Common use of Second Lien Debt Clause in Contracts

Second Lien Debt. (a) No Restricted Person will amend, modify or waive any provision of any Second Lien Loan Document if such amendment, modification or waiver is prohibited under the Second Lien Intercreditor Agreement. (b) No Restricted Person will call, make or offer to make any repurchase, redemption, prepayment, repayment, defeasance or any other acquisition or retirement for value (whether mandatory, voluntary, or otherwise, whether in whole or in part), or the segregation of funds with respect to any of the foregoing (in this Section 7.14, collectively, a “Redemption”), of any Permitted Second Lien Debt except (i) upon thirty (30) days prior written notice to Administrative Agent and subject to Section 7.14(c), with (A) cash proceeds of an offering of Equity of Borrower, (B) Net Cash Proceeds in respect of a Disposition otherwise permitted by Section 7.5, to the extent any Net Cash Proceeds are available after giving full effect to Section 7.5(e) and Section 2.9(d), as applicable, or (C) a combination of cash proceeds in respect of the foregoing clauses (A) and (B), or (ii) with the cash proceeds of a Permitted Refinancing; provided that Borrower may request Administrative Agent and Majority Lenders to approve any other Redemption of any Permitted Second Lien Debt (each, a “Second Lien Redemption”) that is not otherwise permitted hereunder. In the event that Borrower desires to request a Second Lien Redemption, it shall deliver to Administrative Agent a certificate (in form and detail satisfactory to Administrative Agent) signed by a Responsible Officer of Borrower (a “Second Lien Redemption Certificate”) describing the amount of such proposed Second Lien Redemption and the proposed source of funds therefor. Upon receipt of a duly executed and completed Second Lien Redemption Certificate, Administrative Agent shall forward such certificate to Lenders. Within ten (10) Business Days after its receipt of such Second Lien Redemption Certificate, Administrative Agent shall notify Borrower in writing whether Administrative Agent and Majority Lenders have elected to approve or decline the request of Borrower to make the related Second Lien Redemption, which election shall be made at the sole discretion of Administrative Agent and Majority Lenders; provided that any failure of Administrative Agent to notify Borrower within such ten (10) Business Day period shall be deemed a rejection of the requested Second Lien Redemption. During such ten (10) Business Day period, the Restricted Persons will provide Lender Parties with access to all financial data and any other information as may be reasonably requested by any Lender Party in order to permit each Lender Party to evaluate the proposed Second Lien Redemption. In the event a Second Lien Redemption is approved in accordance with the foregoing procedures, Administrative Agent and the Lenders hereby agree not to charge Borrower any fees as consideration for granting any such approval, provided that Borrower acknowledges and agrees that additional fees may be incurred if any amendment to this Agreement or any other Loan Document is otherwise required or requested in connection with such Second Lien Redemption. In connection with any Redemption of the Second Lien Debt, Administrative Agent shall designate by written notice to Borrower, if it determines in its judgment that it is appropriate to do so, an immediate reduction in the Borrowing Base by an amount determined by the Required Lenders in their sole discretion. (c) On or before the date of any Redemption proposed pursuant to clause (i) of the first sentence of Section 7.14(b), Borrower shall deliver to Administrative Agent a certificate (in form and detail satisfactory to Administrative Agent) signed by a Responsible Officer of Borrower describing the amount of such Redemption and certifying, as of the date of such Redemption, that: (i) no Default or Event of Default has occurred and that is continuing on the date thereof or would result from the making of such Redemption, (ii) no Borrowing Base Deficiency has occurred and that is continuing on the date thereof, and (iii) the Board of Managers of Borrower has duly authorized and approved the amount of such Equity offering and Redemption.” Section 2.19. Article VII of the Existing Agreement is hereby amended to add a new Section 7.15 thereto to read as follows:

Second Lien Debt. (a) No Restricted Person will amendThe Collateral Agent will, modify or waive any provision as collateral agent hereunder, perform its obligations hereunder for the benefit of any each holder of Secured Obligations of a Series of Second Lien Loan Document if such amendment, modification or waiver is prohibited under the Debt that: (1) holds Existing Second Lien Intercreditor Debt or Additional Second Lien Debt identified as such in accordance with the procedures set forth in Section 3.8(b); (2) in the case of Additional Second Lien Debt, signs, through its designated Secured Representative identified pursuant to Section 3.8(b), a Joinder Agreement; and (3) is evidenced or governed by an indenture, credit agreement, loan agreement, note agreement, hedge agreement, promissory note or other agreement or instrument that includes a Lien Sharing and Priority Confirmation. (b) No Restricted Person The Company will call, make or offer be permitted to make any repurchase, redemption, prepayment, repayment, defeasance or any other acquisition or retirement for value (whether mandatory, voluntary, or otherwise, whether in whole or in part), or the segregation designate as an additional holder of funds with respect to any of the foregoing (in this Section 7.14, collectively, a “Redemption”), of any Permitted Second Lien Debt except (i) upon thirty (30) days prior written notice to Administrative Agent and subject to Section 7.14(c)hereunder each Person who is, with (A) cash proceeds or who becomes, the holder of an offering of Equity of Borrower, (B) Net Cash Proceeds in respect of a Disposition otherwise permitted Additional Second Lien Debt. The Company may effect such designation by Section 7.5, delivering to the extent any Net Cash Proceeds are available after giving full effect to Section 7.5(e) and Section 2.9(d), as applicable, or (C) a combination of cash proceeds in respect Collateral Agent each of the foregoing clauses following: (A1) and (B), or (ii) with an Officer’s Certificate describing in reasonable detail the cash proceeds of a Permitted Refinancing; provided that Borrower may request Administrative Agent and Majority Lenders to approve any other Redemption of any Permitted respective Additional Second Lien Debt (each, a and stating that the Company or such other Grantor has incurred or intends to incur such obligations as “Additional Second Lien Redemption”) that Debt” which is not otherwise or will be permitted hereunder. In the event that Borrower desires to request a by this Agreement and each other applicable Second Lien Redemption, it shall deliver Debt Document to Administrative Agent a certificate (in form be incurred and detail satisfactory to Administrative Agent) signed secured by a Responsible Officer of Borrower (a “Lien Equally and Ratably with all previously existing and future Second Lien Redemption Certificate”Debt; and (2) describing a Joinder Agreement executed by the amount Secured Representative for such series of such proposed Second Lien Redemption and the proposed source of funds therefor. Upon receipt of a duly executed and completed Second Lien Redemption Certificate, Administrative Agent shall forward such certificate to Lenders. Within ten (10) Business Days after its receipt of such Second Lien Redemption Certificate, Administrative Agent shall notify Borrower in writing whether Administrative Agent and Majority Lenders have elected to approve or decline the request of Borrower to make the related Second Lien Redemption, which election shall be made at the sole discretion of Administrative Agent and Majority Lenders; provided that any failure of Administrative Agent to notify Borrower within such ten (10) Business Day period shall be deemed a rejection of the requested Second Lien Redemption. During such ten (10) Business Day period, the Restricted Persons will provide Lender Parties with access to all financial data and any other information as may be reasonably requested by any Lender Party in order to permit each Lender Party to evaluate the proposed Second Lien Redemption. In the event a Second Lien Redemption is approved in accordance with the foregoing procedures, Administrative Agent and the Lenders hereby agree not to charge Borrower any fees as consideration for granting any such approval, provided that Borrower acknowledges and agrees that additional fees may be incurred if any amendment to this Agreement or any other Loan Document is otherwise required or requested in connection with such Second Lien Redemption. In connection with any Redemption of the Additional Second Lien Debt, Administrative Agent which shall designate by written notice include the name and address of such Secured Representative for purposes of Section 8.6. Notwithstanding the foregoing, nothing in this Agreement will be construed to Borrowerallow the Company or any other Grantor to incur additional Indebtedness or grant additional Liens unless, if it determines in its judgment that it is appropriate to do soeach case, an immediate reduction in the Borrowing Base by an amount determined permitted by the Required Lenders in their sole discretionterms of all applicable Second Lien Debt Documents. (c) On With respect to any Additional Second Lien Debt, the Company and each of the Grantors agrees to take such actions (if any) as may from time to time be necessary or before required by law, or reasonably requested by the Collateral Agent or by the Controlling Secured Representative, and to enter into such technical amendments, modifications and/or supplements to the then-existing guarantees and Security Documents (or execute and deliver such additional Security Documents) as may from time to time be necessary or required by applicable law, or reasonably requested by the Collateral Agent (including as contemplated by clause (d) below), to ensure that the relevant Additional Second Lien Debt is secured by, and entitled to the benefits of, the relevant Security Documents, and each Secured Party (by its acceptance of the benefits hereof) hereby agrees to, and authorizes the Collateral Agent to enter into, any such technical amendments, modifications and/or supplements (and additional Security Documents). The Company and each Grantor hereby further agree that, if there are any recording, filing or other similar fees payable in connection with any of the actions to be taken pursuant to this Section 3.8(c) or (d), all such amounts shall be paid by, and shall be for the account of, the Company and the respective Grantors, on a joint and several basis. (d) Without limitation of the foregoing, the Company and each of the Grantors agrees to take the following actions in connection with the incurrence of any Additional Second Lien Debt: (1) with respect to any real property Collateral, within 90 days after the date of incurrence of such Additional Second Lien Debt: (A) The Company and the Grantors shall enter into, and record in all applicable jurisdictions a modification of the existing Mortgages, and deliver to the Collateral Agent evidence of such recording in all applicable jurisdictions; provided; however, that no mortgage modification shall be required if the Collateral Agent is provided local counsel opinions substantially to the effect that (1) the recording of the existing Mortgage is the only filing or recording necessary to give constructive notice to third parties of the lien created by such Mortgage as security for the Secured Obligations, including any Redemption proposed Additional Second Lien Debt, and the other documents executed in connection therewith; and (2) no other documents, instruments, filings, recordings, re-recordings, re-filings or other actions, including, without limitation, the payment of any mortgage recording taxes or similar taxes, are necessary under applicable law in order to maintain the continued enforceability, validity or priority of the Lien created by such Mortgage as security for the Secured Obligations, including any Additional Second Lien Debt, which opinions are issued by law firms, in each case, of national or regional reputation as determined by the Company in its reasonable judgment; (B) The Company or the applicable Grantor will cause to be delivered to the Collateral Agent and each Secured Representative a local counsel opinion regarding due authorization, execution and enforceability of each mortgage modification entered into pursuant to clause (A) above, which opinions are issued by law firms, in each case, of national or regional reputation as determined by the Company in its reasonable judgment; (C) The Company or the applicable Grantor will cause a title company to have delivered to the Collateral Agent, if a modification to any existing Mortgages is required pursuant to clause (A) above and there is a title insurance policy then in effect for the benefit of the Secured Parties with respect to the applicable existing Mortgages, an endorsement to such title insurance policy insuring that the priority of the Lien of the applicable Mortgage(s) as security for the Secured Obligations has not changed, and insuring or otherwise have delivered evidence that since the later of the original date of such title insurance policy and the date of the last endorsement dating down the title insurance policy delivered most recently prior to (and not in connection with) such Additional Second Lien Debt, (1) there has been no change in the condition of title, other than that which is permitted by each Second Lien Debt Document and (2) there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the applicable Mortgage(s), in each case other than liens and encumbrances not prohibited by any Second Lien Debt Documents; (D) If an updated title insurance policy with respect to any existing Mortgage is required to be delivered pursuant to clause (C) above, the Company or the applicable Grantor shall cause to be delivered to the title company either an ALTA survey or any existing survey together with a no-change affidavit as required by the title company to remove all standard survey exceptions from the updated title insurance policy obtained pursuant to clause (C) above related to such Mortgaged Property and issue those endorsements to any such updated title insurance policy that are applicable and available at commercially reasonable rates in the jurisdiction in which such Mortgaged Property is located; and (E) The Company or the applicable Grantor will deliver to the approved title company, the Collateral Agent and each Secured Representative and/or all other relevant third parties all other items reasonably necessary to maintain the continuing priority, other than Liens and encumbrances permitted by each Second Lien Debt Document, of (i) the Lien of the first sentence Mortgages as security for the Secured Obligations and (ii) any other Mortgages which secure Second Lien Debt. (2) with respect to any personal property Collateral, on the date of Section 7.14(b)incurrence of such Additional Second Lien Debt: (A) The Company and the Grantors shall enter into, Borrower shall and deliver to Administrative the Collateral Agent a certificate either (x) amendments to this Agreement and the Security Documents that permit the obligations with respect to such Second Lien Debt to be secured pari passu with the then existing Secured Obligations or (y) additional security and collateral documents which are substantially similar to the Security Documents, in each case, to the extent required under the Security Documents; (B) The Company or the applicable Grantors will cause to be delivered to the Collateral Agent and each Secured Representative opinions of local and other counsel with respect to such personal property Collateral in form and detail satisfactory substance, and issued by law firms, in each case, to Administrative Agent) signed by a Responsible Officer of Borrower describing the amount of such Redemption and certifying, as of extent required under the date of such Redemption, that: (i) no Default or Event of Default has occurred and that is continuing on the date thereof or would result from the making of such Redemption, (ii) no Borrowing Base Deficiency has occurred and that is continuing on the date thereof, Security Documents; and (iiiC) The Company or the Board applicable Grantors will take all actions reasonably necessary or required by law, or as requested by the Collateral Agent, to maintain the continuing priority of Managers of Borrower has duly authorized and approved the amount Liens securing the Secured Obligations such that all Liens securing Second Lien Debt shall have the same priority as any existing Liens securing the Secured Obligations prior to the incurrence of such Equity offering Additional Second Lien Debt and Redemption.” Section 2.19. Article VII the priority of the Existing Agreement is hereby amended to add a new Section 7.15 thereto to read as follows:Liens securing the Secured Obligations shall not be affected by the incurrence of the Additional Second Lien Debt.

Second Lien Debt. (a) No Restricted Person will amend, modify or waive any provision of any Second Lien Loan Document if such amendment, modification or waiver is prohibited under the Second Lien Intercreditor Agreement. (b) No Restricted Person will call, make or offer to make any repurchase, redemption, prepayment, repayment, defeasance optional or any other acquisition voluntary redemption of or retirement for value otherwise optionally or voluntarily redeem (whether mandatory, voluntary, or otherwise, whether in whole or in part), or the segregation of funds with respect to any of the foregoing (in this Section 7.14, collectively, a “Redemption”), of ) any Permitted Second Lien Debt except (i) upon thirty (30) days prior written notice to Administrative Agent and subject to Section 7.14(c7.11(c), with (A) cash proceeds of an offering of Equity of Borrower, (B) Net Cash Proceeds in respect of a Disposition otherwise permitted by Section 7.5, to the extent any Net Cash Proceeds are available after giving full effect to Section 7.5(e) and Section 2.9(d), as applicable, or (C) a combination of cash proceeds in respect of the foregoing clauses (A) and (B), or (ii) with the cash proceeds of a Permitted Refinancing; provided that Borrower may request Administrative Agent and Majority Lenders to approve any other Redemption redemption of any Permitted Second Lien Debt (each, a “Second Lien Redemption”) that is not otherwise permitted hereunder. In the event that Borrower desires to request a Second Lien Redemption, it shall deliver to Administrative Agent a certificate (in form and detail satisfactory to Administrative Agent) signed by a Responsible Officer of Borrower (a “Second Lien Redemption Certificate”) describing the amount of such proposed Second Lien Redemption and the proposed source of funds therefor. Upon receipt of a duly executed and completed Second Lien Redemption Certificate, Administrative Agent shall forward such certificate to Lenders. Within ten (10) Business Days after its receipt of such Second Lien Redemption Certificate, Administrative Agent shall notify Borrower in writing whether Administrative Agent and Majority Lenders have elected to approve or decline the request of Borrower to make the related Second Lien Redemption, which election shall be made at the sole discretion of Administrative Agent and Majority Lenders; provided that any failure of Administrative Agent to notify Borrower within such ten (10) Business Day period shall be deemed a rejection of the requested Second Lien Redemption. During such ten (10) Business Day period, the Restricted Persons will provide Lender Parties with access to all financial data and any other information as may be reasonably requested by any Lender Party in order to permit each Lender Party to evaluate the proposed Second Lien Redemption. In the event a Second Lien Redemption is approved in accordance with the foregoing procedures, Administrative Agent and the Lenders hereby agree not to charge Borrower any fees as consideration for granting any such approval, provided that Borrower acknowledges and agrees that additional fees may be incurred if any amendment to this Agreement or any other Loan Document is otherwise required or requested in connection with such Second Lien Redemption. In connection with any Redemption redemption or prepayment of the Second Lien Debt, Administrative Agent shall designate by written notice to Borrower, if it determines in its judgment that it is appropriate to do so, an immediate reduction in the Borrowing Base by an amount determined by the Required Lenders in their sole discretion. (c) On or before the date of any Redemption redemption proposed pursuant to clause (i) of the first sentence of Section 7.14(b7.11(b), Borrower shall deliver to Administrative Agent a certificate (in form and detail satisfactory to Administrative Agent) signed by a Responsible Officer of Borrower describing the amount of such Redemption redemption and certifying, as of the date of such Redemptionredemption, that: (i) no Default or Event of Default has occurred and that is continuing on the date thereof or would result from the making of such Redemptionredemption, (ii) no Borrowing Base Deficiency has occurred and that is continuing on the date thereof, and (iii) the Board of Managers of Borrower has duly authorized and approved the amount of such Equity offering and Redemptionredemption.” Section 2.19. Article VII of the Existing Agreement is hereby amended to add a new Section 7.15 thereto to read as follows: