Exhibit 10.6
EXECUTION VERSION
CONSENT AND ACKNOWLEDGMENT
(Other First-Priority Lien Obligations)
This CONSENT AND ACKNOWLEDGMENT (this “Consent”) dated as of May 23, 2018, is executed by WILMINGTON TRUST, NATIONAL ASSOCIATION, as an Other First-Priority Lien Obligations Agent (the “New Agent”), and acknowledged by JPMORGAN CHASE BANK, N.A., as the Applicable First Lien Agent, WILMINGTON TRUST, NATIONAL ASSOCIATION, as Term Facility Agent for the holders of the 2025 Senior Secured Notes (as defined in the Indenture (as defined below)) and Applicable Second Lien Agent, WILMINGTON TRUST, NATIONAL ASSOCIATION, as an Other First-Priority Lien Obligations Agent for the holders of the 2024 Priority Senior Secured Notes (as defined in the Indenture), WILMINGTON TRUST, NATIONAL ASSOCIATION, as an Other Second-Priority Lien Obligations Agent for the holders of the 2024 Senior Secured Notes (as defined in the Indenture) and EP ENERGY LLC (the “Company”) (on behalf of itself and certain of its Subsidiaries).
This Consent is with respect to that certain Priority Lien Intercreditor Agreement, dated as of August 24, 2016 (as supplemented on November 29, 2016, February 6, 2017 and January 3, 2018, and as may be further amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and among the parties (other than the New Agent) referred to above. Capitalized terms used but not defined herein shall have the meanings assigned thereto in the Intercreditor Agreement.
Reference is made to the 7.750% Senior Secured Notes due 2026 (the “Notes”) issued pursuant to that certain Indenture (the “Indenture”), dated as of the date hereof, by and among the Company, Everest Acquisition Finance Inc. (together with the Company, the “Issuers”), the subsidiary guarantors named therein (the “Notes Guarantors”) and the New Agent, as trustee and collateral agent, with respect to which the New Agent is acting (w) as trustee and collateral agent under the Indenture, (x) as collateral agent under that certain Collateral Agreement, dated as of the date hereof (the “Collateral Agreement”), by and among the Issuers, the Notes Guarantors and the New Agent, as collateral agent, (y) as collateral agent under that certain Pledge Agreement, dated as of the date hereof (the “Pledge Agreement”), by and among the Issuers, the Notes Guarantors and the New Agent, as collateral agent and (z) as collateral agent under any other Security Document (as defined in the Indenture).
Pursuant to Section 5.14 of the Intercreditor Agreement, the Company hereby notifies each of JPMorgan Chase Bank, N.A. and Wilmington Trust, National Association, in each case, as the Applicable Agent, that it designates the Notes and the obligations of the Issuers and the Notes Guarantors thereunder and under the Indenture as Other First-Priority Lien Obligations under the Intercreditor Agreement.
The New Agent hereby (a) agrees to be bound by the terms of the Intercreditor Agreement as an Other First-Priority Lien Obligations Agent as if it were an Other First-Priority Lien Obligations Agent as of the date of the Intercreditor Agreement and (b) represents that it is acting in the capacity of Other First-Priority Lien Obligations Agent solely for the Secured Parties
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under the Indenture, the Collateral Agreement, the Pledge Agreement and any other Security Document (as defined in the Indenture).
The address of the New Agent for purposes of all notices and other communications hereunder and under the Intercreditor Agreement is Wilmington Trust, National Association, Global Capital Markets, 15950 N. Dallas Parkway, Suite 550, Dallas, TX 75248, Attention: EP Energy Administrator (Facsimile No. (888) 316-6238, Email: sgoffinet@wilmingtontrust.com).
This Consent shall be governed by, and construed in accordance with, the law of the State of New York.
[Signature Page Follows.]
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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.
| WILMINGTON TRUST, NATIONAL ASSOCIATION, as an Other First-Priority Lien Obligations Agent |
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| By | /s/ Shawn Goffinet |
| | Name: | Shawn Goffinet |
| | Title: | Assistant Vice President |
Acknowledged and Confirmed by, for purposes of the Intercreditor Agreement:
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Term Facility Agent for the holders of the 2025 Senior Secured Notes and Applicable Second Lien Agent
By: | /s/ Shawn Goffinet | | |
| Name: | Shawn Goffinet | | |
| Title: | Assistant Vice President | | |
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JPMORGAN CHASE BANK, N.A., as Applicable First Lien Agent |
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By | /s/ Jo Linda Papadakis | | |
| Name: | Jo Linda Papadakis | | |
| Title: | Authorized Officer | | |
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WILMINGTON TRUST, NATIONAL ASSOCIATION, as an Other First-Priority Lien Obligations Agent for the holders of the 2024 Priority Senior Secured Notes |
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By: | /s/ Shawn Goffinet | | |
| Name: | Shawn Goffinet | | |
| Title: | Assistant Vice President | | |
| | | |
WILMINGTON TRUST, NATIONAL ASSOCIATION, as an Other Second-Priority Lien Obligations Agent for the holders of the 2024 Senior Secured Notes |
| | | |
By: | /s/ Shawn Goffinet | | |
| Name: | Shawn Goffinet | | |
| Title: | Assistant Vice President | | |
[Signature Page to Consent and Acknowledgment (Other First-Priority Lien Obligations) (Priority Lien Intercreditor Agreement)]
EP ENERGY LLC, | |
on behalf of itself and its Subsidiaries Party to the Intercreditor Agreement |
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By: | /s/ Kyle A. McCuen | |
| Name: | Kyle A. McCuen | |
| Title: | Senior Vice President, Chief Financial Officer and Treasurer | |
[Signature Page to Consent and Acknowledgment (Other First-Priority Lien Obligations) (Priority Lien Intercreditor Agreement)]
