Agent Capacities. It is understood and agreed that The Bank of New York Mellon Trust Company, N.A. is entering into this Agreement, not in its individual capacity, but solely in its capacities as Trustee and Notes Collateral Agent under the Notes Indenture and the Notes Security Documents and solely for the Notes Secured Parties, and the rights, protections, privileges, indemnities and immunities granted to the trustee and collateral agent under the Notes Indenture and the Notes Security Documents shall inure to the benefit of the Trustee and Notes Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. It is also understood and agreed that The Bank of New York Mellon Trust Company, N.A. is entering into this Agreement, not in its individual capacity, but solely in its capacities as Initial-1 Additional First Lien Authorized Representative and Initial-1 Additional First Lien Collateral Agent under the Initial-1 Additional First Lien Agreement and the Initial-1 Additional First Lien Security Agreement and solely for the Initial-1 Additional First Lien Secured Parties, and the rights, protections, privileges, indemnities and immunities granted to the trustee and collateral agent under the Initial-1 Additional First Lien Agreement and the Initial-1 Additional First Lien Security Agreement shall inure to the benefit of the Initial-1 Additional First Lien Authorized Representative and the Initial-1 Additional First Lien Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. It is further understood and agreed that The Bank of New York Mellon Trust Company, N.A. is entering into this Agreement, not in its individual capacity, but solely in its capacities as Initial-2 Additional First Lien Authorized Representative and Initial-2 Additional First Lien Collateral Agent under the Initial-2 Additional First Lien Agreement and the Initial-2 Additional First Lien Security Agreement and solely for the Initial-2 Additional First Lien Secured Parties, and the rights, protections, privileges, indemnities and immunities granted to the trustee and collateral agent under the Initial-2 Additional First Lien Agreement and the Initial-2 Additional First Lien Security Agreement shall inure to the benefit of the Initial-2 Additional First Lien Authorized Representative and the Initial-2 Additional First Lien Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. Except as expressly set forth herein, none of the Trustee, the Notes Collateral Agent, the Initial-1 Additional First Lien Collateral Agent, the Initial-1 Additional First Lien Authorized Representative, the Initial-2 Additional First Lien Authorized Representative or the Initial-2 Additional First Lien Collateral Agent shall have any duties or obligations in respect of any of the Collateral, all of such duties and obligations, if any, being subject to and governed by the applicable Secured Credit Documents. The Trustee and the Notes Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the Notes Secured Parties and only then in accordance with the Notes Security Documents. The Initial-1 Additional Authorized Representative and the Initial-1 Additional First Lien Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the holders of the Initial-1 Additional First Lien Obligations and only then in accordance with the Initial-1 Additional First Lien Documents. The Initial-2 Additional Authorized Representative and the Initial-2 Additional First Lien Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the holders of the Initial-2 Additional First Lien Obligations and only then in accordance with the Initial-2 Additional First Lien Documents. For the avoidance of doubt, notwithstanding anything to the contrary contained herein, in no event shall The Bank of New York Mellon Trust Company, N.A. (“BNY”), in any capacity hereunder, (i) be under any obligation to exercise discretion herein, and in any case in which BNY, in any of its capacities hereunder, is to provide consent, make a determination, grant approval, or take any like action that would involve discretion, BNY shall be fully protected in relying conclusively on direction from the applicable requisite holders of the applicable Series of First Lien Obligations. BNY shall (i) not be responsible for the preparation or filing of any financing or continuation statements, or for otherwise maintaining the perfection of the lien in any Collateral hereunder (other than, subject to its rights hereunder and under the Secured Credit Documents and the First Lien Security Document, by maintaining possession of possessory collateral delivered to it in accordance with this Agreement), (ii) be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the BNY has been advised of the likelihood of such loss or damage and regardless of the form of action, or (iii) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, epidemics or pandemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that BNY shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. The recitals contained herein shall be taken as the statements of the Obligors, and BNY assumes no responsibility for their correctness. BNY makes no representations as to the validity or sufficiency of this Agreement.
Appears in 3 contracts
Samples: First Lien Intercreditor Agreement (DISH Network CORP), Indenture Agreement (DISH Network CORP), Indenture (DISH Network CORP)
Agent Capacities. It is understood and agreed that The Bank of New York Mellon Trust Company, N.A. is (a) the Initial Credit Agreement Collateral Agent and the Administrative Agent are entering into this Agreement in their capacities as collateral agent and administrative agent, respectively, under the Initial Credit Agreement and the provisions of Section 12 of the Initial Credit Agreement applicable to the Agents (as defined therein) thereunder shall also apply to the Initial Credit Agreement Collateral Agent and the Administrative Agent hereunder and (b) the Initial Additional Collateral Agent and Initial Additional Senior Representative are entering into this Agreement in their capacities as [ ] and [ ] under the Initial Additional Senior Credit Document and the provisions of Section of the Initial Additional Senior Credit Document applicable to the Agents (as defined therein) thereunder shall also apply to the Initial Additional Collateral Agent and Initial Additional Senior Representative hereunder. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. By: Name: Title: By: Name: Title: By: Name: Title: By: Name: Title: Reference is made to the First Lien Intercreditor Agreement, dated as of the date hereof among HSBC Bank USA, National Association, as Administrative Agent, HSBC Bank USA, National Association, as Initial Credit Agreement Collateral Agent, , as Initial Additional Collateral Agent, and , as Initial Additional Senior Representative (as the same may be amended, restated, supplemented, waived, or otherwise modified from time to time the “Intercreditor Agreement”). Capitalized terms used but not defined in its individual capacitythis Consent of Grantors (this “Consent”) shall have the meanings assigned to such terms in the Intercreditor Agreement. Each Grantor has read the foregoing Intercreditor Agreement and consents thereto. Each Grantor agrees that it will not, but solely and will cause each of the other Grantors to not, take any action that would be contrary to the express provisions of the foregoing Intercreditor Agreement, agrees to abide by the requirements expressly applicable to it under the foregoing Intercreditor Agreement and agrees that, except as otherwise provided therein, no Senior Secured Party shall have any liability to any Grantor for acting in its capacities accordance with the provisions of the foregoing Intercreditor Agreement. Each Grantor confirms on behalf of itself and each other Grantor that the foregoing Intercreditor Agreement is for the sole benefit of the Senior Secured Parties and their respective successors and assigns, and that no Grantor is an intended beneficiary or third party beneficiary thereof except to the extent otherwise expressly provided therein. Notwithstanding anything to the contrary in the Intercreditor Agreement or provided herein, each Grantor agrees that no Grantor shall have any right to consent to or approve any amendment, modification or waiver of any provision of the Intercreditor Agreement except to the extent expressly set forth therein. Without limitation to the foregoing, each Grantor agrees to take, and to cause each other Grantor to take, such further action and to execute and deliver such additional documents and instruments (in recordable form, if requested) as Trustee and Notes the Designated Collateral Agent under may reasonably request to effectuate the Notes Indenture terms of and the Notes Security Documents and solely for lien priorities contemplated by the Notes Secured PartiesIntercreditor Agreement. In addition, each Grantor agrees (i) not to grant a security interest in any of its property (A) except as permitted by the Initial Credit Agreement and the rightsInitial Credit Documents, protections, privileges, indemnities and immunities granted in favor of the Initial Additional Secured Parties without substantially concurrently granting a security interest pari passu with such security interest in such property to the trustee and collateral agent under the Notes Indenture and the Notes Security Documents shall inure to Initial Credit Agreement Collateral Agent for the benefit of the Trustee and Notes Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. It is also understood and agreed that The Bank of New York Mellon Trust Company, N.A. is entering into this Agreement, not in its individual capacity, but solely in its capacities as Initial-1 Additional First Lien Authorized Representative and Initial-1 Additional First Lien Collateral Agent under the Initial-1 Additional First Lien Initial Credit Agreement and the Initial-1 Additional First Lien Security Agreement and solely for the Initial-1 Additional First Lien Secured Parties, and or (B) except as permitted by the rightsInitial Additional Credit Documents, protections, privileges, indemnities and immunities granted in favor of the Initial Credit Agreement Secured Parties (other than funds deposited for the discharge or defeasance of the Initial Credit Agreement Obligations or for the cash collateralization of any Initial Credit Agreement Obligations) without substantially concurrently granting a security interest pari passu with such security interest in such property to the trustee and collateral agent under the Initial-1 Initial Additional First Lien Agreement and the Initial-1 Additional First Lien Security Agreement shall inure to Collateral Agent for the benefit of the Initial-1 Initial Additional First Lien Authorized Representative and the Initial-1 Additional First Lien Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. It is further understood and agreed that The Bank of New York Mellon Trust Company, N.A. is entering into this Agreement, not in its individual capacity, but solely in its capacities as Initial-2 Additional First Lien Authorized Representative and Initial-2 Additional First Lien Collateral Agent under the Initial-2 Additional First Lien Agreement and the Initial-2 Additional First Lien Security Agreement and solely for the Initial-2 Additional First Lien Secured Parties, and (ii) not to grant a security interest in any of the rights, protections, privileges, indemnities and immunities granted Shared Collateral in favor of any Senior Secured Party without substantially concurrently granting a security interest pari passu with such security interest in such Shared Collateral to the trustee and collateral agent under the Initial-2 Additional First Lien Agreement and the Initial-2 Additional First Lien Security Agreement shall inure to each Collateral Agent for the benefit of the Initial-2 Additional Senior Secured Parties represented by such Collateral Agent and (iii) to take such further action as is required to effectuate the transfer of Collateral as contemplated by Section 2.09(a) upon a change in the Designated Collateral Agent. THIS CONSENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS CONSENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. Delivery of an executed signature page to this Consent by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Consent. Notices delivered to any Grantor pursuant to this Consent shall be delivered to the Company at the following address: [Address] IN WITNESS HEREOF, this Consent is hereby executed by each of the Grantors as of the date first written above. By: Name: Title: By: Name: Title: [FORM OF] JOINDER NO. [ ] dated as of [ ], 20[ ] (the “Joinder Agreement”) to the First Lien Authorized Representative and Intercreditor Agreement dated as of [ ], 20[ ], (the Initial-2 Additional “First Lien Collateral Agent herein in such capacities hereunderIntercreditor Agreement”), and such rightsHSBC Bank USA, protectionsNational Association, privilegesas Administrative Agent, indemnities and immunities are incorporated by reference hereinHSBC Bank USA, mutatis mutandis. Except National Association, as expressly set forth herein, none of the Trustee, the Notes Initial Credit Agreement Collateral Agent, the Initial-1 , as Initial Additional First Lien Collateral Agent, the Initial-1 , as Initial Additional First Lien Authorized Senior Representative, and the Initial-2 Additional First Lien Authorized Representative or the Initial-2 Additional First Lien Collateral Agent shall have any duties or obligations in respect of any of the Collateral, all of such duties additional Senior Representatives from time to time a party thereto and obligations, if any, being subject consented to and governed by the applicable Secured Credit Documents. The Trustee and the Notes Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the Notes Secured Parties and only then in accordance with the Notes Security Documents. The Initial-1 Additional Authorized Representative and the Initial-1 Additional First Lien Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the holders of the Initial-1 Additional First Lien Obligations and only then in accordance with the Initial-1 Additional First Lien Documents. The Initial-2 Additional Authorized Representative and the Initial-2 Additional First Lien Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the holders of the Initial-2 Additional First Lien Obligations and only then in accordance with the Initial-2 Additional First Lien Documents. For the avoidance of doubt, notwithstanding anything to the contrary contained herein, in no event shall The Bank of New York Mellon Trust Company, N.A. (“BNY”), in any capacity hereunder, (i) be under any obligation to exercise discretion herein, and in any case in which BNY, in any of its capacities hereunder, is to provide consent, make a determination, grant approval, or take any like action that would involve discretion, BNY shall be fully protected in relying conclusively on direction from the applicable requisite holders of the applicable Series of First Lien Obligations. BNY shall (i) not be responsible for the preparation or filing of any financing or continuation statements, or for otherwise maintaining the perfection of the lien in any Collateral hereunder (other than, subject to its rights hereunder and under the Secured Credit Documents and the First Lien Security Document, by maintaining possession of possessory collateral delivered to it in accordance with this Agreement), (ii) be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the BNY has been advised of the likelihood of such loss or damage and regardless of the form of action, or (iii) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, epidemics or pandemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that BNY shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. The recitals contained herein shall be taken as the statements of the Obligors, and BNY assumes no responsibility for their correctness. BNY makes no representations as to the validity or sufficiency of this Agreement.Grantors.1
Appears in 2 contracts
Samples: Credit Agreement (Vine Resources Inc.), Credit Agreement (Vine Resources Inc.)
Agent Capacities. It is understood and agreed that The Bank of New York Mellon Trust Company, N.A. is (a) the Initial Credit Agreement Collateral Agent and the Administrative Agent are entering into this Agreement in their capacities as collateral agent and administrative agent, respectively, under the Initial Credit Agreement and the provisions of Section 12 of the Initial Credit Agreement applicable to the Agents (as defined therein) thereunder shall also apply to the Initial Credit Agreement Collateral Agent and the Administrative Agent hereunder and (b) the Initial Additional Collateral Agent and Initial Additional Senior Representative are entering into this Agreement in their capacities as [ ] and [ ] under the Initial Additional Senior Credit Document and the provisions of Section of the Initial Additional Senior Credit Document applicable to the Agents (as defined therein) thereunder shall also apply to the Initial Additional Collateral Agent and Initial Additional Senior Representative hereunder. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. , as Initial Additional Collateral Agent By: Name: Title: , as Initial Additional Senior Representative By: Name: Title: By: Name: Title: By: Name: Title: Reference is made to the First Lien Intercreditor Agreement, dated as of the date hereof among HSBC Bank USA, National Association, as Administrative Agent, HSBC Bank USA, National Association, as Initial Credit Agreement Collateral Agent, , as Initial Additional Collateral Agent, and , as Initial Additional Senior Representative (as the same may be amended, restated, supplemented, waived, or otherwise modified from time to time the “Intercreditor Agreement”). Capitalized terms used but not defined in its individual capacitythis Consent of Grantors (this “Consent”) shall have the meanings assigned to such terms in the Intercreditor Agreement. Each Grantor has read the foregoing Intercreditor Agreement and consents thereto. Each Grantor agrees that it will not, but solely and will cause each of the other Grantors to not, take any action that would be contrary to the express provisions of the foregoing Intercreditor Agreement, agrees to abide by the requirements expressly applicable to it under the foregoing Intercreditor Agreement and agrees that, except as otherwise provided therein, no Senior Secured Party shall have any liability to any Grantor for acting in its capacities accordance with the provisions of the foregoing Intercreditor Agreement. Each Grantor confirms on behalf of itself and each other Grantor that the foregoing Intercreditor Agreement is for the sole benefit of the Senior Secured Parties and their respective successors and assigns, and that no Grantor is an intended beneficiary or third party beneficiary thereof except to the extent otherwise expressly provided therein. Notwithstanding anything to the contrary in the Intercreditor Agreement or provided herein, each Grantor agrees that no Grantor shall have any right to consent to or approve any amendment, modification or waiver of any provision of the Intercreditor Agreement except to the extent expressly set forth therein. Without limitation to the foregoing, each Grantor agrees to take, and to cause each other Grantor to take, such further action and to execute and deliver such additional documents and instruments (in recordable form, if requested) as Trustee and Notes the Designated Collateral Agent under may reasonably request to effectuate the Notes Indenture terms of and the Notes Security Documents and solely for lien priorities contemplated by the Notes Secured PartiesIntercreditor Agreement. In addition, each Grantor agrees (i) not to grant a security interest in any of its property (A) except as permitted by the Initial Credit Agreement and the rightsInitial Credit Documents, protections, privileges, indemnities and immunities granted in favor of the Initial Additional Secured Parties without substantially concurrently granting a security interest pari passu with such security interest in such property to the trustee and collateral agent under the Notes Indenture and the Notes Security Documents shall inure to Initial Credit Agreement Collateral Agent for the benefit of the Trustee and Notes Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. It is also understood and agreed that The Bank of New York Mellon Trust Company, N.A. is entering into this Agreement, not in its individual capacity, but solely in its capacities as Initial-1 Additional First Lien Authorized Representative and Initial-1 Additional First Lien Collateral Agent under the Initial-1 Additional First Lien Initial Credit Agreement and the Initial-1 Additional First Lien Security Agreement and solely for the Initial-1 Additional First Lien Secured Parties, and or (B) except as permitted by the rightsInitial Additional Credit Documents, protections, privileges, indemnities and immunities granted in favor of the Initial Credit Agreement Secured Parties (other than funds deposited for the discharge or defeasance of the Initial Credit Agreement Obligations or for the cash collateralization of any Initial Credit Agreement Obligations) without substantially concurrently granting a security interest pari passu with such security interest in such property to the trustee and collateral agent under the Initial-1 Initial Additional First Lien Agreement and the Initial-1 Additional First Lien Security Agreement shall inure to Collateral Agent for the benefit of the Initial-1 Initial Additional First Lien Authorized Representative and the Initial-1 Additional First Lien Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. It is further understood and agreed that The Bank of New York Mellon Trust Company, N.A. is entering into this Agreement, not in its individual capacity, but solely in its capacities as Initial-2 Additional First Lien Authorized Representative and Initial-2 Additional First Lien Collateral Agent under the Initial-2 Additional First Lien Agreement and the Initial-2 Additional First Lien Security Agreement and solely for the Initial-2 Additional First Lien Secured Parties, and (ii) not to grant a security interest in any of the rights, protections, privileges, indemnities and immunities granted Shared Collateral in favor of any Senior Secured Party without substantially concurrently granting a security interest pari passu with such security interest in such Shared Collateral to the trustee and collateral agent under the Initial-2 Additional First Lien Agreement and the Initial-2 Additional First Lien Security Agreement shall inure to each Collateral Agent for the benefit of the Initial-2 Additional Senior Secured Parties represented by such Collateral Agent and (iii) to take such further action as is required to effectuate the transfer of Collateral as contemplated by Section 2.09(a) upon a change in the Designated Collateral Agent. THIS CONSENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS CONSENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. Delivery of an executed signature page to this Consent by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Consent. Notices delivered to any Grantor pursuant to this Consent shall be delivered to the Company at the following address: [Address] IN WITNESS HEREOF, this Consent is hereby executed by each of the Grantors as of the date first written above. By: Name: Title: , as a Grantor By: Name: Title: [FORM OF] JOINDER NO. [ ] dated as of [ ], 20[ ] (the “Joinder Agreement”) to the First Lien Authorized Representative Intercreditor Agreement dated as of [ ], 20[ ], (the “First Lien Intercreditor Agreement”), HSBC Bank USA, National Association, as Administrative Agent, HSBC Bank USA, National Association, as Initial Credit Agreement Collateral Agent, , as Initial Additional Collateral Agent, , as Initial Additional Senior Representative, and the Initial-2 Additional additional Senior Representatives from time to time a party thereto and consented to by the Grantors.1
A. Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the First Lien Intercreditor Agreement.
B. As a condition to the ability of the Borrower and the other Grantors to incur Additional Senior Class Debt and to secure such Additional Senior Class Debt with the liens and security interests on Shared Collateral created by new Other First Lien Security Documents, the Additional Senior Class Debt Senior Representative in respect of such Additional Senior Class Debt is required to become a Senior Representative, and the Additional Senior Class Debt Collateral Agent herein in such capacities hereunderis required to become a Collateral Agent, and such rightsAdditional Senior Class Debt and the Additional Senior Class Debt Secured Parties in respect thereof are required to become subject to and bound by, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandisthe First Lien Intercreditor Agreement. Except as expressly set forth herein, none Section 5.14 of the TrusteeFirst Lien Intercreditor Agreement provides that such Additional Senior Class Debt Senior Representative may become a Senior Representative, the Notes such Additional Senior Class Debt Collateral Agent may become a Collateral Agent, the Initial-1 and such Additional First Lien Collateral Agent, the Initial-1 Senior Class Debt and such Additional First Lien Authorized Representative, the Initial-2 Additional First Lien Authorized Representative or the Initial-2 Additional First Lien Collateral Agent shall have any duties or obligations in respect of any of the Collateral, all of such duties and obligations, if any, being Senior Class Debt Secured Parties may become subject to and governed bound by the applicable Secured Credit DocumentsFirst Lien Intercreditor Agreement pursuant to the execution and delivery by the Additional Senior Class Debt Senior Representative of an instrument in the form of this Joinder Agreement and the satisfaction of the other conditions set forth in Section 5.14 of the First Lien Intercreditor Agreement. The Trustee undersigned Additional Senior Class Debt Senior Representative (the “New Representative”) and the Notes Additional Senior Class Debt Collateral Agent shall have no liability for any actions in any role under (the “New Collateral Agent”) are executing this Joinder Agreement to anyone other than the Notes Secured Parties and only then in accordance with the Notes Security requirements of the First Lien Intercreditor Agreement and the Collateral Documents. The Initial-1 Additional Authorized Accordingly, the New Representative and the Initial-1 Additional New Collateral Agent agree as follows:
SECTION 1. In accordance with Section 5.14 of the First Lien Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than Intercreditor Agreement, the holders of the Initial-1 Additional First Lien Obligations and only then in accordance with the Initial-1 Additional First Lien Documents. The Initial-2 Additional Authorized New Representative and the Initial-2 Additional First Lien New Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the holders of the Initial-2 Additional First Lien Obligations by their signatures below become a Senior Representative and only then in accordance with the Initial-2 Additional First Lien Documents. For the avoidance of doubta Collateral Agent, notwithstanding anything to the contrary contained hereinrespectively, in no event shall The Bank of New York Mellon Trust Company, N.A. (“BNY”), in any capacity hereunder, (i) be under any obligation to exercise discretion hereinunder, and in any case in which BNY, in any of its capacities hereunder, is to provide consent, make a determination, grant approval, or take any like action that would involve discretion, BNY shall be fully protected in relying conclusively on direction from the applicable requisite holders of the applicable Series of First Lien Obligations. BNY shall (i) not be responsible for the preparation or filing of any financing or continuation statements, or for otherwise maintaining the perfection of the lien in any Collateral hereunder (other than, related Additional Senior Class Debt and Additional Senior Class Debt Secured Parties become subject to its rights hereunder and under the Secured Credit Documents and bound by, the First Lien Security DocumentIntercreditor Agreement with the same force and effect as if the New Representative and New Collateral Agent had originally been named therein as a Senior Representative or a Collateral Agent, by maintaining possession respectively, and the New Representative and the New Collateral Agent, on their behalf and on behalf of possessory collateral delivered such Additional Senior Class Debt Secured Parties, hereby agree to it in accordance with this Agreement), (ii) be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether all the BNY has been advised terms and provisions of the likelihood of such loss or damage First Lien Intercreditor Agreement applicable to them as Senior Representative and regardless Collateral Agent, respectively, and to the Additional Senior Class Debt Secured Parties that they represent as Other Senior Secured Parties. Each reference to an “Senior Representative” in the First Lien Intercreditor Agreement shall be deemed to include the New Representative, and each reference to a “Collateral Agent” in the First Lien Intercreditor Agreement shall be deemed to include the New Collateral Agent. The First Lien Intercreditor Agreement is hereby incorporated herein by reference. 1 In the event of the form of action, or (iii) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, epidemics or pandemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that BNY shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. The recitals contained herein shall be taken as the statements Refinancing of the ObligorsInitial Credit Agreement Obligations, and BNY assumes no responsibility for their correctness. BNY makes no representations as this Joinder will be revised to the validity or sufficiency of this Agreementreflect joinder by a new Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Vine Resources Inc.), Credit Agreement (Vine Resources Inc.)
Agent Capacities. It is understood and agreed that The Bank of New York Mellon Trust Company, N.A. that:
(a) (i) DB is entering into this Agreement, not in its individual capacity, but Agreement solely in its capacities capacity as Trustee and Notes Collateral the First Lien Facility Agent under the Notes Indenture and the Notes Security Documents and solely for Applicable First Lien Agent, (ii) the Notes Secured Partiesprovisions of the First Lien Credit Agreement affording rights, and the rightsprivileges, protections, privilegesimmunities and indemnities to DB as administrative agent thereunder, indemnities and immunities granted including the provisions of the First Lien Credit Agreement applicable to the trustee and collateral DB as administrative agent under the Notes Indenture thereunder shall also apply to DB as First Lien Facility Agent and the Notes Security Documents shall inure to the benefit of the Trustee and Notes Collateral Applicable First Lien Agent herein in such capacities hereunder, and such rights(iii) in no event shall DB incur any liability in connection with this Agreement or be liable for or on account of the statements, protectionsrepresentations, privilegeswarranties, indemnities and immunities are incorporated by reference herein, mutatis mutandis. It is also understood and agreed that The Bank covenants or obligations stated to be those of New York Mellon Trust Company, N.A. is entering into this Agreement, not in its individual capacity, but solely in its capacities as Initial-1 Additional the First Lien Authorized Representative and Initial-1 Additional Facility Agent or any First Lien Collateral Agent under the Initial-1 Additional First Lien Agreement and the Initial-1 Additional First Lien Security Agreement and solely for the Initial-1 Additional First Lien Obligations Secured Parties, and the rights, protections, privileges, indemnities and immunities granted to the trustee and collateral agent under the Initial-1 Additional First Lien Agreement and the Initial-1 Additional First Lien Security Agreement shall inure to the benefit of the Initial-1 Additional First Lien Authorized Representative and the Initial-1 Additional First Lien Collateral Agent herein in such capacities Party hereunder, and all such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. It is further understood and agreed that The Bank of New York Mellon Trust Company, N.A. is entering into this Agreement, not in its individual capacity, but solely in its capacities as Initial-2 Additional First Lien Authorized Representative and Initial-2 Additional First Lien Collateral Agent under the Initial-2 Additional First Lien Agreement and the Initial-2 Additional First Lien Security Agreement and solely for the Initial-2 Additional First Lien Secured Parties, and the rights, protections, privileges, indemnities and immunities granted to the trustee and collateral agent under the Initial-2 Additional First Lien Agreement and the Initial-2 Additional First Lien Security Agreement shall inure to the benefit of the Initial-2 Additional First Lien Authorized Representative and the Initial-2 Additional First Lien Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. Except as expressly set forth herein, none of the Trustee, the Notes Collateral Agent, the Initial-1 Additional First Lien Collateral Agent, the Initial-1 Additional First Lien Authorized Representative, the Initial-2 Additional First Lien Authorized Representative or the Initial-2 Additional First Lien Collateral Agent shall have any duties or obligations in respect of any of the Collateral, all of such duties and obligationsliability, if any, being subject to and governed expressly waived by the applicable Secured Credit Documents. The Trustee parties hereto and any person claiming by, through or under such party; and
(b) (i) US Bank is entering into this Agreement solely in its capacity as the Junior Lien Notes Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the Notes Secured Parties and only then in accordance with the Notes Security Documents. The Initial-1 Additional Authorized Representative and the Initial-1 Additional First Applicable Junior Lien Collateral Agent shall have no liability for any actions and pursuant to directions set forth in any role under this Agreement to anyone other than the holders of the Initial-1 Additional First Junior Lien Obligations and only then in accordance with the Initial-1 Additional First Lien Documents. The Initial-2 Additional Authorized Representative and the Initial-2 Additional First Lien Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the holders of the Initial-2 Additional First Lien Obligations and only then in accordance with the Initial-2 Additional First Lien Documents. For the avoidance of doubt, notwithstanding anything to the contrary contained herein, in no event shall The Bank of New York Mellon Trust Company, N.A. (“BNY”), in any capacity hereunder, (i) be under any obligation to exercise discretion hereinNotes Indenture, and in any case in which BNYso doing, in any of its capacities hereunder, is to provide consent, make a determination, grant approval, or take any like action that would involve discretion, BNY shall be fully protected in relying conclusively on direction from the applicable requisite holders of the applicable Series of First Lien Obligations. BNY shall (i) not be responsible for the preparation terms or filing sufficiency of this Agreement for any financing or continuation statements, or for otherwise maintaining the perfection of the lien in any Collateral hereunder (other than, subject to its rights hereunder and under the Secured Credit Documents and the First Lien Security Document, by maintaining possession of possessory collateral delivered to it in accordance with this Agreement)purpose, (ii) the US Bank shall not have duties or obligations under or pursuant to this Agreement other than such duties or obligations expressly set forth in this Agreement as duties or obligations on its part to be responsible performed or liable for specialobserved, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the BNY has been advised of the likelihood of such loss or damage and regardless of the form of action, or (iii) the provisions of the Junior Lien Notes Indenture affording rights, privileges, protections, immunities and indemnities to US Bank thereunder shall also apply to US Bank as Junior Lien Notes Collateral Agent and the Applicable Junior Lien Agent hereunder, and (iv) in no event shall US Bank incur any liability in connection with this Agreement or be responsible or personally liable for or on account of the statements, representations, warranties, covenants or obligations stated to be those of the Junior Lien Notes Collateral Agent or any failure or delay in Junior Lien Obligations Secured Party hereunder, all such liability, if any, being expressly waived by the performance of its obligations hereunder arising out of or caused parties hereto and any person claiming by, directly through or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, epidemics or pandemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that BNY shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. The recitals contained herein shall be taken as the statements of the Obligors, and BNY assumes no responsibility for their correctness. BNY makes no representations as to the validity or sufficiency of this Agreementsuch party.
Appears in 1 contract
Agent Capacities. It is understood and agreed that The Bank of New York Mellon Trust Company, N.A. is entering into this Agreement, not in its individual capacity, but solely in its capacities as Trustee and Notes Collateral Agent under the Notes Indenture and the Notes Security Documents and solely for the Notes Secured Parties, and the rights, protections, privileges, indemnities and immunities granted to the trustee and collateral agent under the Notes Indenture and the Notes Security Documents shall inure to the benefit of the Trustee and Notes Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. It is also understood and agreed that The Bank of New York Mellon Trust Company, N.A. is entering into this Agreement, not in its individual capacity, but solely in its capacities as Initial-1 Additional First Lien Authorized Representative and Initial-1 Additional First Lien Collateral Agent under the Initial-1 Additional First Lien Agreement and the Initial-1 Additional First Lien Security Agreement and solely for the Initial-1 Additional First Lien Secured Parties, and the rights, protections, privileges, indemnities and immunities granted to the trustee and collateral agent under the Initial-1 Additional First Lien Agreement and the Initial-1 Additional First Lien Security Agreement shall inure to the benefit of the Initial-1 Additional First Lien Authorized Representative and the Initial-1 Additional First Lien Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. It is further understood and agreed that The Bank of New York Mellon Trust Company, N.A. is entering into this Agreement, not in its individual capacity, but solely in its capacities as Initial-2 Additional First Lien Authorized Representative and Initial-2 Additional First Lien Collateral Agent under the Initial-2 Additional First Lien Agreement and the Initial-2 Additional First Lien Security Agreement and solely for the Initial-2 Additional First Lien Secured Parties, and the rights, protections, privileges, indemnities and immunities granted to the trustee and collateral agent under the Initial-2 Additional First Lien Agreement and the Initial-2 Additional First Lien Security Agreement shall inure to the benefit of the Initial-2 Additional First Lien Authorized Representative and the Initial-2 Additional First Lien Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. Except as expressly set forth herein, none of the Trustee, the Notes ABL Facility Collateral Agent, the Initial-1 Additional First Lien Collateral Facility Agent, the Initial-1 Additional Junior Lien Obligations Agents, the ABL Xxxx Xxxx Obligations Agents, the Other First Lien Authorized Representative, Obligations Agents and the Initial-2 Additional First Other Junior Lien Authorized Representative or the Initial-2 Additional First Lien Collateral Agent Obligations Agents shall not have any duties or obligations in respect of any of the Collateral, all of such duties and obligations, if any, being subject to and governed by the applicable Secured Credit ABL Obligations Documents. The Trustee and the Notes Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the Notes Secured Parties and only then in accordance with the Notes Security Documents. The Initial-1 Additional Authorized Representative and the Initial-1 Additional First Lien Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the holders of the Initial-1 Additional , First Lien Obligations and only then in accordance with the Initial-1 Additional First Lien Documents. The Initial-2 Additional Authorized Representative and the Initial-2 Additional First Lien Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the holders of the Initial-2 Additional First Documents or Junior Lien Obligations Documents, as the case may be. It is understood and only then in accordance with the Initial-2 Additional First Lien Documents. For the avoidance of doubt, notwithstanding anything to the contrary contained herein, in no event shall The Bank of New York Mellon Trust Company, N.A. (“BNY”), in any capacity hereunder, agreed that (i) be JPM is entering into this Agreement in its capacity as administrative agent and collateral agent under any obligation to exercise discretion hereinthe ABL Facility, and in any case in which BNY, in any of its capacities the ABL Credit Agreement applicable to JPM as administrative agent and collateral agent thereunder shall also apply to JPM as the Applicable ABL Obligations Representative hereunder, is to provide consent, make a determination, grant approval, or take any like action that would involve discretion, BNY shall be fully protected in relying conclusively on direction from the applicable requisite holders of the applicable Series of First Lien Obligations. BNY shall (i) not be responsible for the preparation or filing of any financing or continuation statements, or for otherwise maintaining the perfection of the lien in any Collateral hereunder (other than, subject to its rights hereunder and under the Secured Credit Documents and the First Lien Security Document, by maintaining possession of possessory collateral delivered to it in accordance with this Agreement), (ii) be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether DB is entering into this Agreement in its capacity as administrative agent and collateral agent under the BNY has been advised First Lien Credit Agreement and the provisions of the likelihood of such loss or damage First Lien Credit Agreement applicable to DB as administrative agent and regardless of the form of action, or collateral agent thereunder shall also apply to DB hereunder and (iii) be responsible or liable for any failure or delay US Bank is entering into this Agreement in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, epidemics or pandemics, nuclear or natural catastrophes or acts of God, capacity as trustee and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that BNY shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable collateral agent under the circumstancesJunior Lien Notes Indenture and the provisions of the Junior Lien Notes Indenture applicable to US Bank as trustee and collateral agent thereunder shall also apply to US Bank hereunder. The recitals contained herein shall be taken as the statements ABL Facility Collateral Agent on behalf of the Obligors, ABL Facility Obligations Secured Parties and BNY assumes no responsibility for their correctness. BNY makes no representations each ABL Xxxx Xxxx Obligations Agent on behalf of the ABL Xxxx Xxxx Obligations Secured Parties hereby irrevocably designates and appoints the Applicable ABL Obligations Representative under this Agreement and to exercise such powers and perform such duties as are expressly delegated to the validity or sufficiency Applicable ABL Obligations Representative, together with such powers as are reasonably incidental thereto. The First Lien Facility Agent on behalf of the First Lien Facility Obligations Secured Parties, the Junior Lien Notes Collateral Agent on behalf of the Junior Lien Notes Obligations Secured Parties, each Other First Lien Obligations Agent on behalf of the Other First Lien Obligations Secured Parties and each Other Junior Lien Obligations Agent on behalf of the Other Junior Lien Obligations Secured Parties hereby irrevocably designates and appoints the First Lien/Junior Lien Intercreditor Representative under this AgreementAgreement and to exercise such powers and perform such duties as are expressly delegated to the First Lien/Junior Lien Intercreditor Representative, together with such powers as are reasonably incidental thereto. The provisions of the First Lien Credit Agreement applicable to DB as administrative agent and collateral agent thereunder shall also apply to DB as First Lien/Junior Lien Intercreditor Representative and the provisions of the Junior Lien Notes Indenture applicable to US Bank as trustee and collateral agent thereunder shall also apply to DB as First Lien/Junior Lien Intercreditor Representative.
Appears in 1 contract
Agent Capacities. It Except as expressly provided herein or in the Credit Agreement Security Documents, JPMCB is understood acting in the capacities of Administrative Agent and agreed that The Bank of New York Mellon Credit Agreement Collateral Agent solely for the Credit Agreement Secured Parties. Except as expressly provided herein or in the Additional Pari Passu Security Documents, Wilmington Trust Company, N.A. is entering into this Agreement, acting herein not in its individual capacity, but solely (i) when acting as Additional Pari Passu Collateral Agent, in its capacities capacity as Trustee and Notes Collateral Agent under the Notes Indenture and the Notes Security Documents and solely for the Notes Secured Parties, and the rights, protections, privileges, indemnities and immunities granted to the trustee and collateral agent under the Notes Indenture and the Notes Security Documents shall inure to the benefit of the Trustee and Notes Collateral Agent herein in such capacities hereunderInitial Additional Pari Passu Agreement, and such rights(ii) when acting as the Initial Additional Authorized Representative, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. It is also understood and agreed that The Bank of New York Mellon Trust Company, N.A. is entering into this in its capacity as Trustee under the Initial Additional Pari Passu Agreement, not in its individual capacity, but solely in its capacities as Initial-1 Additional First Lien Authorized Representative and Initial-1 Additional First Lien Collateral Agent under the Initial-1 Additional First Lien Agreement and the Initial-1 Additional First Lien Security Agreement and solely for the Initial-1 Additional First Lien Pari Passu Secured Parties, and the rights, protections, privileges, indemnities and immunities granted to the trustee and collateral agent under the Initial-1 Additional First Lien Agreement and the Initial-1 Additional First Lien Security Agreement shall inure to the benefit of the Initial-1 Additional First Lien Authorized Representative and the Initial-1 Additional First Lien Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. It is further understood and agreed that The Bank of New York Mellon Trust Company, N.A. is entering into this Agreement, not in its individual capacity, but solely in its capacities as Initial-2 Additional First Lien Authorized Representative and Initial-2 Additional First Lien Collateral Agent under the Initial-2 Additional First Lien Agreement and the Initial-2 Additional First Lien Security Agreement and solely for the Initial-2 Additional First Lien Secured Parties, and the rights, protections, privileges, indemnities and immunities granted to the trustee and collateral agent under the Initial-2 Additional First Lien Agreement and the Initial-2 Additional First Lien Security Agreement shall inure to the benefit of the Initial-2 Additional First Lien Authorized Representative and the Initial-2 Additional First Lien Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. Except as expressly set forth herein, none of the TrusteeAdministrative Agent, the Notes Credit Agreement Collateral Agent, the Initial-1 Additional First Lien Pari Passu Collateral Agent, Agent or the Initial-1 Initial Additional First Lien Authorized Representative, the Initial-2 Additional First Lien Pari Passu Authorized Representative or the Initial-2 Additional First Lien Collateral Agent shall have any duties or obligations in respect of any of the Collateral, all of such duties and obligations, if any, being subject to and governed by the applicable Secured Credit Documents. The Trustee It is understood and agreed that (i) JPMCB is entering into this Agreement solely its capacities as Administrative Agent and collateral agent under the Credit Agreement and the Notes provisions of the Credit Agreement applicable to it as Administrative Agent and collateral agent thereunder shall also apply to it as the Credit Agreement Collateral Agent shall have no liability and Authorized Representative for any actions in any role under the Credit Agreement Secured Parties hereunder and (ii) Wilmington Trust is entering into this Agreement in its capacities as trustee and collateral agent under the Initial Additional Pari Passu Agreement and the provisions of the Initial Additional Pari Passu Agreement granting or extending any rights, protections, privileges, indemnities and immunities to anyone other than Wilmington Trust thereunder shall also apply to its acting as Initial Additional Pari Passu Collateral Agent and Initial Additional Authorized Representative hereunder. Whenever the Notes Secured Parties and only then Initial Additional Authorized Representative is the Applicable Authorized Representative hereunder, the Initial Additional Authorized Representative shall direct the Additional Pari Passu Collateral Agent to act or refrain from acting all in accordance with the Notes Security Documents. The Initial-1 Additional Authorized Representative and the Initial-1 Additional First Lien Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the holders terms of the Initial-1 Initial Additional First Lien Obligations and only then in accordance with the Initial-1 Additional First Lien Documents. The Initial-2 Additional Authorized Representative and the Initial-2 Additional First Lien Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the holders of the Initial-2 Additional First Lien Obligations and only then in accordance with the Initial-2 Additional First Lien Documents. For the avoidance of doubt, notwithstanding anything to the contrary contained herein, in no event shall The Bank of New York Mellon Trust Company, N.A. (“BNY”), in any capacity hereunder, (i) be under any obligation to exercise discretion herein, and in any case in which BNY, in any of its capacities hereunder, is to provide consent, make a determination, grant approval, or take any like action that would involve discretion, BNY shall be fully protected in relying conclusively on direction from the applicable requisite holders of the applicable Series of First Lien Obligations. BNY shall (i) not be responsible for the preparation or filing of any financing or continuation statements, or for otherwise maintaining the perfection of the lien in any Collateral hereunder (other than, subject to its rights hereunder and under the Secured Credit Documents and the First Lien Security Document, by maintaining possession of possessory collateral delivered to it in accordance with this Agreement), (ii) be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the BNY has been advised of the likelihood of such loss or damage and regardless of the form of action, or (iii) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, epidemics or pandemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that BNY shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. The recitals contained herein shall be taken as the statements of the Obligors, and BNY assumes no responsibility for their correctness. BNY makes no representations as to the validity or sufficiency of this Pari Passu Agreement.
Appears in 1 contract
Agent Capacities. It Except as expressly provided herein or in the Credit Agreement Security Documents, JPMCB is understood acting in the capacities of Administrative Agent and agreed that The Bank of New York Mellon Credit Agreement Collateral Agent solely for the Credit Agreement Secured Parties. Except as expressly provided herein or in the Additional Pari Passu Security Documents, Wilmington Trust Company, N.A. is entering into this Agreement, acting herein not in its individual capacity, but solely (i) when acting as Additional Pari Passu Collateral Agent, in its capacities capacity as Trustee and Notes Collateral Agent under the Notes Indenture and the Notes Security Documents and solely for the Notes Secured Parties, and the rights, protections, privileges, indemnities and immunities granted to the trustee and collateral agent under the Notes Indenture and the Notes Security Documents shall inure to the benefit of the Trustee and Notes Collateral Agent herein in such capacities hereunderInitial Additional Pari Passu Agreement, and such rights(ii) when acting as the Initial Additional Authorized Representative, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. It is also understood and agreed that The Bank of New York Mellon Trust Company, N.A. is entering into this in its capacity as Trustee under the Initial Additional Pari Passu Agreement, not in its individual capacity, but solely in its capacities as Initial-1 Additional First Lien Authorized Representative and Initial-1 Additional First Lien Collateral Agent under the Initial-1 Additional First Lien Agreement and the Initial-1 Additional First Lien Security Agreement and solely for the Initial-1 Additional First Lien Pari Passu Secured Parties, and the rights, protections, privileges, indemnities and immunities granted to the trustee and collateral agent under the Initial-1 Additional First Lien Agreement and the Initial-1 Additional First Lien Security Agreement shall inure to the benefit of the Initial-1 Additional First Lien Authorized Representative and the Initial-1 Additional First Lien Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. It is further understood and agreed that The Bank of New York Mellon Trust Company, N.A. is entering into this Agreement, not in its individual capacity, but solely in its capacities as Initial-2 Additional First Lien Authorized Representative and Initial-2 Additional First Lien Collateral Agent under the Initial-2 Additional First Lien Agreement and the Initial-2 Additional First Lien Security Agreement and solely for the Initial-2 Additional First Lien Secured Parties, and the rights, protections, privileges, indemnities and immunities granted to the trustee and collateral agent under the Initial-2 Additional First Lien Agreement and the Initial-2 Additional First Lien Security Agreement shall inure to the benefit of the Initial-2 Additional First Lien Authorized Representative and the Initial-2 Additional First Lien Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. Except as expressly set forth herein, none of the TrusteeAdministrative Agent, the Notes Credit Agreement Collateral Agent, the Initial-1 Additional First Lien Pari Passu Collateral Agent, Agent or the Initial-1 Initial Additional First Lien Authorized Representative, the Initial-2 Additional First Lien Pari Passu Authorized Representative or the Initial-2 Additional First Lien Collateral Agent shall have any duties or obligations in respect of any of the Collateral, all of such duties and obligations, if any, being subject to and governed by the applicable Secured Credit DocumentsDocuments. The Trustee It is understood and agreed that (i) JPMCB is entering into this Agreement solely its capacities as Administrative Agent and collateral agent under the Credit Agreement and the Notes provisions of the Credit Agreement applicable to it as Administrative Agent and collateral agent thereunder shall also apply to it as the Credit Agreement Collateral Agent shall have no liability and Authorized Representative for any actions in any role under the Credit Agreement Secured Parties hereunder and (ii) Wilmington Trust is entering into this Agreement in its capacities as trustee and collateral agent under the Initial Additional Pari Passu Agreement and the provisions of the Initial Additional Pari Passu Agreement granting or extending any rights, protections, privileges, indemnities and immunities to anyone other than Wilmington Trust thereunder shall also apply to its acting as Initial Additional Pari Passu Collateral Agent and Initial Additional Authorized Representative hereunder. Whenever the Notes Secured Parties and only then Initial Additional Authorized Representative is the Applicable Authorized Representative hereunder, the Initial Additional Authorized Representative shall direct the Additional Pari Passu Collateral Agent to act or refrain from acting all in accordance with the Notes Security Documents. The Initial-1 Additional Authorized Representative and the Initial-1 Additional First Lien Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the holders terms of the Initial-1 Initial Additional First Lien Obligations and only then in accordance with the Initial-1 Additional First Lien Documents. The Initial-2 Additional Authorized Representative and the Initial-2 Additional First Lien Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the holders of the Initial-2 Additional First Lien Obligations and only then in accordance with the Initial-2 Additional First Lien Documents. For the avoidance of doubt, notwithstanding anything to the contrary contained herein, in no event shall The Bank of New York Mellon Trust Company, N.A. (“BNY”), in any capacity hereunder, (i) be under any obligation to exercise discretion herein, and in any case in which BNY, in any of its capacities hereunder, is to provide consent, make a determination, grant approval, or take any like action that would involve discretion, BNY shall be fully protected in relying conclusively on direction from the applicable requisite holders of the applicable Series of First Lien Obligations. BNY shall (i) not be responsible for the preparation or filing of any financing or continuation statements, or for otherwise maintaining the perfection of the lien in any Collateral hereunder (other than, subject to its rights hereunder and under the Secured Credit Documents and the First Lien Security Document, by maintaining possession of possessory collateral delivered to it in accordance with this Agreement), (ii) be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the BNY has been advised of the likelihood of such loss or damage and regardless of the form of action, or (iii) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, epidemics or pandemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that BNY shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. The recitals contained herein shall be taken as the statements of the Obligors, and BNY assumes no responsibility for their correctness. BNY makes no representations as to the validity or sufficiency of this Pari Passu Agreement.
Appears in 1 contract
Samples: Pari Passu Intercreditor Agreement (Burlington Stores, Inc.)
Agent Capacities. It is understood and agreed that The Bank of New York Mellon Trust CompanyExcept as expressly provided herein or in the Credit Agreement Collateral Documents, JPMorgan Chase Bank, N.A. is entering into this Agreement, not acting in its individual capacity, but solely in its the capacities as Trustee of Administrative Agent and Notes Credit Agreement Collateral Agent under the Notes Indenture and the Notes Security Documents and solely for the Notes Credit Agreement Secured Parties. Except as expressly provided herein or in the Additional Pari Security Documents, and U.S. Bank National Association is acting in the rights, protections, privileges, indemnities and immunities granted to the trustee and collateral agent under the Notes Indenture and the Notes Security Documents shall inure to the benefit capacity of the Trustee and Notes Initial Additional Pari Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. It is also understood and agreed that The Bank of New York Mellon Trust Company, N.A. is entering into this Agreement, not in its individual capacity, but solely in its capacities as Initial-1 Initial Additional First Lien Authorized Representative and Initial-1 Additional First Lien Collateral Agent under the Initial-1 Additional First Lien Agreement and the Initial-1 Additional First Lien Security Agreement and solely for the Initial-1 Initial Additional First Lien Pari Secured Parties, Parties and the rights, protections, privileges, indemnities and immunities granted to the trustee and collateral agent under the Initial-1 Additional First Lien Agreement and the Initial-1 Additional First Lien Security Agreement shall inure to the benefit of the Initial-1 Additional First Lien Authorized Representative and the Initial-1 Additional First Lien Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandis. It is further understood and agreed that The Bank of New York Mellon Trust Company, N.A. is entering into this Agreement, not in its individual capacity, but solely in its capacities as Initial-2 Additional First Lien Authorized Representative and Initial-2 Additional First Lien Collateral Agent under the Initial-2 Additional First Lien Agreement and the Initial-2 Additional First Lien Security Agreement and solely for the Initial-2 Additional First Lien Secured Parties, and the rights, protections, privileges, indemnities and immunities granted to the trustee and collateral agent under the Initial-2 Additional First Lien Agreement and the Initial-2 Additional First Lien Security Agreement shall inure to the benefit of the Initial-2 Additional First Lien Authorized Representative and the Initial-2 Additional First Lien Collateral Agent herein in such capacities hereunder, and such rights, protections, privileges, indemnities and immunities are incorporated by reference herein, mutatis mutandisindividually. Except as expressly set forth herein, none of the TrusteeAdministrative Agent, the Notes Credit Agreement Collateral Agent, the Initial-1 Initial Additional First Lien Collateral Agent, the Initial-1 Additional First Lien Authorized Representative, the Initial-2 Additional First Lien Authorized Representative or the Initial-2 Initial Additional First Lien Pari Collateral Agent shall have any duties or obligations in respect of any of the Collateral, all of such duties and obligations, if any, being subject to and governed by the applicable Secured Credit Documents. The Trustee Administrative Agent and the Notes Credit Agreement Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the Notes Credit Agreement Secured Parties and only then in accordance with the Notes Security Credit Agreement Collateral Documents. The Initial-1 Initial Additional Pari Collateral Agent and the Initial Additional Pari Authorized Representative and the Initial-1 Additional First Lien Collateral Agent shall have no liability for any actions in any role under this Agreement to anyone other than the holders of the Initial-1 Initial Additional First Lien Obligations Pari Secured Parties and only then in accordance with the Initial-1 Initial Additional First Lien DocumentsPari Agreement. The Initial-2 In acting under this Agreement, the Initial Additional Pari Collateral Agent and the Initial Additional Pari Authorized Representative and the Initial-2 Additional First Lien Collateral Agent shall have no liability for any actions in any role under this Agreement be entitled to anyone other than the holders all of the Initial-2 Additional First Lien Obligations rights, privileges, immunities and only then in accordance with the Initial-2 Additional First Lien Documents. For the avoidance of doubt, notwithstanding anything indemnities granted to the contrary contained herein, in no event shall The Bank of New York Mellon Trust Company, N.A. (“BNY”), in any capacity hereunder, (i) be under any obligation to exercise discretion herein, and in any case in which BNY, in any of its capacities hereunder, is to provide consent, make a determination, grant approval, or take any like action that would involve discretion, BNY shall be fully protected in relying conclusively on direction from the applicable requisite holders of the applicable Series of First Lien Obligations. BNY shall (i) not be responsible for the preparation or filing of any financing or continuation statements, or for otherwise maintaining the perfection of the lien in any Collateral hereunder (other than, subject to its rights hereunder and under the Secured Credit Documents and the First Lien Security Document, by maintaining possession of possessory collateral delivered to it in accordance with this Agreement), (ii) be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the BNY has been advised of the likelihood of such loss or damage and regardless of the form of action, or (iii) be responsible or liable for any failure or delay them in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, epidemics or pandemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that BNY shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. The recitals contained herein shall be taken as the statements of the Obligors, and BNY assumes no responsibility for their correctness. BNY makes no representations as to the validity or sufficiency of this Initial Additional Pari Agreement.
Appears in 1 contract
