
order to create, preserve, perfect, confirm or validate the
security interests.
4.3 Change of Name, Identity or Structure. No Pledgor will change
its name,
identity or corporate structure in any manner except to the extent
expressly
permitted under Section 7.4 of the Credit Agreement. Furthermore,
no Pledgor
shall take any such action permitted under Section 7.4 of the
Credit Agreement
unless it shall have given the Agent at least thirty (30) days'
prior written
notice thereof and shall have taken all action (or made
arrangements to take
such action substantially simultaneously with such change if it is
impossible to
take such action in advance) necessary or desirable or as may be
reasonably
requested by the Agent, to amend any financing statement or
continuation
statement relating to the security interests granted hereby in
order to preserve
such security interests and to effectuate or maintain the priority
thereof
against all persons.
4.4 Place of Business and Collateral. No Pledgor will change the
location
of (a) any of its places of business, (b) its chief executive
offices or (c) any
of the offices or other locations where it keeps or holds any
Collateral or any
records relating thereto from the applicable location listed on
Schedule 2
hereto (including the establishment of any new office or facility)
unless, prior
to such change, (i) it notifies the Agent of such change, (ii)
makes all UCC
filings required by Section 4.2 and (iii) takes all other action
necessary or
desirable or that the Agent may reasonably request, to preserve,
perfect,
confirm and protect the security interests granted hereby. No
Pledgor will
change the location of any Collateral if such change would cause
the security
interest granted hereby in such Collateral to lapse or cease to be
perfected.
4.5 Maintenance of Records. Each Pledgor will keep and maintain at
its own
cost and expense complete books and records relating to the
Collateral which are
reasonably satisfa
