Common use of Pari Passu Indebtedness Clause in Contracts

Pari Passu Indebtedness. (a) If any Grantor incurs any Pari Passu Indebtedness, an authorized representative of the holders of such Pari Passu Payment Lien Obligations shall enter into an Accession Agreement, and thereafter the relationship between the Holders of the Notes and holders of the Pari Passu Payment Lien Obligations will be governed by this Security Agreement. Such Grantor shall provide a written instruction in an Officer’s Certificate to the Collateral Agent to execute the Accession Agreement. (b) Each of the Secured Parties agrees that: (i) notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens on the Collateral securing the Notes and the Pari Passu Payment Lien Obligations, the Liens securing all such Indebtedness shall be of equal priority; and (ii) the obligations in respect of the Notes and the Pari Passu Payment Lien Obligations may be increased, extended, renewed, replaced, restated, supplemented, restructured, refunded, refinanced or otherwise amended from time to time, in each case, to the extent permitted by the Indenture Documents and the Pari Passu Payment Lien Documents. (c) The Collateral Agent shall have no obligation or liability to the holders of any Pari Passu Payment Lien Obligations not issued under the Indenture or pursuant to which the Collateral Agent is the Trustee as agreed between the Trustee and the Company in writing, and the Collateral Agent shall not have any obligation or liability to any such holders of Pari Passu Payment Lien Obligations, regarding the adequacy of any proceeds of the Collateral or for any action or omission, except solely for an action or omission that breaches the express obligations undertaken by such party under the terms of this Security Agreement. (d) Subject to the automatic release provisions of the Indenture Documents and the Pari Passu Payment Lien Documents, the Collateral Agent shall act in relation to the Americas 91413044 50 Collateral in accordance with the written direction of the majority in aggregate principal amount of the then outstanding Notes and Pari Passu Indebtedness, if any (the “Instructing Group”), provided, however, any Notes or Pari Passu Indebtedness held by a Grantor or an Affiliate of any Grantor shall be deemed not to be outstanding for purposes of determining the Instructing Group except that in determining whether the Collateral Agent shall be protected in relying upon any such direction, only Notes or Pari Passu Indebtedness that the Collateral Agent actually knows to be so owned shall be so disregarded. Notwithstanding anything to the contrary herein, whenever reference is made in this Security Agreement to any discretionary 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 (or not to be) suffered or omitted by the Collateral Agent, or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction, reasonable satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Agent, it is understood in all cases that the Collateral Agent shall (subject to its rights and protections under the Indenture Documents, including its right to seek indemnity or security reasonably satisfactory to it) be fully justified in failing or refusing to take any such action under this Security Agreement if it shall not have received the written direction of the Trustee and applicable representative of Pari Passu Indebtedness acting in accordance with the written direction of the Instructing Group as it deems appropriate. (e) As between the Holders of the Notes and the holders of Pari Passu Payment Lien Obligations, only the Instructing Group shall have the right to direct the Collateral Agent in conducting foreclosures and in taking other actions with respect to the Collateral, and the authorized agents, trustees or other representatives of other Indebtedness have no right to take actions with respect to the Collateral. The Instructing Group shall have the sole right to instruct the Collateral Agent to act or refrain from acting with respect to the Collateral, and the Collateral Agent shall not follow any instructions with respect to such Collateral from any other Person. No authorized representative of any Indebtedness (other than the Instructing Group) will instruct the Collateral Agent to commence any judicial or non-judicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its interests in or realize upon, or take any other action available to it in respect of, the Collateral. Neither the Instructing Group nor the Collateral Agent may undertake any action with respect to Collateral to the extent such action will be inconsistent with the Intercreditor Agreement. * * * Americas 91413044 51

Pari Passu Indebtedness. (a) If any Grantor incurs any Pari Passu Indebtedness, an authorized representative of the holders of such Pari Passu Payment Lien Obligations shall enter into an Accession Agreement, and thereafter the relationship between the Holders of the Notes and holders of the Pari Passu Payment Lien Obligations will be governed by this Security Agreement. Such Grantor shall provide a written instruction in an Officer’s Certificate to the Collateral Agent to execute the Accession Agreement. (b) Each of the Secured Parties agrees that: : (i) notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens on the Collateral securing the Notes and the Pari Passu Payment Lien Obligations, the Liens securing all such Indebtedness shall be of equal priority; and and (ii) the obligations in respect of the Notes and the Pari Passu Payment Lien Obligations may be increased, extended, renewed, replaced, restated, supplemented, restructured, refunded, refinanced or otherwise amended from time to time, in each case, to the extent permitted by the Indenture Documents and the Pari Passu Payment Lien Documents. (c) The Collateral Agent shall have no obligation or liability to the holders of any Pari Passu Payment Lien Obligations not issued under the Indenture or pursuant to which the Collateral Agent is the Trustee as agreed between the Trustee and the Company in writing, and the Collateral Agent shall not have any obligation or liability to any such holders of Pari Passu Payment Lien Obligations, regarding the adequacy of any proceeds of the Collateral or for any action or omission, except solely for an action or omission that breaches the express obligations undertaken by such party under the terms of this Security Agreement. (d) Subject to the automatic release provisions of the Indenture Documents and the Pari Passu Payment Lien Documents, the Collateral Agent shall act in relation to the Americas 91413044 50 Collateral in accordance with the written direction of the majority in aggregate principal amount of the then outstanding Notes and Pari Passu Indebtedness, if any (the “Instructing Group”), provided, however, any Notes or Pari Passu Indebtedness held by a Grantor or an Affiliate of any Grantor shall be deemed not to be outstanding for purposes of determining the Instructing Group except that in determining whether the Collateral Agent shall be protected in relying upon any such direction, only Notes or Pari Passu Indebtedness that the Collateral Agent actually knows to be so owned shall be so disregarded. Notwithstanding anything to the contrary herein, whenever reference is made in this Security Agreement to any discretionary 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 (or not to be) suffered or omitted by the Collateral Agent, or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction, reasonable satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Agent, it is understood in all cases that the Collateral Agent shall (subject to its rights and protections under the Indenture Documents, including its right to seek indemnity or security reasonably satisfactory to it) be fully justified in failing or refusing to take any such action under this Security Agreement if it shall not have received the written direction of the Trustee and applicable representative of Pari Passu Indebtedness acting in accordance with the written direction of the Instructing Group as it deems appropriate. . (e) As between the Holders of the Notes and the holders of Pari Passu Payment Lien Obligations, only the Instructing Group shall have the right to direct the Collateral Agent in conducting foreclosures and in taking other actions with respect to the Collateral, and the authorized agents, trustees or other representatives of other Indebtedness have no right to take actions with respect to the Collateral. The Instructing Group shall have the sole right to instruct the Collateral Agent to act or refrain from acting with respect to the Collateral, and the Collateral Agent shall not follow any instructions with respect to such Collateral from any other Person. No authorized representative of any Indebtedness (other than the Instructing Group) will instruct the Collateral Agent to commence any judicial or non-judicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its interests in or realize upon, or take any other action available to it in respect of, the Collateral. Neither the Instructing Group nor the Collateral Agent may undertake any action with respect to Collateral to the extent such action will be inconsistent with the Intercreditor Agreement. * * * Americas 91413044 51