Common use of Equity Issuances Clause in Contracts

Equity Issuances. No Loan Party will, or will permit any Subsidiary to, (i) issue any preferred stock or other Capital Stock (except for preferred stock (x) all dividends in respect of which are to be paid (and all other payments in respect of which are to be made) in additional shares of such preferred stock, in lieu of cash until all Obligations are paid in full and all Commitments terminated, (y) that is not subject to redemption other than redemption at the option of the Loan Party issuing such preferred stock and (z) all payments in respect of which are expressly subordinated to the Obligations), (ii) except as permitted above, be or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of (x) any shares of Capital Stock of any Loan Party or (y) any option, warrant or other right to acquire any such shares of Capital Stock of any Loan Party, or (iii) except as permitted above, issue any additional shares of its Capital Stock; provided that notwithstanding anything to the contrary contained herein, nothing in this SECTION 6.06 shall prohibit (a) the issuance of Capital Stock by the Parent (other than preferred stock not permitted to be issued under clause (i) above) so long as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 hereof; (b) the issuance of options or stock awards, including, without limitation, issuances of options or stock awards to employees of the Merger Subsidiary pursuant to the Merger Agreement and expressly set forth therein so long as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 hereof, or (c) the issuance of Capital Stock by Parent (other than preferred stock not permitted to be issued under clause (i) above) with respect to the Warrants or in connection with the issuance of options, warrants or stock awards, or in connection with the exercise of options, warrants or stock awards, so long as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 hereof.” r. By amending Section 6.07(b) (Restricted Payments; Certain Payments of Indebtedness) thereto as follows: i. By deleting clause (ii) thereof in its entirety and substituting the following clause (ii) in its stead:

Equity Issuances. No Loan Party will, or will permit any Subsidiary to, (a) The Company shall not (i) issue any preferred stock equity or equity-related securities that are or can rank pari passu with or senior to the Preferred Stock, in each case according to the Company’s Articles of Incorporation or (ii) incur any indebtedness, including indebtedness to fund pre-development costs, except as provided in Section 4(c) below. (b) If the Other Company Parties, which for clarity in this section will not include the Company or any of its subsidiaries, shall incur any indebtedness or issue any equity securities, the proceeds of which will be utilized (i) to compete with the ▇▇▇▇▇ Project or (ii) to fund directly or indirectly any development by the ▇▇▇▇▇ Project (“▇▇▇▇▇ Proceeds”), in each case except for indebtedness permitted under Section 4(c) below or as consented to in writing by the Cartesian Investors prior to any such sale or incurrence, in an aggregate amount of ▇▇▇▇▇ Proceeds equal to or greater than $150,000,000, then on or before November 25, 2019, the Cartesian Investors will have the right to put all or any portion of any series of Preferred Stock and a corresponding portion of shares of Common Stock or other Capital shares of the Company, if any, into which such Preferred Stock have been converted by the Cartesian Investors (except the “Put Shares”) to the Company for preferred stock repurchase by the Company (xthe “Put Right”), at a price equal to the greater of (i) all dividends the fair market value of such Put Shares (as determined below) or (ii) $75,000,000 (clause (i) or (ii), as applicable, the “Put Value”) with each holder of Put Shares receiving a portion of the Put Value equal to the number of Put Shares surrendered by such holder on the date of repurchase by the Company (on an as converted basis in relation to any shares of the applicable series of Preferred Stock) divided by the aggregate number of shares of Common Stock received upon conversion of the Preferred Stock and available, on an as converted basis, in respect of the Preferred Stock. The Put Right shall be exercisable by the Cartesian Investors providing written notice to the Company stating the exercise of the Put Right, and requesting payment for the Put Shares with reasonable instructions for payment, which are notice may be delivered at any time subsequent to the ▇▇▇▇▇ Proceeds exceeding $150,000,000 but in any case must be received by the Company no later than twenty (20) Business Days prior to November 25, 2019. If the Company does not receive notice from the Cartesian Investors prior to the start of such twenty (20) Business-Day period, then the Put Right shall expire without exercise. The Company will undertake to complete the repurchase of the Put Shares as promptly as possible after receipt of notice of the exercise of the Put Right, provided that if the Company satisfies the exercise of a Put Right prior to November 25, 2019, it shall be entitled to discount the payment due under such Put Right at an annual discount rate of 5%. The fair market value of the Put Shares shall be determined as of the date immediately prior to the applicable Other Company Party taking the applicable action that triggers the Put Right and shall be determined by two third-party appraisers, each of which shall be a member of an independent, nationally recognized investment banking firm, accounting firm or consulting firm that has no conflicts with respect to such engagement as reasonably determined by the Company, the Cartesian Investors, one of which shall be selected by the Company and the other of which shall be selected by the Cartesian Investors. Each appraiser shall, within sixty (60) days of appointment, separately investigate and determine the fair market value of one share of each class of the Put Shares, and the per share price to be paid (and all other payments in respect by the Company pursuant to this Section 4(b) shall be the average of which are the two prices determined by the appraisers. Such per share price determination for each class of Put Shares shall be deemed to be made) final and binding on the parties in additional shares of relation to such preferred stock, in lieu of cash until all Obligations are paid in full and all Commitments terminated, (y) that is not subject to redemption other than redemption at Put Right. The Company shall bear the option costs of the Loan foregoing appraisals. (c) Notwithstanding the foregoing, the Company or any Other Company Party issuing may incur Senior Secured Debt or Junior Subordinated Debt to (i) finance the construction costs of the ▇▇▇▇▇ Project so long as such preferred stock and (z) all payments Senior Secured Debt or Junior Subordinated Debt is in respect the form of which are expressly subordinated a bridge loan, construction loan, mini-perm loan, bond sale or financing or convertible loan with an option to convert such loan into Shares of Common Stock of the Obligations)Company, (ii) except as permitted aboverefinance the indebtedness described in clause (i), be or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of (x) any shares of Capital Stock of any Loan Party or (y) any option, warrant or other right to acquire any such shares of Capital Stock of any Loan Party, or and (iii) except as permitted abovefund the Company’s subsequent ongoing operations, issue any additional shares of its Capital Stock; provided that notwithstanding anything to the contrary contained herein, nothing in this SECTION 6.06 shall prohibit (a) the issuance of Capital Stock by the Parent (other than preferred stock not permitted to be issued under clause (i) above) so long as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to working capital requirements and reduction expansion of the Obligations in accordance with SECTION 2.16 hereof; (b) the issuance of options or stock awards, including, without limitation, issuances of options or stock awards to employees of the Merger Subsidiary pursuant to the Merger Agreement and expressly set forth therein so long as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 hereof, or (c) the issuance of Capital Stock by Parent (other than preferred stock not permitted to be issued under clause (i) above) with respect to the Warrants or in connection with the issuance of options, warrants or stock awards, or in connection with the exercise of options, warrants or stock awards, so long as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 hereof▇▇▇▇▇ Project.” r. By amending Section 6.07(b) (Restricted Payments; Certain Payments of Indebtedness) thereto as follows: i. By deleting clause (ii) thereof in its entirety and substituting the following clause (ii) in its stead:

Equity Issuances. No Loan Party willOne hundred percent (100%) of the Net Cash Proceeds received by the Principal Borrower from a Public Offering meeting the conditions in Section 2.16 shall be applied promptly upon (and, or will permit in any Subsidiary tocase, within one (i1) issue Business Day following) receipt thereof, to the prepayment of the Outstanding Amount of the Loans and any preferred stock or other Capital Stock L/C Borrowings. Prepayments made pursuant to this clause (except for preferred stock (xb)(i) all dividends in shall be applied first to the Outstanding Amount under the Term A Facility and then to the Revolving Credit Facility on a pro rata basis based on the Outstanding Amount with respect each such Facility as of which are to be paid (and all other payments in respect of which are to be made) in additional shares the date of such preferred stockprepayment; provided, in lieu however, that the Borrowers shall not be required to reduce the Outstanding Amount to an amount less than the NY Maximum Principal Amount as a result of cash until all Obligations are paid in full and all Commitments terminatedsuch prepayment (provided, (y) further, that is not subject to redemption other than redemption at any excess Net Cash Proceeds resulting from the option application of the Loan Party issuing such preferred stock and (z) all payments in respect of which are expressly subordinated to the Obligations)this proviso shall, (ii) except as permitted abovefirst, be or become liable in respect of used to Cash Collateralize any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of (x) any shares of Capital Stock of any Loan Party or (y) any option, warrant or other right to acquire any such shares of Capital Stock of any Loan Party, or (iii) except as permitted above, issue any additional shares of its Capital Stock; provided that notwithstanding anything to the contrary contained herein, nothing in this SECTION 6.06 shall prohibit (a) the issuance of Capital Stock by the Parent (other than preferred stock not permitted to be issued under clause (i) above) so long as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to and reduction of the Obligations then-existing L/C Borrowings in accordance with SECTION 2.16 hereof; the provisions of this clause (bb)(i) and second, be retained by the issuance of options or stock awards, including, without limitation, issuances of options or stock awards to employees Borrowers as working capital. Prepayments of the Merger Subsidiary Term A Facility made pursuant to this Section 2.05(b)(i) shall permanently reduce availability under the Term A Facility (subject to subsequent increases in such Facility pursuant to the Merger Agreement and expressly set forth therein so long terms of Section 2.15 hereof); provided, that any portion of the Term A Facility which is prepaid as a result of the Net Proceeds thereof application of this Section 2.05(b)(i) (if anythe “Convertible Term A Prepaid Principal”) are deposited into the Concentration Account for application shall be converted to Revolving Credit Commitments pursuant to and reduction of the Obligations in accordance with SECTION 2.16 hereofthe provisions of Section 2.16. Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b)(i), or (c) the issuance of Capital Stock by Parent (other than preferred stock not permitted to first, shall be issued under clause (i) above) with respect applied ratably to the Warrants or outstanding L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; provided, however, that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in connection with the issuance of options, warrants or stock awards, or in connection with the exercise of options, warrants or stock awards, so long as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to and reduction full of the outstanding Revolving Credit Loans and Swing Line Loans the L/C Obligations in accordance with SECTION 2.16 hereofexceed the Letter of Credit Sublimit and then, only such excess.” r. By amending Section 6.07(b) (Restricted Payments; Certain Payments of Indebtedness) thereto as follows: i. By deleting clause (ii) thereof in its entirety and substituting the following clause (ii) in its stead:

Equity Issuances. No Loan Party willlater than five (5) Business Days following the date of receipt by the Borrower of any Net Equity Proceeds, the Borrower shall prepay the Obligations in an aggregate amount equal to 75% (the “Equity Percentage”) of such Net Equity Proceeds; provided, however, that so long as no Default or will permit any Subsidiary toEvent of Default shall have occurred and be continuing, the Borrower shall have the option upon written notice stating its intention to the Administrative Agent and each Lender (ior by filing materials with the SEC stating Borrower’s intention and contemporaneously delivering such materials to the Administrative Agent and each Lender) issue any preferred stock within ten (10) Business Days of receipt of such Net Equity Proceeds, directly or other Capital Stock through one or more Credit Party, to (except for preferred stock A) invest or commit to invest such Net Equity Proceeds (x) all dividends in respect investments permitted pursuant to Section 6.7(g) or (k) within six (6) months from the date of which are to be paid (and all other payments in respect of which are to be made) in additional shares receipt of such preferred stock, in lieu of cash until all Obligations are paid in full and all Commitments terminated, (y) that is not subject to redemption other than redemption at the option of the Loan Party issuing such preferred stock and (z) all payments in respect of which are expressly subordinated to the Obligations), (ii) except as permitted above, be or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of (x) any shares of Capital Stock of any Loan Party Net Equity Proceeds; or (y) in long term productive assets of the general type used in the business of the Credit Parties, including through Acquisitions permitted hereunder, in each case, within one (1) year of receipt of such Net Equity Proceeds or (B) to fund the Target’s activities within six (6) months from the date of receipt of such Net Equity Proceeds, provided that, in the case of investments described in clause (A)(x) above, if any option, warrant or other right amount is so committed to acquire any be reinvested but is not so reinvested within six (6) months from the date of receipt of such shares of Capital Stock of any Loan PartyNet Equity Proceeds, or in the case of investments described in clause (iiiA)(y) except as permitted above, issue if any additional shares of its Capital Stock; provided that notwithstanding anything to the contrary contained herein, nothing in this SECTION 6.06 shall prohibit (a) the issuance of Capital Stock by the Parent (other than preferred stock not permitted amount is so committed to be issued under reinvested within such one-year period, but is not reinvested within such one-year period after the receipt of such Net Equity Proceeds or as described in clause (iB), within six (6) above) so long as months from the date of receipt of such Net Equity Proceeds, then, in each case, the Borrower shall use 75% of the unused portion of such Net Equity Proceeds thereof (if any) are deposited into the Concentration Account for application to and reduction of repay the Obligations in accordance with SECTION 2.16 hereof; (bthis Section 2.8(g) the issuance of options or stock awards, including, without limitation, issuances of options or stock awards giving further effect to employees of the Merger Subsidiary pursuant to the Merger Agreement and expressly set forth therein so long as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 hereof, or (c) the issuance of Capital Stock by Parent (other than preferred stock not permitted to be issued under clause (i) above) with respect to the Warrants or in connection with the issuance of options, warrants or stock awards, or in connection with the exercise of options, warrants or stock awards, so long as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 hereofsuch reinvestment right.” r. By amending Section 6.07(b) (Restricted Payments; Certain Payments of Indebtedness) thereto as follows: i. By deleting clause (ii) thereof in its entirety and substituting the following clause (ii) in its stead:

Equity Issuances. No Loan Party will(a) From and after the Closing, so long as TPG Persons Beneficially Own, in the aggregate, at least 25% of the Original Number of Combined Shares, the Company and each of its Subsidiaries shall not, without the prior written approval of the Investor, issue or sell any Equity Interests of the Company or any Subsidiary or any Derivative Securities in a transaction or series of related transactions (such transaction or series of related transactions, a "10% Transaction") as a direct or indirect result of which any Person (other than any institutionally managed, public held mutual fund registered with the Commission) or Group would have, or will permit have the right to acquire, Beneficial Ownership of Equity Interests representing 10% or more of the aggregate Voting Power of the then-outstanding Voting Securities of the Company or any Subsidiary tosuch Subsidiary; provided, however, that the Company may issue its Equity Interests in a 10% Transaction without any such approval if (i) issue any preferred stock or other Capital Stock (except for preferred stock (x) all dividends in respect of which are the consideration to be paid (and all other payments received by the Company in respect such transaction is solely in the form of which are to be made) in additional shares of such preferred stock, in lieu of cash until all Obligations are paid in full and all Commitments terminated, (y) that is not subject to redemption other than redemption at the option of the Loan Party issuing such preferred stock and (z) all payments in respect of which are expressly subordinated to the Obligations)cash, (ii) except as permitted abovethe transaction is completed pursuant to a Purchase Agreement, be or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of (x) any shares of Capital Stock of any Loan Party or (y) any option, warrant or other right to acquire any such shares of Capital Stock of any Loan Party, or and (iii) except as the Company has complied with the procedures set forth in Section 7.11(b) hereof with respect to such transaction; and provided further, that, notwithstanding the foregoing any transaction expressly permitted above, issue pursuant to Section 6.02 hereof shall not constitute a 10% Transaction. (i) Prior to any additional shares offer or sale by the Company of any of its Capital Stock; provided that notwithstanding anything Equity Interests (the "Covered Securities") in a 10% Transaction, the Company shall give written notice (a "Proposed Sale Notice") to the contrary contained hereinInvestor of the Company's desire to sell the Covered Securities, nothing in this SECTION 6.06 which notice shall prohibit identify (aA) the issuance number of Capital Stock by Covered Securities, (B) the Parent terms of the Covered Securities and (C) any other material terms and conditions of the proposed offer or sale (other than preferred stock not permitted a proposed sale price). The date on which such Proposed Sale Notice is given is referred to be issued under clause (i) above) so long herein as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to "Notice Date." On and reduction of the Obligations in accordance with SECTION 2.16 hereof; (b) the issuance of options or stock awards, including, without limitation, issuances of options or stock awards to employees of the Merger Subsidiary pursuant prior to the Merger Agreement Solicitation Date with respect to any Covered Securities, and expressly set forth therein so long as following the Net Proceeds thereof (Solicitation Date if any) are deposited into the Concentration Account for application Company shall have delivered an Acceptance Notice with respect to such Covered Securities, the Company shall not, shall not permit any of its Subsidiaries or Affiliates to, and reduction shall not authorize or permit any of its or their Representatives to, directly or indirectly, solicit or encourage the Obligations in accordance with SECTION 2.16 hereof, or (c) the issuance submission of Capital Stock by Parent any proposal from any Person (other than preferred stock not permitted to be issued under clause the Investor and its Affiliates), participate in any discussion or negotiations with any Person (i) above) other than the Investor and its Affiliates), or authorize, engage in or enter any agreement or understanding with any Person (other than the Investor and its Affiliates), with respect to the Warrants issuance or sale of such Covered Securities. (ii) The Investor shall have forty days following the Notice Date (the "Response Period") to notify the Company in connection writing (such notification, an "Offer to Purchase") of its offer, or an offer by any of its Affiliates, to purchase in cash all (but not less than all) of the Covered Securities referred to in the relevant Proposed Sale Notice. During the Response Period, if requested by the Investor or any of its Affiliates, the Company shall negotiate in good faith with the issuance Investor or such Affiliate with respect to the terms of options, warrants a proposed purchase of Covered Securities by the Investor or stock awards, or in connection with such Affiliate. Any Offer to Purchase shall set forth a proposed cash purchase price for such Covered Securities (the exercise of options, warrants or stock awards, so long as "Investor Price") and the Net Proceeds thereof (if any) are deposited into proposed closing date for the Concentration Account for application to purchase and reduction may include other material terms and conditions of the Obligations proposed purchase. The Investor shall not be obligated to deliver an Offer to Purchase, and if an Offer to Purchase is not given prior to the end of the Response Period, the Investor shall be deemed to have declined to purchase such Covered Securities. (iii) The Company shall have ten days following the delivery of an Offer to Purchase to accept the offer made by the Investor or its Affiliates to purchase all (but not less than all) of the Covered Securities on the terms and subject to the conditions set forth in the Offer to Purchase by giving the Investor written notice to that effect (an "Acceptance Notice"). If, in accordance with SECTION 2.16 hereofthe terms of the preceding sentence, the Company accepts the offer made by the Investor or its Affiliates to purchase such Covered Securities on the terms and subject to the conditions set forth in the Offer to Purchase, the closing for such transaction shall take place at a time and place reasonably acceptable to the Investor and the Company. If the Company does not give an Acceptance Notice in accordance with the terms of the first sentence of this paragraph, the Company shall be deemed to have rejected the offer set forth in the relevant Offer to Purchase.” r. By amending (iv) If the Company has complied with the foregoing provisions of this Section 6.07(b7.11(b) and shall not have given an Acceptance Notice with respect to any Covered Securities following the Solicitation Date with respect to such Covered Securities, the Company may enter into a Purchase Agreement with any other Person with respect to all (Restricted Paymentsbut not less than all) of such Covered Securities within 40 days following such Solicitation Date (or within 60 days following such Solicitation Date, if such Purchase Agreement constitutes a customary underwriting agreement (an "Underwriting Agreement") that contemplates a bona fide offering of the Covered Securities to the public that is registered under the Securities Act) and sell all (but not less than all) of the Covered Securities pursuant to such Purchase Agreement within 70 days following such Solicitation Date (or within 100 days following such Solicitation Date if such sale is made pursuant to an Underwriting Agreement and constitutes a bona fide offering of the Covered Securities to the public that is registered under the Securities Act); Certain Payments provided that (i) the purchase price for such Covered Securities in such sale is at least 105% of Indebtedness) thereto as follows: i. By deleting clause the related Investor Price, if any, and (ii) thereof the terms and conditions of such sale are otherwise not materially worse for the Company than those set forth in its entirety the related Offer to Purchase. If the Company has not executed a Purchase Agreement with respect to such Covered Securities within 40 days or 60 days, as the case may be, following the relevant Solicitation Date, or has not completed a sale of all of such Covered Securities within 70 days or 100 days, as the case may be, following the relevant Solicitation Date, the Company shall no longer be permitted to sell such Covered Securities without again fully complying with all the provisions of this Section 7.11, and substituting all the following clause (ii) restrictions contained in its stead:this Section 7.11 shall again be in effect with respect to such Covered Securities.

Equity Issuances. No Loan Party willPrior to the Forbearance Period Termination Date, Borrower shall have successfully completed one or will permit any Subsidiary tomore issuances of common and/or preferred stock or rights to purchase common and/or preferred stock on terms and conditions satisfactory to the Administrative Agent (together with the Interim Issuance, the “Equity Issuances”) pursuant to which Borrower shall have received total gross proceeds of at least $150,000,000, which result in Borrower’s receipt of Net Proceeds of at least $140,000,000 (the “Equity Issuance Net Proceeds”), in consideration of such issuances, and such Equity Issuance Net Proceeds shall have been applied as follows: (a) if the Forbearance Period Termination Date has not been automatically extended or has been automatically extended to April 30, 2009 pursuant to clause (b)(i) of the definition of “Forbearance Period Termination Date”, then (i) issue any preferred stock or other Capital Stock (except for preferred stock (x) all dividends in respect the first $100,000,000 of which are Equity Issuance Net Proceeds to be paid (and all other payments in respect of which are to be made) in additional shares of such preferred stock, in lieu of cash until all Obligations are paid in full and all Commitments terminated, (y) that is not subject to redemption other than redemption at the option payment of the Loan Party issuing such preferred stock and (z) all payments in respect of which are expressly subordinated to the Obligations), (ii) except the next $40,000,000 of Equity Issuance Net Proceeds to be retained by the Borrower as permitted aboveworking capital, be or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of (x) any shares of Capital Stock of any Loan Party or (y) any option, warrant or other right to acquire any such shares of Capital Stock of any Loan Party, or and (iii) except as permitted aboveall remaining Equity Issuance Net Proceeds to payment of the Obligations then outstanding, issue any additional shares (b) if the Forbearance Period Termination Date has been extended to May 15, 2009 pursuant to clause (b)(ii) of its Capital Stock; provided that notwithstanding anything to the contrary contained hereindefinition of “Forbearance Period Termination Date”, nothing in this SECTION 6.06 shall prohibit (a) the issuance of Capital Stock by the Parent (other than preferred stock not permitted to be issued under clause then (i) abovefifty (50%) so long as percent of the Equity Issuance Net Proceeds thereof (if any) are deposited into of the Concentration Account for application Interim Issuance to and reduction payment of the Obligations with a corresponding automatic reduction in the Borrowing Base (but not below the then existing Conforming Borrowing Base) in accordance with SECTION 2.16 hereof; (bSection 2.6(c) the issuance of options or stock awards, including, without limitation, issuances of options or stock awards to employees of the Merger Subsidiary Credit Agreement, (ii) fifty (50%) percent of the Equity Issuance Net Proceeds of the Interim Issuance to the Borrower to be retained as working capital up to a maximum of $40,000,000 of the Equity Issuance Net Proceeds, and (iii) all remaining Equity Issuance Net Proceeds to payment of the Obligations then outstanding, and (c) if the Forbearance Period Termination Date has been extended to June 15, 2009 pursuant to the Merger Agreement and expressly set forth therein so long as last sentence in the definition of “Forbearance Period Termination Date”, then all Equity Issuance Net Proceeds thereof received after the Signing Date with respect to Equity Issuances other than the Interim Issuance shall be applied (if anyi) are deposited into first to the Concentration Account for application to and reduction payment of the Obligations in accordance until such Equity Issuance Net Proceeds together with SECTION 2.16 hereofthe Equity Issuance Net Proceeds received by Borrower from the Interim Issuance and applied to reduce the Obligations total $100,000,000, or (cii) the issuance of Capital Stock by Parent (other than preferred stock not permitted second, to be issued under clause (i) above) with respect to retained by the Warrants or in connection Borrower as working capital, until such Equity Issuance Net Proceeds together with the issuance of options, warrants or stock awards, or in connection with the exercise of options, warrants or stock awards, so long as the Equity Issuance Net Proceeds thereof received by Borrower from the Interim Issuance and not applied to reduce the Obligations total $40,000,000, and (if anyiii) are deposited into the Concentration Account for application all remaining Equity Issuance Net Proceeds to and reduction payment of the Obligations in accordance with SECTION 2.16 hereofthen outstanding.” r. By amending Section 6.07(b) (Restricted Payments; Certain Payments of Indebtedness) thereto as follows: i. By deleting clause (ii) thereof in its entirety and substituting the following clause (ii) in its stead:

Equity Issuances. No Loan Party willIf, at any time, on and after the First Amendment Date and prior to the last day of the Restriction Period, the Parent, the Borrower or will permit any Subsidiary tothereof receives cash proceeds from any Equity Issuances (other than, with respect to Equity Issuances, as provided in the final sentence of this clause (b)(iiiiv)), the Borrower shall, in accordance with clause (ivv) below, prepay the Term Loans, prepay the Revolving Loans and Swingline Loans and Cash Collateralize the Letter of Credit Liabilities (without a permanent reduction in the Revolving Commitments) and prepay the Existing Term Loan (to an amount not less than the Existing Term Loan Floor) in an amount equal to the amount of such cash proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith (to the extent not paid to an Affiliate of the Parent, the Borrower or its Subsidiaries), including reasonable legal fees and expenses, within three (3) Business Days of the Parent’s, the Borrower’s or such Subsidiary’s receipt of such cash proceeds. Notwithstanding the foregoing, (iA)(I) issue any preferred stock or other Capital Stock (except for preferred stock (x) all dividends in respect if the net proceeds of which are Equity Issuances shall not be required to be paid used to prepay such amounts if (A) subject to the immediately following sentence, both at the time of any Equity Issuance and all other payments after giving effect to theany purchase of Unencumbered Properties as described in respect clause (IIB) below, Availability is equal to or greater than $300,000,000225,000,000 and (IIB) the proceeds of which Equity Issuances are to be madeeither (1) in additional shares retained as unrestricted cash on the balance sheet of such preferred stock, in lieu of cash until all Obligations are paid in full and all Commitments terminatedthe Borrower or, (y2) that is not subject applied within 30 days (or such longer period as agreed to redemption other than redemption at by the option Administrative Agent) of the Loan Party issuing such preferred stock and (z) all payments in respect of which are expressly subordinated receipt thereof to the Obligationspurchase of one or more Unencumbered Properties or (B)(I) if both3) applied to the purchase of one or more other Properties; provided that, with respect to this clause (3), (ii) except as permitted above, be or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of (x) any shares of Capital Stock of any Loan Party debt incurred or (y) any option, warrant or other right to acquire any such shares of Capital Stock of any Loan Party, or (iii) except as permitted above, issue any additional shares of its Capital Stock; provided that notwithstanding anything to the contrary contained herein, nothing in this SECTION 6.06 shall prohibit (a) the issuance of Capital Stock by the Parent (other than preferred stock not permitted to be issued under clause (i) above) so long as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 hereof; (b) the issuance of options or stock awards, including, without limitation, issuances of options or stock awards to employees of the Merger Subsidiary pursuant to the Merger Agreement and expressly set forth therein so long as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 hereof, or (c) the issuance of Capital Stock by Parent (other than preferred stock not permitted to be issued under clause (i) above) with respect to the Warrants or assumed in connection with the issuance purchase of optionssuch Properties is Nonrecourse Indebtedness and (y) the aggregate amount of net proceeds from all Equity Issuances applied in accordance with this clause (3) shall not exceed $100,000,000 (subject to compliance with Section 10.15(e)(iv)) (clauses (1) – (3) are collectively referred to as the “Equity Payment Exclusions”). Notwithstanding clause (A) above, warrants if Availability at the time of any Equity Issuance andis less than $225,000,000 or stock awardswould be less than $225,000,000 after giving effect to theany purchase of Properties as described in clause (II) below, Availability equals $400,000,000, (II) the proceeds of Equity Issuances are applied within 30 days (or such longer period as agreed to by the Administrative Agent) of the receipt thereof to the purchase of one or more Properties and (III) the aggregate amount of net proceeds from an Equity Issuance applied in connection accordance with clause (B)(II) do not exceed an amount equal to $300,000,000 minus the principal amount of Permitted Assumed Debt, the net proceeds of such Equity Issuances so applied in accordance with clause (A) and (B) above shall not be required to be used to prepay Indebtedness as otherwise required by this clause (b)(iii).B) above, if the Borrower repays Revolving Loans and/or Swingline Loans with the exercise proceeds of options, warrants or stock awardssuch Equity Issuance and, so long as the Net Proceeds thereof after giving effect to any such repayment and any purchase of Properties as described in clause (if anyB) are deposited into the Concentration Account for application above Availability is equal to and reduction or greater than $225,000,000, any remaining proceeds of the Obligations such Equity Issuance may be applied in accordance with SECTION 2.16 hereofthe Equity Payment Exclusions.” r. By amending Section 6.07(b) (Restricted Payments; Certain Payments of Indebtedness) thereto as follows: i. By deleting clause (ii) thereof in its entirety and substituting the following clause (ii) in its stead:

Equity Issuances. No Loan Party willIf, at any time, on and after the First Amendment Date and prior to the last day of the Restriction Period, the Parent, the Borrower or will permit any Subsidiary tothereof receives cash proceeds from any Equity Issuances (other than, with respect to Equity Issuances, as provided in the final sentence of this clause (b)(iv)), the Borrower shall, in accordance with clause (v) below, prepay the Revolving Loans and Swingline Loans and Cash Collateralize the Letter of Credit Liabilities (without a permanent reduction in the Revolving Commitments) in an amount equal to the amount of such cash proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith (to the extent not paid to an Affiliate of the Parent, the Borrower or its Subsidiaries), including reasonable legal fees and expenses, within three (3) Business Days of the Parent’s, the Borrower’s or such Subsidiary’s receipt of such cash proceeds. Notwithstanding the foregoing the net proceeds of Equity Issuances shall not be required to be used to prepay such amounts if (i) issue any preferred stock or other Capital Stock (except for preferred stock (x) all dividends in respect of which are to be paid (and all other payments in respect of which are to be made) in additional shares the proceeds of such preferred stock, in lieu Equity Issuances are promptly applied to acquisitions of cash until all Obligations are paid in full and all Commitments terminated, Unencumbered Properties (yor the Equity Interests of a direct or indirect owner of an Unencumbered Property) that is not subject to redemption other than redemption at the option of the Loan Party issuing such preferred stock and (z) all payments in respect of which are expressly subordinated to the Obligations), (ii) except as permitted abovepursuant to Section 10.15(e)(iii)(C) (for the avoidance of doubt, be or become liable in respect the amount of any obligation such Equity Issuance proceeds excluded from the Equity Issuance mandatory prepayment under this clause (contingent or otherwisei) to purchase, redeem, retire, acquire or make any other payment in respect shall not exceed the lesser of (x) any shares the amount of Capital Stock of any Loan Party or the Equity Issuances applied to purchase Investments permitted under Section 10.15(e)(iii)(C) and (y) any optionthe remaining amount available for Investments under Section 10.15(e)(iii)(C)) or (ii) (A) subject to the immediately following sentence, warrant or other right to acquire any such shares of Capital Stock both at the time of any Loan PartyEquity Issuance and after giving effect to any purchase of Properties as described in clause (B) below, Availability is equal to or greater than $225,000,000 and (B) the proceeds of Equity Issuances are either (1) retained as unrestricted cash on the balance sheet of the Borrower, (2) applied to the purchase of one or more Unencumbered Properties or (iii3) except as permitted above, issue any additional shares applied to the purchase of its Capital Stockone or more other Properties; provided that notwithstanding anything to the contrary contained hereinthat, nothing in this SECTION 6.06 shall prohibit (a) the issuance of Capital Stock by the Parent (other than preferred stock not permitted to be issued under clause (i) above) so long as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 hereof; (b) the issuance of options or stock awards, including, without limitation, issuances of options or stock awards to employees of the Merger Subsidiary pursuant to the Merger Agreement and expressly set forth therein so long as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 hereof, or (c) the issuance of Capital Stock by Parent (other than preferred stock not permitted to be issued under clause (i) above) with respect to the Warrants this clause (3), (x) any debt incurred or assumed in connection with the issuance purchase of optionssuch Properties is Nonrecourse Indebtedness and (y) the aggregate amount of net proceeds from all Equity Issuances applied in accordance with this clause (3) shall not exceed $100,000,000 (subject to compliance with Section 10.15(e)(iv)) (clauses (1) – (3) of this clause (ii)(B) are collectively referred to as the “Equity Payment Exclusions”). Notwithstanding clause (ii)(A) above, warrants if Availability at the time of any Equity Issuance is less than $225,000,000 or stock awardswould be less than $225,000,000 after giving effect to any purchase of Properties as described in clause (ii)(B) above, or in connection if the Borrower repays Revolving Loans and/or Swingline Loans with the exercise proceeds of options, warrants or stock awardssuch Equity Issuance and, so long as the Net Proceeds thereof after giving effect to any such repayment and any purchase of Properties as described in clause (if anyii)(B) are deposited into the Concentration Account for application above Availability is equal to and reduction or greater than $225,000,000, any remaining proceeds of the Obligations such Equity Issuance may be applied in accordance with SECTION 2.16 hereofthe Equity Payment Exclusions.” r. By amending Section 6.07(b) (Restricted Payments; Certain Payments of Indebtedness) thereto as follows: i. By deleting clause (ii) thereof in its entirety and substituting the following clause (ii) in its stead:

Equity Issuances. No Loan Party will, or will permit any Subsidiary to, (i) issue any preferred stock or other Capital Stock (except for preferred stock (x) all dividends in respect of which are to be paid (and all other payments in respect of which are to be made) in additional shares of such preferred stock, in lieu of cash until all Obligations are paid in full and all Commitments terminated, (y) that is not subject to redemption other than redemption at Immediately upon the option of the Loan Party issuing such preferred stock and (z) all payments in respect of which are expressly subordinated to the Obligations), (ii) except as permitted above, be or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of (x) any shares of Capital Stock of receipt by any Loan Party or (y) Subsidiary of the Net Proceeds of any optionissuance of Equity Interests, warrant or other right Borrower shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereafter provided in an amount equal to acquire one hundred percent of the Net Proceeds of any such shares issuance of Capital Stock of Equity Interests by any Loan Party, or (iii) except as permitted above, issue any additional shares of its Capital Stock; provided that notwithstanding anything to the contrary contained hereinthat, nothing in this SECTION 6.06 shall prohibit (a) the issuance of Capital Stock by the Parent (other than preferred stock not permitted to be issued under clause (i) above) so long as no Default exists, no such reduction or prepayment shall be required: (1) to the extent that (A) on the date of the receipt of such Net Proceeds thereof (if any) are deposited into the Concentration Account for application Borrower notifies Administrative Agent in writing of its or any Loan Party’s intent to and reduction apply such Net Proceeds to all or a portion of the Obligations in accordance with SECTION 2.16 hereof; purchase price of a Permitted Acquisition, and (bB) the issuance within ninety (90) days of options or stock awards, including, without limitation, issuances of options or stock awards to employees of the Merger Subsidiary pursuant to the Merger Agreement and expressly set forth therein so long as the receipt thereof such Net Proceeds thereof (if any) are deposited into the Concentration Account so applied for application to and reduction of the Obligations in accordance with SECTION 2.16 hereof, such purpose; or (c) the issuance of Capital Stock by Parent (other than preferred stock not permitted to be issued under clause (i) above2) with respect to any Equity Interests issued by: (A) any Subsidiary to Borrower or to another Subsidiary Guarantor; or (B) Borrower to purchase, redeem or otherwise acquire shares of its or its Subsidiaries’ common stock in a transaction permitted by Section 7.06(c), or (C) Borrower to directors, officers or employees of Borrower or any other Subsidiary of Equity Interests in the Warrants form of warrants, options or similar rights to acquire any other Equity Interests of Borrower, or any sale or issuance of Equity Interests upon the exercise of any such warrants, options or similar rights. Any prepayment pursuant to this clause (vii) shall be applied as set forth in clause (ix) below. For the avoidance of doubt, the parties hereto agree that Equity Interests issued directly by Borrower to a seller in connection with the issuance a Permitted Acquisition are permitted and are excluded from any prepayment requirement of options, warrants or stock awards, or in connection with the exercise of options, warrants or stock awards, so long as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to and reduction of the Obligations in accordance with SECTION 2.16 hereofthis Section 2.05(b)(vii).” r. By amending Section 6.07(b) (Restricted Payments; Certain Payments of Indebtedness) thereto as follows: i. By deleting clause (ii) thereof in its entirety and substituting the following clause (ii) in its stead:

Equity Issuances. No Loan Party will(a) From and after the Closing, so long as members of the Investor Group Beneficially Own, in the aggregate, at least 50% of the Original Number of Conversion Shares, the Company and each of its Subsidiaries shall not, without the prior written approval of the holders of at least 60% of the Conversion Shares then Beneficially Owned by members of the Investor Group, issue or sell any Equity Securities of the Company or any Significant Subsidiary or any Derivative Securities in a transaction or series of related transactions (such transaction or series of related transactions, a "10% Transaction") as a direct or indirect result of which any Person (other than any institutionally managed, publicly held mutual fund registered with the Commission) or Group would have, or will permit have the right to acquire, Beneficial Ownership of Equity Securities representing 10% or more of the aggregate Voting Power of the then-outstanding Voting Securities of the Company or any Subsidiary tosuch Significant Subsidiary; provided, however, that the Company may issue its Equity Securities in a 10% Transaction without any such approval if (i) issue any preferred stock or other Capital Stock (except for preferred stock (x) all dividends in respect of which are the consideration to be paid (and all other payments received by the Company in respect such transaction is solely in the form of which are to be made) in additional shares of such preferred stock, in lieu of cash until all Obligations are paid in full and all Commitments terminated, (y) that is not subject to redemption other than redemption at the option of the Loan Party issuing such preferred stock and (z) all payments in respect of which are expressly subordinated to the Obligations)cash, (ii) except as permitted abovethe transaction is completed pursuant to a Purchase Agreement, be or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of (x) any shares of Capital Stock of any Loan Party or (y) any option, warrant or other right to acquire any such shares of Capital Stock of any Loan Party, or and (iii) except as the Company has complied with the procedures set forth in Section 8.05(b) hereof with respect to such transaction; and provided further, that, notwithstanding the foregoing none of the following shall constitute a 10% Transaction: (i) any transaction expressly permitted abovepursuant to Section 7.02 hereof, issue (ii) any additional shares of its Capital Stock; provided that notwithstanding anything transaction set forth in the Proposed Asset Sale Letter concluded on terms not materially worse to the contrary contained herein, nothing Company than those terms set forth in this SECTION 6.06 shall prohibit the Proposed Asset Sale Letter and (aiii) any exercise of the Rainwater-Magellan Warrant or Rainwater Pre-emptive Rights and (iv) the issuance of Capital the Series B Preferred Stock pursuant to the terms hereof. (i) Prior to any offer or sale by the Parent Company of any of its Equity Securities (the "Covered Securities") in a 10% Transaction, the Company shall give written notice (a "Proposed Sale Notice") to the Investor of the Company's desire to sell the Covered Securities, which notice shall identify (A) the number of Covered Securities, (B) the terms of the Covered Securities and (C) any other material terms and conditions of the proposed offer or sale (other than preferred stock not permitted a proposed sale price). The date on which such Proposed Sale Notice is given is referred to be issued under clause (i) above) so long herein as the Net Proceeds thereof (if any) are deposited into the Concentration Account for application to "Notice Date." On and reduction of the Obligations in accordance with SECTION 2.16 hereof; (b) the issuance of options or stock awards, including, without limitation, issuances of options or stock awards to employees of the Merger Subsidiary pursuant prior to the Merger Agreement Solicitation Date with respect to any Covered Securities, and expressly set forth therein so long as following the Net Proceeds thereof (Solicitation Date if any) are deposited into the Concentration Account for application Company shall have delivered an Acceptance Notice with respect to such Covered Securities, the Company shall not, shall not permit any of its Subsidiaries or Affiliates to, and reduction shall not authorize or permit any of its or their Representatives to, directly or indirectly, solicit or encourage the Obligations in accordance with SECTION 2.16 hereof, or (c) the issuance submission of Capital Stock by Parent any proposal from any Person (other than preferred stock not permitted to be issued under clause the Investor and its Affiliates), participate in any discussion or negotiations with any Person (i) above) other than the Investor and its Affiliates), or authorize, engage in or enter any agreement or understanding with any Person (other than the Investor and its Affiliates), with respect to the Warrants issuance or sale of such Covered Securities. (ii) The Investor shall have forty days following the Notice Date (the "Response Period") to notify the Company in connection writing (such notification, an "Offer to Purchase") of its offer, or an offer by any of its Affiliates, to purchase in cash all (but not less than all) of the Covered Securities referred to in the relevant Proposed Sale Notice. During the Response Period, if requested by the Investor or any of its Affiliates, the Company shall negotiate in good faith with the issuance Investor or such Affiliate with respect to the terms of options, warrants a proposed purchase of Covered Securities by the Investor or stock awards, or in connection with such Affiliate. Any Offer to Purchase shall set forth a proposed cash purchase price for such Covered Securities (the exercise of options, warrants or stock awards, so long as "Investor Price") and the Net Proceeds thereof (if any) are deposited into proposed closing date for the Concentration Account for application to purchase and reduction may include other material terms and conditions of the Obligations proposed purchase. The Investor shall not be obligated to deliver an Offer to Purchase, and if an Offer to Purchase is not given prior to the end of the Response Period, the Investor shall be deemed to have declined to purchase such Covered Securities. (iii) The Company shall have ten days following the delivery of an Offer to Purchase to accept the offer made by the Investor or its Affiliates to purchase all (but not less than all) of the Covered Securities on the terms and subject to the conditions set forth in the Offer to Purchase by giving the Investor written notice to that effect (an "Acceptance Notice"). If, in accordance with SECTION 2.16 hereofthe terms of the preceding sentence, the Company accepts the offer made by the Investor or its Affiliates to purchase such Covered Securities on the terms and subject to the conditions set forth in the Offer to Purchase, the closing for such transaction shall take place at a time and place reasonably acceptable to the Investor and the Company. If the Company does not give an Acceptance Notice in accordance with the terms of the first sentence of this paragraph, the Company shall be deemed to have rejected the offer set forth in the relevant Offer to Purchase.” r. By amending (iv) If the Company has complied with the foregoing provisions of this Section 6.07(b8.05(b) and shall not have given an Acceptance Notice with respect to any Covered Securities following the Solicitation Date with respect to such Covered Securities, the Company may enter into a Purchase Agreement with any other Person with respect to all (Restricted Paymentsbut not less than all) of such Covered Securities within forty days following such Solicitation Date (or within sixty days following such Solicitation Date, if such Purchase Agreement constitutes a customary underwriting agreement (an "Underwriting Agreement") that contemplates a bona fide offering of the Covered Securities to the public that is registered under the Securities Act) and sell all (but not less than all) of the Covered Securities pursuant to such Purchase Agreement within seventy days following such Solicitation Date (or within one hundred days following such Solicitation Date if such sale is made pursuant to an Underwriting Agreement and constitutes a bona fide offering of the Covered Securities to the public that is registered under the Securities Act); Certain Payments provided that (i) the purchase price for such Covered Securities in such sale is at least 105% of Indebtedness) thereto as follows: i. By deleting clause the related Investor Price, if any, and (ii) thereof the terms and conditions of such sale are otherwise not materially worse for the Company than those set forth in its entirety the related Offer to Purchase. If the Company has not executed a Purchase Agreement with respect to such Covered Securities within forty days or sixty days, as the case may be, following the relevant Solicitation Date, or has not completed a sale of all of such Covered Securities within seventy days or one hundred days, as the case may be, following the relevant Solicitation Date, the Company shall no longer be permitted to sell such Covered Securities without again fully complying with all the provisions of this Section 8.05, and substituting all the following clause (ii) restrictions contained in its stead:this Section 8.05 shall again be in effect with respect to such Covered Securities.