Exhibit 10.4
EXECUTION COPY
AMENDED AND RESTATED PLEDGE
AGREEMENT
PLEDGE AGREEMENT dated as of
October 10, 2007, as amended and restated as of August 7,
2009, among Energy Future Competitive Holdings Company, a Texas
corporation (“ US Holdings ”), Texas Competitive
Electric Holdings Company LLC, a Delaware limited liability company
(the “ Company ”) each of the Subsidiaries of
the Company listed on the signature pages hereto or that becomes a
party hereto pursuant to Section 9 hereof (each such
Subsidiary being a “ Subsidiary Pledgor ” and,
collectively, the “ Subsidiary Pledgors ”; the
Subsidiary Pledgors, US Holdings, the Company are referred to
collectively as the “ Pledgors ”) and Citibank,
N.A., as Collateral Agent (in such capacity, the “
Collateral Agent ”) for the benefit of the First Lien
Secured Parties (as defined below).
W I T N E S
S E T H :
WHEREAS, US Holdings and the Company
are party to the Credit Agreement, dated as of October 10,
2007 (as amended by Amendment No. 1 thereto dated as of
August 7, 2009, and as the same may be further amended,
restated, supplemented or otherwise modified, refinanced or
replaced from time to time, the “ Credit Agreement
”) among US Holdings, the Company, the lending institutions
from time to time parties thereto (the “ Lenders
”), Citibank, N.A., as Administrative Agent and as Collateral
Agent and the other agents and entities party thereto;
WHEREAS, the Pledgors are party to
the Amended and Restated Security Agreement dated as of the date
hereof (as the same may be further amended, restated, supplemented
or otherwise modified or replaced from time to time, the “
Security Agreement ”), among the Pledgors and the
Collateral Agent;
WHEREAS, (a) pursuant to the
Credit Agreement, the Lenders have severally agreed to make Loans
and Posting Advances to the Company and the Letter of Credit
Issuers have agreed to issue Letters of Credit for the account of
Parent and its Subsidiaries upon the terms and subject to the
conditions set forth therein, (b) one or more Cash Management
Banks or Hedge Banks may from time to time enter into Secured Cash
Management Agreements, Secured Hedging Agreements and/or Secured
Commodity Hedging Agreements and (c) the Loan Parties may
incur Additional First Lien Obligations from time to time to the
extent permitted by the Credit Agreement and each Additional First
Lien Agreement (any extensions of credit to the Company as
described in clauses (a), (b) or (c), collectively, the
“ Extensions of Credit ”);
WHEREAS, pursuant to the Guarantee,
dated as of October 10, 2007 (as amended, restated,
supplemented or otherwise modified from time to time, the “
Guarantee ”), each Pledgor has unconditionally and
irrevocably guaranteed, as primary obligor and not merely as
surety, to the Collateral Agent for the benefit of the Secured
Parties (as defined in the Credit Agreement), the prompt and
complete payment and performance when due (whether at the
stated
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maturity, by acceleration or otherwise) of the
“Obligations” (as such term is defined in the Credit
Agreement);
WHEREAS, each Subsidiary Pledgor may
also unconditionally and irrevocably guarantee, as primary obligor
and not merely as surety, for the benefit of the First Lien Secured
Parties under any Additional First Lien Agreement, the prompt and
complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Additional First
Lien Obligations;
WHEREAS, each Subsidiary Pledgor is
a direct or indirect wholly-owned Domestic Subsidiary of the
Company and may be a guarantor of the Additional First Lien
Obligations;
WHEREAS, the proceeds of the
Extensions of Credit have been or will be used, as the case may be,
in part to enable the Company to make valuable transfers to the
Pledgors in connection with the operation of their respective
businesses;
WHEREAS, each Pledgor acknowledges
that it has derived or will derive, as the case may be, substantial
direct and indirect benefit from the making of the Extensions of
Credit;
WHEREAS, as a condition precedent to
the obligation of the Lenders and the Letter of Credit Issuers to
make their respective Extensions of Credit to the Company under the
Credit Agreement, the Pledgors executed and delivered a pledge
agreement to the Collateral Agent for the benefit of the Secured
Parties, dated as of October 10, 2007 (the “ Original
Pledge Agreement ”);
WHEREAS, it is a condition precedent
to Amendment No. 1 to the Credit Agreement that the Pledgors
enter into this Amended and Restated Pledge Agreement for the
benefit of the First Lien Secured Parties; and
WHEREAS, (a) the Pledgors were,
as of the date of the Original Pledge Agreement, the legal and
beneficial owners of the Equity Interests described in Schedule 1
hereto and issued by the entities named therein (such pledged
Equity Interests are, together with any Equity Interests of the
issuer of such Equity Interests or any other Subsidiary directly
held by any Pledgor following the date of the Original Pledge
Agreement (the “ After-acquired Shares ”), in
each case subject to the terms herein, referred to collectively
herein as the “ Pledged Shares ”) and
(b) each of the Pledgors was, as of the date of the Original
Pledge Agreement, the legal and beneficial owner of the
Indebtedness described in Schedule 1 hereto (together with any
other Indebtedness owed to any Pledgor following the date of the
Original Pledge Agreement and required to be pledged pursuant to
Section 9.12 of the Credit Agreement or the equivalent
provisions of any Additional First Lien Agreement, the “
Pledged Debt ”);
NOW, THEREFORE, in consideration of
the premises and to induce the Administrative Agent, the Collateral
Agent, the Lenders and the Letter of Credit Issuers to enter into
Amendment No. 1 to the Credit Agreement and to induce the
respective Lenders and the Letter of Credit Issuers to make their
respective Extensions of Credit to the Borrower under the Credit
Agreement and to induce one or more Cash Management Banks or Hedge
Banks to enter into Secured Cash Management Agreements, Secured
Hedging Agreements and Secured Commodity
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Hedging Agreements and to induce the holders of
any Additional First Lien Obligations to make their respective
Extensions of Credit thereunder, the Pledgors hereby agree with the
Collateral Agent, for the benefit of the First Lien Secured
Parties, to amend and restate the Original Pledge Agreement as
follows:
1. Defined Terms .
(a) Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
(b) Unless otherwise defined herein
or in the Credit Agreement, terms defined in the Security Agreement
shall have the meanings given to them in the Security
Agreement.
(c) “ Proceeds ”
and any other term used herein without definition that is defined
in the UCC has the meaning given to it in the UCC.
(d) “ Additional First Lien
Agreement ” shall mean any indenture, credit agreement or
other document, instrument or agreement, if any, pursuant to which
any Pledgor has or will incur Additional First Lien Obligations;
provided that, in each case, the Indebtedness thereunder has been
designated as Additional First Lien Obligations pursuant to and in
accordance with Section 8.18 of the Security
Agreement.
(e) “ Additional First Lien
Obligations ” shall mean all advances to, and debts,
liabilities, obligations, covenants and duties of, any Pledgor
arising under any Additional First Lien Agreement including,
without limitation, Permitted Other Debt, whether direct or
indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising
and including interest and fees that accrue after the commencement
by or against any Pledgor or any Affiliate thereof of any
proceeding under any bankruptcy or insolvency law naming such
Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding, in each
case, that have been designated as Additional First Lien
Obligations pursuant to and in accordance with Section 8.18 of
the Security Agreement.
(f) “ Authorized
Representative ” shall mean (i) the Administrative
Agent with respect to the Credit Agreement and (ii) any duly
authorized agent, trustee or representative of any other First Lien
Secured Party under Additional First Lien Agreements designated as
“Authorized Representative” for any First Lien Secured
Party in an Additional First Lien Secured Party Consent delivered
to the Collateral Agent.
(g) “ Credit Party
” shall mean the Company, US Holdings, the Subsidiary
Grantors and each other Subsidiary of the Company that is a party
to the Credit Agreement, any other Credit Document or any
Additional First Lien Agreement.
(h) “ EFH ” shall
have the meaning provided in Section 2(e).
(i) As used herein, the term “
Equity Interests ” shall mean, collectively, Stock and
Stock Equivalents.
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(j) “ Event of Default
” shall mean an “Event of Default” under and as
defined in the Credit Agreement or any Additional First Lien
Agreement.
(k) “ First Lien
Obligations ” shall mean collectively, the Obligations
(as such term is defined in the Credit Agreement) and the
Additional First Lien Obligations.
(l) “ First Lien Secured
Parties ” shall man collectively, the “Secured
Parties” (as such term is defined in the Credit Agreement)
and, if any, the holders of Additional First Lien Obligations and
any Authorized Representative with respect thereto.
(m) As used herein, the term “
Required Secured Parties ” shall have the meaning
provided to it in the Intercreditor Agreement.
(n) As used herein, the term “
Secured Obligations ” shall have the meaning provided
to it in the Intercreditor Agreement.
(o) As used herein, the term “
UCC ” shall mean the Uniform Commercial Code as from
time to time in effect in the State of New York; provided ,
however, that, in the event that, by reason of mandatory provisions
of law, any of the attachment, perfection or priority of the
Collateral Agent’s and the First Lien Secured Parties’
security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State
of New York, the term “ UCC ” shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such attachment,
perfection or priority and for purposes of definitions related to
such provisions.
(p) References to
“Lenders” in this Pledge Agreement shall be deemed to
include Cash Management Banks and Hedge Banks.
(q) The words “hereof”,
“herein”, “hereto” and
“hereunder” and words of similar import when used in
this Pledge Agreement shall refer to this Pledge Agreement as a
whole and not to any particular provision of this Pledge Agreement,
and Section, subsection, clause and Schedule references are to
Sections of this Pledge Agreement unless otherwise specified. The
words “include”, “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation”.
(r) The meanings given to terms
defined herein shall be equally applicable to both the singular and
plural forms of such terms.
(s) This Amended and Restated Pledge
Agreement amends and restates the Original Pledge Agreement. The
Obligations of the Pledgors under the Original Pledge Agreement and
the grant of security interest in the Collateral by the Pledgors
under the Original Pledge Agreement shall continue under this
Amended and Restated Pledge Agreement, and shall not in any event
be terminated, extinguished or annulled, but shall hereafter be
governed by this Amended and Restated Pledge Agreement. All
references to the Original Pledge Agreement in any Credit Document
(other than this Amended and Restated Pledge Agreement) or other
document or instrument delivered in connection therewith shall be
deemed to refer to this Amended and Restated Pledge Agreement and
the provisions hereof. It is understood and agreed that
the
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Original Pledge Agreement is being amended and
restated by entry into this Amended and Restated Pledge Agreement
on the date hereof.
2. Grant of Security . As
collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by
acceleration or otherwise) of the First Lien Obligations, each
Pledgor hereby transfers, assigns and pledges to the Collateral
Agent, for the benefit of the First Lien Secured Parties, and
grants to the Collateral Agent, for the benefit of the First Lien
Secured Parties and confirms its prior grant to the Collateral
Agent for the benefit of the Secured Parties of, a lien on and a
security interest in (the “Security Interest”) all of
such Pledgor’s right, title and interest in, to and under the
following, whether now owned or existing or at any time hereafter
acquired or existing (collectively, the
“Collateral”):
(a) the Pledged Shares held by such
Pledgor and the certificates, if any, representing such Pledged
Shares and any interest of such Pledgor in the entries on the books
of the issuer of the Pledged Shares or any financial intermediary
pertaining to the Pledged Shares and all dividends, cash, warrants,
rights, instruments and other property or Proceeds from time to
time received, receivable or otherwise distributed in respect of or
in exchange for any or all of the Pledged Shares;
(b) the Pledged Debt and the
instruments evidencing the Pledged Debt owed to such Pledgor, and
all interest, cash, instruments and other property or Proceeds from
time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such Pledged Debt;
and
(c) to the extent not covered by
clauses (a) and (b) above, respectively, all Proceeds of
any or all of the foregoing Collateral. For purposes of this Pledge
Agreement, the term “Proceeds” includes whatever is
receivable or received when Collateral or Proceeds are sold,
exchanged, collected or otherwise disposed of, whether such
disposition is voluntary or involuntary, and includes Proceeds of
any indemnity or guarantee payable to any Pledgor or the Collateral
Agent from time to time with respect to any of the
Collateral;
Notwithstanding the foregoing, the
Collateral for the Secured Obligations shall not include
(i) any Excluded Stock and Stock Equivalents or any Excluded
Property (as defined in the Security Agreement) and
(ii) property or assets to the extent the grant of a Lien
therein is prohibited by any contract, agreement, instrument or
indenture governing such property or asset without the consent of
any other party thereto (other than a Credit Party or a wholly
owned subsidiary of a Credit Party) unless such consent has been
expressly obtained, or would give any other party (other than a
Credit Party or a wholly owned subsidiary of a Credit Party) to any
such contract, agreement, instrument or indenture the right to
terminate its obligations thereunder (other than to the extent that
any such prohibition referred to in clause (ii) would be
rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or
9-409 of the UCC (or any successor provision or provisions) of any
relevant jurisdiction or any other applicable law) (it being
understood that the foregoing shall not be deemed to obligate any
Grantor to seek or obtain any such consents referred to in clause
(ii) above).
(d) Notwithstanding anything to the
contrary in this Section 2, at the Company’s option, the
term Collateral, as it refers to the Collateral securing Additional
First Lien
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Obligations, shall not include any Stock and
other securities of a Subsidiary to the extent that the pledge of
such Stock and other securities would result in the Company being
required to file separate financial statements of such Subsidiary
with the SEC, but only to the extent necessary to not be subject to
such requirement and only for so long as such requirement is in
existence and only with respect to the relevant Additional First
Lien Obligations affected; provided that neither US
Holdings, the Company nor any Subsidiary shall take any action in
the form of a reorganization, merger or other restructuring a
principal purpose of which is to provide for the release of the
Lien on any Stock pursuant to this clause (d). In addition, in the
event that Rule 3-16 of Regulation S-X under the Securities Act of
1933, as amended (“ Rule 3-16 ”) is amended,
modified or interpreted by the SEC to require (or is replaced with
another rule or regulation, or any other law, rule or regulation is
adopted, which would require) the filing with the SEC (or any other
Governmental Authority) of separate financial statements of any
Subsidiary of the Company due to the fact that such
Subsidiary’s Stock secures the Additional First Lien
Obligations affected thereby, then the Stock of such Subsidiary
will automatically be deemed not to be part of the Collateral
securing the relevant Additional First Lien Obligations affected
thereby but only to the extent necessary to not be subject to such
requirement and only for so long as required to not be subject to
such requirement. In such event, this Pledge Agreement may be
amended or modified, without the consent of any First Lien Secured
Party, to the extent necessary to release the Security Interests in
favor of the Collateral Agent on the shares of Stock that are so
deemed to no longer constitute part of the Collateral for the
relevant Additional First Lien Obligations only. In the event that
Rule 3-16 is amended, modified or interpreted by the SEC to permit
(or is replaced with another rule or regulation, or any other law,
rule or regulation is adopted, which would permit) such
Subsidiary’s Stock to secure the Additional First Lien
Obligations in excess of the amount then pledged without the filing
with the SEC (or any other Governmental Authority) of separate
financial statements of such Subsidiary, then the Stock of such
Subsidiary will automatically be deemed to be a part of the
Collateral for the relevant Additional First Lien Obligations. For
the avoidance of doubt and notwithstanding anything to the contrary
in this Agreement, nothing in this clause (d) shall limit the
pledge of such Stock and other securities from securing the
Obligations (as defined in the Credit Agreement) at all times or
from securing any Additional First Lien Obligations that are not in
respect of securities subject to regulation by the SEC.
(e) Notwithstanding anything to the
contrary in this Section 2, at the Company’s option, the
term Collateral, as it refers to the Collateral securing Additional
First Lien Obligations, shall not include any property of US
Holdings to the extent that the granting of a security interest in
such property would result in a breach of any Contractual
Requirement, or constitute a default under the terms of any
material indenture (including a breach of the covenants contained
in Section 4.12 of each of the indentures governing the terms
of the Indebtedness of Energy Future Holdings Corp. (“
EFH ”) and the Company, and the terms of the Existing
Notes Indentures), loan agreement, lease agreement, mortgage, deed
of trust or other material agreement or instrument to which EFH or
any of its Subsidiaries is a party or by which EFH or any of its
Subsidiaries or any of their respective property or assets are
bound, but only to the extent necessary to not be subject to such
requirement and only for so long as such requirement is in
existence and only with respect to the relevant Additional First
Lien Obligations affected.
3. Security for the
Obligations . This Pledge Agreement secures the payment of all
the First Lien Obligations of each Credit Party. Without limiting
the generality of the
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foregoing, this Pledge Agreement secures the
payment of all amounts that constitute part of the First Lien
Obligations and would be owed by any of the Credit Parties to any
of the First Lien Secured Parties under the Credit Documents, any
Additional First Lien Agreement then in effect, Secured Cash
Management Agreements, Secured Hedging Agreements and Secured
Commodity Hedging Agreements but for the fact that they are
unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving any
Credit Party.
4. Delivery of the Collateral
. All certificates or instruments, if any, representing or
evidencing the Collateral shall be promptly delivered to and held
by or on behalf of the Collateral Agent pursuant hereto to the
extent required by the Credit Agreement or any Additional First
Lien Agreement then in effect and shall be in suitable form for
transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and
substance reasonably satisfactory to the Collateral Agent. The
Collateral Agent shall have the right, at any time after the
occurrence and during the continuance of an Event of Default and
with notice to the relevant Pledgor, to transfer to or to register
in the name of the Collateral Agent or any of its nominees any or
all of the Pledged Shares. Each delivery of Collateral (including
any After-acquired Shares) shall be accompanied by a notice to the
Collateral Agent describing the securities theretofore and then
being pledged hereunder.
5. Representations and
Warranties . Each Pledgor represents and warrants as
follows:
(a) Schedule 1 hereto
(i) correctly represents as of the Closing Date (A) the
issuer, the certificate number, if any, the Pledgor and the record
and beneficial owner, the number and class and the percentage of
the issued and outstanding Equity Interests of such class of all
Pledged Shares and (B) the issuer, the initial principal
amount, the Pledgor and holder, date of issuance and maturity date
of all Pledged Debt and (ii) together with the comparable
schedule to each supplement hereto, includes all Equity Interests,
debt securities and promissory notes required to be pledged
hereunder. Except as set forth on Schedule 1 and except for
Excluded Stock and Stock Equivalents, the Pledged Shares represent
all of the issued and outstanding Equity Interests of each class of
Equity Interests (or 65% of all of the issued and outstanding
voting Equity Interests in the case of pledges of Equity Interests
in Foreign Subsidiaries) in the issuer owned by a Pledgor on the
Closing Date.
(b) Such Pledgor is the legal and
beneficial owner of the Collateral pledged or assigned by such
Pledgor hereunder free and clear of any Lien, except for the Liens
created by this Pledge Agreement and Liens permitted under both
(x) Sections 10.2(a), (g), (s) or (t) of or as
“Permitted Liens” under the Credit Agreement and
(y) under comparable provisions of each Additional First Lien
Agreement.
(c) As of the Closing Date, the
Pledged Shares pledged by such Pledgor hereunder on the Closing
Date have been duly authorized and validly issued and, in the case
of Pledged Shares issued by a corporation, are fully paid and
non-assessable.
(d) The execution and delivery by
such Pledgor of this Pledge Agreement and the pledge of the
Collateral pledged by such Pledgor hereunder pursuant hereto create
a legal, valid and enforceable security interest in such Collateral
(in the case of the Stock of Foreign
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Subsidiaries, to the extent the creation of such
security interest in the Stock of Foreign Subsidiaries is governed
by the UCC) and, (i) in the case of certificated securities,
upon delivery of such certificated securities to the Collateral
Agent in the State of New York, with necessary endorsements, and
(ii) otherwise, upon the filing of a financing statement in
the appropriate jurisdiction(s), shall constitute a fully perfected
Lien on and security interest in the Collateral, securing the
payment of the First Lien Obligations, in favor of the Collateral
Agent for the benefit of the First Lien Secured Parties (in the
case of the Stock of Foreign Subsidiaries, to the extent the
creation and perfection of such security interest in the Stock of
Foreign Subsidiaries is governed by the UCC), except as
enforceability thereof may be limited by bankruptcy, insolvency or
other similar laws affecting creditors’ rights generally and
subject to general principles of equity.
(e) Such Pledgor has full power,
authority and legal right to pledge all the Collateral pledged by
such Pledgor pursuant to this Pledge Agreement and this Pledge
Agreement constitutes a legal, valid and binding obligation of each
Pledgor (in the case of the Stock of Foreign Subsidiaries, to the
extent the creation and perfection of such security interest in the
Stock of Foreign Subsidiaries is governed by the UCC), enforceable
in accordance with its terms, except as enforceability thereof may
be limited by bankruptcy, insolvency or other similar laws
affecting creditors’ rights generally and subject to general
principles of equity.
6. Certification of Limited
Liability Company, Limited Partnership Interests and Pledged
Debt .
(a) In the event that any Equity
Interests in any Domestic Subsidiary that is organized as a limited
liability company or limited partnership and pledged hereunder
shall be represented by a certificate, the applicable Pledgor shall
cause the issuer of such interests to elect to treat such interests
as a “security” within the meaning of Article 8 of the
Uniform Commercial Code of its jurisdiction of organization or
formation, as applicable, by including in its organizational
documents language substantially similar to the following and,
accordingly, such interests shall be governed by Article 8 of the
Uniform Commercial Code:
“The Partnership/Company
hereby irrevocably elects that all membership interests in the
Partnership/Company shall be securities governed by Article 8 of
the Uniform Commercial Code of [jurisdiction of organization or
formation, as applicable]. Each certificate evidencing
partnership/membership interests in the Partnership/Company shall
bear the following legend: “This certificate evidences an
interest in [name of Partnership/LLC] and shall be a security for
purposes of Article 8 of the Uniform Commercial Code.” No
change to this provision shall be effective until all outstanding
certificates have been surrendered for cancellation and any new
certificates thereafter issued shall not bear the foregoing
legend.”
(b) Each Pledgor will comply with
Section 9.12 of the Credit Agreement and the equivalent
provision of each Additional First Lien Agreement.
(c) In the event that any Equity
Interests in any Foreign Subsidiary pledged hereunder are not
represented by a certificate, the Pledgors agree not to permit such
Foreign Subsidiary to issue Equity Interests represented by a
certificate to any other Person, unless the Equity
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Interests in such Foreign Subsidiary become
represented by a certificate which is delivered to the Collateral
Agent.
7. Further Assurances . Each
Pledgor agrees that at any time and from time to time, at the
expense of such Pledgor, it will execute or otherwise authorize the
filing of any and all further documents, financing statements,
agreements and instruments, and take all such further actions
(including the filing and recording of financing statements,
fixture filings, mortgages, deeds of trust and other documents),
which may be required under any Applicable Law, or which the
Collateral Agent, the Applicable First Lien Representative, the
Required Secured Parties or the required lenders or debtholders
under any Additional First Lien Agreement may reasonably request,
in order (x) to perfect and protect any pledge, assignment or
security interest granted or purported to be granted hereby
(including the priority thereof) or (y) to enable the
Collateral Agent to exercise and enforce its rights and remedies
hereunder with respect to any Collateral.
8. Voting Rights; Dividends and
Distributions; Etc .
(a) So long as no Event of Default
shall have occurred and be continuing:
(i) Each Pledgor shall be entitled
to exercise any and all voting and other consensual rights
pertaining to the Collateral or any part thereof for any purpose
not prohibited by the terms of this Pledge Agreement, the other
Credit Documents or any Additional First Lien Agreement.
(ii) The Collateral Agent shall
execute and deliver (or cause to be executed and delivered) to each
Pledgor all such proxies and other instruments as such Pledgor may
reasonably request for the purpose of enabling such Pledgor to
exercise the voting and other rights that it is entitled to
exercise pursuant to paragraph (i) above.
(b) Subject to paragraph
(c) below, each Pledgor shall be entitled to receive and
retain and use, free and clear of the Lien created by this Pledge
Agreement, any and all dividends, distributions, principal and
interest made or paid in respect of the Collateral to the extent
permitted by each of the Credit Agreement and each Additional First
Lien Agreement, as applicable; provided , however ,
that any and all noncash dividends, interest, principal or other
distributions that would constitute Pledged Shares or Pledged Debt,
whether resulting from a subdivision, combination or
reclassification of the outstanding Equity Interests of the issuer
of any Pledged Shares or received in exchange for Pledged Shares or
Pledged Debt or any part thereof, or in redemption thereof, or as a
result of any merger, consolidation, acquisition or other exchange
of assets to which such issuer may be a party or otherwise, shall
be, and (as applicable) shall be forthwith delivered to the
Collateral Agent to hold as, Collateral and shall, if received by
such Pledgor, be received in trust for the benefit of the
Collateral Agent, be segregated from the other property or funds of
such Pledgor (as applicable) and be forthwith delivered to the
Collateral Agent as Collateral in the same form as so received
(with any necessary endorsement).
(c) Upon written notice to a Pledgor
by the Collateral Agent following the occurrence and during the
continuance of an Event of Default:
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(i) all rights of such Pledgor to
exercise or refrain from exercising the voting and other consensual
rights that it would otherwise be entitled to exercise pursuant to
Section 8(a)(i) shall cease, and all such rights shall
thereupon become vested in the Collateral Agent, which shall
thereupon have the sole right to exercise or refrain from
exercising such voting and other consensual rights during the
continuance of such Event of Default, provided that, unless
otherwise directed by the Required Secured Parties, the Collateral
Agent shall have the right from time to time following the
occurrence and during the continuance of an Event of Default to
permit the Pledgors to exercise such rights. After all Events of
Default have been cured or waived, each Pledgor will have the right
to exercise the voting and consensual rights that such Pledgor
would otherwise be entitled to exercise pursuant to the terms of
Section 8(a)(i) (and the obligations of the Collateral Agent
under Section 8(a)(ii) shall be reinstated);
(ii) all rights of such Pledgor to
receive the dividends, distributions and principal and interest
payments that such Pledgor would otherwise be authorized to receive
and retain pursuant to Section 8(b) shall cease, and all such
rights shall thereupon become vested in the Collateral Agent, which
shall thereupon have the sole right to receive and hold as
Collateral such dividends, distributions and principal and interest
payments during the continuance of such Event of Default. After all
Events of Default have been cured or waived, the Collateral Agent
shall repay to each Pledgor (without interest) and each Pledgor
shall be entitled to receive, retain and use all dividends,
distributions and principal and interest payments that such Pledgor
would otherwise be permitted to receive, retain and use pursuant to
the terms of Section 8(b);
(iii) all dividends, distributions
and principal and interest payments that are received by such
Pledgor contrary to the provisions of Section 8(b) shall be
received in trust for the benefit of the Collateral Agent shall be
segregated from other property or funds of such Pledgor and shall
forthwith be delivered to the Collateral Agent as Collateral in the
same form as so recei
