Joinder
Exhibit D -Additional Secured Lender Joinder
Exhibit E -Administrative Agent Joinder
-iii-
Intercreditor and Collateral Agency Agreement
This Intercreditor and Collateral Agency Agreement dated as of August 8, 2012
(this "Agreement"), is entered into by and among Wells Fargo Bank, National
Association, in its capacity as Collateral Agent (as hereinafter defined), Wells
Fargo Bank, National Association, in its capacity as Administrative Agent (as
hereinafter defined) for the Lenders (as hereinafter defined), each Noteholder
(as hereinafter defined) named on the signature pages hereof and each other
Creditor which becomes a party hereto after the date hereof.
Recitals:
The Gas Company, LLC, a Hawaii limited liability company (the "Company"), and
HGC Holdings LLC, a Hawaii limited liability company, are concurrently herewith
entering into that certain Credit Agreement dated as of August 8, 2012 (as
amended, supplemented, replaced, restated or otherwise modified from time to
time, the "Credit Agreement") with the several banks and other financial
institutions or entities from time to time party thereto as lenders and Wells
Fargo Bank, National Association, as administrative agent, pursuant to which the
Lenders are providing revolving credit loans and other extensions of credit to
the Company.
The Company is concurrently herewith entering into that certain Note Purchase
Agreement dated as of August 8, 2012 (as amended, restated, supplemented,
replaced, refinanced or otherwise modified from time to time, the "Note
Agreement") with each of the purchasers listed on Schedule A thereto
(collectively, the "Noteholders"), pursuant to which the Noteholders will
purchase $100,000,000 aggregate principal amount of 4.22% Senior Secured Notes
due August 8, 2022 of the Company (the "Senior Secured Notes").
The Company may from time to time enter into Additional Secured Facilities (as
hereinafter defined) pursuant to which the Additional Senior Lenders (as
hereinafter defined) provide Additional Secured Debt (as hereinafter defined) to
the Company.
The Revolving Obligations (as hereinafter defined), the Senior Note Obligations
(as hereinafter defined) and any Additional Secured Obligations (as hereinafter
defined) will be secured equally and ratably by the Collateral (as hereinafter
defined) pursuant to the Security Documents (as hereinafter defined) and
administered in accordance with the terms and conditions hereof. The Lenders and
the Noteholders desire to appoint Wells Fargo Bank, National Association, as the
collateral agent (the "Collateral Agent") to act on behalf of the Creditors (as
hereinafter defined) regarding the Collateral, all as more fully provided
herein. The parties hereto have entered into this Agreement to, among other
things, define the rights, duties, authority and responsibilities of the
Collateral Agent and the relationship between the Creditors regarding their pari
passu interests in the Collateral.
Now, therefore, in consideration of the premises and other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, the
parties hereto hereby agree as follows:
Section 1Definitions.
Section 1.1
Definitions. The following terms shall have the meanings
assigned to them in this Section 1.1 or in the provisions of this Agreement
referred to below:
"Additional Secured Debt" shall mean indebtedness of the Company so long as
(a) such