Agent Capacities. It is understood and agreed that (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 this 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, 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 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 the Designated Collateral Agent may reasonably request to effectuate the terms of and the lien priorities contemplated by the Intercreditor 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 Initial Credit Documents, 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 Initial Credit Agreement Collateral Agent for the benefit of the Initial Credit Agreement Secured Parties, or (B) except as permitted by the Initial Additional Credit Documents, 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 Initial Additional Collateral Agent for the benefit of the Initial Additional Secured Parties, (ii) not to grant a security interest in any of the 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 each Collateral Agent for the benefit of the 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 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 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 is required to become a Collateral Agent, and such Additional Senior Class Debt and the Additional Senior Class Debt Secured Parties in respect thereof are required to become subject to and bound by, the First Lien Intercreditor Agreement. Section 5.14 of the First Lien Intercreditor Agreement provides that such Additional Senior Class Debt Senior Representative may become a Senior Representative, such Additional Senior Class Debt Collateral Agent may become a Collateral Agent, and such Additional Senior Class Debt and such Additional Senior Class Debt Secured Parties may become subject to and bound by the First 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 undersigned Additional Senior Class Debt Senior Representative (the “New Representative”) and Additional Senior Class Debt Collateral Agent (the “New Collateral Agent”) are executing this Joinder Agreement in accordance with the requirements of the First Lien Intercreditor Agreement and the Collateral Documents. Accordingly, the New Representative and the New Collateral Agent agree as follows: SECTION 1. In accordance with Section 5.14 of the First Lien Intercreditor Agreement, the New Representative and the New Collateral Agent by their signatures below become a Senior Representative and a Collateral Agent, respectively, under, and the related Additional Senior Class Debt and Additional Senior Class Debt Secured Parties become subject to and bound by, the First Lien Intercreditor 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, respectively, and the New Representative and the New Collateral Agent, on their behalf and on behalf of such Additional Senior Class Debt Secured Parties, hereby agree to all the terms and provisions of the First Lien Intercreditor Agreement applicable to them as Senior Representative and 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 Refinancing of the Initial Credit Agreement Obligations, this Joinder will be revised to reflect joinder by a new Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Vine Resources Inc.), Credit Agreement (Vine Resources Inc.)
Agent Capacities. It Except as expressly provided herein or in the Credit Agreement Collateral Documents, Citizens Bank, N.A. is understood acting in the capacities of Administrative Agent and agreed that (a) the Initial Credit Agreement Collateral Agent and solely for the Administrative Credit Agreement Secured Parties. Except as expressly provided herein or in the Additional Security Documents, Ankura Trust Company, LLC is acting herein not in its individual capacity, but solely (i) in its capacity as an Initial Additional Collateral Agent are entering into this Agreement in their capacities as collateral agent and administrative agent, respectively, under for the Initial Credit Agreement Additional Secured Parties and (ii) in its capacity as Initial Additional Authorized Representative, in each case at the provisions direction of Section 12 the holders of the Initial Credit Additional Obligations, and shall not be responsible for (and makes no representation as to) the terms, validity or sufficiency of this Agreement. Whenever reference is made in this Agreement applicable to the Agents any action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (as defined thereinor not to be) thereunder shall also apply to suffered or omitted by the Initial Additional Collateral Agent and/or the Initial Additional Authorized Representative or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Initial Additional Collateral Agent and/or the Initial Additional Authorized Representative, it is understood that in all cases the Initial Additional Collateral Agent and/or the Initial Additional Authorized Representative shall be acting, giving, withholding, suffering, omitting, taking or otherwise undertaking and exercising the same (or shall not be undertaking and exercising the same) in accordance with the Initial Additional Agreement. Except as expressly set forth herein, none of the Administrative Agent, the Initial Additional Authorized Representative, the Credit Agreement Collateral Agent or the Initial Additional 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 rights, privileges, protections, indemnities and immunities afforded the Administrative Agent hereunder and (b) the Agent, Credit Agreement Collateral Agent, Initial Additional Collateral Agent and Initial Additional Senior Authorized Representative are entering into this Agreement in under their capacities as [ ] and [ ] under the Initial Additional Senior applicable Secured Credit Document and the provisions of Section Documents shall apply to such parties hereunder. Each of the Initial Additional Senior Administrative Agent, Credit Document applicable to the Agents (as defined therein) thereunder shall also apply to the Agreement Collateral Agent, Initial Additional Collateral Agent and Initial Additional Senior Authorized Representative hereunder. IN WITNESS WHEREOF, the parties hereto have caused undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Agreement and no implied covenants or obligations with respect to such parties shall be duly executed by their respective authorized officers as read into this Agreement against such parties. Notwithstanding any other provision 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 this Agreement, dated as nothing herein shall be construed to impose any fiduciary duty, regardless of whether a Default or Event of Default has occurred and is continuing, on the date hereof among HSBC Bank USA, National Association, as Administrative Agent, HSBC Bank USA, National Association, as Initial the 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 this 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, 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 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 the Designated Collateral Agent may reasonably request to effectuate the terms of and the lien priorities contemplated by the Intercreditor 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 Initial Credit Documents, 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 Initial Credit Agreement Collateral Agent for the benefit of the Initial Credit Agreement Secured Parties, or (B) except as permitted by the Initial Additional Credit Documents, 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 Initial Additional Collateral Agent for the benefit of or the Initial Additional Secured Parties, (ii) not to grant a security interest in any of Authorized Representative. In no event shall the 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 each Collateral Agent for the benefit of the 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 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 Agent or Initial Additional Senior RepresentativeAuthorized Representative be responsible or liable for special, and the additional Senior Representatives from time to time a party thereto and consented to by the Grantors.1
A. Capitalized terms used herein indirect, or consequential loss or damage of any kind whatsoever (including, but not otherwise defined herein shall have the meanings assigned to limited to, loss of profit) irrespective of whether any such terms in the First Lien Intercreditor Agreement.
B. As a condition to the ability party has been advised 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 likelihood of such Additional Senior Class Debt is required to become a Senior Representative, loss or damage and the Additional Senior Class Debt Collateral Agent is required to become a Collateral Agent, and such Additional Senior Class Debt and the Additional Senior Class Debt Secured Parties in respect thereof are required to become subject to and bound by, the First Lien Intercreditor Agreement. Section 5.14 regardless of the First Lien Intercreditor Agreement provides that such Additional Senior Class Debt Senior Representative may become a Senior Representative, such Additional Senior Class Debt Collateral Agent may become a Collateral Agent, and such Additional Senior Class Debt and such Additional Senior Class Debt Secured Parties may become subject to and bound by the First Lien Intercreditor Agreement pursuant to the execution and delivery by the Additional Senior Class Debt Senior Representative of an instrument in the form of action, nor shall any such party in any event 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, pandemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services. The provisions of this Joinder Agreement and the satisfaction of the other conditions set forth in Section 5.14 shall survive the termination of the First Lien Intercreditor this Agreement. The undersigned Additional Senior Class Debt Senior Representative (the “New Representative”) and Additional Senior Class Debt Collateral Agent (the “New Collateral Agent”) are executing this Joinder Agreement in accordance with the requirements of the First Lien Intercreditor Agreement and the Collateral Documents. Accordingly, the New Representative and the New Collateral Agent agree as follows:
SECTION 1. In accordance with Section 5.14 of the First Lien Intercreditor Agreement, the New Representative and the New Collateral Agent by their signatures below become a Senior Representative and a Collateral Agent, respectively, under, and the related Additional Senior Class Debt and Additional Senior Class Debt Secured Parties become subject to and bound by, the First Lien Intercreditor 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, respectively, and the New Representative and the New Collateral Agent, on their behalf and on behalf of such Additional Senior Class Debt Secured Parties, hereby agree to all the terms and provisions of the First Lien Intercreditor Agreement applicable to them as Senior Representative and 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 Refinancing of the Initial Credit Agreement Obligations, this Joinder will be revised to reflect joinder by a new Administrative Agent.
Appears in 1 contract
Agent Capacities. Except as expressly set forth herein, the ABL Facility Collateral Agent, the First Lien Facility Agent, the Junior Lien Obligations Agents, the ABL Xxxx Xxxx Obligations Agents, the Other First Lien Obligations Agents and the Other Junior Lien 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 ABL Obligations Documents, First Lien Obligations Documents or Junior Lien Obligations Documents, as the case may be. It is understood and agreed that (ai) the Initial Credit Agreement Collateral Agent and the Administrative Agent are JPM is entering into this Agreement in their capacities its capacity as administrative agent and collateral agent and administrative agent, respectively, under the Initial ABL Facility, and 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, (ii) DB is entering into this Agreement in its capacity as administrative agent and collateral agent under the First Lien Credit Agreement and the provisions of Section 12 of the Initial First Lien Credit Agreement applicable to the Agents (DB as defined therein) administrative agent and collateral agent thereunder shall also apply to the Initial Credit Agreement Collateral Agent and the Administrative Agent DB hereunder and (biii) the Initial Additional Collateral Agent and Initial Additional Senior Representative are US Bank is entering into this Agreement in their capacities its capacity as [ ] trustee and [ ] collateral agent under the Initial Additional Senior Credit Document Junior Lien Notes Indenture and the provisions of Section of the Initial Additional Senior Credit Document Junior Lien Notes Indenture applicable to the Agents (US Bank as defined therein) trustee and collateral agent thereunder shall also apply to the Initial Additional US Bank hereunder. The ABL Facility 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 this 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, 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 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 ABL Facility Obligations Secured Parties and their respective successors each ABL Xxxx Xxxx Obligations Agent on behalf of the ABL Xxxx Xxxx Obligations Secured Parties hereby irrevocably designates and assigns, appoints the Applicable ABL Obligations Representative under this Agreement and that no Grantor is an intended beneficiary or third party beneficiary thereof except to exercise such powers and perform such duties as are expressly delegated to the extent otherwise expressly provided therein. Notwithstanding anything to the contrary in the Intercreditor Agreement or provided hereinApplicable ABL Obligations Representative, 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 the Designated Collateral Agent may reasonably request to effectuate the terms of and the lien priorities contemplated by the Intercreditor 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 Initial Credit Documents, in favor of the Initial Additional Secured Parties without substantially concurrently granting a security interest pari passu together with such security interest in such property to the Initial Credit Agreement Collateral Agent for the benefit of the Initial Credit Agreement Secured Parties, or (B) except powers as permitted by the Initial Additional Credit Documents, 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 Initial Additional Collateral Agent for the benefit of the Initial Additional Secured Parties, (ii) not to grant a security interest in any of the 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 each Collateral Agent for the benefit of the 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 Agentare reasonably incidental thereto. 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 The First Lien 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 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 Facility Agent 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 is required to become a Collateral Agent, and such Additional Senior Class Debt and the Additional Senior Class Debt Secured Parties in respect thereof are required to become subject to and bound by, the First Lien Intercreditor Agreement. Section 5.14 behalf of the First Lien Intercreditor Agreement provides that such Additional Senior Class Debt Senior Representative may become a Senior RepresentativeFacility Obligations Secured Parties, such Additional Senior Class Debt the Junior Lien Notes Collateral Agent may become a Collateral Agent, and such Additional Senior Class Debt and such Additional Senior Class Debt Secured Parties may become subject to and bound by the First 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 undersigned Additional Senior Class Debt Senior Representative (the “New Representative”) and Additional Senior Class Debt Collateral Agent (the “New Collateral Agent”) are executing this Joinder Agreement in accordance with the requirements of the First Lien Intercreditor Agreement and the Collateral Documents. Accordingly, the New Representative and the New Collateral Agent agree as follows:
SECTION 1. In accordance with Section 5.14 of the First Lien Intercreditor Agreement, the New Representative and the New Collateral Agent by their signatures below become a Senior Representative and a Collateral Agent, respectively, under, and the related Additional Senior Class Debt and Additional Senior Class Debt Secured Parties become subject to and bound by, the First Lien Intercreditor 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, respectively, and the New Representative and the New Collateral Agent, on their behalf and on behalf of such Additional Senior Class Debt 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 agree irrevocably designates and appoints the First Lien/Junior Lien Intercreditor Representative under this Agreement and to all exercise such powers and perform such duties as are expressly delegated to the terms and First Lien/Junior Lien Intercreditor Representative, together with such powers as are reasonably incidental thereto. The provisions of the First Lien Intercreditor Credit Agreement applicable to them DB as Senior administrative agent and collateral agent thereunder shall also apply to DB as First Lien/Junior Lien Intercreditor Representative and Collateral Agent, respectively, the provisions of the Junior Lien Notes Indenture applicable to US Bank as trustee and collateral agent thereunder shall also apply to the Additional Senior Class Debt Secured Parties that they represent DB as Other Senior Secured Parties. Each reference to an “Senior Representative” in the First Lien/Junior 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 Refinancing of the Initial Credit Agreement Obligations, this Joinder will be revised to reflect joinder by a new Administrative Agent.
Appears in 1 contract
Agent Capacities. Except as expressly provided herein or in the Credit Agreement Security Documents, JPMCB is acting in the capacities of Administrative Agent and 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 is acting herein not in its individual capacity, but solely (i) when acting as Additional Pari Passu Collateral Agent, in its capacity as collateral agent under the Initial Additional Pari Passu Agreement, and (ii) when acting as the Initial Additional Authorized Representative, in its capacity as Trustee under the Initial Additional Pari Passu Agreement, solely for the Additional Pari Passu Secured Parties. Except as expressly set forth herein, none of the Administrative Agent, the Credit Agreement Collateral Agent, the Additional Pari Passu Collateral Agent or the Initial Additional Pari Passu Authorized Representative 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. It is understood and agreed that (ai) the Initial Credit Agreement Collateral Agent and the Administrative Agent are JPMCB is entering into this Agreement in their solely its capacities as Administrative Agent and 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 (it as defined therein) Administrative Agent and collateral agent thereunder shall also apply to it as the Initial Credit Agreement Collateral Agent and Authorized Representative for the Administrative Agent Credit Agreement Secured Parties hereunder and (bii) 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 Wilmington Trust thereunder shall also apply to its acting as Initial Additional Pari Passu Collateral Agent and Initial Additional Senior Authorized Representative are entering into this Agreement in their capacities as [ ] and [ ] under hereunder. Whenever the Initial Additional Senior Credit Document and Authorized Representative is the provisions of Section 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 terms 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 this 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, 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 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 the Designated Collateral Agent may reasonably request to effectuate the terms of and the lien priorities contemplated by the Intercreditor 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 Initial Credit Documents, 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 Initial Credit Agreement Collateral Agent for the benefit of the Initial Credit Agreement Secured Parties, or (B) except as permitted by the Initial Additional Credit Documents, 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 Initial Additional Collateral Agent for the benefit of the Initial Additional Secured Parties, (ii) not to grant a security interest in any of the 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 each Collateral Agent for the benefit of the 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 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 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 Pari Passu 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 is required to become a Collateral Agent, and such Additional Senior Class Debt and the Additional Senior Class Debt Secured Parties in respect thereof are required to become subject to and bound by, the First Lien Intercreditor Agreement. Section 5.14 of the First Lien Intercreditor Agreement provides that such Additional Senior Class Debt Senior Representative may become a Senior Representative, such Additional Senior Class Debt Collateral Agent may become a Collateral Agent, and such Additional Senior Class Debt and such Additional Senior Class Debt Secured Parties may become subject to and bound by the First 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 undersigned Additional Senior Class Debt Senior Representative (the “New Representative”) and Additional Senior Class Debt Collateral Agent (the “New Collateral Agent”) are executing this Joinder Agreement in accordance with the requirements of the First Lien Intercreditor Agreement and the Collateral Documents. Accordingly, the New Representative and the New Collateral Agent agree as follows:
SECTION 1. In accordance with Section 5.14 of the First Lien Intercreditor Agreement, the New Representative and the New Collateral Agent by their signatures below become a Senior Representative and a Collateral Agent, respectively, under, and the related Additional Senior Class Debt and Additional Senior Class Debt Secured Parties become subject to and bound by, the First Lien Intercreditor 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, respectively, and the New Representative and the New Collateral Agent, on their behalf and on behalf of such Additional Senior Class Debt Secured Parties, hereby agree to all the terms and provisions of the First Lien Intercreditor Agreement applicable to them as Senior Representative and 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 Refinancing of the Initial Credit Agreement Obligations, this Joinder will be revised to reflect joinder by a new Administrative Agent.
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Samples: Pari Passu Intercreditor Agreement (Burlington Stores, Inc.)
Agent Capacities. Except as expressly provided herein or in the Credit Agreement Security Documents, JPMCB is acting in the capacities of Administrative Agent and 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 is acting herein not in its individual capacity, but solely (i) when acting as Additional Pari Passu Collateral Agent, in its capacity as collateral agent under the Initial Additional Pari Passu Agreement, and (ii) when acting as the Initial Additional Authorized Representative, in its capacity as Trustee under the Initial Additional Pari Passu Agreement, solely for the Additional Pari Passu Secured Parties. Except as expressly set forth herein, none of the Administrative Agent, the Credit Agreement Collateral Agent, the Additional Pari Passu Collateral Agent or the Initial Additional Pari Passu Authorized Representative 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. It is understood and agreed that (ai) the Initial Credit Agreement Collateral Agent and the Administrative Agent are JPMCB is entering into this Agreement in their solely its capacities as Administrative Agent and 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 (it as defined therein) Administrative Agent and collateral agent thereunder shall also apply to it as the Initial Credit Agreement Collateral Agent and Authorized Representative for the Administrative Agent Credit Agreement Secured Parties hereunder and (bii) 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 Wilmington Trust thereunder shall also apply to its acting as Initial Additional Pari Passu Collateral Agent and Initial Additional Senior Authorized Representative are entering into this Agreement in their capacities as [ ] and [ ] under hereunder. Whenever the Initial Additional Senior Credit Document and Authorized Representative is the provisions of Section 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 terms 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 this 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, 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 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 the Designated Collateral Agent may reasonably request to effectuate the terms of and the lien priorities contemplated by the Intercreditor 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 Initial Credit Documents, 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 Initial Credit Agreement Collateral Agent for the benefit of the Initial Credit Agreement Secured Parties, or (B) except as permitted by the Initial Additional Credit Documents, 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 Initial Additional Collateral Agent for the benefit of the Initial Additional Secured Parties, (ii) not to grant a security interest in any of the 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 each Collateral Agent for the benefit of the 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 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 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 Pari Passu 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 is required to become a Collateral Agent, and such Additional Senior Class Debt and the Additional Senior Class Debt Secured Parties in respect thereof are required to become subject to and bound by, the First Lien Intercreditor Agreement. Section 5.14 of the First Lien Intercreditor Agreement provides that such Additional Senior Class Debt Senior Representative may become a Senior Representative, such Additional Senior Class Debt Collateral Agent may become a Collateral Agent, and such Additional Senior Class Debt and such Additional Senior Class Debt Secured Parties may become subject to and bound by the First 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 undersigned Additional Senior Class Debt Senior Representative (the “New Representative”) and Additional Senior Class Debt Collateral Agent (the “New Collateral Agent”) are executing this Joinder Agreement in accordance with the requirements of the First Lien Intercreditor Agreement and the Collateral Documents. Accordingly, the New Representative and the New Collateral Agent agree as follows:
SECTION 1. In accordance with Section 5.14 of the First Lien Intercreditor Agreement, the New Representative and the New Collateral Agent by their signatures below become a Senior Representative and a Collateral Agent, respectively, under, and the related Additional Senior Class Debt and Additional Senior Class Debt Secured Parties become subject to and bound by, the First Lien Intercreditor 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, respectively, and the New Representative and the New Collateral Agent, on their behalf and on behalf of such Additional Senior Class Debt Secured Parties, hereby agree to all the terms and provisions of the First Lien Intercreditor Agreement applicable to them as Senior Representative and 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 Refinancing of the Initial Credit Agreement Obligations, this Joinder will be revised to reflect joinder by a new Administrative Agent.
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