Common use of Amendments to Section 9 Clause in Contracts

Amendments to Section 9. 02. Section 9.02 is hereby amended by (a) renumbering Section 9.02(i) to be 9.02(k) and (b) adding the following Section 9.02(i) and Section 9.02(j): (i) Second Lien Term Debt and any guarantees thereof, the principal amount of which does not exceed $100,000,000 in the aggregate at any one time outstanding; provided that: (i) upon the incurrence of any such Debt after the Initial Second Lien Funding Date: (A) the Borrower shall have complied with Section 8.01(s), (B) both before and immediately after giving effect to the incurrence of any such Debt, no Default, Event of Default or Borrowing Base Deficiency exists or would exist (after giving effect to any concurrent prepayment made pursuant to Section 3.04(c)(iii) and any concurrent repayment of Debt with the proceeds of such incurrence, if any), and (C) the Borrowing Base shall be reduced in accordance with Section 2.07(e) and the Borrower shall make any prepayment required by Section 3.04(c)(iii); (ii) such Second Lien Term Debt does not have any scheduled principal amortization prior to the date which is one hundred eighty (180) days after the Maturity Date; and (iii) such Second Lien Term Debt does not mature sooner than the date which is one hundred eighty (180) days after the Maturity Date. (j) Senior Debt and any guarantees thereof, the principal amount of which does not exceed $200,000,000 in the aggregate at any one time outstanding; provided that: (i) the Borrower shall have complied with Section 8.01(t); (ii) both before and immediately after giving effect to the incurrence of any such Debt, no Default, Event of Default or Borrowing Base Deficiency exists or would exist (after giving effect to any concurrent prepayment made pursuant to Section 3.04(c)(iii) and any concurrent repayment of Debt with the proceeds of such incurrence, if any); (iii) the Borrowing Base shall be adjusted to the extent required by Section 2.07(f) and the Borrower shall make any prepayment required by Section 3.04(c)(iii); (iv) such Senior Debt does not have any scheduled principal amortization prior to the date which is one hundred eighty days after the Maturity Date; (v) such Senior Debt does not mature sooner than the date which is one hundred eighty days after the Maturity Date; (vi) the net cash proceeds of which are applied substantially simultaneously with (and in any event not later than the third Business Day next following) the incurrence thereof to prepay outstanding Second Lien Term Debt, if any; (vii) no Subsidiary is required to guarantee such Senior Debt unless such Subsidiary has guaranteed the Indebtedness pursuant to the Guaranty Agreement; (viii) if such Senior Debt is senior subordinated Debt, such Senior Debt is expressly subordinate to the payment in full of all of the Indebtedness on terms and conditions reasonably satisfactory to the Administrative Agent and the Required Lenders; (ix) such Senior Debt and any guarantees thereof are on terms, taken as a whole, at least as favorable to the Borrower and the Subsidiaries as market terms for issuers of similar size and credit quality given the then prevailing market conditions as determined by the Administrative Agent and the Required Lenders; and (x) such Senior Debt does not have any mandatory prepayment or redemption provisions (other than customary change of control or asset sale tender offer provisions) which would require a mandatory prepayment or redemption in priority to the Indebtedness.

Amendments to Section 9. 02. 04. (a) Section 9.02 9.04(a) is hereby amended by adding the following phrase in clause (aiv)(b) renumbering of such Section 9.02(iimmediately following the word “exceeds” and immediately preceding the phrase “20% of the Borrowing Base then in effect”: (A) to be 9.02(kexcept during any fiscal quarter ending during the period beginning on September 30, 2015 through and including March 31, 2018, 20% of the Borrowing Base then in effect and (B) during any fiscal quarter ending during the period beginning on September 30, 2015 through and including March 31, 2018, the greater of (x) $100,000,000 and (y)” (b) adding Section 9.04(b) is hereby amended by deleting clause (i) of such Section and replacing it with the following Section 9.02(i) and Section 9.02(j):following: (i) Second Lien Term Debt and call, make or offer to make any guarantees thereofvoluntary or optional Redemption of or otherwise voluntarily or optionally Redeem (whether in whole or in part) any Permitted Debt, the principal amount of which does not exceed $100,000,000 in the aggregate at any one time outstanding; provided that: (i) upon the incurrence of any such Debt after the Initial Second Lien Funding Date: except (A) to the extent constituting a Redemption, the conversion of Permitted Debt into common stock of the Borrower shall have complied with Section 8.01(s)and, in connection therewith, the settlement in cash of any Permitted Debt required to avoid the issuance of fractional shares of common stock, (B) both before and immediately if after giving pro forma effect to such Redemption the incurrence sum of (1) the unused portion of the Commitments and (2) unencumbered cash and Investments under Section 9.05(c) through Section 9.05(f) exceeds (x) except during any such Debtfiscal quarter ending during the period beginning on September 30, no Default2015 through and including March 31, Event 2018, 20% of Default or the Borrowing Base Deficiency exists then in effect and (y) during any fiscal quarter ending during the period beginning on September 30, 2015 through and including March 31, 2018, the greater of (I) $100,000,000 and (II) 20% of the Borrowing Base then in effect, with the cash proceeds from and in an amount no greater than the amount of such cash proceeds of (1) an Equity Offering, (2) Permitted Debt or would exist Permitted Refinancing Debt or (after giving effect 3) any asset sale to any concurrent prepayment made pursuant the extent not required by this Agreement to Section 3.04(c)(iii) and any concurrent be applied to repayment of Debt with Indebtedness and a concurrent reduction in the proceeds of such incurrence, if any), and Commitments or (C) any Redemption of the Borrowing Base shall be reduced Convertible Notes in accordance with Section 2.07(e) and the Borrower shall make any prepayment required by Section 3.04(c)(iii); (ii) such Second Lien Term Debt does an amount not have any scheduled principal amortization prior to the date which is one hundred eighty (180) days after the Maturity Date; and (iii) such Second Lien Term Debt does not mature sooner than the date which is one hundred eighty (180) days after the Maturity Date. (j) Senior Debt and any guarantees thereof, the exceed an aggregate principal amount of which does not exceed $200,000,000 in the aggregate at any one time outstanding; provided that: (i) the Borrower shall have complied with Section 8.01(t); (ii) both before and immediately after giving effect to the incurrence of any such Debt, no Default, Event of Default or Borrowing Base Deficiency exists or would exist (after giving effect to any concurrent prepayment made pursuant to Section 3.04(c)(iii) and any concurrent repayment of Debt with the proceeds of such incurrence, if any); (iii) the Borrowing Base shall be adjusted to the extent required by Section 2.07(f) and the Borrower shall make any prepayment required by Section 3.04(c)(iii); (iv) such Senior Debt does not have any scheduled principal amortization prior to the date which is one hundred eighty days after the Maturity Date; (v) such Senior Debt does not mature sooner than the date which is one hundred eighty days after the Maturity Date; (vi) the net cash proceeds of which are applied substantially simultaneously with (and in any event not later than the third Business Day next following) the incurrence thereof to prepay outstanding Second Lien Term Debt, if any; (vii) no Subsidiary is required to guarantee such Senior Debt unless such Subsidiary has guaranteed the Indebtedness pursuant to the Guaranty Agreement; (viii) if such Senior Debt is senior subordinated Debt, such Senior Debt is expressly subordinate to the payment in full of all of the Indebtedness on terms and conditions reasonably satisfactory to the Administrative Agent and the Required Lenders; (ix) such Senior Debt and any guarantees thereof are on terms, taken as a whole, at least as favorable to the Borrower and the Subsidiaries as market terms for issuers of similar size and credit quality given the then prevailing market conditions as determined by the Administrative Agent and the Required Lenders; and (x) such Senior Debt does not have any mandatory prepayment or redemption provisions (other than customary change of control or asset sale tender offer provisions) which would require a mandatory prepayment or redemption in priority to the Indebtedness.579,100;”

Amendments to Section 9. 02. . (a) Section 9.02 of the Credit Agreement is hereby amended by inserting “in an amount not to exceed the principal amount thereof outstanding on Third Amendment Effective Date” immediately after the occurrence of “Debt in respect of unsecured notes” in clause (ag) renumbering Section 9.02(i) to be 9.02(k) and thereof. (b) Section 9.02 of the Credit Agreement is further amended by adding the following Section 9.02(ia new clause (m) and Section 9.02(j):thereto, which new clause (m) shall read in full as follows: (i) Second Lien Term Permitted Refinancing Debt and any guarantees thereof, guarantee thereof given by the Borrower or any Guarantor; provided that the aggregate principal amount of which does such Permitted Refinancing Debt shall not exceed $100,000,000 the then-outstanding principal amount of the Permitted Unsecured Notes Redeemed, refinanced or replaced by such Permitted Refinancing Debt plus accrued interest in respect of the Permitted Unsecured Notes so refinanced or replaced, any applicable premium and transaction expenses plus the amount of interest expense accrued in connection with such Permitted Refinancing Debt to the extent paid-in-kind and not paid in cash and (ii) Permitted Additional Debt and any guarantee thereof given by the Borrower or any Guarantor; provided that the aggregate at any one time outstanding; provided that: (i) upon principal amount of such Permitted Refinancing Debt and Permitted Additional Debt shall not exceed the incurrence sum of any such Debt after the Initial Second Lien Funding Date: (A) $150,000,000 plus (B) the Borrower shall have complied amount of interest expense accrued in connection with such Debt to the extent paid-in-kind and not paid in cash. (c) Section 8.01(s9.02(l) of the Credit Agreement is hereby amended by replacing “(other than clauses (a), (B) both before and immediately after giving effect to the incurrence of any such Debt, no Default, Event of Default or Borrowing Base Deficiency exists or would exist (after giving effect to any concurrent prepayment made pursuant to Section 3.04(c)(iiig) and any concurrent repayment of Debt (h))” with the proceeds of such incurrence, if any), and (C) the Borrowing Base shall be reduced in accordance with Section 2.07(e) and the Borrower shall make any prepayment required by Section 3.04(c)(iii); (ii) such Second Lien Term Debt does not have any scheduled principal amortization prior to the date which is one hundred eighty (180) days after the Maturity Date; and (iii) such Second Lien Term Debt does not mature sooner than the date which is one hundred eighty (180) days after the Maturity Date. (j) Senior Debt and any guarantees thereof, the principal amount of which does not exceed $200,000,000 in the aggregate at any one time outstanding; provided that: (i) the Borrower shall have complied with Section 8.01(t); (ii) both before and immediately after giving effect to the incurrence of any such Debt, no Default, Event of Default or Borrowing Base Deficiency exists or would exist (after giving effect to any concurrent prepayment made pursuant to Section 3.04(c)(iii) and any concurrent repayment of Debt with the proceeds of such incurrence, if any); (iii) the Borrowing Base shall be adjusted to the extent required by Section 2.07(f) and the Borrower shall make any prepayment required by Section 3.04(c)(iii); (iv) such Senior Debt does not have any scheduled principal amortization prior to the date which is one hundred eighty days after the Maturity Date; (v) such Senior Debt does not mature sooner than the date which is one hundred eighty days after the Maturity Date; (vi) the net cash proceeds of which are applied substantially simultaneously with (and in any event not later than the third Business Day next following) the incurrence thereof to prepay outstanding Second Lien Term Debt, if any; (vii) no Subsidiary is required to guarantee such Senior Debt unless such Subsidiary has guaranteed the Indebtedness pursuant to the Guaranty Agreement; (viii) if such Senior Debt is senior subordinated Debt, such Senior Debt is expressly subordinate to the payment in full of all of the Indebtedness on terms and conditions reasonably satisfactory to the Administrative Agent and the Required Lenders; (ix) such Senior Debt and any guarantees thereof are on terms, taken as a whole, at least as favorable to the Borrower and the Subsidiaries as market terms for issuers of similar size and credit quality given the then prevailing market conditions as determined by the Administrative Agent and the Required Lenders; and (x) such Senior Debt does not have any mandatory prepayment or redemption provisions “(other than customary change of control or asset sale tender offer provisionsclauses (a), (g), (h) which would require a mandatory prepayment or redemption in priority to the Indebtednessand (m))”.

Amendments to Section 9. 02. 04. (a) Section 9.02 9.04(a)(x) of the Credit Agreement is hereby amended by (ai) renumbering Section 9.02(i) deleting the second reference to be 9.02(k“pursuant to this clause (x)” therein and inserting in lieu thereof “pursuant to this clause (x) and clause (xii) of this Section 9.04(a)” and (ii) deleting the last reference to “and” at the end of such section. (b) adding Section 9.04(a)(xi) of the following Section 9.02(i) Credit Agreement is hereby amended by deleting the “.” therein and Section 9.02(j):inserting in lieu thereof “, and”. (ic) Second Lien Term Debt Section 9.04(a) of the Credit Agreement is hereby amended by adding a new clause (xii) thereto immediately following clause (xi) thereof to read as follows: “(xii) commencing on the Test Period ending December 31, 2020, each of the Parent, OP LLC and any guarantees thereof, the principal amount of which does not exceed $100,000,000 in the aggregate at any one time outstanding; Borrower shall be permitted to make other Restricted Payments provided that: (i) upon the incurrence of any such Debt after the Initial Second Lien Funding Date: that (A) the Borrower shall have complied with Section 8.01(s)no Event of Default is continuing or would result therefrom, (B) both before and immediately the pro forma Leverage Ratio after giving effect thereto for the most recent Test Period ending on or after such date is less than 2.0 to 1.0, (C) the incurrence pro forma Available Commitment after giving effect thereto is not less than 25% of any the total Commitments then in effect, (D) if the pro forma Leverage Ratio after giving effect thereto for the most recent Test Period exceeds 1.5 to 1.0, the amount of such Debt, no Default, Event Restricted Payments made since the Effective Date pursuant to this clause (xii) shall not exceed the amount of Default or Borrowing Base Deficiency exists or would exist positive Free Cash Flow (including after giving effect to any concurrent prepayment made other Restricted Payments pursuant to this clause (xii), Investments pursuant to Section 3.04(c)(iii9.05(l) and any concurrent repayment of Debt with Capital Expenditures pursuant to Section 9.22(a) made since the proceeds of such incurrence, if any), Effective Date and (C) the Borrowing Base shall be reduced in accordance with Section 2.07(e) and the Borrower shall make any prepayment required by Section 3.04(c)(iii); (ii) such Second Lien Term Debt does not have any scheduled principal amortization prior to the date which is one hundred eighty (180) days after of determination that would otherwise reduce the Maturity Date; and (iii) such Second Lien Term Debt does not mature sooner than the date which is one hundred eighty (180) days after the Maturity Date. (j) Senior Debt and any guarantees thereof, the principal amount of which does Free Cash Flow), (E) the aggregate amount of Restricted Payments made pursuant to this clause (xii) during any fiscal quarter shall not exceed $200,000,000 in 10,000,000 and the aggregate at any one time outstanding; provided that: (i) the Borrower shall have complied with Section 8.01(t); (ii) both before and immediately after giving effect to the incurrence amount of any such Debt, no Default, Event of Default or Borrowing Base Deficiency exists or would exist (after giving effect to any concurrent prepayment Restricted Payments made pursuant to Section 3.04(c)(iiithis clause (xii) at any time shall not exceed $25,000,000, and (F) any concurrent repayment of Debt with the proceeds of such incurrence, if any); Restricted Payments made pursuant to this clause (iiixii) the Borrowing Base shall be adjusted to the extent required by Section 2.07(f) and the Borrower shall make any prepayment required by Section 3.04(c)(iii); (iv) such Senior Debt does not have any scheduled principal amortization made prior to the date which is one hundred eighty days after the Maturity Date; (v) such Senior Debt does not mature sooner than the date which is one hundred eighty days after the Maturity Date; (vi) the net cash proceeds of which are applied substantially simultaneously with (and in any event not later than the third Business Day next following) the incurrence thereof to prepay outstanding Second Lien Term DebtOctober 1, if any; (vii) no Subsidiary is required to guarantee such Senior Debt unless such Subsidiary has guaranteed the Indebtedness pursuant to the Guaranty Agreement; (viii) if such Senior Debt is senior subordinated Debt, such Senior Debt is expressly subordinate to the payment in full of all of the Indebtedness on terms and conditions reasonably satisfactory to the Administrative Agent and the Required Lenders; (ix) such Senior Debt and any guarantees thereof are on terms, taken as a whole, at least as favorable to the Borrower and the Subsidiaries as market terms for issuers of similar size and credit quality given the then prevailing market conditions as determined by the Administrative Agent and the Required Lenders; and (x) such Senior Debt does not have any mandatory prepayment or redemption provisions (other than customary change of control or asset sale tender offer provisions) which would require a mandatory prepayment or redemption in priority to the Indebtedness2021.”