UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): March 7, 2017 (March 3, 2017)

 

 

GASTAR EXPLORATION INC.

(Exact Name of Registrant as Specified in its Charter)

 

 

 

DELAWARE   001-35211   38-3531640

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

1331 LAMAR STREET, SUITE 650

HOUSTON, TEXAS 77010

(Address of principal executive offices)

(713) 739-1800

(Registrant’s telephone number, including area code)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


SECTION 1 – REGISTRANT’S BUSINESS AND OPERATIONS

 

Item 1.01 Entry into a Material Definitive Agreement.

On March 3, 2017 (the “Closing Date”), Gastar Exploration Inc. (the “Company”) closed the previously announced capital and refinancing transactions (the “Transactions”) with certain funds (the “Purchasers”) affiliated with Ares Management, L.P. (“Ares”).

Securities Purchase Agreement

On February 16, 2017, the Company entered into a Securities Purchase Agreement (the “Purchase Agreement”) with the Purchasers, pursuant to which the Company issued and sold for cash to the Purchasers (i) $125,000,000 aggregate principal amount of its Convertible Notes due 2022 (the “Notes”), which Notes, subject to the receipt of approval of the Company’s stockholders, will be convertible into common stock, par value $0.001 per share, of the Company (the “Common Stock”) or, in certain circumstances, cash in lieu of Common Stock or a combination of cash and shares of Common Stock as described below and (ii) 29,408,305 shares of Common Stock for a purchase price of $50 million. In addition, an affiliate of Ares concurrently loaned the Company $250 million pursuant to a senior secured first-lien term loan as further described below (the “Term Loan”). The proceeds from the sale of the Notes, the Common Stock and the Term Loan were used to fully repay the $69.2 million outstanding on the Company’s revolving credit facility and to satisfy and discharge its $325 million of 8.625% senior secured notes due May 2018, which will be redeemed at a price of 102.156% of their principal amount on March 24, 2017, and to pay the expenses from the Transactions. The issuance of Common Stock and the Notes were consummated as a private placement to “accredited investors” (as that term is defined under Rule 501 of Regulation D), exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), in reliance upon Section 4(a)(2) of the Securities Act and Regulation D Rule 506, as a transaction by an issuer not involving a public offering.

The issuance of the shares of Common Stock to the Purchasers was priced based on a 30-trading day volume weighted average trading price (the “VWAP”) of $1.7002 per share, determined as of February 15, 2017, the date immediately prior to the signing date of the Purchase Agreement. This resulted in the issuance of 29,408,305 shares of Common Stock to the Purchasers, or approximately 18.8% of the shares of the Company’s 156,715,833 shares of Common Stock issued and outstanding as of January 31, 2017. For so long as the Purchasers, collectively, beneficially own 10% or more of the Common Stock (including for this purpose all shares of Common Stock issuable upon conversion of the Notes), the Purchasers will have certain preemptive rights to purchase their pro rata share of any additional equity securities offered by the Company in the future on similar terms as are offered to other purchasers.

On March 2, 2017, the Company entered into Amendment No. 1 to the Purchase Agreement (the “Amendment”) with the Purchasers. The Amendment amended the director nomination rights of the Purchasers described below and the requisite ownership thresholds to exclude holders of any warrants or other convertible securities to satisfy the applicable NYSE MKT rules and regulations.

Pursuant to the Purchase Agreement, as amended by the Amendment, and so long as the Purchasers beneficially own (excluding ownership of Voting Stock (as defined in the Purchase Agreement) that person only has the right to acquire) at least 15% of the total outstanding voting power of the Company’s Voting Stock, the Purchasers will be entitled to nominate two directors to an expanded eight-member board of directors of the Company. If the Purchasers beneficially own (excluding ownership of Voting Stock that person only has the right to acquire) 5% or more, but less than 15%, of the total outstanding voting power of the Company’s Voting Stock, the Purchasers will be entitled to nominate one director to the board of directors of the Company.

Copies of the Purchase Agreement and the Amendment are attached hereto as Exhibit 10.1 and Exhibit 10.2, respectively, and are incorporated herein by reference. The description of the Purchase Agreement and the Amendment herein do not purport to be complete and are qualified in their entirety by reference to the complete text of the Purchase Agreement and the Amendment.

Term Loan

On the Closing Date, the Company entered into the Third Amended and Restated Credit Agreement among the Company, as borrower, the guarantor party thereto, AF V Energy I Holdings, L.P., an affiliate of Ares, as initial

 

1


lender, and Wilmington Trust, National Association, as administrative agent. The loans made pursuant to the Term Loan bear interest at a per annum rate equal to 8.5%, payable on a quarterly basis. The Term Loan has a scheduled maturity of March 3, 2022. In addition, the Term Loan is subject to an interest “make-whole” and repayment premium, such that any repayment or prepayment of the loans thereunder prior to the stated maturity date shall be subject to the payment of a repayment premium, and depending on the date of such repayment or prepayment, the applicable interest “make-whole” amount, with the amount of such repayment premium decreasing over the life of the Term Loan.

The Term Loan is guaranteed by the Company’s domestic subsidiary (excluding certain insignificant subsidiaries) and will be guaranteed by all of the Company’s future domestic subsidiaries formed during the term of the Term Loan. The Term Loan is secured by a first-priority lien on substantially all of the assets of the Company and its subsidiary, excluding certain assets as customary exceptions.

The Term Loan contains various customary covenants for credit facilities of this type, including, among others, restrictions on granting liens, incurrence of other indebtedness, payments of certain dividends and other restricted payments, engaging in transactions with affiliates, dispositions of assets and other covenants, in each case subject to certain baskets and exceptions.

All outstanding amounts owed under the Term Loan become due and payable upon the occurrence of certain usual and customary events of default, including among others: (i) failure to make payments; (ii) non-performance of covenants and obligations continuing beyond any applicable grace period; and (iii) the occurrence of a change in control of the Company, as defined in the Term Loan.

The Company does not expect that the covenants or other provisions of the Term Loan or the Notes will restrict the payment of dividends on the Company’s outstanding preferred stock through July 2018, and, thereafter, such payments will be subject to satisfaction of certain financial conditions. Any future dividends on such preferred stock, however, remain subject to declaration by the Company, and there is no assurance that the Company will declare and pay any future dividends, even if it is permitted to do so under the terms of the Term Loan or the Notes.

A copy of the Term Loan is attached hereto as Exhibit 10.3 and is incorporated herein by reference. The description of the Term Loan herein does not purport to be complete and is qualified in its entirety by reference to the complete text of the Term Loan.

Indenture and Notes

On the Closing Date, the Company entered into an indenture (the “Indenture”) by and among the Company, the subsidiary guarantor named therein, and Wilmington Trust, National Association, as trustee (the “Trustee”) and collateral trustee, with respect to the Notes. The principal terms of the Notes are governed by the Indenture. Pursuant to the Indenture, the Notes were issued for cash at par, bear interest initially at 6.0% per annum and will mature on March 1, 2022, unless earlier repurchased, redeemed or converted in accordance with the terms of the Indenture. Interest is payable on the Notes on each March 1, June 1, September 1 and December 1 of each year, commencing on June 1, 2017.

Subject to receipt of stockholder approval on or before July 3, 2017 of the issuance of Common Stock upon conversion of the Notes (the “Requisite Stockholder Approval”), the Notes will be convertible at the option of the holder into shares of Common Stock based on an initial conversion rate of 452.4355 shares of Common Stock per $1,000 principal amount of the Notes (which is equivalent to an initial conversion price of approximately $2.21 per share, or 30% above the VWAP per share of Common Stock for the 30 trading days prior to execution of the Purchase Agreement), subject to certain adjustments and the issuance of additional “make-whole” shares under circumstances specified in the Indenture. Subject to certain limitations, the Company will have the right to settle its conversion obligations on the Notes in cash, shares of Common Stock or a combination of cash and shares of Common Stock. If the Company obtains the Requisite Stockholder Approval, then the Company will have the right to redeem the Notes (i) on or after March 3, 2019, if the last reported sale price per share of Common Stock exceeds 150% of the conversion price for periods specified in the Indenture; and (ii) on or after March 1, 2021 without regard to such condition, in each case at cash redemption price equal to the principal amount of the Notes to be redeemed plus accrued interest, if any. The interest rate, conversion rate and other financial terms of the Notes were determined by negotiations between the Company and the Purchasers. The interest rate on the Notes will be subject

 

2


to an increase in certain circumstances if the Company fails to obtain Requisite Stockholder Approval or to comply with certain obligations under the Registration Rights Agreement (as defined below), or in the case of certain issuances of Common Stock at below $1.7002 per share (subject to adjustment).

The Notes will be secured by a second-priority lien, on substantially all of the assets of the Company. The Indenture restricts the ability of the Company and certain of its subsidiaries to, among other things: (i) pay dividends or make other distributions in respect of the Company’s capital stock or make other restricted payments; (ii) incur additional indebtedness and issue preferred stock; (iii) make certain dispositions and transfers of assets; (iv) engage in transactions with affiliates; (v) create liens; (vi) engage in certain business activities that are not related to oil and gas; and (vii) impair any security interest. These covenants are subject to a number of exceptions and qualifications.

The Indenture provides that a number of events will constitute an Event of Default (as defined in the Indenture), including, among other things: (i) a failure to pay the Notes when due at maturity, upon redemption or repurchase; (ii) failure to pay interest for 30 days; (iii) the Company’s failure to deliver certain notices; (iv) a default in the Company’s obligation to convert the Notes; (v) the Company’s failure to comply with certain covenants relating to merger, consolidation or sale of assets; (vi) the Company’s failure to comply, for 60 days following notice, with any of the other covenants or agreements in the Indenture; (vii) a default, which is not cured within 30 days, by the Company or any Restricted Subsidiaries (as defined in the Indenture) with respect to any mortgages or any indebtedness for money borrowed of at least $15 million; (viii) one or more final judgments against the Company or any of its Restricted Subsidiaries for the payment of at least $15 million; (ix) the Company’s failure to make any payments required under that certain development agreement; (x) causing any Guarantee (as defined in the Indenture) to cease to be in full force and effect; (xi) the cessation to be in full force and effect of any of the collateral agreements related to the Transactions; and (xii) certain events of bankruptcy or insolvency. In the case of an Event of Default arising from certain events of bankruptcy or insolvency with respect to the Company, all outstanding Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee or the holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. If Requisite Shareholder Approval is not obtained, then upon any acceleration of the Notes following an Event of Default, holders will be entitled to receive a “make-whole” premium in addition to principal and accrued interest.

If stockholders do not approve the conversion rights of the Notes into Common Stock within four months of the Closing Date, the Notes will not be convertible and the interest rate on the Notes will increase in increments to 15% per annum, and will not be redeemable by the Company prior to maturity except upon payment of a “make-whole” redemption premium.

If at least a majority of the Notes issued pursuant to the Purchase Agreement cease to be held by affiliates of Ares after receipt of Requisite Shareholder Approval as provided in the Indenture, the liens securing the Notes will be released and substantially all of the restrictive covenants in the Indenture will terminate.

A copy of the Indenture is attached hereto as Exhibit 4.1 and is incorporated herein by reference. The description of the Indenture herein does not purport to be complete and is qualified in its entirety by reference to the complete text of the Indenture.

Registration Rights Agreement

On the Closing Date, the Company entered into a Registration Rights Agreement (the “Registration Rights Agreement”) with the Purchasers, pursuant to which the Company has agreed that the future resale of the Common Stock sold in the Transactions and the shares of Common Stock issued upon conversion of the Notes will be registered under the Securities Act . The Registration Rights Agreement includes a plan of distribution permitting the Purchasers to sell the covered Common Stock by various means, including in open market sales from time to time, pursuant to underwritten offerings or in negotiated sales. The failure to (i) file a registration statement prior to July 3, 2017, (ii) have the registration statement declared effective within four months of the filing date for the Company’s 2016 Annual Report on From 10-K or (iii) thereafter, with certain exceptions, maintain the effectiveness of the registration statement, will result in additional interest accruing on the Notes for so long as they are outstanding. The Company will be required to cooperate in a maximum of four underwritten offerings under the Registration Rights Agreement at the expense of the Company (other than underwriting discounts).

 

3


A copy of the Registration Rights Agreement is attached hereto as Exhibit 4.3 and is incorporated herein by reference. The description of the Registration Rights Agreement herein does not purport to be complete and is qualified in its entirety by reference to the complete text of the Registration Rights Agreement.

Intercreditor Agreement  

On the Closing Date, Wilmington Trust, National Association, as administrative agent for the priority lien secured parties, and Wilmington Trust, National Association, as the second lien agent for the second lien secured parties, entered into an intercreditor agreement, which was acknowledged and agreed to by the Company and its subsidiary guarantor (the “Intercreditor Agreement”) to govern the relationship of the lenders under the Term Loan and the holders of any other priority lien obligations on the one hand, and the noteholders and holders of any other second lien obligations that the Company may issue in the future, with respect to the sharing of collateral, the priority of the liens thereon and certain other matters.

A copy of the Intercreditor Agreement is attached hereto as Exhibit 10.4 and is incorporated herein by reference. The description of the Intercreditor Agreement herein does not purport to be complete and is qualified in its entirety by reference to the complete text of the Intercreditor Agreement.

Swap Intercreditor Agreement  

On the Closing Date, Morgan Stanley Capital Group, Inc., NextEra Energy Marketing, LLC, Cargill, Incorporated, Koch Supply & Trading, LP, (collectively, the “Swap Counterparties”), the Company, the guarantor party thereto, Wilmington Trust, National Association, as administrative agent for the lenders from time to time party to the Term Loan, and Wilmington Trust, National Association, as collateral agent on behalf of the secured parties (the “Collateral Agent”) entered into an intercreditor agreement (the “Swap Intercreditor Agreement”) pursuant to which the Collateral Agent will receive, hold, administer, maintain, enforce and distribute the proceeds of all of the loan obligations, swap obligations and its liens upon the collateral for the benefit of the current and future lenders under the Term Loan and the Swap Counterparties.

A copy of the Swap Intercreditor Agreement is attached hereto as Exhibit 10.5 and is incorporated herein by reference. The description of the Swap Intercreditor Agreement herein does not purport to be complete and is qualified in its entirety by reference to the complete text of the Swap Intercreditor Agreement. Additionally, security agreements with respect to the Term Loan, the Notes and any future parity lien obligations provided for by the Intercreditor Agreement and the Swap Intercreditor Agreement are filed as Exhibit 10.6 and Exhibit 10.7 and are incorporated herein by reference.

SECTION 2 – FINANCIAL INFORMATION

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information disclosed in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.

SECTION 3 – SECURITIES AND TRADING MARKETS

 

Item 3.02 Unregistered Sales of Equity Securities.

The information set forth under “Item 1.01 Entry into a Material Definitive Agreement” under the headings “Securities Purchase Agreement” and “Indenture and Notes” of this Current Report on Form 8-K with respect to the unregistered sales of Common Stock and the Notes to the Purchasers is incorporated into this Item 3.02 by reference. A maximum of 73,520,750 (subject to adjustment shares of Common Stock may be issued upon conversion of the Notes in reliance upon Section 3(a)(9) of the Securities Act.

 

4


SECTION 7 – REGULATION FD

 

Item 7.01 Regulation FD Disclosure.

On March 3, 2017, the Company issued a press release announcing the closing of the Transactions. A copy of the Company’s press release, dated March 3, 2017, is furnished herewith as Exhibit 99.1 and is incorporated herein by reference.

In accordance with General Instruction B.2 of Form 8-K, the information presented herein under Item 7.01 and set forth in the attached press release included as Exhibit 99.1 to this report is deemed to be “furnished” solely pursuant to Item 7.01 of this report and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall such information or the exhibit be deemed incorporated by reference into any filing under the Securities Act or the Exchange Act.

SECTION 9 – FINANCIAL STATEMENTS AND EXHIBITS

 

Item 9.01 Financial Statements and Exhibits.

 

  (d) Exhibits

The following is a list of exhibits filed and furnished as part of this Form 8-K:

 

Exhibit No.

  

Description of Document

  4.1    Indenture, dated as of March 3, 2017, between Gastar Exploration Inc. and Wilmington Trust, National Association, as Trustee and Collateral Agent.
  4.2    Form of Convertible Note due 2022 (contained in Exhibit A to Exhibit 4.1).
  4.3    Registration Rights Agreement, dated as of March 3, 2017, by and among Gastar Exploration Inc. and each of the purchasers listed on Schedule I thereto.
10.1    Securities Purchase Agreement, dated as of February 16, 2017, by and among Gastar Exploration Inc. and each of the purchasers listed on Schedule I thereto.
10.2    Amendment No. 1 to Securities Purchase Agreement, dated as of March 3, 2017, by and among Gastar Exploration Inc. and each of the purchasers listed on Schedule I thereto.
10.3    Third Amended and Restated Credit Agreement, dated as of March 3, 2017, among Gastar Exploration Inc., as borrower, certain subsidiaries of borrower, as guarantors, the lenders party thereto and Wilmington Trust, National Association, as administrative agent.
10.4    Intercreditor Agreement, dated March 3, 2017, between Wilmington Trust, National Association, as administrative agent for the priority lien secured parties and Wilmington Trust, National Association, as collateral trustee for the second lien secured parties.
10.5    Intercreditor Agreement, dated March 3, 2017, by and among Morgan Stanley Capital Group, Inc., NextEra Energy Marketing, LLC, Cargill, Incorporated, Koch Supply & Trading, LP, Gastar Exploration Inc., the guarantor party thereto, Wilmington Trust, National Association, as administrative agent for the lenders from time to time party to the credit agreement, and Wilmington Trust, National Association, as collateral agent on behalf of the secured parties.
10.6    Third Amended and Restated Pledge and Security Agreement, dated March 3, 2017, by and among Gastar Exploration Inc., the subsidiary guarantor named therein and Wilmington Trust, National Association, as collateral trustee.
10.7    Pledge and Security Agreement, dated March 3, 2017, by and among Gastar Exploration Inc., the subsidiary guarantor named therein and Wilmington Trust, National Association, as collateral trustee.
99.1    Press Release of Gastar Exploration Inc., dated March 3, 2017.

 

5


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Date: March 7, 2017    

GASTAR EXPLORATION INC.

    By:  

/s/ J. Russell Porter

      J. Russell Porter
      President and Chief Executive Officer


EXHIBIT INDEX

 

Exhibit No.

  

Description of Document

  4.1    Indenture, dated as of March 3, 2017, between Gastar Exploration Inc. and Wilmington Trust, National Association, as Trustee and Collateral Agent.
  4.2    Form of Convertible Note due 2022 (contained in Exhibit A to Exhibit 4.1).
  4.3    Registration Rights Agreement, dated as of March 3, 2017, by and among Gastar Exploration Inc. and each of the purchasers listed on Schedule I thereto.
10.1    Securities Purchase Agreement, dated as of February 16, 2017, by and among Gastar Exploration Inc. and each of the purchasers listed on Schedule I thereto.
10.2    Amendment No. 1 to Securities Purchase Agreement, dated as of March 3, 2017, by and among Gastar Exploration Inc. and each of the purchasers listed on Schedule I thereto.
10.3    Third Amended and Restated Credit Agreement, dated as of March 3, 2017, among Gastar Exploration Inc., as borrower, certain subsidiaries of borrower, as guarantors, the lenders party thereto and Wilmington Trust, National Association, as administrative agent.
10.4    Intercreditor Agreement, dated March 3, 2017, between Wilmington Trust, National Association, as administrative agent for the priority lien secured parties and Wilmington Trust, National Association, as collateral trustee for the second lien secured parties.
10.5    Intercreditor Agreement, dated March 3, 2017, by and among Morgan Stanley Capital Group, Inc., NextEra Energy Marketing, LLC, Cargill, Incorporated, Koch Supply & Trading, LP, Gastar Exploration Inc., the guarantor party thereto, Wilmington Trust, National Association, as administrative agent for the lenders from time to time party to the credit agreement, and Wilmington Trust, National Association, as collateral agent on behalf of the secured parties.
10.6    Third Amended and Restated Pledge and Security Agreement, dated March 3, 2017, by and among Gastar Exploration Inc., the subsidiary guarantor named therein and Wilmington Trust, National Association, as collateral trustee.
10.7    Pledge and Security Agreement, dated March 3, 2017, by and among Gastar Exploration Inc., the subsidiary guarantor named therein and Wilmington Trust, National Association, as collateral trustee.
99.1    Press Release of Gastar Exploration Inc., dated March 3, 2017.

Exhibit 4.1

 

 

 

 

 

 

GASTAR EXPLORATION INC.,

THE GUARANTOR LISTED ON THE SIGNATURE PAGES HEREOF

and

WILMINGTON TRUST, NATIONAL ASSOCIATION

as Trustee and Collateral Trustee

 

 

INDENTURE

Dated as of March 3, 2017

 

 

Convertible Notes due 2022

 

 

 

 

 

 


TABLE OF CONTENTS

 

          Page  

Article 1. Definitions; Rules of Construction

     1  

Section 1.01.

  

Definitions

     1  

Section 1.02.

  

Other Definitions

     38  

Section 1.03.

  

Rules of Construction

     39  

Article 2. The Notes

     39  

Section 2.01.

  

Form, Dating and Denominations

     39  

Section 2.02.

  

Execution, Authentication and Delivery

     40  

Section 2.03.

  

Issuance of Notes on the Issue Date

     40  

Section 2.04.

  

Method of Payment

     41  

Section 2.05.

  

Accrual of Interest; Defaulted Amounts; When Payment Date is Not a Business Day

     41  

Section 2.06.

  

Registrar, Paying Agent and Conversion Agent

     42  

Section 2.07.

  

Paying Agent and Conversion Agent to Hold Property in Trust

     43  

Section 2.08.

  

Holder Lists

     43  

Section 2.09.

  

Legends

     43  

Section 2.10.

  

Transfers and Exchanges; Certain Transfer Restrictions

     44  

Section 2.11.

  

Exchange and Cancellation of Notes to Be Converted, Redeemed or Repurchased

     49  

Section 2.12.

  

Removal of Transfer Restrictions

     50  

Section 2.13.

  

Replacement Notes

     51  

Section 2.14.

  

Registered Holders; Certain Rights with Respect to Global Notes

     51  

Section 2.15.

  

Cancellation

     51  

Section 2.16.

  

Notes Held by the Company or its Affiliates

     52  

Section 2.17.

  

Temporary Notes

     52  

Section 2.18.

  

Outstanding Notes

     52  

Section 2.19.

  

Repurchases by the Company

     53  

Section 2.20.

  

CUSIP and ISIN Numbers

     53  

Article 3. Covenants

     53  

Section 3.01.

  

Payment on Notes

     53  

Section 3.02.

  

Exchange Act Reports

     54  

Section 3.03.

  

Rule 144A Information

     54  

Section 3.04.

  

High Yield Interest

     54  

Section 3.05.

  

Additional Interest

     56  

Section 3.06.

  

Compliance and Default Certificates

     57  

Section 3.07.

  

Stay, Extension and Usury Laws

     57  

Section 3.08.

  

Corporate Existence

     58  

Section 3.09.

  

Restriction on Acquisition of Notes by the Company and its Affiliates

     58  

Section 3.10.

  

The Requisite Stockholder Approval

     58  

Section 3.11.

  

Restricted Payments

     58  

Section 3.12.

  

Dividend and Other Payment Restrictions Affecting Subsidiaries

     62  

 

- i -


Section 3.13.

  

Incurrence of Indebtedness and Issuance of Preferred Stock

     63  

Section 3.14.

  

Asset Sales

     67  

Section 3.15.

  

Transactions with Affiliates

     69  

Section 3.16.

  

Liens

     70  

Section 3.17.

  

Business Activities

     70  

Section 3.18.

  

Designation of Restricted and Unrestricted Subsidiaries

     70  

Section 3.19.

  

Impairment of Security Interest

     71  

Section 3.20.

  

Termination of Certain Covenants; Release of Collateral

     71  

Section 3.21.

  

Further Instruments and Acts

     71  

Article 4. Repurchase and Redemption

     72  

Section 4.01.

  

No Sinking Fund

     72  

Section 4.02.

  

Right of Holders to Require the Company to Repurchase Notes upon a Fundamental Change

     72  

Section 4.03.

  

Right of Holders to Require the Company to Repurchase Notes Following an Asset Sale

     76  

Section 4.04.

  

Right of the Company to Redeem the Notes

     76  

Article 5. Conversion

     79  

Section 5.01.

  

Right to Convert

     79  

Section 5.02.

  

Conversion Procedures

     80  

Section 5.03.

  

Settlement upon Conversion

     82  

Section 5.04.

  

Reserve and Status of Common Stock Issued upon Conversion

     84  

Section 5.05.

  

Adjustments to the Conversion Rate

     85  

Section 5.06.

  

Voluntary Adjustments

     94  

Section 5.07.

  

Adjustments to the Conversion Rate in Connection with a Make-Whole Fundamental Change

     95  

Section 5.08.

  

Effect of Common Stock Change Event

     96  

Section 5.09.

  

Inapplicability of Certain Covenants to the Conversion of the Notes

     98  

Section 5.10.

  

Responsibility of Trustee and Conversion Agent

     98  

Article 6. Successors

     99  

Section 6.01.

  

When the Company May Merge, Etc.

     99  

Section 6.02.

  

Successor Corporation Substituted

     99  

Article 7. Defaults and Remedies

     99  

Section 7.01.

  

Events of Default

     99  

Section 7.02.

  

Acceleration

     102  

Section 7.03.

  

Sole Remedy for a Failure to Report

     102  

Section 7.04.

  

Other Remedies

     103  

Section 7.05.

  

Waiver of Past Defaults

     104  

Section 7.06.

  

Control by Majority

     104  

Section 7.07.

  

Limitation on Suits

     104  

Section 7.08.

  

Absolute Right of Holders to Institute Suit for the Enforcement of the Right to Receive Payment and Conversion Consideration

     105  

Section 7.09.

  

Collection Suit by Trustee and Collateral Trustee

     105  

Section 7.10.

  

Trustee and Collateral Trustee May File Proofs of Claim

     105  

Section 7.11.

   Priorities      106  

Section 7.12.

   Undertaking for Costs      107  

 

- ii -


Article 8. Amendments, Supplements and Waivers

     107  

Section 8.01.

   Without the Consent of Holders      107  

Section 8.02.

   With the Consent of Holders      108  

Section 8.03.

   Notice of Amendments, Supplements and Waivers      110  

Section 8.04.

   Revocation, Effect and Solicitation of Consents; Special Record Dates; Etc.      110  

Section 8.05.

   Notations and Exchanges      110  

Section 8.06.

   Trustee and Collateral Trustee to Execute Supplemental Indentures      111  

Article 9. Guarantees

     111  

Section 9.01.

   Guarantees      111  

Section 9.02.

   Limitation on Guarantor Liability      112  

Section 9.03.

   Execution and Delivery of Guarantee      113  

Section 9.04.

   When the Guarantors May Merge, Etc.      113  

Section 9.05.

   Future Guarantors      114  

Section 9.06.

   Application of Certain Provisions to the Guarantors      114  

Section 9.07.

   Releases of Guarantees      114  

Article 10. Collateral

     115  

Section 10.01.

   Grant of Security Interest      115  

Section 10.02.

   Intercreditor Agreement      116  

Section 10.03.

   Recording      117  

Section 10.04.

   Liens on Additional Property; Minimum Mortgage Requirement      117  

Section 10.05.

   Reserve Reports      119  

Section 10.06.

   Release of Collateral      119  

Section 10.07.

   Form and Sufficiency of Release      120  

Section 10.08.

   Purchaser Protected      121  

Section 10.09.

   Actions to Be Taken by the Collateral Trustee      121  

Section 10.10.

   Receipt of Funds by the Collateral Trustee      122  

Section 10.11.

   Trustee and Collateral Trustee Not Fiduciary for Holders of First Priority Claims      122  

Section 10.12.

   Collateral Trustee Rights, Protections and Duties and Related Provisions      122  

Article 11. Satisfaction and Discharge; Defeasance of Restrictive Covenants

     126  

Section 11.01.

   Termination of Company’s Obligations      126  

Section 11.02.

   Repayment to Company      127  

Section 11.03.

   Reinstatement      127  

Section 11.04.

   Defeasance of Restrictive Covenants      127  

Article 12. Trustee

     129  

Section 12.01.

   Duties of the Trustee      129  

Section 12.02.

   Rights of the Trustee      130  

Section 12.03.

  

Individual Rights of the Trustee

     131  

 

- iii -


Section 12.04.

  

Trustee’s Disclaimer

     131  

Section 12.05.

  

Notice of Defaults

     132  

Section 12.06.

  

Compensation and Indemnity

     132  

Section 12.07.

  

Replacement of the Trustee

     133  

Section 12.08.

  

Successor Trustee by Merger, Etc.

     134  

Section 12.09.

  

Eligibility; Disqualification

     134  

Article 13. Miscellaneous

     134  

Section 13.01.

  

Notices

     134  

Section 13.02.

  

Delivery of Officer’s Certificate and Opinion of Counsel as to Conditions Precedent

     136  

Section 13.03.

  

Statements Required in Officer’s Certificate and Opinion of Counsel

     136  

Section 13.04.

  

Rules by the Trustee, the Registrar and the Paying Agent

     136  

Section 13.05.

  

No Personal Liability of Directors, Officers, Employees and Stockholders

     136  

Section 13.06.

  

Governing Law; Waiver of Jury Trial

     137  

Section 13.07.

  

Submission to Jurisdiction

     137  

Section 13.08.

  

No Adverse Interpretation of Other Agreements

     137  

Section 13.09.

  

Successors

     137  

Section 13.10.

  

Force Majeure

     137  

Section 13.11.

  

U.S.A. Patriot Act

     138  

Section 13.12.

  

Calculations

     138  

Section 13.13.

  

Severability

     138  

Section 13.14.

  

Counterparts

     138  

Section 13.15.

  

Table of Contents, Headings, Etc.

     139  

Section 13.16.

  

Withholding Taxes

     139  

 

Exhibits

  

Exhibit A: Form of Note

     A-1  

Exhibit B-1: Form of Restricted Note Legend

     B1-1  

Exhibit B-2: Form of Global Note Legend

     B2-1  

Exhibit B-3: Form of Non-Affiliate Legend

     B3-1  

Exhibit C: Form of Intercreditor Agreement

     C-1  

Exhibit D: Form of Supplemental Indenture

     D-1  

 

- iv -


INDENTURE , dated as of March 3, 2017, among Gastar Exploration Inc., a Delaware corporation, as issuer (the “ Company ”), the Guarantor (as defined herein) listed on the signature pages hereof and Wilmington Trust, National Association, as trustee (in such capacity, the “ Trustee ”) and as collateral trustee (in such capacity, the “ Collateral Trustee ”).

Each party to this Indenture (as defined below) agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders (as defined below) of the Company’s Convertible Notes due 2022 (the “ Notes ”).

Article 1.    DEFINITIONS; RULES OF CONSTRUCTION

Section 1.01.    D EFINITIONS .

Acceptable Security Interest ” means, with respect to any Property, a Lien that (A) exists in favor of the Collateral Trustee for the benefit of the Holders, the Trustee and the Collateral Trustee; (B) is superior to all Liens or rights of any other Person in the Property encumbered thereby (other than Permitted Prior Liens); (C) secures the Notes and other Obligations under the Notes and this Indenture; and (D) is perfected and enforceable. Any requirement that the Company or any Guarantor provide an Acceptable Security Interest with respect to any DrillCo PDP Reserves will be satisfied if the applicable Person grants a Wellbore Lien with respect to such DrillCo PDP Reserves and the Oil and Gas Properties owned by any Person attributable thereto, so long as the Wellbore Lien meets the foregoing criteria.

Acquired Debt ” means, with respect to any specified Person, (A) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, provided that such Indebtedness was not incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Subsidiary of, such specified Person; and (B) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

Additional Assets ” means (A) any Oil and Gas Properties prospective for the SCOOP or STACK Play; (B) the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by the Company or another Restricted Subsidiary; or (C) Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary; provided , however , that any such Restricted Subsidiary described in clause (B) or (C) above is primarily engaged in the Oil and Gas Business within the SCOOP or STACK Play.

Additional Interest ” means any interest that accrues on any Note pursuant to Section  3.05 .

Affiliate ” has the meaning set forth in Rule 144 as in effect on the Issue Date.

Affiliate Note ” means each Ares Note; provided , however , that a Note that is an Affiliate Note will cease to be an Affiliate Note at such time, if any, that such Note (A) ceases to be “beneficially owned” (within the meaning of Rule 13d-3 under the Exchange Act) by a Person that is an Affiliate of the Company; or (B) ceases to be a Physical Note. The Trustee will have no obligation to determine or verify whether a Note is an Affiliate Note.

 

- 1 -


Affiliated Entity ” means any investment fund or holding company (including any special purpose vehicle) that is formed for investment purposes and that is primarily managed, advised or serviced by any of the Initial Holders (or an Affiliate of any of the Initial Holders) or whose general partner, managing member or other controlling Person is an Initial Holder or an Affiliate of an Initial Holder.

Applicable Premium ” means, for any Note to be redeemed on a Redemption Date pursuant to a High Yield Note Redemption, an amount equal to the greater of:

(A)    one percent (1%) of the principal amount of such Note; and

(B)    the excess of (i) the present value, as of such Redemption Date, of (x) a cash payment on the Maturity Date of one hundred percent (100%) of the principal amount of such Note; and (y) all regularly scheduled Stated Interest and High Yield Interest payments due on such Note on each Interest Payment Date occurring after such Redemption Date and on or before the Maturity Date, such present value to be computed using a discount rate equal to the Treasury Rate as of such Redemption Date plus fifty (50) basis points, over (ii) the principal amount of such Note; provided , however , that, for purposes of clause (B)(i) :

(I)    the amount of Stated Interest due on the Interest Payment Date immediately after such Redemption Date will be deemed to be the following amount: (x) if such Redemption Date is after a Regular Record Date and on or before the next Interest Payment Date, zero (and, for the avoidance of doubt, interest due on such Interest Payment Date will be paid in accordance with the proviso to Section 4.04(E) ); and (y) in all other cases, the full amount of Stated Interest due on such Note on the Interest Payment Date immediately after such Redemption Date, less an amount equal to the Stated Interest that has accrued on such Note to, but excluding, such Redemption Date; and

(II)    High Yield Interest will be assumed to accrue on such Note at a rate per annum equal to nine percent (9.00%) and to be added to the principal amount of such Note to the maximum extent permitted in Section 3.04(C) .

The Company will (x) calculate the Treasury Rate and the Applicable Premium on the second (2nd) Business Day preceding the applicable Redemption Date; and (y) prior to such Redemption Date, file with the Trustee an Officer’s Certificate setting forth the Treasury Rate and the Applicable Premium and showing the calculation of each in reasonable detail.

For purposes of any Applicable Premium payable pursuant to Article 7 other than in connection with a Redemption, references in this definition to Redemption Date will instead be deemed to be references to the date such Applicable Premium is paid.

Approved Petroleum Engineer ” means Wright & Company, Inc. or any reputable firm of independent petroleum engineers selected by the Company in good faith (and, before the Disposition Date, reasonably acceptable to Ares).

 

- 2 -


Ares ” means AF V Energy I AIV GP, L.P..

Ares Notes ” means the Notes issued on the Issue Date and any Note issued in exchange therefor or in substitution thereof.

Asset Sale ” means:

(A)    the sale, lease, conveyance or other disposition of any Properties or assets (including by way of a Production Payment or sale and leaseback transaction), provided that the disposition of all or substantially all of the Properties or assets of the Company and its Restricted Subsidiaries taken as a whole will be governed by Section  4.02 and, if applicable, Article 6 or Section  9.04 and not by Section  3.14 ; and

(B) the issuance of Equity Interests in any of the Company’s Restricted Subsidiaries or the sale of Equity Interests in any of the Company’s Restricted Subsidiaries;

provided , however , that the following will be deemed not to be Asset Sales:

(1)    any single transaction or series of related transactions that involves Properties or assets having a Fair Market Value that is less than two million dollars ($2,000,000); provided , however , that the transactions excluded from the definition of Asset Sale pursuant to this clause (1)  cannot, in the aggregate since the Issue Date, involve Properties or assets having a fair market value that exceeds ten million dollars ($10,000,000).

(2)    a transfer of assets between or among any of the Company and its Restricted Subsidiaries;

(3)    an issuance or sale of Equity Interests by a Restricted Subsidiary to the Company or to another Restricted Subsidiary;

(4)    the sale, lease or other disposition of Hydrocarbons, equipment, inventory, accounts receivable or other Properties or assets in the ordinary course of business, including any abandonment, or the forfeiture or other disposition of Oil and Gas Properties pursuant to standard form pooling or operating agreements or leases, including dispositions pursuant to a decision not to participate in an Oklahoma Corporation Commission Force Pooling Order or any relinquishment of any interests in any oil and gas leases pursuant to a non-consent provision of a standard form of joint operating agreement, in each case in the ordinary course of business in a manner customary in the Oil and Gas Business;

(5)    the sale or other disposition of cash or Cash Equivalents;

(6)    a Restricted Payment that is permitted by Section  3.11 or a Permitted Investment;

 

- 3 -


(7)    any trade or exchange by the Company or any Restricted Subsidiary of Oil and Gas Properties or other Properties or assets for Oil and Gas Properties or other Properties or assets owned or held by another Person, provided that (x) the Fair Market Value of the Properties or assets traded or exchanged by the Company or such Restricted Subsidiary (together with any cash) is reasonably equivalent to the Fair Market Value of the Properties or assets (together with any cash) to be received by the Company or such Restricted Subsidiary; and (y) any net cash received must be applied in accordance with Section  3.14 ;

(8)    the creation or perfection of a Lien or disposition of the Properties or assets subject to such Lien;

(9)    the disposition, surrender or waiver of contract rights or Property in connection with the settlement, release or surrender of contract, tort or other claims of any kind;

(10)    any farm-in, drillco or similar arrangement with respect to the Company’s or any Restricted Subsidiary’s WEHLU Properties;

(11)    any disposition of an interest in the Company’s or any Restricted Subsidiary’s WEHLU Properties;

(12)    the disposition of a working interest/net revenue interest in the Company’s or any Restricted Subsidiaries’ Oil and Gas Properties in Oklahoma to the east of the WEHLU field pursuant to an agreement with a Person (other than any Affiliate of the Company) (the “ Farm-Out Party ”) whose primary business is the Oil in Gas Business, pursuant to which the Farm-Out Party agrees to drill and complete one or more oil or natural gas wells on the Company’s or any Guarantor’s Property, provided , that (A) the interest in an oil or natural gas well drilled by such party is conveyed only upon completion of or reaching total depth with respect to such well; and (B) the Company or such Guarantor retains an overriding royalty interest or working interest/net revenue interest in such well after the Farm-Out Party has received proceeds from the production of such well equal to its drilling, completion and equipping expenditures with respect to such well; and

(13)    any transfer pursuant to the Drillco Agreement.

Asset Sale Repurchase Date ” means the date fixed for the repurchase of any Notes by the Company pursuant to an Asset Sale.

Asset Sale Repurchase Price ” means the cash price payable by the Company to repurchase any Note pursuant to an Asset Sale Offer, calculated pursuant to Section 3.14(D)(ii) .

Attributable Debt ” in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value will be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP.

 

- 4 -


Authorized Denomination ” means, with respect to a Note, a minimum principal amount thereof equal to $1,000 or any integral multiple of $1,000 in excess thereof; provided , however , that, subject to the Depositary Procedures where applicable, any increase in such Note (in the case of a Global Note) or any additional issuance of one or more Physical Notes (in the case of any other Note) to represent High Yield Interest paid as Paid-In-Kind Principal will be made in a minimum principal amount of $1.00 or in any integral multiple of $1.00 in excess thereof.

Bankruptcy Law ” means Title 11, United States Code, or any similar U.S. federal or state or non-U.S. law for the relief of debtors.

Board of Directors ” means the board of directors of the Company or a committee of such board duly authorized to act on behalf of such board.

Board Resolution ” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors of the Company and to be in full force and effect on the date of such certification, and delivered to the Trustee.

Borrowing Base ” means the maximum amount determined or re-determined by the lenders under any Refinancing Credit Facility as the aggregate lending value to be ascribed to the Oil and Gas Properties of the Company and its Restricted Subsidiaries against which such lenders are prepared to provide loans, letters of credit or other Indebtedness to the Company and the Restricted Subsidiaries, using their customary practices and standards for determining reserve based loans, as determined semi-annually during each year or on such other occasions as may be provided for by the applicable Refinancing Credit Facility, and which is based upon, among other things, the review by such lenders of the hydrocarbon reserves, royalty interests and assets of the Company and its Restricted Subsidiaries.

Business Day ” means any day other than a Saturday, a Sunday or any day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.

Calculation Date ” has the meaning set forth in the definition of Fixed Charge Coverage Ratio.

Capital Lease Obligation ” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal Property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases or lease obligations on a balance sheet of such Person under GAAP, and the amount of such obligations will be the capitalized amount thereof determined in accordance with GAAP; provided , however , that any lease (whether entered into before or after the Issue Date) that would have been classified as an operating lease pursuant to GAAP as in effect on the Issue Date will be deemed not to represent a Capital Lease Obligation, notwithstanding any change in GAAP that becomes effective after the Issue Date.

 

- 5 -


Capital Stock ” of any Person means any and all shares of, interests in, rights to purchase, warrants or options for, participations in, or other equivalents of, in each case however designated, the equity of such Person (but excluding any debt security that is convertible into, or exchangeable for such equity).

Cash Equivalents ” means:

(A)    marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one (1) year from the date of acquisition;

(B)    certificates of deposit, time deposits, or overnight bank deposits having maturities of six (6) months or less from the date of acquisition issued by any commercial bank organized under the laws of the United States of America or any state thereof having combined capital and surplus of not less than five hundred million dollars ($500,000,000);

(C)    commercial paper of an issuer rated at least A-2 by S&P or P-2 by Moody’s, or carrying an equivalent rating by a “nationally recognized statistical rating organization” (within the meaning of proposed Rule 3b-10 under the Exchange Act), if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within six (6) months from the date of acquisition;

(D)    repurchase obligations of any commercial bank satisfying the requirements of clause (B)  of this definition, having a term of not more than thirty (30) days with respect to securities issued or fully guaranteed or insured by the United States government;

(E)    securities with maturities of one (1) year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory, the securities of which state, commonwealth, territory, political subdivision or taxing authority, as applicble, are rated at least A by S&P or A by Moody’s;

(F)    securities with maturities of six (6) months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (B)  of this definition; and

(G)    shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (A)  through (F) of this definition.

Close of Business ” means 5:00 p.m., New York City time.

Collateral ” means all Property mortgaged under the Mortgages and any other Property, whether now owned or hereafter acquired, upon which a Lien securing the Obligations under this Indenture, the Notes and the Guarantees is granted or purported to be granted under any Collateral Agreement; provided , however , that “Collateral” does not include any Excluded Collateral.

 

- 6 -


Collateral Agreements ” means, collectively, the Intercreditor Agreement, each Mortgage, the Security Agreement, and each other agreement or instrument creating Liens in favor of the Trustee or the Collateral Trustee as required by this Indenture, in each case, as the same may be in force from time to time.

Collateral Trustee ” means the Person named as such in the first paragraph of this Indenture until a successor replaces it in such capacity in accordance with the provisions of this Indenture and, thereafter, means such successor.

Commercial Lenders ” means commercial banks customarily engaged in oil and gas reserves-based lending in the ordinary course of their respective businesses.

Common Stock ” means the common stock, $0.001 par value per share, of the Company, subject to Section  5.08 .

Company ” means the Person named as such in the first paragraph of this Indenture and, subject to Article 6 , its successors and assigns.

Company Order ” means a written request or order signed on behalf of the Company by one (1) of its Officers and delivered to the Trustee.

Consolidated Cash Flow ” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period, plus :

(A)    provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus

(B)    consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued and whether or not capitalized (excluding any interest attributable to Dollar-Denominated Production Payments but including amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings), and net of the effect of all payments made or received pursuant to interest rate Hedging Obligations, to the extent that any such expense was deducted in computing such Consolidated Net Income; plus

(C)    depreciation, depletion and amortization expenses (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period), exploration expenses and impairment and other non-cash expenses (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, depletion and amortization expenses, exploration expenses and impairment and other non-cash expenses were deducted in computing such Consolidated Net Income; plus

 

- 7 -


(D)    unrealized non-cash losses resulting from foreign currency balance sheet adjustments required by GAAP to the extent such losses were deducted in computing such Consolidated Net Income; minus

(E)    non-cash items increasing such Consolidated Net Income for such period, other than items that were accrued in the ordinary course of business; minus

(F)    to the extent included in determining Consolidated Net Income, the sum of (i) the amount of deferred revenues that are amortized during such period and are attributable to reserves that are subject to Volumetric Production Payments; and (ii) amounts recorded in accordance with GAAP as repayments of principal and interest pursuant to Dollar-Denominated Production Payments,

in each case, on a consolidated basis and determined in accordance with GAAP.

Consolidated Net Income ” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided , however , that:

(A)    the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting will be excluded, except to the extent of the amount of dividends or distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person;

(B)    the Net Income of any Restricted Subsidiary other than a Guarantor will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, partners or members;

(C)    the cumulative effect of a change in accounting principles will be excluded;

(D)    income resulting from transfers of assets (other than cash) between the Company or any of its Restricted Subsidiaries, on the one hand, and an Unrestricted Subsidiary, on the other hand, will be excluded;

(E)    any write-downs of non-current assets will be excluded; provided , however , that any ceiling limitation write-downs under SEC guidelines will be treated as capitalized costs, as if such write-downs had not occurred;

(F)    any unrealized non-cash gains or losses or charges in respect of hedge or non-hedge derivatives (including those resulting from the application of ASC Topic 815) will be excluded;

 

- 8 -


(G)    any non-cash compensation charge arising from any grant of stock, stock options or other equity-based awards will be excluded;

(H)    any item classified as an extraordinary, unusual or nonrecurring gain, loss or charge will be excluded; and

(I)    all deferred financing costs written off and premiums paid in connection with any early extinguishment of Indebtedness will be excluded.

In addition, notwithstanding anything to the contrary in this definition, for the purposes of Section  3.11 only, there will be excluded from Consolidated Net Income any nonrecurring charges relating to any premium or penalty paid, write off of deferred finance costs or other charges in connection with redeeming or retiring any Indebtedness prior to its Stated Maturity.

Conversion Date ” means, with respect to a Note, the first Business Day on which the requirements set forth in Section 5.02(A) to convert such Note are satisfied.

Conversion Price ” means, as of any time, an amount equal to (A) one thousand dollars ($1,000) divided by (B) the Conversion Rate in effect at such time.

Conversion Rate ” initially means 452.4355 shares of Common Stock per $1,000 principal amount of Notes, which amount is subject to adjustment pursuant to Article 5 . Whenever this Indenture refers to the Conversion Rate as of a particular date without setting forth a particular time on such date, such reference will be deemed to be to the Conversion Rate as of the Close of Business on such date.

Conversion Share ” means any share of Common Stock issued or issuable upon conversion of any Note.

Covenant Defeasance ” means any defeasance pursuant to, and subject to the terms of, Section  11.04 .

Daily Cash Amount ” means, with respect to any VWAP Trading Day, the lesser of (A) the applicable Daily Maximum Cash Amount; and (B) the Daily Conversion Value for such VWAP Trading Day.

Daily Conversion Value ” means, with respect to any VWAP Trading Day, one-twentieth (1/20th) of the product of (A) the Conversion Rate on such VWAP Trading Day; and (B) the Daily VWAP per share of Common Stock on such VWAP Trading Day.

Daily Maximum Cash Amount ” means, with respect to a conversion of any Note, the quotient obtained by dividing (A) the Specified Dollar Amount applicable to such conversion by (B) twenty (20).

 

- 9 -


Daily Share Amount ” means, with respect to any VWAP Trading Day, the quotient obtained by dividing (A) the excess, if any, of the Daily Conversion Value for such VWAP Trading Day over the applicable Daily Maximum Cash Amount by (B) the Daily VWAP for such VWAP Trading Day. For the avoidance of doubt, the Daily Share Amount will be zero for such VWAP Trading Day if such Daily Conversion Value does not exceed such Daily Maximum Cash Amount.

Daily VWAP ” means, for any VWAP Trading Day, the per share volume-weighted average price of the Common Stock as displayed under the heading “Bloomberg VWAP” on Bloomberg page “GST <EQUITY> AQR” (or, if such page is not available, its equivalent successor page) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such VWAP Trading Day (or, if such volume-weighted average price is unavailable, the market value of one share of Common Stock on such VWAP Trading Day, determined, using a volume-weighted average price method, by a nationally recognized independent investment banking firm selected by the Company). The Daily VWAP will be determined without regard to after-hours trading or any other trading outside of the regular trading session.

Default ” means any event that is (or, after notice, passage of time or both, would be) an Event of Default.

Default Settlement Method ” means Physical Settlement; provided , however , that the Company may, from time to time, change the Default Settlement Method by sending notice of the new Default Settlement Method to the Holders, the Trustee and the Conversion Agent.

Depositary ” means The Depository Trust Company or its successor.

Depositary Participant ” means any member of, or participant in, the Depositary.

Depositary Procedures ” means, with respect to any conversion, transfer, exchange or transaction involving a Global Note or any beneficial interest therein, the rules and procedures of the Depositary applicable to such conversion, transfer, exchange or transaction.

Disposition Date ” means the first date, if any, after the High Yield Security Trigger Date, when the Initial Holders (or their Affiliates or Affiliated Entities identified in writing to the Company as such), taken together, cease to be the record and beneficial owners of Physical Notes representing a majority of the principal amount of the Ares Notes then outstanding; provided , however , that if a Requisite Stockholder Approval Failure has occurred, then the Disposition Date will be deemed never to occur.

Disqualified Stock ” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part (in each case, other than in exchange for Equity Interests of the Company (other than Disqualified Stock)), on or prior to the date that is

 

- 10 -


ninety one (91) days after the date on which the Notes mature; provided , however , that any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Company to repurchase or redeem such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section  3.11 .

Dollar-Denominated Production Payments ” means production payment obligations recorded as liabilities in accordance with GAAP, together with all undertakings and obligations in connection therewith.

Domestic Subsidiary ” means any Restricted Subsidiary of the Company other than a Foreign Subsidiary.

DrillCo Agreement ” means that certain Development Agreement, dated as of October 14, 2016, by and between the Company and STACK Exploration LLC, as such agreement is in effect on the Issue Date and as the same may be amended or supplement from to time to time after Issue Date, provided that no such amendment or supplement may be materially adverse to the Holders, including any amendment or supplement that would (A) increases the number of Joint Wells (as defined in the DrillCo Agreement) above sixty (60); (B) materially changes the area subject to the Joint Development Agreement; or (C) materially change any economic terms or provision of the Joint Development Agreement, including with respect to the costs to be borne by the Company.

DrillCo Contract Area ” means the following locations in Kingfisher County, Oklahoma: Township 18 North—Range 6 West, Township 18 North—Range 7 West and Township 18 North—Range 8 West.

DrillCo Excluded Property ” means all Oil and Gas Properties owned by the Company or any of its Restricted Subsidiaries in the DrillCo Contract Area, other than Oil and Gas Properties owned by the Company or any of its Restricted Subsidiaries to which DrillCo PDP Reserves are attributed.

DrillCo Operating Agreement ” has the meaning ascribed to it in the DrillCo Agreement.

DrillCo PDP Reserves ” means the Proved Developed Producing Reserves of the Company or any of its Restricted Subsidiaries attributable to any well located in the DrillCo Contract Area.

 

- 11 -


Effective Price ” has the following meaning with respect to the issuance or sale of any shares of Common Stock or any rights, options or warrants to purchase or otherwise acquire any shares of Common Stock:

(A)    in the case of the issuance or sale of shares of Common Stock, the value of the consideration received by the Company for such shares, expressed as an amount per share of Common Stock; and

(B)    in the case of the issuance or sale of any such rights, options or warrants, an amount equal to a fraction whose:

(i)    numerator is equal to sum, without duplication, of (x) the value of the aggregate consideration received by the Company for the issuance or sale of such rights, options or warrants; and (y) the value of the minimum aggregate additional consideration, if any, payable to purchase or otherwise acquire shares of Common Stock pursuant to such rights, options or warrants; and

(ii)    denominator is equal to the maximum number of shares of Common Stock underlying such rights, options or warrants;

provided , however , that:

(w)    for purposes of clauses (A)  and (B)(i) above, all underwriting commissions, placement agency commissions or similar commissions paid to any broker-dealer by the Company or any of its Affiliates in connection with such issuance or sale (before deducting any other fees or expenses incurred by the Company or any of its Affiliates) will be added to the aggregate consideration referred to in such clause;

(x)    for purposes of clause (B)  above, if such minimum aggregate consideration, or such maximum number of shares of Common Stock, is not determinable at the time such rights, options or warrants are issued or sold, then (I) the initial consideration payable under such rights, options or warrants, or the initial number of shares of Common Stock underlying such rights, options or warrants, as applicable, will be used; and (II) at each time thereafter when such amount of consideration or number of shares becomes determinable or is otherwise adjusted (including pursuant to “anti-dilution” or similar provisions), there will be deemed to occur, for purposes of Section  3.05 , an issuance of additional rights, options or warrants;

(y)    for purposes of clause (B)  above, the surrender, extinguishment, maturity or other expiration of any such rights, options or warrants will be deemed not to constitute consideration payable to purchase or otherwise acquire shares of Common Stock pursuant to such rights, options or warrants; and

(z)    the “value” of any such consideration will be the fair value thereof, as of the date such shares, rights, options or warrant, as applicable, are issued or sold, determined in good faith by the Company (or, in the case of cash denominated in U.S. dollars, the face amount thereof).

 

- 12 -


Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock). For the avoidance of doubt, the Notes will not constitute Equity Interests.

Ex-Dividend Date ” means, with respect to an issuance, dividend or distribution on the Common Stock, the first date on which shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive such issuance, dividend or distribution (including pursuant to due bills or similar arrangements required by the relevant stock exchange). For the avoidance of doubt, any alternative trading convention on the applicable exchange or market in respect of the Common Stock under a separate ticker symbol or CUSIP number will not be considered “regular way” for this purpose.

Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended.

Excluded Collateral ” has the meaning ascribed to it in the Security Agreement.

Exempt Issuance ” means (A) the Company’s issuance of any securities as full or partial consideration in connection with a strategic merger, acquisition, consolidation or purchase of all or substantially all of the securities or assets of a corporation or other entity; (B) the Company’s issuance or grant of shares of Common Stock or options to purchase shares Common Stock to employees, directors or consultants of the Company or any of its Subsidiaries, pursuant to plans that have been approved by a majority of the independent members of the Board of Directors or that exist as of the Issue Date; (C) the Company’s issuance or distribution of rights, options or warrants pursuant to a stockholder rights plan, unless and until such unless such rights, options or warrants have separated from the Common Stock; (D) the Company’s issuance of securities upon the exercise, exchange or conversion of any securities that are exercisable or exchangeable for, or convertible into, shares of Common Stock and are outstanding as of the Issue Date, provided that such exercise, exchange or conversion is effected pursuant to the terms of such securities as in effect on the Issue Date; (E) the Company’s issuance of the Notes and any shares of Common Stock upon conversion of the Notes, and the issuance of shares of Common Stock to the Initial Holders on or about the Issue Date; (F) any sale or issuance with respect to which an adjustment to the Conversion Rate is made pursuant to Section 5.05(A)(iii) ; and (G) the issuance and sale of Common Stock that, in the aggregate under this clause (G) , result in proceeds (determined in the same manner as provided in the definition of Effective Price) or not more than twenty five million dollars ($25,000,000). For purposes of this definition, “consultant” means a consultant that may participate in an “employee benefit plan” in accordance with the definition of such term in Rule 405 under the Securities Act.

Existing Credit Agreement ” means that certain Second Amended and Restated Credit Agreement, dated as of June 13, 2014, as amended and in effect as of the Issue Date, among the Company, Wells Fargo Bank National Association, as administrative agent, collateral agent and issuing lender, and each of the lenders party thereto.

Existing Indebtedness ” means the aggregate principal amount of Indebtedness (other than First Priority Debt) of the Company and its Restricted Subsidiaries in existence on the Issue

 

- 13 -


Date (after giving effect to the receipt of the proceeds from the Term Loan Agreement and the issuance and sales of the Notes and Common Stock to the Initial Holders, and the application of such proceeds in to redeem the Company’s 8.625% senior secured notes due 2018 and repay Indebtedness outstanding under the Existing Credit Agreement), until such amounts are repaid.

Existing Preferred Stock ” means the Company’s 8.625% Series A Cumulative Preferred Stock and 10.75% Series B Cumulative Preferred Stock outstanding on the Issue Date.

Fair Market Value ” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, as such price is determined in good faith by the Company (unless otherwise provided in this Indenture).

First Priority Claims ” means (A) all First Priority Debt; and (B) all other Obligations relating to the First Priority Debt and owing under the First Priority Debt Documents.

First Priority Debt ” means any Indebtedness incurred under the First Priority Debt Documents.

First Priority Debt Agent ” has the meaning ascribed to “Administrative Agent” in the Term Loan Agreement, or, with respect to any First Priority Permitted Refinancing Indebtedness, means any Person(s) performing similar functions with respect to such First Priority Permitted Refinancing Indebtedness.

First Priority Debt Documents ” means the Term Loan Documents or the equivalent documents relating to any First Priority Permitted Refinancing Indebtedness.

First Priority Permitted Refinancing Indebtedness ” means any Indebtedness of the Company or any of its Restricted Subsidiaries incurred under a Refinancing Credit Facility, provided that (A) the aggregate principal amount of such Indebtedness does not at any time exceed the lesser of (i) the greater of (x) two hundred and fifty million dollars ($250,000,000); and (y) the Borrowing Base in effect at the time of such incurrence; and (ii) three hundred million dollars ($300,000,000); and (B) such Indebtedness does not (i) increase the effective yield on the First Priority Claims, as in effect on the Issue Date, by more than two percent (2.00%) per annum, except in connection with the imposition of a default rate of interest, provided such default rate of interest does not increase the effective interest rate by more than two percent (2.00%) per annum; or (ii) contain provisions with respect to optional prepayment of such Indebtedness that is more restrictive to the Company that the provisions under the Term Loan Agreement.

Fixed Charge Coverage Ratio ” means with respect to any specified Person for any four (4) quarter reference period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases or redeems any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems preferred stock subsequent to the commencement of the applicable four

 

- 14 -


(4) quarter reference period and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “ Calculation Date ”), then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such incurrence, assumption, guarantee, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of such period.

In addition, for purposes of calculating the Fixed Charge Coverage Ratio:

(A)    acquisitions that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers or consolidations, and including any related financing transactions subsequent to the commencement of the applicable four (4) quarter reference period and on or prior to the Calculation Date will be given pro forma effect as if they had occurred on the first day of such period, including any Consolidated Cash Flow and any pro forma expense and cost reductions that have occurred and that could then be reflected in pro forma financial statements in accordance with Regulation S-X under the Securities Act or any other regulation or policy of the SEC related thereto;

(B)    the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of prior to the Calculation Date, will be excluded; and

(C)    the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation Date.

Fixed Charges ” means, with respect to any specified Person for any period, the sum, without duplication, of:

(A)    the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, including amortization of debt issuance costs (excluding prepayment penalties associated with the repayment of debt from the proceeds of the sale of the Notes issued on the Issue Date) and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of the effect of all payments made or received pursuant to interest rate Hedging Obligations; plus

(B)    the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; plus

(C)    any interest expense on Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such guarantee or Lien is called upon; plus

 

- 15 -


(D)    all dividends, whether paid or accrued and whether or not in cash, on any series of Disqualified Stock or preferred stock of such Person or any of its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of the Company (other than Disqualified Stock) or to the Company or a Restricted Subsidiary of the Company,

in each case, on a consolidated basis and in accordance with GAAP.

Foreign Subsidiary ” means any Restricted Subsidiary of the Company that was not formed under the laws of the United States or any state of the United States or the District of Columbia.

Fundamental Change ” means any of the following events:

(A)    a “person” or “group” (within the meaning of Section 13(d)(3) of the Exchange Act), other than the Company or its wholly owned Subsidiaries or any Initial Holder or an Affiliate or Affiliated Entity of an Initial Holder, has become the direct or indirect “beneficial owner” (as defined below) of shares of the Company’s common equity representing more than fifty percent (50%) of the voting power of all of the Company’s then-outstanding common equity;

(B)    the consummation of (i) any sale, lease or other transfer, in one transaction or a series of transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person; or (ii) any transaction or series of related transactions in connection with which (whether by means of merger, consolidation, share exchange, combination, reclassification, recapitalization, acquisition, liquidation or otherwise) all of the Common Stock is exchanged for, converted into, acquired for, or constitutes solely the right to receive, other securities, cash or other Property; provided , however , that any merger, consolidation, share exchange or combination of the Company pursuant to which the Persons that directly or indirectly “beneficially owned” (as defined below) all classes of the Company’s common equity immediately before such transaction directly or indirectly “beneficially own,” immediately after such transaction, more than fifty percent (50%) of all classes of common equity of the surviving, continuing or acquiring company or other transferee, as applicable, or the parent thereof, in substantially the same proportions vis-à-vis each other as immediately before such transaction will be deemed not to be a Fundamental Change pursuant to this clause (B) ;

(C)    the Company’s stockholders approve any plan or proposal for the liquidation or dissolution of the Company; or

(D)    the Common Stock ceases to be listed on any of The NYSE MKT, The New York Stock Exchange, The NASDAQ Global Market, The NASDAQ Global Select Market or The NASDAQ Capital Market (or any of their respective successors);

provided , however , that a transaction or event described in clause (A)  or (B) above will not constitute a Fundamental Change if at least ninety percent (90%) of the consideration received or

 

- 16 -


to be received by the holders of Common Stock (excluding cash payments for fractional shares or pursuant to dissenters rights), in connection with such transaction or event, consists of shares of common stock listed on any of The NYSE MKT, The New York Stock Exchange, The NASDAQ Global Market, The NASDAQ Global Select Market or the NASDAQ Capital Market (or any of their respective successors), or that will be so listed when issued or exchanged in connection with such transaction or event, and such transaction or event constitutes a Common Stock Change Event whose Reference Property consists of such consideration.

For the purposes of this definition, whether a Person is a “ beneficial owner ” and whether shares are “ beneficially owned ” will be determined in accordance with Rule 13d-3 under the Exchange Act.

Fundamental Change Repurchase Date ” means the date fixed for the repurchase of any Notes by the Company pursuant to a Repurchase Upon Fundamental Change.

Fundamental Change Repurchase Notice ” means a notice (including a notice substantially in the form of the “Fundamental Change Repurchase Notice” set forth in Exhibit A ) containing the information, or otherwise complying with the requirements, set forth in Section 4.02(F)(i) and Section 4.02(F)(ii) .

Fundamental Change Repurchase Price ” means the cash price payable by the Company to repurchase any Note upon its Repurchase Upon Fundamental Change, calculated pursuant to Section 4.02(D) .

GAAP ” means generally accepted accounting principles in the United States, as the same are in effect from time to time.

Global Note ” means a Note that is represented by a certificate substantially in the form set forth in Exhibit A , registered in the name of the Depositary or its nominee, duly executed by the Company and authenticated by the Trustee, and deposited with the Trustee, as custodian for the Depositary.

Global Note Legend ” means a legend substantially in the form set forth in Exhibit B-2 .

Governmental Authority ” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity properly exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

Guarantee ” means the guarantee by each Guarantor of the Company’s obligations under this Indenture and the Notes pursuant to Article 9 . As of the Issue Date, Northwest Property Ventures LLC, an Oklahoma limited liability company, is the sole Guarantor providing a Guarantee.

 

- 17 -


Guarantor ” means (A) each Subsidiary of the Company executing this Indenture as an initial Guarantor and (B) any Restricted Subsidiary of the Company that becomes a Guarantor in accordance with this Indenture, and its successors and assigns. As of the Issue Date, Northwest Property Ventures LLC, an Oklahoma limited liability company is the sole Guarantor.

Hedging Obligations ” means, with respect to any specified Person, the obligations of such Person incurred in the normal course of business and consistent with past practices and not for speculative purposes under:

(A)    interest rate swap agreements, interest rate cap agreements and interest rate collar agreements entered into with one of more financial institutions and designed to protect the Person or any of its Restricted Subsidiaries entering into the agreement against fluctuations in interest rates with respect to Indebtedness incurred and not for purposes of speculation;

(B)    foreign exchange contracts and currency protection agreements entered into with one of more financial institutions and designed to protect the Person or any of its Restricted Subsidiaries entering into the agreement against fluctuations in, or to manage exposure to, currency exchanges rates incurred and not for purposes of speculation;

(C)    any commodity or basis swap, floor, collar or futures contract, commodity or basis option or other similar agreement or arrangement designed to protect against fluctuations in, or to manage exposure to, the prices of oil, natural gas or other commodities; and

(D)    other agreements or arrangements designed to protect such Person or any of its Restricted Subsidiaries against fluctuations in, or to manage exposure to, interest rates, commodity prices or currency exchange rates.

High Yield Interest ” means any interest that accrues on any Note pursuant to Section  3.04 .

High Yield Security Trigger Date ” means the date that is four (4) calendar months after the Issue Date.

Holder ” means a person in whose name a Note is registered on the Registrar’s books.

Hydrocarbon Interests ” means all presently existing or after-acquired rights, titles and interests in and to oil and gas leases, oil, gas and mineral leases, other Hydrocarbon leases, mineral interests, mineral servitudes, overriding royalty interests, royalty interests, net profits interests, production payment interests and other similar interests. Unless otherwise qualified, all references to Hydrocarbon Interests in this Indenture will be deemed to refer to Hydrocarbon Interests of the Company or its Restricted Subsidiaries.

Hydrocarbons ” means, collectively, oil, gas, casinghead gas, drip gasoline, natural gasoline, condensate, distillate and all other liquid or gaseous hydrocarbons and related minerals and all products therefrom, in each case whether in a natural or a processed state.

 

- 18 -


Immaterial Subsidiary ” means any Subsidiary of the Company that:

(A)    has no Indebtedness other than Non-Recourse Debt (except to the extent any such Indebtedness is treated as a Restricted Payment or a Permitted Investment); and

(B)    is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company (except with respect to a Restricted Payment or Permitted Investment).

Indebtedness ” means, with respect to any specified Person, without duplication:

(A)    all obligations of such Person, whether or not contingent, in respect of:

(i)    the principal of and premium, if any, in respect of outstanding (1) indebtedness of such Person for money borrowed; and (2) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable;

(ii)    all Capital Lease Obligations of such Person and all Attributable Debt in respect of sale and leaseback transactions entered into by such Person;

(iii)    the deferred purchase price of Property, which purchase price is due more than six (6) months after the date of taking delivery of title to such Property, including all obligations of such Person for the deferred purchase price of Property under any title retention agreement, but excluding accrued expenses and trade accounts payable arising in the ordinary course of business; and

(iv)    the reimbursement obligation of any obligor for the principal amount of any letter of credit, banker’s acceptance or similar transaction (excluding obligations with respect to letters of credit securing obligations (other than obligations described in clauses (i)  through (iii) , inclusive, above) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the tenth (10th) Business Day following receipt by such Person of a demand for reimbursement following payment on the letter of credit);

(B)    all net obligations in respect of Hedging Obligations;

(C)    all liabilities of others of the kind described in the preceding clause (A)  or (B) that such Person has guaranteed or that are otherwise its legal liability;

(D)    all payment obligations of such Person relating to any Production Payment;

 

- 19 -


(E)    Indebtedness (as otherwise defined in this definition) of another Person secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person, the amount of such obligations being deemed to be the lesser of:

(i)    the full amount of such obligations so secured; and

(ii)    the Fair Market Value of such asset as determined in good faith by such specified Person;

(F)    Disqualified Stock of such Person in an amount equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;

(G)    the aggregate preference in respect of amounts payable on the issued and outstanding shares of preferred stock of any of such Person’s Restricted Subsidiaries, other than a Guarantor, in the event of any voluntary or involuntary liquidation, dissolution or winding up (excluding any such preference attributable to such shares of preferred stock that are owned by such Person or any of its Restricted Subsidiaries); and

(H)    any and all deferrals, renewals, extensions, refinancings and refundings (whether direct or indirect) of, or amendments, modifications or supplements to, any liability of the kind described in any of the preceding clauses (A) , (B) , (C) , (D) , (E) , (F) or (G)  or this clause (H) , whether or not between or among the same parties.

Indenture ” means this Indenture, as amended or supplemented from time to time.

Indenture Documents ” means this Indenture, the Notes, the Guarantees and the Collateral Agreements.

Initial Holders ” means AF V Energy I AIV A1, L.P., AF V Energy I AIV A2, L.P., AF V Energy I AIV A3, L.P., AF V Energy I AIV A4, L.P., AF V Energy I AIV A5, L.P., AF V Energy I AIV A6, L.P., AF V Energy I AIV A7, L.P., AF V Energy I AIV A8, L.P., AF V Energy I AIV A9, L.P., AF V Energy I AIV A10, L.P., AF V Energy I AIV A11, L.P., AF V Energy I AIV A12, L.P., AF V Energy I AIV A13, L.P. and AF V Energy I AIV B1, L.P., and the respective successors of the foregoing.

Intercreditor Agreement ” means that certain Intercreditor Agreement, dated as of the Issue Date, between the First Priority Debt Agent and the Collateral Trustee, as the same may be amended or replaced from time to time, in the form attached as Exhibit C .

Interest Payment Date ” means, with respect to a Note, each March 1, June 1, September 1 and December 1 of each year, commencing on June 1, 2017 (or such other date specified in the certificate representing such Note). For the avoidance of doubt the Maturity Date is an Interest Payment Date.

Investments ” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including guarantees or other obligations), advances or capital contributions (excluding commission, travel and similar

 

- 20 -


advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP.

Issue Date ” means March 3, 2017.

Last Reported Sale Price ” of the Common Stock for any Trading Day means the closing sale price per share (or, if no closing sale price is reported, the average of the last bid price and the last ask price per share or, if more than one in either case, the average of the average last bid prices and the average last ask prices per share) of Common Stock on such Trading Day as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is then listed. If the Common Stock is not listed on a U.S. national or regional securities exchange on such Trading Day, then the Last Reported Sale Price will be the last quoted bid price per share of Common Stock on such Trading Day in the over-the-counter market as reported by OTC Markets Group Inc. or a similar organization. If the Common Stock is not so quoted on such Trading Day, then the Last Reported Sale Price will be the average of the mid-point of the last bid price and the last ask price per share of Common Stock on such Trading Day from each of at least three (3) nationally recognized independent investment banking firms selected by the Company. Neither the Trustee nor the Conversion Agent will have any duty to determine the Last Reported Sale Price.

Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction other than a precautionary financing statement not intended as a security agreement.

Make-Whole Fundamental Change ” means (A) a Fundamental Change (determined after giving effect to the proviso immediately after clause (D)  of the definition thereof, but without regard to the proviso to clause (B)(ii) of the definition thereof); or (B) the sending of a Redemption Notice pursuant to Section 4.04(F) for a Convertible Note Redemption.

Make-Whole Fundamental Change Conversion Period ” has the following meaning:

(A)    in the case of a Make-Whole Fundamental Change pursuant to clause (A)  of the definition thereof, the period from, and including, the Make-Whole Fundamental Change Effective Date of such Make-Whole Fundamental Change to, and including, the thirty fifth (35th) Trading Day after such Make-Whole Fundamental Change Effective Date (or, if such Make-Whole Fundamental Change also constitutes a Fundamental Change, to, but excluding, the related Fundamental Change Repurchase Date); and

(B)    in the case of a Make-Whole Fundamental Change pursuant to clause (B)  of the definition thereof, the period from, and including, the Redemption Notice Date for the related Redemption to, and including, the Business Day immediately before the related Redemption Date.

 

- 21 -


Make-Whole Fundamental Change Effective Date ” means (A) with respect to a Make-Whole Fundamental Change pursuant to clause (A)  of the definition thereof, the date on which such Make-Whole Fundamental Change occurs or becomes effective; and (B) with respect to a Make-Whole Fundamental Change pursuant to clause (B)  of the definition thereof, the applicable Redemption Notice Date.

Market Disruption Event ” means, with respect to any date, the occurrence or existence, during the one-half hour period ending at the scheduled close of trading on such date on the principal U.S. national or regional securities exchange or other market on which the Common Stock is listed for trading or trades, of any material suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Common Stock or in any options, contracts or futures contracts relating to the Common Stock.

Material Domestic Subsidiary ” means any Domestic Subsidiary that, at the time of determination, has consolidated assets or quarterly revenues in excess of one million dollars ($1,000,000) or has, when taken together with all other Domestic Subsidiaries that are not Guarantors at such time, combined consolidated assets or quarterly revenues in excess of ten million dollars ($10,000,000), in each case based on the most recent quarterly financial statements available to the Company.

Maturity Date ” means March 1, 2022.

Moody’s ” means Moody’s Investors Service, Inc.

Mortgages ” means the mortgages, deeds of trust, deeds to secure Indebtedness, assignments of as-extracted collateral, fixture filings or other similar documents granting Liens on the Company’s and the Restricted Subsidiaries’ Properties and interests to secure the Notes.

Net Income ” means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however:

(A)    any gain or loss, together with any related provision for taxes on such gain or loss, realized in connection with: (i) any Asset Sale; or (ii) the disposition of any securities by such Person or any of its Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Subsidiaries; and

(B)    any extraordinary gain or loss, together with any related provision for taxes on such extraordinary gain or loss.

Net Proceeds ” means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of, without

 

- 22 -


duplication: (A) the direct costs relating to such Asset Sale, including legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale; (B) taxes paid or payable as a result of the Asset Sale, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements; (C) amounts required to be applied to the repayment of Indebtedness, other than under the First Priority Debt Documents, secured by a Lien on the Properties or assets that were the subject of such Asset Sale; and (D) any reserve for adjustment in respect of the sale price of such Properties or assets established in accordance with GAAP.

Non-Affiliate Legend ” means a legend substantially in the form set forth in Exhibit B-3 .

Non-Recourse Debt ” means Indebtedness:

(A)    as to which neither the Company nor any of its Restricted Subsidiaries (i) provides credit support of any kind through any undertaking, agreement or instrument that would constitute Indebtedness; (ii) is directly or indirectly liable as a borrower, guarantor or otherwise; or (iii) is the lender; and

(B)    no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Notes) of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its Stated Maturity.

Note Agent ” means any Registrar, Paying Agent or Conversion Agent.

Notes ” means the Convertible Notes due 2022 issued by the Company pursuant to this Indenture (including, for the avoidance of doubt, any Convertible Notes due 2022 issued by the Company representing High Yield Interest paid as Paid-In-Kind Principal).

Obligations ” means any principal, premium, if any, interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization, whether or not a claim for post-filing interest is allowed in such proceeding), penalties, fees, charges, expenses, indemnifications, reimbursement obligations, damages, guarantees, and other liabilities or amounts payable under the documentation governing any Indebtedness or in respect thereto.

Observation Period ” means, with respect to any Note to be converted, (A) subject to clause (B)  below, if the Conversion Date for such Note occurs before the twenty fifth (25th) Scheduled Trading Day immediately before the Maturity Date, the twenty (20) consecutive VWAP Trading Days beginning on, and including, the third (3rd) VWAP Trading Day immediately after such Conversion Date; (B) if such Conversion Date occurs on or after the date the Company has sent a Redemption Notice pursuant to Section 4.04(F) and before the related Redemption Date, the twenty (20) consecutive VWAP Trading Days beginning on, and including, the twenty second (22nd) (or, if the T+2 Effective Date has occurred by such date, or,

 

- 23 -


by such date, the Relevant Exchange or other relevant authority has announced that the T+2 Effective Date will occur within the next nineteen (19) VWAP Trading Days, the twenty first (21st)) Scheduled Trading Day immediately before such Redemption Date; and (C) subject to clause (B)  above, if such Conversion Date occurs on or after the twenty fifth (25th) Scheduled Trading Day immediately before the Maturity Date, the twenty (20) consecutive VWAP Trading Days beginning on, and including, the twenty second (22nd) (or, if the T+2 Effective Date has occurred by such date, or, by such date, the Relevant Exchange or other relevant authority has announced that the T+2 Effective Date will occur within the next nineteen (19) VWAP Trading Days, the twenty first (21st)) Scheduled Trading Day immediately before the Maturity Date.

Officer ” means the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of the Company.

Officer’s Certificate ” means a certificate that is signed on behalf of the Company by one (1) of its Officers and that meets the requirements of Section  13.03 .

Oil and Gas Business ” means:

(A)    the acquisition, exploration, development, operation and disposition of interests in oil, natural gas and other Hydrocarbon Properties, including coal bed methane;

(B)    the gathering, marketing, treating, processing (but not refining), storage, selling and transporting of any production from those interests, including the conversion of natural gas to electricity to facilitate the sale of natural gas; and

(C)    any activity necessary, appropriate or incidental or reasonably related to the activities described above.

Oil and Gas Properties ” means:

(A)    Hydrocarbon Interests;

(B)    the Properties now or hereafter pooled or unitized with Hydrocarbon Interests;

(C)    all presently existing or future unitization, pooling agreements and declarations of pooled units and the units created thereby (including all units created under orders, regulations and rules of any Governmental Authority having jurisdiction thereover) that may affect all or any portion of the Hydrocarbon Interests;

(D)    all operating agreements, contracts and other agreements that relate to any of the Hydrocarbon Interests or the production, sale, purchase, exchange or processing of Hydrocarbons from or attributable to such Hydrocarbon Interests;

(E)    all Hydrocarbons in and under and which may be produced and saved or attributable to the Hydrocarbon Interests, the lands covered thereby and all oil in tanks and all rents, issues, profits, proceeds, products, revenues and other incomes from or attributable to the Hydrocarbon Interests; and

 

- 24 -


(F)    all tenements, hereditaments, appurtenances and Properties in anywise appertaining, belonging, affixed or incidental to the Hydrocarbon Interests, Properties, rights, titles, interests and estates described or referred to above, including any and all Property, real or personal, now owned or hereafter acquired and situated upon, used, held for use or useful in connection with the operating, working or development of any of such Hydrocarbon Interests or Property (excluding drilling rigs, automotive equipment or other personal Property which may be on such premises for the purpose of drilling a well or for other similar temporary uses), and including any and all oil wells, gas wells, injection wells or other wells, buildings, structures, fuel separators, liquid extraction plants, plant compressors, pumps, pumping units, field gathering systems, tanks and tank batteries, fixtures, valves, fittings, machinery and parts, engines, boilers, meters, apparatus, equipment, appliances, tools, implements, cables, wires, towers, casing, tubing and rods, surface leases, rights-of-way, easements and servitudes together with all additions, substitutions, replacements, accessions and attachments to any and all of the foregoing.

Unless otherwise qualified, all references to an Oil and Gas Properties or to Oil and Gas Properties in this Indenture will be deemed to refer to Oil and Gas Properties of the Company or its Restricted Subsidiaries.

Open of Business ” means 9:00 a.m., New York City time.

Opinion of Counsel ” means an opinion, from legal counsel (including an employee of, or counsel to, the Company or any of its Subsidiaries) reasonably acceptable to the Trustee or the Collateral Trustee, as applicable, that meets the requirements of Section  13.03 , subject to customary qualifications and exclusions.

Permitted Business Investments ” means any investment or expenditure made in the ordinary course of business and that is of a nature that is or will have become customary in the Oil and Gas Business generally through agreements, transactions, interests or arrangements that permit one to share risks or costs, comply with regulatory requirements regarding local ownership or satisfy other objectives customarily achieved through the conduct of the Oil and Gas Business jointly with third parties, consisting of the following or other similar investments or expenditures:

(A)    direct Investments in Hydrocarbons and minerals Properties, processing facilities, gathering systems, transportation systems, pipelines, storage facilities or related systems or ancillary real Property interests;

(B)    Investments in the form of or pursuant to operating agreements, working interests, royalty interests, mineral leases, processing agreements, farm-in agreements, contracts for the sale or transportation of oil, natural gas, other Hydrocarbons and minerals, production-sharing agreements, participation agreements, development agreements, area-of-mutual-interest agreements, unitization agreements, pooling agreements, joint bidding agreements, service

 

- 25 -


contracts, subscription agreements, stock purchase agreements, stockholder agreements and other similar agreements with third parties, excluding, however, Investments in any corporation, partnership or limited liability company; and

(C)    Investments in direct or indirect ownership interests in drilling rigs and related equipment, including transportation equipment.

Permitted Investments ” means:

(A)    any Investment in the Company or in a Restricted Subsidiary of the Company;

(B)    any Investment in Cash Equivalents;

(C)    any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if as a result of such Investment:

(i)    such Person becomes a Restricted Subsidiary of the Company; or

(ii)    such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its Properties or assets to, or is liquidated into, the Company or a Restricted Subsidiary of the Company;

(D)    any Investment made as a result of the receipt of non-cash consideration from an Asset Sale (or a transaction excluded from the definition thereof) that was made pursuant to and in compliance with Section  3.14 ;

(E)    any Investment in any Person solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company;

(F)    trade credit extended in the ordinary course or any Investments received in compromise of obligations of trade creditors or customers that were incurred in the ordinary course of business, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer;

(G)    Permitted Swap Agreements permitted to be incurred under Section  3.13 ;

(H)    Permitted Business Investments; and

(I)    other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (I)  that are at the time outstanding, not to exceed ten million dollars ($10,000,000).

Permitted Liens ” means:

(A)    Liens securing First Priority Claims;

 

- 26 -


(B)    Liens in favor of the Company or any Guarantor;

(C)    Liens on any Property or assets of a Person existing at the time such Person is merged with or into or consolidated with the Company or any Restricted Subsidiary of the Company, provided that such Liens were in existence prior to the contemplation of such merger or consolidation and do not extend to any Property or assets other than those of the Person merged into or consolidated with the Company or the Restricted Subsidiary;

(D)    Liens on any Property or assets existing at the time of acquisition thereof by the Company or any Restricted Subsidiary of the Company, provided that such Liens were not incurred in connection with the contemplation of such acquisition;

(E)    Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature incurred in the ordinary course of business;

(F)    Liens on any Property of the Company existing on the Issue Date, provided that (i) such Liens will not apply to any other Property of the Company (other than proceeds and accessions and additions to such Property); and (ii) such Liens secure only those Obligations that it secures on the Issue Date and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;

(G)    Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary course of business;

(H)    Liens securing Indebtedness incurred to refinance Indebtedness that was previously so secured, provided that any such Lien is limited to all or part of the same Property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Indebtedness being refinanced or is in respect of Property that is the security for a Permitted Lien hereunder;

(I)    Liens securing Permitted Swap Agreements of the Company or any of its Restricted Subsidiaries;

(J)    Liens securing letters of credit incurred in accordance with clause (1)  of Section 3.13(B)(vii) ;

(K)    Liens securing Indebtedness incurred in connection with the acquisition by the Company or any Restricted Subsidiary of assets used in the Oil and Gas Business (including the office buildings and other real Property used by the Company or such Restricted Subsidiary in conducting its operations), provided that (i) such Liens attach only to the assets acquired with the proceeds of such Indebtedness; and (ii) such Indebtedness is not in excess of the purchase price of such fixed assets;

 

- 27 -


(L)    any Lien incurred in the ordinary course of business incidental to the conduct of the business of the Company or the Restricted Subsidiaries or the ownership of their Property (including (i) easements, rights of way and similar encumbrances; (ii) rights or title of lessors under leases (other than Capital Lease Obligations); (iii) rights of collecting banks having rights of setoff, revocation, refund or chargeback with respect to money or instruments of the Company or the Restricted Subsidiaries on deposit with or in the possession of such banks; (iv) Liens imposed by law, including Liens under workers’ compensation or similar legislation and mechanics’, carriers’, warehousemen’s, materialmen’s, suppliers’ and vendors’ Liens; (v) Liens incurred to secure performance of obligations with respect to statutory or regulatory requirements, performance or return-of-money bonds, surety bonds or other obligations of a like nature and incurred in a manner consistent with industry practice; or (vi) operators Liens under joint operating agreements or similar customary agreements in the Oil and Gas Business);

(M)    Liens for taxes, assessments and governmental charges not yet due or the validity of which are being contested in good faith by appropriate proceedings, promptly instituted and diligently conducted, and for which adequate reserves have been established to the extent required by GAAP as in effect at such time;

(N)    Liens arising under the Drillco Operating Agreements, provided that (i) such Drillco Operating Agreements do not cover Property located outside of the DrillCo Contract Area; (ii) such Drillco Operating Agreements are entered into pursuant to the DrillCo Agreement; and (iii) the provisions in such Drillco Operating Agreements creating such Liens are in substantially the same form set forth in the form of such Drillco Operating Agreements attached to the DrillCo Agreement; and

(O)    Liens securing the Notes or obligations under this Indenture or Collateral Agreements.

Permitted Prior Liens ” means Liens described in clauses (A) , (C) , (D) , (E) , (I) , (J) , (K) , (L) , (M) and (N)  of the definition of Permitted Liens that, by operation of law, have priority over the Liens securing the Notes.

Permitted Refinancing Indebtedness ” means any Indebtedness of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund other Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness), provided , that:

(A)    the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount of the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued interest on such Indebtedness and the amount of all expenses and premiums incurred in connection therewith);

(B)    such Permitted Refinancing Indebtedness has a final maturity date no earlier than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;

 

- 28 -


(C)    if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Notes or the Guarantees, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Notes or the Guarantees on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; and

(D)    such Indebtedness is not incurred by a Restricted Subsidiary of the Company if the Company is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; provided , however , that a Restricted Subsidiary that is also a Guarantor may guarantee Permitted Refinancing Indebtedness incurred by the Company, whether or not such Restricted Subsidiary was an obligor on or guarantor of the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded.

Permitted Swap Agreement ” of a Person means any agreement or arrangement, or any combination thereof, (A) consisting of interest rate or currency swaps, caps or collar agreements, foreign exchange agreements, commodity contracts or similar arrangements entered into by such Person providing for protection against fluctuations in interest rates, currency exchange rates or the exchange of nominal interest obligations, either generally or under specific contingencies; or (B) relating to oil and gas or other Hydrocarbon prices, transportation or basis costs or differentials or other similar financial factors, which agreement or arrangement is customary in the oil and gas business and is entered into by such Person in the ordinary course of its business for the purpose of limiting or managing risks associated with fluctuations in such prices, costs, differentials or similar factors.

Person ” or “ person ” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof.

Petroleum Industry Standards ” means the Definitions for Oil and Gas Reserves promulgated by the Society of Petroleum Engineers (or any generally recognized successor) as in effect at the time in question.

Physical Note ” means a Note (other than a Global Note) that is represented by a certificate substantially in the form set forth in Exhibit A , registered in the name of the Holder of such Note and duly executed by the Company and authenticated by the Trustee.

Production Payment ” means the grant or transfer by the Company or any of its Restricted Subsidiaries to any Person of a royalty, overriding royalty, net profits interest, production payment, partnership or other interest in Oil and Gas Property, pursuant to which such Person receives solely the right to receive all or a portion of the production or the proceeds from the sale of production attributable to such Properties and where the holder of such interest has recourse solely to such production or proceeds of production, subject to the obligation of the grantor or transferor to operate and maintain, or cause the subject interests to be operated and maintained, in a reasonably prudent manner or other customary standard or subject to the

 

- 29 -


obligation of the grantor or transferor to indemnify for environmental, title or other matters customary in the Oil and Gas Business, including any such grants or transfers pursuant to incentive programs on terms that are reasonably customary in the Oil and Gas Business for geologists, geophysicists or other providers of technical services to the Company or any of its Restricted Subsidiaries.

Property ” means any right or interest in or to Property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

Proved Developed Producing Reserves ” means oil and gas reserves that, in accordance with Petroleum Industry Standards, are classified as both “Proved Reserves” and “Developed Producing Reserves.”

Proved Reserves ” shall mean oil and gas reserves that, in accordance with Petroleum Industry Standards, are classified as “Proved Reserves.”

PV10 ” means, in respect of the Proved Reserves of the Company’s or any Restricted Subsidiary’s Oil and Gas Property set forth in the most recently delivered Reserve Report, the aggregate net present value (discounted at a rate of ten percent (10%) per annum) of such Oil and Gas Properties calculated before income taxes, but after reduction for royalties, lease operating expenses, severance and ad valorem taxes, capital expenditures and abandonment costs and with no escalation of capital expenditures or abandonment costs (A) calculated in accordance with SEC guidelines but using Strip Price for crude oil and natural gas liquids (WTI Cushing) and natural gas (Henry Hub); (B) calculated by (i) in the case of a Reserve Report prepared as of December 31 of any year, an Approved Petroleum Engineer; and (ii) in the case of each other Reserve Report or as otherwise required under this Indenture, at the Company’s option, a petroleum engineer employed by the Company or an Approved Petroleum Engineer, in each case, in such person’s reasonable judgment after having reviewed the information from the most recently delivered Reserve Report; (C) as set forth in the Reserve Report most recently delivered pursuant to Section 10.04(B) ; (D) as adjusted to give effect to Permitted Swap Agreements permitted by this Indenture as in effect on the date of such determination; and (E) as adjusted to give pro forma effect to all dispositions or acquisitions completed since the date of the Reserve Report.

Qualified Preferred Shares ” means shares of any series of the Company’s preferred stock (other than Disqualified Stock), the proceeds of which are used to redeem or repurchase all or any number of the then-outstanding Existing Preferred Stock (or any previously issued Qualified Preferred Shares); provided that (A) such preferred shares are not materially more restrictive on the Company and its Subsidiaries than the Existing Preferred Stock as in effect on the Issue Date; (B) such preferred shares do not have a weighted average yield in excess of the weighted average yield (with the comparative determinations made in a manner consistent with generally accepted finance practices) of the Indebtedness being refinanced or repaid with the proceeds of the Qualified Preferred Shares; and (C) cash distributions for all such preferred shares do not exceed fifteen million dollars ($15,000,000) in the aggregate per annum.

Real Property ” means the surface, subsurface and mineral rights and interests owned, leased or otherwise held by the Issuer or any of its Restricted Subsidiaries.

 

- 30 -


Redemption ” means the repurchase of any Note by the Company pursuant to Section  4.04 .

Redemption Date ” means the date fixed for the repurchase of any Notes by the Company pursuant to a Redemption.

Redemption Notice Date ” means, with respect to a Redemption, the date on which the Company sends the Redemption Notice for such Redemption pursuant to Section 4.04(F) .

Redemption Price ” means the cash price payable by the Company to redeem any Note upon its Redemption, calculated pursuant to Section 4.04(E) .

Reference Price ” means, initially, $1.7002; provided , however , that the Reference Price will be adjusted in the same manner as, and at the same time and for the same events for which, the Conversion Price is adjusted as a result of the operation of clauses (i)  through (v) , inclusive, of Section 5.05(A) .

Refinancing Credit Facility ” means any conforming oil and gas reserves-based revolving credit facility, the majority of the commitments under which are held by Commercial Lenders, that refunds, refinances or replaces the Term Loan Agreement or any other Refinancing Credit Facility, in each case, in whole and with all commitments thereunder terminated.

A “ Registration Default ” will be deemed to occur if (A) a Registration Statement (as defined in the Registration Rights Agreement) is not filed on or prior to its Filing Date (as defined in the Registration Rights Agreement) in accordance with the Registration Rights Agreement; (B) a Registration Statement has not become effective under the Securities Act on or before its required Effectiveness Date (as defined in the Registration Rights Agreement) in accordance with the Registration Rights Agreement; or (C) at any time on or after its Effective Date and before the expiration of the Effectiveness Period (as defined in the Registration Rights Agreement), such Registration Statement ceases for any reason to be effective under the Securities Act as to all Registrable Securities (as defined in the Registration Rights Agreement) to which it is required by the Registration Rights Agreement to cover, in each case, (x) for a period of more than five Business Days (whether or not consecutive); and (y) except as specifically permitted by the Registration Rights Agreement with respect to any applicable Black-Out Period or S-1 Amendment Period (as such terms are defined in the Registration Rights Agreement).

Registration Rights Agreement ” means that certain Registration Rights Agreement, dated as of the Issue Date, between the Company and the Initial Holders.

Regular Record Date ” has the following meaning with respect to an Interest Payment Date: (A) if such Interest Payment Date occurs on March 1, the immediately preceding February 15; (B) if such Interest Payment Date occurs on June 1, the immediately preceding May 15; (C) if such Interest Payment Date occurs on September 1, the immediately preceding August 15; and (D) if such Interest Payment Date occurs on December 1, the immediately preceding November 15.

 

- 31 -


Relevant Exchange ” means The NYSE MKT or, if the Common Stock is not then listed on The NYSE MKT, the principal U.S. national or regional securities exchange on which the Common Stock is listed for trading.

Repurchase Upon Asset Sale ” means the repurchase of any Note by the Company pursuant to Section 3.14(D)(i) .

Repurchase Upon Fundamental Change ” means the repurchase of any Note by the Company pursuant to Section  4.02 .

Required Repurchase ” means a Repurchase Upon Fundamental Change or a Repurchase Upon Asset Sale.

Requisite Stockholder Approval ” means any and all stockholder approvals that would be required under the listing standards of The NYSE MKT to permit all outstanding Notes to be converted into shares of Common Stock (assuming Physical Settlement at the maximum Conversion Rate referred to in Section 5.07(A) ).

A “ Requisite Stockholder Approval Failure ” will be deemed to occur if the Requisite Stockholder Approval is not obtained on or before the High Yield Security Trigger Date (and, for the avoidance of doubt, regardless of whether the Requisite Stockholder Approval is obtained thereafter).

Reserve Report ” means (A) any independent reserve report with respect to the Company’s and the Restricted Subsidiaries’ Proved Reserves delivered pursuant to the First Priority Debt Documents; or (B) if no Indebtedness is outstanding or no such report is required, an un-superseded engineering analysis of the Company’s and the Restricted Subsidiaries’ Proved Reserves, in form and scope as initially required under the Term Loan Agreement.

Responsible Officer ” means (A) any officer within the corporate trust department of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of such officers; and (B) with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of, and familiarity with, the particular subject and who has direct responsibility for the administration of this Indenture.

Restricted Investment ” means an Investment other than a Permitted Investment.

Restricted Note Legend ” means a legend substantially in the form set forth in Exhibit B-1 .

Restricted Stock Legend ” means, with respect to any Conversion Share, a legend substantially to the effect that the offer and sale of such Conversion Share have not been

 

- 32 -


registered under the Securities Act and that such Conversion Share cannot be sold or otherwise transferred except pursuant to a transaction that is registered under the Securities Act or that is exempt from, or not subject to, the registration requirements of the Securities Act.

Restricted Subsidiary ” of a Person means any Subsidiary of the such Person that is not an Unrestricted Subsidiary.

Rule 144 ” means Rule 144 under the Securities Act (or any successor rule thereto), as the same may be amended from time to time.

Rule 144A ” means Rule 144A under the Securities Act (or any successor rule thereto), as the same may be amended from time to time.

Rule 144A Note ” means any Note issued on the Issue Date, and any Note issued in exchange therefor or in substitution thereof, upon the first to occur, if at all, of the following: (A) the resale of such Note in a transaction pursuant to Rule 144A; and (B) if such Note is held by an Initial Holder or an Affiliate or Affiliated Entity of an Initial Holder, the lapsing of a period of three (3) months after the date such Initial Holder, Affiliate or Affiliated Entity has ceased to be an Affiliate of the Company. The Trustee will have no obligation to determine or verify whether a Note is a Rule 144A Note.

S&P ” means Standard & Poor’s Ratings Services or any successor to the rating agency business thereof.

Scheduled Trading Day ” means any day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded. If the Common Stock is not so listed or traded, then “Scheduled Trading day” means a Business Day.

SCOOP or STACK Play ” means those geographic areas of the state of Oklahoma prospective for Hydrocarbons and generally known in the industry as the South Central Oklahoma Oil Province, or “SCOOP,” and Sooner Trend Anadarko Basin Canadian and Kingfisher Counties, or “STACK.”

SEC ” means the U.S. Securities and Exchange Commission.

Securities Act ” means the U.S. Securities Act of 1933, as amended.

Security ” means any Note or Conversion Share.

Security Agreement ” means that certain Third Amended and Restated Pledge and Security Agreement, dated as of the date hereof, among the Issuer, each of the Guarantors party thereto and the Collateral Trustee, as such agreement may be amended, supplemented, restated or otherwise modified from time to time.

 

- 33 -


Settlement Method ” means Cash Settlement, Physical Settlement or Combination Settlement.

Significant Subsidiary ” means, with respect to any Person, any Subsidiary of such Person that constitutes, or any group of Subsidiaries of such Person that, in the aggregate, would constitute, a “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X under the Exchange Act) of such Person.

Special Interest ” means any interest that accrues on any Note pursuant to Section  7.03 .

Specified Dollar Amount ” means, with respect to the conversion of a Note to which Combination Settlement applies, the maximum cash amount per $1,000 principal amount of such Note deliverable upon such conversion (excluding cash in lieu of any fractional share of Common Stock).

Stated Maturity ” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

Stock Price ” has the following meaning for any Make-Whole Fundamental Change: (A) if the holders of Common Stock receive only cash in consideration for their shares of Common Stock in such Make-Whole Fundamental Change and such Make-Whole Fundamental Change is pursuant to clause (B)  of the definition of “Fundamental Change,” then the Stock Price is the amount of cash paid per share of Common Stock in such Make-Whole Fundamental Change; and (B) in all other cases, the Stock Price is the average of the Last Reported Sale Prices per share of Common Stock for the five (5) consecutive Trading Days ending on, and including, the Trading Day immediately before the Make-Whole Fundamental Change Effective Date of such Make-Whole Fundamental Change.

Strip Price ” means, as of any date, the forward month prices, as of such date, for the most comparable hydrocarbon commodity applicable to such future production month for a five (5) year period (or such shorter period if forward month prices are not quoted for a reasonably comparable hydrocarbon commodity for the full five (5) year period), with such prices escalated at two percent (2%) each year thereafter based on the last quoted forward month price of such period, as such prices are (A) quoted on the NYMEX as of the determination date; and (B) adjusted by appropriate management adjustments for additions to reserves and depletion or sale of reserves since the date of the applicable Reserve Report, adjusted for any basis differential as of the date of determination.

Subject Lease ” means any oil and gas lease held or acquired by any of the Company or any Guarantor that is subject to a right of a third party existing on the Issue Date under an area of mutual interest agreement, joint venture agreement, participation agreement or other similar agreement customary in the oil and gas industry to acquire an interest in such lease from the Company or such Guarantor, provided that such right has not been exercised and the time for exercise thereof has not expired.

 

- 34 -


Subsidiary ” means, with respect to any Person, (A) any corporation, association or other business entity (other than a partnership or limited liability company) of which more than fifty percent (50%) of the total voting power of the Capital Stock entitled (without regard to the occurrence of any contingency, but after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees, as applicable, of such corporation, association or other business entity is owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person; and (B) any partnership or limited liability company where (i) more than fifty percent (50%) of the capital accounts, distribution rights, equity and voting interests, or of the general and limited partnership interests, as applicable, of such partnership or limited liability company are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person, whether in the form of membership, general, special or limited partnership or limited liability company interests or otherwise; and (ii) such Person or any one or more of the other Subsidiaries of such Person is a controlling general partner of, or otherwise controls, such partnership or limited liability company.

T+2 Effective Date ” means the date, if at all, the Relevant Exchange has adopted a normal settlement cycle of two (2) Business Days for trading in the Common Stock, and the T+2 Effective Date will be the first date for which trades executed on that date are subject to such new cycle.

Term Loan Agreement ” means that certain Third Amended and Restated Credit Agreement, dated as of the Issue Date, among the Company, as borrower, the guarantors from time to time party thereto, the lenders party thereto, and Wilmington Trust, National Association, as administrative agent, as the same may be amended from time to time.

Term Loan Documents ” means the Term Loan Agreement and all Loan Documents (as defined in the Term Loan Agreement).

Trading Day ” means any day on which (A) trading in the Common Stock generally occurs on the principal U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded; and (B) there is no Market Disruption Event. If the Common Stock is not so listed or traded, then “Trading Day” means a Business Day.

Transfer-Restricted Security ” means any Security that constitutes a “restricted security” (as defined in Rule 144); provided , however , that such Security will cease to be a Transfer-Restricted Security upon the earliest to occur of the following events:

(A)    such Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to a registration statement that was effective under the Securities Act at the time of such sale or transfer;

 

- 35 -


(B)    such Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to an available exemption (including Rule 144) from the registration and prospectus-delivery requirements of, or in a transaction not subject to, the Securities Act and, immediately after such sale or transfer, such Security ceases to constitute a “restricted security” (as defined in Rule 144); and

(C)    such Security is eligible for resale, and is held, by a Person that is not an Affiliate of the Company and that has not been an Affiliate of the Company during the immediately preceding three (3) months, pursuant to Rule 144 without any limitations thereunder as to volume, manner of sale, availability of current public information or notice.

The Trustee is under no obligation to determine whether any Security is a Transfer-Restricted Security and may conclusively rely on an Officer’s Certificate with respect thereto.

Treasury Rate ” means, as of any Redemption Date, the yield to maturity, as of such Redemption Date, of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two (2) Business Days before such Redemption Date (or, if such statistical release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such Redemption Date to the Maturity Date; provided , however , that if such period is less than one (1) year, then the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one (1) year will be used.

Trust Indenture Act ” means the U.S. Trust Indenture Act of 1939, as amended.

Trustee ” means the Person named as such in the first paragraph of this Indenture until a successor replaces it in such capacity in accordance with the provisions of this Indenture and, thereafter, means such successor.

Uniform Commercial Code ” or “ UCC ” means the Uniform Commercial Code as in effect in the relevant jurisdiction from time to time.

Unrestricted Subsidiary ” means any Immaterial Subsidiary of the Company that is designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a Board Resolution. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee the Board Resolution giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section  3.18 . If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date pursuant to Section  3.13 , the Company will be in default of Section  3.13 .

Volumetric Production Payments ” means production payment obligations recorded as deferred revenue in accordance with GAAP, together with all related undertakings and obligations.

 

- 36 -


Voting Stock ” of any Person as of any date means the Capital Stock of such Person that is at the time entitled (without regard to the occurrence of any contingency) to vote in the election of the board of directors (or equivalent governing body) of such Person.

VWAP Market Disruption Event ” means, with respect to any date, (A) the failure by the principal U.S. national or regional securities exchange on which the Common Stock is then listed, or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, the principal other market on which the Common Stock is then traded, to open for trading during its regular trading session on such date; or (B) the occurrence or existence, for more than one half hour period in the aggregate, of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Common Stock or in any options, contracts or futures contracts relating to the Common Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m., New York City time, on such date.

VWAP Trading Day ” means a day on which (A) there is no VWAP Market Disruption Event; and (B) trading in the Common Stock generally occurs on the principal U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded. If the Common Stock is not so listed or traded, then “VWAP Trading Day” means a Business Day.

WEHLU Properties ” means Oil and Gas Properties of the Company or any of its Subsidiaries within (A) the WEHLU field in Oklahoma; and (B) the undeveloped acreage to the East of WEHLU located in 15N 4W and 14N 4W in Oklahoma County, Oklahoma.

Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

(A)    the sum of the products of (i) the amount of each then-remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of such Indebtedness; and (ii) the number of years (calculated to the nearest one-twelfth (1/12th)) that will elapse between such date and the making of such payment; by

(B)    the then outstanding principal amount of such Indebtedness.

Wellbore Lien ” means, with respect to any DrillCo PDP Reserves of the Company of any of its Restricted Subsidiaries attributable to a particular well, a Lien (including a real property mortgage on and a locally, and, if applicable, centrally, filed financing statement covering fixtures and as-extracted collateral) on (A) the interest of the Company or relevant Restricted Subsidiary, as applicable, in and to such well, the associated wellbore and the associated fixtures and as-extracted collateral; and (B) the interest of the Company or relevant Restricted Subsidiary, as applicable, in and to the mineral leases or other Oil and Gas Properties attributable to such DrillCo PDP Reserves, but only insofar as such mineral leases or other Oil and Gas Properties are necessary to produce, operate, maintain and plug and abandon such well.

 

- 37 -


Section 1.02.    O THER D EFINITIONS .

 

Term

  Defined in
Section
 

“Additional Shares”

    5.07(A)  

“Affiliate Transaction”

    3.15(A)  

“Asset Sale Offer”

    3.14(D)(i)  

“Business Combination Event”

    6.01(A)  

“Cash Settlement”

    5.03(A)  

“Collateral Agreement Order”

    10.12(J)  

“Combination Settlement”

    5.03(A)  

“Common Stock Change Event”

    5.08(A)  

“Convertible Note Redemption”

    4.04(B)(i)  

“Conversion Agent”

    2.06(A)  

“Conversion Consideration”

    5.03(B)  

“Default Interest”

    2.05(B)  

“Defaulted Amount”

    2.05(B)  

“Degressive Issuance”

    3.05(A)  

“Degressive Issuance Date”

    3.05(A)  

“Event of Default”

    7.01(A)  

“Excess Proceeds”

    3.14(D)(i)  

“Expiration Date”

    5.05(A)(v)  

“Expiration Time”

    5.05(A)(v)  

“Fundamental Change Notice”

    4.02(E)  

“Fundamental Change Repurchase Right”

    4.02(A)  

“Guaranteed Obligations”

    9.04(A)  

“Guarantor Business Combination Event”

    9.04(A)  

“High Yield Note Redemption”

    4.04(B)(ii)  

“Minimum Mortgage Requirement”

    10.04(B)  

“Paid-In-Kind Principal”

    3.04(C)  

“Paying Agent”

    2.06(A)  

“Payment-In-Kind of High Yield Interest”

    3.04(C)  

“Permitted Debt”

    3.13(B)  

“Physical Settlement”

    5.03(A)  

“Redemption Notice”

    4.04(F)  

“Reference Property”

    5.08(A)  

“Reference Property Unit”

    5.08(A)  

“Register”

    2.06(B)  

“Registrar”

    2.06(A)  

“Registration Rights Notes”

    4.04(B)(i)  

“Reporting Event of Default”

    7.03(A)  

“Restricted Payments”

    3.11(A)  

“Specified Courts”

    13.07  

“Spin-Off”

    5.05(A)(iii)(2)  

“Spin-Off Valuation Period”

    5.05(A)(iii)(2)  

“Stated Interest”

    2.05(A)  

“Successor Corporation”

    6.01(A)  

“Successor Guarantor Corporation”

    9.04(A)(i)  

“Successor Person”

    5.08(A)  

“Tender/Exchange Offer Valuation Period”

    5.05(A)(v)  

 

- 38 -


Section 1.03.    R ULES OF C ONSTRUCTION .

For purposes of this Indenture:

(A)    “or” is not exclusive;

(B)    “including” means “including without limitation”;

(C)    “will” expresses a command;

(D)    words in the singular include the plural and in the plural include the singular, unless the context requires otherwise;

(E)    “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision of this Indenture, unless the context requires otherwise;

(F)    references to currency mean the lawful currency of the United States of America, unless the context requires otherwise;

(G)    the exhibits, schedules and other attachments to this Indenture are deemed to form part of this Indenture; and

(H)    the term “ interest ,” when used with respect to a Note, includes any Additional Interest, High Yield Interest and Special Interest, in each case to the extent then due, unless the context requires otherwise.

Article 2.    THE NOTES

Section 2.01.    F ORM , D ATING AND D ENOMINATIONS .

The Notes and the Trustee’s certificate of authentication will be substantially in the form set forth in Exhibit A . The Notes will bear the legends required by Section  2.09 and may bear notations, legends or endorsements required by law, stock exchange rule or usage or the Depositary. Each Note will be dated as of the date of its authentication.

The Notes issued on the Issue Date will be issued initially in the form of one or more Physical Notes. Physical Notes may be exchanged for Global Notes, and Global Notes may be exchanged for Physical Notes, only as provided in Section  2.10 .

 

- 39 -


The Notes will be issuable only in registered form without interest coupons and only in Authorized Denominations.

Each certificate representing a Note will bear a unique registration number that is not affixed to any other certificate representing another outstanding Note.

The terms contained in the Notes constitute part of this Indenture, and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, agree to such terms and to be bound thereby; provided , however , that, to the extent that any provision of any Note conflicts with the provisions of this Indenture, the provisions of this Indenture will control for purposes of this Indenture and such Note.

Section 2.02.    E XECUTION , A UTHENTICATION AND D ELIVERY .

(A)     Due Execution by the Company . At least one (1) duly authorized Officer will sign the Notes on behalf of the Company by manual or facsimile signature. A Note’s validity will not be affected by the failure of any Officer whose signature is on any Note to hold, at the time such Note is authenticated, the same or any other office at the Company.

(B)     Authentication by the Trustee and Delivery .

(i)    No Note will be valid until it is authenticated by the Trustee. A Note will be deemed to be duly authenticated only when an authorized signatory of the Trustee (or a duly appointed authenticating agent) manually signs the certificate of authentication of such Note.

(ii)    The Trustee will cause an authorized signatory of the Trustee (or a duly appointed authenticating agent) to manually sign the certificate of authentication of a Note only if (1) the Company delivers such Note to the Trustee; (2) such Note is executed by the Company in accordance with Section 2.02(A) ; and (3) the Company delivers a Company Order to the Trustee that (a) requests the Trustee to authenticate such Note; and (b) sets forth the name of the Holder of such Note and the date as of which such Note is to be authenticated. If such Company Order also requests the Trustee to deliver such Note to any Holder or to the Depositary, then the Trustee will promptly deliver such Note in accordance with such Company Order.

(iii)    The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. A duly appointed authenticating agent may authenticate Notes whenever the Trustee may do so under this Indenture, and a Note authenticated as provided in this Indenture by such an agent will be deemed, for purposes of this Indenture, to be authenticated by the Trustee. Each duly appointed authenticating agent will have the same rights to deal with the Company as the Trustee would have if it were performing the duties that the authentication agent was validly appointed to undertake.

Section 2.03.    I SSUANCE OF N OTES ON THE I SSUE D ATE .

On the Issue Date, there will be originally issued one hundred and twenty five million dollars ($125,000,000) aggregate principal amount of Notes, subject to the provisions of this Indenture (including Section  2.02 ).

 

- 40 -


Section 2.04.    M ETHOD OF P AYMENT .

(A)     Global Notes . The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date, Redemption on a Redemption Date or repurchase on a Fundamental Change Repurchase Date or Asset Sale Repurchase Date or otherwise) of, interest or any Applicable Premium on, and any cash Conversion Consideration for, any Global Note to the Depositary by wire transfer of immediately available funds no later than the time the same is due as provided in this Indenture.

(B)     Physical Notes . The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date, Redemption on a Redemption Date or repurchase on a Fundamental Change Repurchase Date or Asset Sale Repurchase Date or otherwise) of, interest or any Applicable Premium on, and any cash Conversion Consideration for, any Physical Note no later than the time the same is due as provided in this Indenture as follows: (i) if the principal amount of such Physical Note is at least five million dollars ($5,000,000) (or such lower amount as the Company may choose in its sole and absolute discretion) and the Holder of such Physical Note entitled to such payment has delivered to the Paying Agent or the Trustee, no later than the time set forth in the immediately following sentence, a written request that the Company make such payment by wire transfer to an account of such Holder within the United States, by wire transfer of immediately available funds to such account; and (ii) in all other cases, by check mailed to the address of the Holder of such Physical Note entitled to such payment as set forth in the Register. To be timely, such written request must be so delivered no later than the Close of Business on the following date: (x) with respect to the payment of any interest due on an Interest Payment Date, the immediately preceding Regular Record Date; (y) with respect to any cash Conversion Consideration, the relevant Conversion Date; and (z) with respect to any other payment, the date that is fifteen (15) calendar days immediately before the date such payment is due.

Section 2.05.    A CCRUAL OF I NTEREST ; D EFAULTED A MOUNTS ; W HEN P AYMENT D ATE IS N OT A B USINESS D AY .

(A)     Accrual of Interest . Each Note will accrue interest at a rate per annum equal to 6.00% (the “ Stated Interest ”), plus any High Yield Interest, Additional Interest and Special Interest that may accrue pursuant to Sections 3.04 , 3.05 and 7.03 , respectively. Stated Interest on each Note will (i) accrue from, and including, the most recent date to which Stated Interest has been paid or duly provided for (or, if no Stated Interest has theretofore been paid or duly provided for, the date set forth in the certificate representing such Note as the date from, and including, which Stated Interest will begin to accrue in such circumstance) to, but excluding, the date of payment of such Stated Interest; and (ii) be, subject to Sections 3.14(D)(ii) , 4.02(D) , 4.04(E) and 5.02(D) (but without duplication of any payment of interest), payable quarterly in arrears on each Interest Payment Date, beginning on the first Interest Payment Date set forth in the certificate representing such Note, to the Holder of such Note as of the Close of Business on the immediately preceding Regular Record Date. Stated Interest, and, if applicable, Additional Interest, High Yield Interest and Special Interest, on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

- 41 -


(B)     Defaulted Amounts . If the Company fails to pay any amount (a “ Defaulted Amount ”) payable on a Note on or before the due date therefor as provided in this Indenture, then, regardless of whether such failure constitutes an Event of Default, (i) such Defaulted Amount will forthwith cease to be payable to the Holder of such Note otherwise entitled to such payment, except to the extent such payment constitutes interest and is paid before such failure constitutes an Event of Default; (ii) to the extent lawful, interest (“ Default Interest ”) will accrue on such Defaulted Amount at a rate per annum equal to the rate per annum at which Stated Interest accrues plus one hundred (100) basis points, from, and including, such due date to, but excluding, the date of payment of such Defaulted Amount and Default Interest; (iii) such Defaulted Amount and Default Interest will be paid on a payment date selected by the Company to the Holder of such Note as of the Close of Business on a special record date selected by the Company (except to the extent the payment that was not paid constitutes interest and is paid before such non-payment constitutes an Event of Default, in which case such payment will be paid to the Person to whom it was originally due), provided that such special record date must be no more than fifteen (15), nor less than ten (10), calendar days before such payment date; and (iv) at least fifteen (15) calendar days before such special record date, the Company will send notice to the Trustee and the Holders that states such special record date, such payment date and the amount of such Defaulted Amount and Default Interest to be paid on such payment date.

(C)     Delay of Payment when Payment Date is Not a Business Day . If the due date for a payment on a Note as provided in this Indenture is not a Business Day, then, notwithstanding anything to the contrary in this Indenture or the Notes, such payment may be made on the immediately following Business Day and no interest will accrue on such payment as a result of the related delay. Solely for purposes of the immediately preceding sentence, a day on which the applicable place of payment is authorized or required by law or executive order to close or be closed will be deemed not to be a “Business Day.”

Section 2.06.    R EGISTRAR , P AYING A GENT AND C ONVERSION A GENT .

(A)     Generally . The Company will maintain (i) an office or agency in the continental United States where Notes may be presented for registration of transfer or for exchange (the “ Registrar ”); (ii) an office or agency in the continental United States where Notes may be presented for payment (the “ Paying Agent ”); and (iii) an office or agency in the continental United States where Notes may be presented for conversion (the “ Conversion Agent ”). If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, then the Trustee will act as such. For the avoidance of doubt, the Company or any of its Subsidiaries may act as Registrar, Paying Agent or Conversion Agent.

(B)     Duties of the Registrar . The Registrar will keep a record (the “ Register ”) of the names and addresses of the Holders, the Notes held by each Holder and the transfer, exchange, repurchase, Redemption and conversion of Notes. Absent manifest error, the entries in the Register will be conclusive and the Company and the Trustee may treat each Person whose name is recorded as a Holder in the Register as a Holder for all purposes. The Register will be in written form or in any form capable of being converted into written form reasonably promptly.

 

- 42 -


(C)     Co-Agents; Company’s Right to Appoint Successor Registrars, Paying Agents and Conversion Agents . The Company may appoint one or more co-Registrars, co-Paying Agents and co-Conversion Agents, each of whom will be deemed to be a Registrar, Paying Agent or Conversion Agent, as applicable, under this Indenture. Subject to Section 2.06(A) , the Company may change any Registrar, Paying Agent or Conversion Agent (including appointing itself or any of its Subsidiaries to act in such capacity) without notice to any Holder. The Company will notify the Trustee (and, upon request, any Holder) of the name and address of each Note Agent, if any, not a party to this Indenture and will enter into an appropriate agency agreement with each such Note Agent, which agreement will implement the provisions of this Indenture that relate to such Note Agent.

(D)     Initial Appointments . The Company appoints the Trustee as the initial Paying Agent, the initial Registrar and the initial Conversion Agent.

Section 2.07.    P AYING A GENT AND C ONVERSION A GENT TO H OLD P ROPERTY IN T RUST .

The Company will require each Paying Agent or Conversion Agent that is not the Trustee to agree in writing that such Note Agent will (A) hold in trust for the benefit of Holders or the Trustee all money and other Property held by such Note Agent for payment or delivery due on the Notes; and (B) notify the Trustee of any default by the Company in making any such payment or delivery. The Company, at any time, may, and the Trustee, while any Default continues, may, require a Paying Agent or Conversion Agent to pay or deliver, as applicable, all money and other Property held by it to the Trustee, after which payment or delivery, as applicable, such Note Agent (if not the Company or any of its Subsidiaries) will have no further liability for such money or Property. If the Company or any of its Subsidiaries acts as Paying Agent or Conversion Agent, then (A) it will segregate and hold in a separate trust fund for the benefit of the Holders or the Trustee all money and other Property held by it as Paying Agent or Conversion Agent; and (B) references in this Indenture or the Notes to the Paying Agent or Conversion Agent holding cash or other Property, or to the delivery of cash or other Property to the Paying Agent or Conversion Agent, in each case for payment or delivery to any Holders or the Trustee or with respect to the Notes, will be deemed refer to cash or other Property so segregated and held separately, or to the segregation and separate holding of such cash or other Property, respectively. Upon the occurrence of any event pursuant to in clause (xii)  or (xiii) of Section 7.01(A) with respect to the Company (or with respect to any Subsidiary of the Company acting as Paying Agent or Conversion Agent), the Trustee will serve as the Paying Agent or Conversion Agent, as applicable, for the Notes.

Section 2.08.    H OLDER L ISTS .

If the Trustee is not the Registrar, the Company will furnish to the Trustee, no later than seven (7) Business Days before each Interest Payment Date, and at such other times as the Trustee may request, a list, in such form and as of such date or time as the Trustee may reasonably require, of the names and addresses of the Holders.

Section 2.09.    L EGENDS .

(A)     Global Note Legend . Each Global Note will bear the Global Note Legend (or any similar legend, not inconsistent with this Indenture, required by the Depositary for such Global Note).

 

- 43 -


(B)     Non-Affiliate Legend . Each Note that is not an Affiliate Note will bear the Non-Affiliate Legend.

(C)     Restricted Note Legend . Subject to Section  2.12 ,

(i)    each Note that is a Transfer-Restricted Security will bear the Restricted Note Legend; and

(ii)    if a Note is issued in exchange for, in substitution of, or to effect a partial conversion of, another Note (such other Note being referred to as the “old Note” for purposes of this Section 2.09(C)(ii) ), including pursuant to Section 2.10(B) , 2.10(C) , 2.11 or 2.13 , such Note will bear the Restricted Note Legend if such old Note bore the Restricted Note Legend at the time of such exchange or substitution, or on the related Conversion Date with respect to such conversion, as applicable; provided , however , that such Note need not bear the Restricted Note Legend if such Note does not constitute a Transfer-Restricted Security immediately after such exchange or substitution, or as of such Conversion Date, as applicable.

(D)     Other Legends . A Note may bear any other legend or text, not inconsistent with this Indenture, as may be required by applicable law or by any securities exchange or automated quotation system on which such Note is traded or quoted.

(E)     Acknowledgement and Agreement by the Holders . A Holder’s acceptance of any Note bearing any legend required by this Section  2.09 will constitute such Holder’s acknowledgement of, and agreement to comply with, the restrictions set forth in such legend.

(F)     Restricted Stock Legend .

(i)    Each Conversion Share will bear the Restricted Stock Legend if the Note upon the conversion of which such Conversion Share was issued was (or would have been had it not been converted) a Transfer-Restricted Security at the time such Conversion Share was issued; provided , however , that such Conversion Share need not bear the Restricted Stock Legend if the Company determines, in its reasonable discretion, that such Conversion Share need not bear the Restricted Stock Legend.

(ii)    Notwithstanding anything to the contrary in this Section 2.09(F) , a Conversion Share need not bear a Restricted Stock Legend if such Conversion Share is issued in an uncertificated form that does not permit affixing legends thereto, provided the Company takes measures (including the assignment thereto of a “restricted” CUSIP number) that it reasonably deems appropriate to enforce the transfer restrictions referred to in the Restricted Stock Legend.

 

- 44 -


Section 2.10.    T RANSFERS AND E XCHANGES ; C ERTAIN T RANSFER R ESTRICTIONS .

(A)     Provisions Applicable to All Transfers and Exchanges .

(i)    Subject to this Section  2.10 , Physical Notes and beneficial interests in Global Notes may be transferred or exchanged from time to time and the Registrar will record each such transfer or exchange in the Register.

(ii)    Each Note issued upon transfer or exchange of any other Note (such other Note being referred to as the “old Note” for purposes of this Section 2.10(A)(ii) ) or portion thereof in accordance with this Indenture will be the valid obligation of the Company, evidencing the same indebtedness, and entitled to the same benefits under this Indenture, as such old Note or portion thereof, as applicable.

(iii)    The Company, the Guarantors, the Trustee and the Note Agents will not impose any service charge on any Holder for any transfer, exchange or conversion of Notes, but the Company, the Guarantors, the Trustee, the Registrar and the Conversion Agent may require payment of a sum sufficient to cover any transfer tax or similar governmental charge that may be imposed in connection with any transfer, exchange or conversion of Notes, other than exchanges pursuant to Sections 2.11 , 2.17 or 8.05 not involving any transfer.

(iv)    Notwithstanding anything to the contrary in this Indenture or the Notes, a Note may not be transferred or exchanged in part unless the portion to be so transferred or exchanged is in an Authorized Denomination.

(v)    The Trustee will have no obligation or duty to monitor, determine or inquire as to compliance with any transfer restrictions imposed under this Indenture or applicable law with respect to any Security (including any transfers between or among Depositary Participants, members or beneficial owners in any Global Note), other than to require the delivery of such certificates or other documentation or evidence as expressly required by this Indenture and to examine the same to determine substantial compliance as to form with the requirements of this Indenture. Neither the Trustee nor any Note Agent will have any responsibility or liability for any actions taken or not taken by the Depositary.

(vi)    Each Note issued upon transfer of, or in exchange for, another Note will bear each legend, if any, required by Section  2.09 .

(vii)    Upon satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Note, the Company will cause such transfer or exchange to be effected as soon as reasonably practicable but in no event later than the third (3rd) (or, if the T+2 Effective Date has occurred by the date of such satisfaction, the second (2nd)) Business Day after the date of such satisfaction.

(viii)    For the avoidance of doubt, and subject to the terms of this Indenture, as used in this Section  2.10 , an “exchange” of a Global Note or a Physical Note includes (x) an exchange effected for the sole purpose of removing any Restricted Note Legend affixed to such Global Note or Physical Note; and (y) if such Global Note or a Physical Note is identified by a “restricted” CUSIP number, an exchange effected for the sole purpose of causing such Global Note or a Physical Note to be identified by an “unrestricted” CUSIP number.

 

- 45 -


(B)     Transfers and Exchanges of Global Notes.

(i)    Subject to the immediately following sentence, no Global Note may be transferred or exchanged in whole except (1) by the Depositary to a nominee of the Depositary; (2) by a nominee of the Depositary to the Depositary or to another nominee of the Depositary; or (3) by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. No Global Note (or any portion thereof) may be transferred to, or exchanged for, a Physical Note; provided , however , that a Global Note will be exchanged, pursuant to customary procedures, for one or more Physical Notes if:

(1)    (x) the Depositary notifies the Company or the Trustee that the Depositary is unwilling or unable to continue as depositary for such Global Note or (y) the Depositary ceases to be a “clearing agency” registered under Section 17A of the Exchange Act and, in each case, the Company fails to appoint a successor Depositary within ninety (90) days of such notice or cessation;

(2)    an Event of Default has occurred and is continuing and the Company, the Trustee or the Registrar has received a written request from the Depositary to exchange such Global Note or beneficial interest, as applicable, for one or more Physical Notes; or

(3)    the Company, in its sole discretion, permits the exchange of any beneficial interest in such Global Note for one or more Physical Notes at the request of the owner of such beneficial interest.

(ii)    Upon satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Global Note (or any portion thereof):

(1)    the Trustee will reflect any resulting decrease of the principal amount of such Global Note by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note (and, if such notation results in such Global Note having a principal amount of zero, the Company may (but is not required to) instruct the Trustee to cancel such Global Note pursuant to Section  2.15 );

(2)    if required to effect such transfer or exchange, then the Trustee will reflect any resulting increase of the principal amount of any other Global Note by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such other Global Note;

(3)    if required to effect such transfer or exchange, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section  2.02 , a new Global Note bearing each legend, if any, required by Section  2.09 ; and

 

- 46 -


(4)    if such Global Note (or such portion thereof), or any beneficial interest therein, is to be exchanged for one or more Physical Notes, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section  2.02 , one or more Physical Notes that are in Authorized Denominations (not to exceed, in the aggregate, the principal amount of such Global Note to be so exchanged), are registered in such name(s) as the Depositary specifies (or as otherwise determined pursuant to customary procedures) and bear each legend, if any, required by Section  2.09 .

(iii)    Each transfer or exchange of a beneficial interest in any Global Note will be made in accordance with the Depositary Procedures.

(C)     Transfers and Exchanges of Physical Notes.

(i)    Subject to this Section  2.10 , a Holder of a Physical Note may (x) transfer such Physical Note (or any portion thereof in an Authorized Denomination) to one or more other Person(s); (y) exchange such Physical Note (or any portion thereof in an Authorized Denomination) for one or more other Physical Notes in Authorized Denominations having an aggregate principal amount equal to the aggregate principal amount of the Physical Note (or portion thereof) to be so exchanged; and (z) if then permitted by the Depositary Procedures, transfer such Physical Note (or any portion thereof in an Authorized Denomination) in exchange for a beneficial interest in one or more Global Notes; provided , however , that, notwithstanding anything to the contrary in this Indenture or the Notes, but subject to Section 2.10(C)(ii)(5) , no Affiliate Note may be issued in the form of a Global Note without the prior consent of the Company; provided , further , that, to effect any such transfer or exchange, such Holder must:

(1)    surrender such Physical Note to be transferred or exchanged to the office of the Registrar, together with any endorsements or transfer instruments reasonably required by the Company, the Trustee or the Registrar; and

(2)    deliver such certificates, documentation or evidence as may be required pursuant to Section 2.10(D) .

(ii)    Upon the satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Physical Note (such Physical Note being referred to as the “old Physical Note” for purposes of this Section 2.10(C)(ii) ) of a Holder (or any portion of such old Physical Note in an Authorized Denomination):

(1)    such old Physical Note will be promptly cancelled pursuant to Section  2.15 ;

(2)    if such old Physical Note is to be transferred or exchanged only in part, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section  2.02 , one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such old Physical Note not to be transferred or exchanged; (y) are registered in the name of such Holder; and (z) bear each legend, if any, required by Section  2.09 ;

 

- 47 -


(3)    in the case of a transfer:

(a)    to the Depositary or a nominee thereof that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form of one or more Global Notes, the Trustee will reflect an increase of the principal amount of one or more existing Global Notes by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note(s), which increase(s) are in Authorized Denominations and aggregate to the principal amount to be so transferred, and which Global Note(s) bear each legend, if any, required by Section  2.09 ; provided , however , that if such transfer cannot be so effected by notation on one or more existing Global Notes (whether because no Global Notes bearing each legend, if any, required by Section  2.09 then exist, because any such increase will result in any Global Note having an aggregate principal amount exceeding the maximum aggregate principal amount permitted by the Depositary or otherwise), then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section  2.02 , one or more Global Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so transferred; and (y) bear each legend, if any, required by Section  2.09 ; and

(b)    to a transferee that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form of one or more Physical Notes, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section  2.02 , one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so transferred; (y) are registered in the name of such transferee; and (z) bear each legend, if any, required by Section  2.09 ;

(4)    in the case of an exchange, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section  2.02 , one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so exchanged; (y) are registered in the name of the Person to whom such old Physical Note was registered; and (z) bear each legend, if any, required by Section  2.09 ; and

(5)    in the case of a transfer of an Affiliate Note (or any portion thereof) that will cease to be an Affiliate Note immediately after such transfer, and in the case of an exchange of a Physical Note (or any portion thereof) that has ceased to be an Affiliate Note, the Company will, at the request of the Holder thereof and without limiting the generality of clauses (1)  through (4) , inclusive, above and Section 2.10(F) , cause such Affiliate Note or Physical Note (or such

 

- 48 -


portion thereof), as applicable, to be exchanged for a beneficial interest in a Global Note no later than the third (3rd) (or, if the T+2 Effective Date has occurred by the date of such request, the second (2nd)) Business Day immediately after the date of such request.

(D)     Requirement to Deliver Documentation and Other Evidence. If a Holder of any Note that is identified by a “restricted” CUSIP number or that bears a Restricted Note Legend or is a Transfer-Restricted Security requests to:

(i)    cause such Note to be identified by an “unrestricted” CUSIP number;

(ii)    remove such Restricted Note Legend; or

(iii)    register the transfer of such Note to the name of another Person,

then the Company, the Guarantors, the Trustee and the Registrar may refuse to effect such identification, removal or transfer, as applicable, unless there is delivered to the Company, the Guarantors, the Trustee and the Registrar such certificates or other documentation or evidence (including an Opinion of Counsel) as the Company, the Guarantors, the Trustee and the Registrar may reasonably require to determine that such identification, removal or transfer, as applicable, complies with the Securities Act and other applicable securities laws.

(E)     Transfers of Notes Subject to Redemption, Repurchase or Conversion . Notwithstanding anything to the contrary in this Indenture or the Notes, the Company, the Guarantors, the Trustee and the Registrar will not be required to register the transfer of or exchange any Note that (i) has been surrendered for conversion, except to the extent that any portion of such Note is not subject to conversion; (ii) is subject to a Fundamental Change Repurchase Notice (or any similar notice with respect to an Asset Sale offer) validly delivered, and not withdrawn, pursuant to Section 4.02(F) (or the terms of such Asset Sale Offer), except to the extent that any portion of such Note is not subject to such notice or the Company fails to pay the applicable Fundamental Change Repurchase Price (or Asset Sale Repurchase Price) when due; or (iii) has been selected for Redemption pursuant to a Redemption Notice, except to the extent that the Company fails to pay the applicable Redemption Price when due.

(F)     De-Legending of Affiliate Notes . For the avoidance of doubt, upon any Affiliate Note ceasing to constitute a Transfer-Restricted Security, the Holder thereof may, pursuant to this Section  2.10 (including Sections 2.10(A)(vii) and 2.10(A)(viii) ), request the Company to cause such Affiliate Note to be identified by “unrestricted” CUSIP and ISIN numbers and to cease to bear a Restricted Note Legend, and the Company will effect the same, subject to the requirements of this Section  2.10 (including Section 2.10(D) ) and, if applicable, Section  2.12 .

Section 2.11.    E XCHANGE AND C ANCELLATION OF N OTES TO B E C ONVERTED , R EDEEMED OR R EPURCHASED .

(A)     Partial Conversions, Redemptions and Repurchases of Physical Notes . If only a portion of a Physical Note of a Holder is to be converted pursuant to Article 5 or repurchased pursuant to a Required Repurchase or Redemption, then, as soon as reasonably practicable after such Physical Note is surrendered for such conversion or repurchase, the Company will cause

 

- 49 -


such Physical Note to be exchanged, pursuant and subject to Section 2.10(C) , for (i) one or more Physical Notes that are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such Physical Note that is not to be so converted or repurchased, and deliver such Physical Note(s) to such Holder; and (ii) a Physical Note having a principal amount equal to the principal amount to be so converted or repurchased, which Physical Note will be converted or repurchased, as applicable, pursuant to the terms of this Indenture; provided , however , that the Physical Note referred to in this clause (ii) need not be issued at any time after which such principal amount subject to such conversion or repurchase is deemed to cease to be outstanding pursuant to Section  2.18 .

(B)     Cancellation of Converted, Redeemed and Repurchased Notes .

(i)     Physical Notes . If a Physical Note (or any portion thereof that has not theretofore been exchanged pursuant to Section 2.11(A) ) of a Holder is to be converted pursuant to Article 5 or repurchased pursuant to a Required Repurchase or Redemption, then, promptly after the later of the time such Physical Note (or such portion) is deemed to cease to be outstanding pursuant to Section  2.18 and the time such Physical Note is surrendered for such conversion or repurchase, as applicable, (1) such Physical Note will be cancelled pursuant to Section  2.15 ; and (2) in the case of a partial conversion or repurchase, the Company will issue, execute and deliver to such Holder, and the Trustee will authenticate, in each case in accordance with Section  2.02 , one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such Physical Note that is not to be so converted or repurchased; (y) are registered in the name of such Holder; and (z) bear each legend, if any, required by Section  2.09 .

(ii)     Global Notes . If a Global Note (or any portion thereof) is to be converted pursuant to Article 5 or repurchased pursuant to a Required Repurchase or Redemption, then, promptly after the time such Note (or such portion) is deemed to cease to be outstanding pursuant to Section  2.18 , the Trustee will reflect a decrease of the principal amount of such Global Note in an amount equal to the principal amount of such Global Note to be so converted or repurchased, as applicable, by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note (and, if the principal amount of such Global Note is zero following such notation, cancel such Global Note pursuant to Section  2.15 ) in accordance with the Depositary Procedures.

Section 2.12.    R EMOVAL OF T RANSFER R ESTRICTIONS .

Without limiting the generality of any other provision of this Indenture (including Sections 2.10 and 3.05 ), the Restricted Note Legend affixed to any Note will be deemed, pursuant to this Section  2.12 and the footnote to such Restricted Note Legend, to be removed therefrom upon the Company’s delivery to the Trustee of notice to such effect. If such Note bears a “restricted” CUSIP or ISIN number at the time of such delivery, then, upon such delivery, such Note will be deemed, pursuant to this Section  2.12 and the footnotes to the CUSIP and ISIN numbers set forth on the face of the certificate representing such Note, to thereafter bear the “unrestricted” CUSIP and ISIN numbers identified in such footnotes; provided , however , that if such Note is a Global Note that is not an Affiliate Note, and the Depositary

 

- 50 -


thereof requires a mandatory exchange or other procedure to cause such Global Note to be identified by “unrestricted” CUSIP and ISIN numbers in the facilities of such Depositary, then (i) the Company will effect such exchange or procedure as soon as reasonably practicable; and (ii) for purposes of Section 2.10(F) , such Global Note will not be deemed to be identified by “unrestricted” CUSIP and ISIN numbers until such time as such exchange or procedure is effected.

Section 2.13.    R EPLACEMENT N OTES .

If a Holder of any Note claims that such Note has been mutilated, lost, destroyed or wrongfully taken, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section  2.02 , a replacement Note upon surrender to the Trustee of such mutilated Note, or upon delivery to the Trustee of evidence of such loss, destruction or wrongful taking reasonably satisfactory to the Trustee and the Company. In the case of a lost, destroyed or wrongfully taken Note, an indemnity bond must be supplied by the Holder thereof that is sufficient in the judgment of the Company and the Trustee to protect the Company and the Trustee from any loss that any of them may suffer if such Note is replaced. The Company may charge for its expenses (including the expenses of the Trustee) in replacing a Note.

Every replacement Note issued pursuant to this Section  2.13 will be an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and ratably with all other Notes issued under this Indenture.

Section 2.14.    R EGISTERED H OLDERS ; C ERTAIN R IGHTS WITH R ESPECT TO G LOBAL N OTES .

Only the Holder of a Note will have rights under this Indenture as the owner of such Note. Without limiting the generality of the foregoing, Depositary Participants will have no rights as such under this Indenture with respect to any Global Note held on their behalf by the Depositary or its nominee, or by the Trustee as its custodian, and the Company, the Guarantors, the Trustee and the Note Agents, and their respective agents, may treat the Depositary as the absolute owner of such Global Note for all purposes whatsoever; provided , however , that (A) the Holder of any Global Note may grant proxies and otherwise authorize any Person, including Depositary Participants and Persons that hold interests in Notes through Depositary Participants, to take any action that such Holder is entitled to take with respect to such Global Note under this Indenture or the Notes; and (B) the Company and the Trustee, and their respective agents, may give effect to any written certification, proxy or other authorization furnished by the Depositary.

Section 2.15.    C ANCELLATION .

Without limiting the generality of Section  3.09 , the Company may at any time deliver Notes to the Trustee for cancellation. The Registrar, the Paying Agent and the Conversion Agent will forward to the Trustee each Note duly surrendered to them for transfer, exchange, payment or conversion. The Trustee will promptly cancel all Notes so surrendered to it accordance with its customary procedures. The Company may not originally issue new Notes to replace Notes that it has paid or that have been cancelled upon transfer, exchange, payment or conversion.

 

- 51 -


Section 2.16.    N OTES H ELD BY THE C OMPANY OR ITS A FFILIATES .

Without limiting the generality of Section  3.09 , in determining whether the Holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company or any of its Affiliates (excluding, for these purposes, the Initial Holders and their respective Affiliates) will be deemed not to be outstanding; provided , however , that, for purposes of determining whether the Trustee is protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned will be so disregarded.

Section 2.17.    T EMPORARY N OTES .

Until definitive Notes are ready for delivery, the Company may issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section  2.02 , temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes. The Company will promptly prepare, issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section  2.02 , definitive Notes in exchange for temporary Notes. Until so exchanged, each temporary Note will in all respects be entitled to the same benefits under this Indenture as definitive Notes.

Section 2.18.    O UTSTANDING N OTES .

(A)     Generally . The Notes that are outstanding at any time will be deemed to be those Notes that, at such time, have been duly executed and authenticated, excluding those Notes (or portions thereof) that have theretofore been (i) cancelled by the Trustee or delivered to the Trustee for cancellation in accordance with Section  2.15 ; (ii) assigned a principal amount of zero by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of any a Global Note representing such Note; (iii) paid in full in accordance with this Indenture; or (iv) deemed to cease to be outstanding to the extent provided in, and subject to, clause (B) , (C) or (D)  of this Section  2.18 .

(B)     Replaced Notes . If a Note is replaced pursuant to Section  2.13 , then such Note will cease to be outstanding at the time of its replacement, unless the Trustee and the Company receive proof reasonably satisfactory to them that such Note is held by a “ bona fide purchaser” under applicable law.

(C)     Maturing Notes and Notes Called for Redemption or Subject to Repurchase . If, on a Redemption Date, a Fundamental Change Repurchase Date, Asset Sale Repurchase Date or the Maturity Date, the Paying Agent holds money sufficient to pay the aggregate Redemption Price, Fundamental Change Repurchase Price, Asset Sale Repurchase Price or principal amount, respectively, together, in each case, with the aggregate interest, in each case due on such date, then (unless there occurs a Default in the payment of any such amount) (i) the Notes (or portions thereof) to be redeemed or repurchased, or that mature, on such date will be deemed, as of such date, to cease to be outstanding, except to the extent provided in Sections 3.14(D)(ii) , 4.02(D) , 4.04(E) or 5.02(D) ; and (ii) the rights of the Holders of such Notes (or such portions thereof), as such, will terminate with respect to such Notes (or such portions thereof), other than the right to

 

- 52 -


receive the Redemption Price, Fundamental Change Repurchase Price, Asset Sale Repurchase Price or principal amount, as applicable, of, and accrued and unpaid interest on, such Notes (or such portions thereof), in each case as provided in this Indenture.

(D)     Notes to Be Converted . At the Close of Business on the Conversion Date for any Note (or any portion thereof) to be converted, such Note (or such portion) will (unless there occurs a Default in the delivery of the Conversion Consideration or interest due, pursuant to Section 5.03(B) or Section 5.02(D) , upon such conversion) be deemed to cease to be outstanding, except to the extent provided in Section 5.02(D) .

(E)     Cessation of Accrual of Interest . Except as provided in Sections 3.14(D)(ii) , 4.02(D) , 4.04(E) or 5.02(D) , interest will cease to accrue on each Note from, and including, the date that such Note is deemed, pursuant to this Section  2.18 , to cease to be outstanding, unless there occurs a default in the payment or delivery of any cash or other Property due on such Note.

Section 2.19.    R EPURCHASES BY THE C OMPANY .

Without limiting the generality of Section  2.15 , the Company may, from time to time, repurchase Notes in open market purchases or in negotiated transactions without delivering prior notice to Holders.

Section 2.20.    CUSIP AND ISIN N UMBERS .

Subject to Section  2.12 , the Company may use one or more CUSIP or ISIN numbers to identify any of the Notes, and, if so, the Company and the Trustee will use such CUSIP or ISIN number(s) in notices to Holders; provided , however , that (i) the Trustee makes no representation as to the correctness or accuracy of any such CUSIP or ISIN number; and (ii) the effectiveness of any such notice will not be affected by any defect in, or omission of, any such CUSIP or ISIN number. The Company will promptly notify the Trustee of any change in the CUSIP or ISIN number(s) identifying any Notes.

Article 3.    COVENANTS

Section 3.01.    P AYMENT ON N OTES .

(A)     Generally . The Company will pay or cause to be paid all the principal of, the Fundamental Change Repurchase Price, Asset Sale Repurchase Price and Redemption Price for, interest on (including, in the case of High Yield Interest paid as Paid-In-Kind Principal with respect to any Note, by increasing the outstanding aggregate principal amount of such Note (in the case of a Global Note) or issuing one or more additional Physical Notes (in the case of any other Note), and other amounts due with respect to, the Notes on the dates and in the manner set forth in this Indenture.

(B)     Deposit of Funds . Before 11:00 A.M., New York City time, on each Redemption Date, Fundamental Change Repurchase Date, Asset Sale Repurchase Date or Interest Payment Date, and on the Maturity Date or any other date on which any cash amount is due on the Notes, the Company will deposit, or will cause there to be deposited, with the Paying Agent cash, in funds immediately available on such date, sufficient to pay the cash amount due on the applicable Notes on such date. The Paying Agent will return to the Company, as soon as practicable, any money not required for such purpose in accordance with the Paying Agent’s customary procedures.

 

- 53 -


Section 3.02.    E XCHANGE A CT R EPORTS .

(A)     Generally . The Company will send to the Holders and the Trustee copies of all reports that the Company is required to file with or furnish to the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act within fifteen (15) calendar days after the date that the Company is required to file or furnish the same (after giving effect to all applicable grace periods under the Exchange Act); provided , however , that the Company need not send to any Holder or the Trustee any material for which the Company has received, or is seeking in good faith and has not been denied, confidential treatment by the SEC. Any report that the Company files with or furnishes to the SEC through the EDGAR system (or any successor thereto) will be deemed to be sent to the Holders and the Trustee at the time such report is so filed or furnished via the EDGAR system (or such successor).

(B)     Trustee’s Disclaimer . The Trustee need not determine whether the Company has filed or furnished any material via the EDGAR system (or such successor). The sending, filing or furnishing of reports pursuant to this Section 3.02(A) will not be deemed to constitute constructive notice to the Trustee of any information contained, or determinable from information contained, therein, including the Company’s compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate).

Section 3.03.    R ULE 144A I NFORMATION .

If the Company is not subject to Section 13 or 15(d) of the Exchange Act at any time when any Notes or shares of Common Stock issuable upon conversion of the Notes are outstanding and constitute “restricted securities” (as defined in Rule 144 under the Securities Act), then the Company (or its successor) will promptly provide, upon written request, to any Holder, beneficial owner or prospective purchaser of such Notes or shares, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Notes or shares pursuant to Rule 144A under the Securities Act. The Company (or its successor) will take such further action as any Holder or beneficial owner of such Notes or shares may reasonably request to enable such Holder or beneficial owner to sell such Notes or shares pursuant to Rule 144A under the Securities Act.

Section 3.04.    H IGH Y IELD I NTEREST .

(A)     Accrual and Amount of High Yield Interest .

(i)     Generally . High Yield Interest will accrue on the Notes as follows:

(1)    If a Requisite Stockholder Approval Failure occurs, then High Yield Interest will accrue on each outstanding Note, from, and including, the day immediately after the High Yield Security Trigger Date at a rate per annum equal to two percent (2.00%) of the principal amount of such Note; provided , however ,

 

- 54 -


that, on each calendar month anniversary of the High Yield Security Trigger Date, the rate at which such High Yield Interest accrues per annum will be increased by one and three quarters percent (1.75%); provided , further , that in no event will High Yield Interest pursuant to this clause (1)  accrue at a rate per annum that exceeds nine percent (9.00%).

(2)    High Yield Interest will accrue on each outstanding Affiliate Note (and, for the avoidance of doubt, not on any other Notes) on each day, if any, after the High Yield Security Trigger Date, if (x) a Requisite Stockholder Approval Failure has not occurred; and (y) a Registration Default has occurred and is continuing on such day. Such High Yield Interest pursuant to this clause (2)  will accrue at a rate per annum equal to two percent (2.00%) of the principal amount of such Affiliate Note for the first one hundred and eighty (180) calendar days (whether or not consecutive) on which such High Yield Interest accrues, and the rate at which such High Yield Interest accrues per annum will be increased by one percent (1%) on the one hundred and eighty first (181st) calendar day (whether or not consecutive) on which such High Yield Interest accrues and on each ninetieth (90th) calendar day (whether or not consecutive) thereafter on which such High Yield Interest accrues; provided , however , that in no event will such High Yield Interest accrue pursuant to this clause (2)  at a rate per annum that exceeds seven percent (7.00%). For the avoidance of doubt, High Yield Interest pursuant to this clause (2)  will cease to accrue at such time when no Registration Default is continuing, but if a Registration Default thereafter occurs after the High Yield Security Trigger Date, then (x) High Yield Interest will resume accruing at the last rate at which it last accrued and such rate will continue to be subject to increase as provided in the immediately preceding sentence.

(ii)     No Effect on Other Interest . For the avoidance of doubt, any High Yield Interest that accrues on a Note will be in addition to the Stated Interest that accrues on such Note and in addition to any Additional Interest and Special Interest that accrues on such Note.

(B)     Payment of High Yield Interest . Subject to Section 3.04(C) , any High Yield Interest that accrues on a Note pursuant to Section 3.04(A) will be payable on the same dates and in the same manner as the Stated Interest on such Note.

(C)     Payment of High Yield Interest in Kind . To the extent permitted by applicable stock exchange rules, instead of being payable in cash as part of interest payments due on each Interest Payment Date, that portion, if any, of High Yield Interest that has accrued on any Note to, but excluding, each Interest Payment Date at a rate per annum that exceeds two percent (2.00%) will, on such Interest Payment Date, be payable as follows: (i) if such Note is a Global Note, by increasing the outstanding principal amount of such Note; or (ii) in all other cases, by issuing one or more additional Physical Note(s), in each case by rounding up to the nearest $1.00 in principal amount (a “ Payment-In-Kind of High Yield Interest ,” and any such High Yield Interest so added, “ Paid-In-Kind Principal ”); provided , however , that, by notice to the Holder(s), the Paying Agent and the Trustee sent no later than five (5) Business Days before the Regular Record Date immediately preceding such Interest Payment Date, the Company may

 

- 55 -


elect to pay in cash, on such Interest Payment Date, any portion of such High Yield Interest that would otherwise have been paid as Paid-In-Kind Principal. For the avoidance of doubt, Stated Interest, and Additional Interest, High Yield Interest and Special Interest, if any, will accrue on all Paid-In-Kind Principal, if any, of any Note and references in this Indenture to the “principal amount” of the Notes will include all Paid-In-Kind Principal, if any, that is included therein (including for purposes of determining (x) the principal amount, or any specified percentage thereof, due at maturity, upon Redemption or Required Repurchase or otherwise; and (y) the Conversion Consideration due upon conversion). No later than five (5) Business Days before the Regular Record Date immediately preceding each Interest Payment Date on which there is any Payment-In-Kind of High Yield Interest, the Company will send notice of the same to the Holder of each applicable Note, stating the amount of High Yield Interest to be paid as Paid-In-Kind Principal as of such Interest Payment Date. The Company will simultaneously send a copy of such notice to the Trustee and the Paying Agent.

(D)     Notice of Accrual of High Yield Interest; Trustee’s Disclaimer . The Company will send notice to the Holder of each applicable Note, and to the Trustee, of the commencement and termination of any period in which High Yield Interest accrues on such Note, no later than the Business Day immediately after such commencement or termination, as applicable. In addition, if High Yield Interest accrues on any Note, then, no later than five (5) Business Days before the Regular Record Date immediately preceding each Interest Payment Date on which such High Yield Interest is to be paid, the Company will deliver an Officer’s Certificate to the Trustee and the Paying Agent stating (i) that the Company is obligated to pay High Yield Interest on such Note on such date of payment; and (ii) the total amount of such High Yield Interest that is payable on such date of payment, and the amounts of which that will paid in cash and by Payment-In-Kind of High Yield Interest. With respect to a Payment-In-Kind of High Yield Interest on any Note on any Interest Payment Date, the Trustee will, at the request and direction of the Company set forth in a Company Order delivered to the Trustee before 11:00 a.m., New York City time, on such Interest Payment Date, reflect such Payment-In-Kind by (x) increasing the outstanding aggregate principal amount of such Note (in the case of a Global Note); or (y) authenticating and delivering, in accordance with Section  2.02 , one or more Physical Notes (in the case of any other Note). The Trustee will have no duty to determine whether any High Yield Interest is payable or the amount thereof.

Section 3.05.    A DDITIONAL I NTEREST .

(A)     Accrual of Additional Interest . If, after the Issue Date, other than in an Exempt Issuance, the Company or any of its Subsidiaries issues or otherwise sells any shares of Common Stock, or any options, warrants or other rights to purchase or otherwise acquire (whether immediately, during specified times, upon the satisfaction of any conditions or otherwise) any shares of Common Stock, in each case at an Effective Price per share of Common Stock that is less than the Reference Price in effect as of the date of the issuance or sale (the “ Degressive Issuance Date ”) of such rights, options or warrants (such an issuance or sale, a “ Degressive Issuance ”), then Additional Interest will accrue on each outstanding Physical Note held of record by any of the Initial Holders or any of their Affiliates or Affiliated Entities on each day that occurs on or after such Degressive Issuance Date; provided , however , that no Additional Interest will accrue after the High Yield Security Trigger Date if a Requisite Stockholder Approval Failure has occurred. For the avoidance of doubt, if a Degressive Issuance occurs

 

- 56 -


before the High Yield Security Trigger Date and a Requisite Stockholder Approval Failure occurs on the High Yield Security Trigger Date, then Additional Interest will accrue as provided in this Section  3.05 from, and including, the applicable Degressive Issuance Date to, and including, the High Yield Security Trigger Date. For the avoidance of doubt Additional Interest will not be payable on Notes that are not Physical Notes that are held of record by any of the Initial Holders or any of their Affiliates or Affiliated Entities.

(B)     Amount and Payment of Additional Interest . Any Additional Interest that accrues on a Note pursuant to Section 3.05(A) will be payable on the same dates and in the same manner as the Stated Interest on such Note and will accrue at a rate per annum equal to two percent (2.00%) of the principal amount thereof; provided , however , that in no event will Additional Interest accrue at a rate per annum that exceeds two percent (2.00%), regardless of the number of Degressive Issuances that have occurred. For the avoidance of doubt, any Additional Interest that accrues on a Note will be in addition to the Stated Interest that accrues on such Note and in addition to any Special Interest or High Yield Interest that accrues on such Note.

(C)     Notice of Accrual of Additional Interest; Trustee’s Disclaimer . The Company will send notice to the Holder of each Note, and to the Trustee, of the commencement and termination of the accrual of Additional Interest on such Note, no later than the Business Day immediately after such commencement or termination, as applicable. In addition, if Additional Interest accrues on any Note, then, no later than five (5) Business Days before each date on which such Additional Interest is to be paid, the Company will deliver an Officer’s Certificate to the Trustee and the Paying Agent stating (i) that the Company is obligated to pay Additional Interest on such Note on such date of payment; and (ii) the amount of such Additional Interest that is payable on such date of payment. The Trustee will have no duty to determine whether any Additional Interest is payable or the amount thereof.

Section 3.06.    C OMPLIANCE AND D EFAULT C ERTIFICATES .

(A)     Annual Compliance Certificate . Within ninety (90) days after December 31, 2017 and each fiscal year of the Company ending thereafter, the Company will deliver an Officer’s Certificate to the Trustee stating (i) that the signatory thereto has supervised a review of the activities of the Company and its Subsidiaries during such fiscal year with a view towards determining whether any Default or Event of Default has occurred; and (ii) whether, to such signatory’s knowledge, a Default or Event of Default has occurred or is continuing (and, if so, describing all such Defaults or Events of Default and what action the Company is taking or proposes to take with respect thereto).

(B)     Default Certificate . If a Default or Event of Default occurs, then the Company will promptly deliver an Officer’s Certificate to the Trustee describing the same and what action the Company is taking or proposes to take with respect thereto.

 

- 57 -


Section 3.07.    S TAY , E XTENSION AND U SURY L AWS .

To the extent that it may lawfully do so, the Company (A) agrees that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law (wherever or whenever enacted or in force) that may affect the covenants or the performance of this Indenture; and (B) expressly waives all benefits or advantages of any such law and agrees that it will not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Trustee by this Indenture, but will suffer and permit the execution of every such power as though no such law has been enacted.

Section 3.08.    C ORPORATE E XISTENCE .

Subject to Article 6 , the Company will cause to preserve and keep in full force and effect:

(A)    its corporate existence, and the corporate, partnership or other existence of each of its Subsidiaries, in accordance with the respective organizational documents of the Company and its Subsidiaries; and

(B)    the rights (charter and statutory), licenses and franchises of the Company and the Subsidiaries;

provided , however , that the Company need not preserve or keep in full force and effect any such existence, right, license or franchise of any of its Subsidiaries if the Company determines (x) the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole.

Section 3.09.    R ESTRICTION ON A CQUISITION OF N OTES BY THE C OMPANY AND ITS A FFILIATES .

The Company will promptly deliver to the Trustee for cancellation all Notes that the Company or any of its Subsidiaries have purchased or otherwise acquired. The Company will not permit any of its controlled Affiliates to acquire any Note (or any beneficial interest therein) unless they will be promptly cancelled in accordance with the foregoing sentence.

Section 3.10.    T HE R EQUISITE S TOCKHOLDER A PPROVAL .

The Company will use its reasonable best efforts to obtain the Requisite Stockholder Approval on or before the High Yield Security Trigger Date, including by seeking such approval, if not previously obtained, at each future regular annual meeting of its stockholders prior to the High Yield Security Trigger Date and endorsing its approval in the related proxy materials. The Company will promptly notify the Holders and the Trustee if the Requisite Stockholder Approval is obtained.

Section 3.11.    R ESTRICTED P AYMENTS .

(A)     Generally . The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:

(i)    declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests

 

- 58 -


(including any payment by the Company in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company payable to the Company or a Restricted Subsidiary of the Company);

(ii)    purchase, redeem or otherwise acquire or retire for value (including in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company;

(iii)    make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated to the Notes or to any Guarantee or any unsecured Indebtedness for money borrowed, except a payment of interest or principal at or within one (1) year of the Stated Maturity thereof; provided , however , that this clause (iii)  will not apply to the redemption of the Existing Notes (as defined in the Term Loan Agreement) in accordance with Section 6.09(c) of the Term Loan Agreement, including following any defeasance of the Existing Notes; or

(iv)    make any Restricted Investment

(all such payments and other actions set forth in these clauses (i)  through (iv) , inclusive, above in this Section 3.11(A) being collectively referred to as “ Restricted Payments ”), unless, at the time of and after giving effect to such Restricted Payment:

(1)    no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;

(2)    the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 3.13(A) ; and

(3)    such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (ii)  through (viii) , inclusive, of Section 3.11(B) ), is less than the sum, without duplication, of:

(a)    fifty percent (50%) of the Consolidated Net Income of the Company for the period (taken as one accounting period) from January 1, 2017 to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less one hundred percent (100%) of such deficit); plus

 

- 59 -


(b)    one hundred percent (100%) of the aggregate net proceeds received by the Company (including the Fair Market Value of any Additional Assets) on or after the Issue Date (excluding the proceeds of the sale of Common Stock to the Initial Holders on or about the Issue Date) as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company (including the Notes), to the extent that such Disqualified Stock or debt securities have been converted into or exchanged for Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company); plus

(c)    to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any); plus

(d)    to the extent that any Unrestricted Subsidiary of the Company is re-designated as a Restricted Subsidiary after the Issue Date, the Fair Market Value of the Company’s Investment in such Subsidiary as of the date of such re-designation.

(B)     Permitted Restricted Payments . So long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Section 3.11(A) will not prohibit:

(i)    the payment of any dividend within sixty (60) days after the date of declaration of such dividend if, at the date of such declaration, such dividend payment would have complied with the provisions of this Indenture;

(ii)    any Restricted Payment made in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) (for these purposes, a Restricted Payment will be deemed to be substantially concurrent with a sale of Equity Interests if made within one hundred and eighty (180) days of such sale); provided , however , that the amount of such net cash proceeds that are used for any Restricted Payment will be excluded from clause (3)(b) of Section 3.11(A) ;

(iii)    the purchase, redemption, defeasance or other acquisition or retirement of subordinated or unsecured Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;

(iv)    the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis;

(v)    the purchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any current or former director or employee of the Company pursuant to any director or employee equity subscription agreement or

 

- 60 -


plan, stock option agreement or similar agreement or plan; provided , however , that the purchase price of all such purchased, redeemed, acquired or retired Equity Interests may not exceed one million dollars ($1,000,000) in any calendar year;

(vi)    the acquisition of Equity Interests by the Company in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise or in connection with acquisitions of Equity Interests from directors or employees under equity benefit plans solely for purposes of paying withholding taxes due upon the vesting of equity awards issued pursuant to such equity benefit plans;

(vii)    upon the occurrence of a change of control or an Asset Sale and within sixty (60) days after the completion of the offer to repurchase the Notes under Sections 3.14 and 4.02 (including the purchase of all Notes tendered), any purchase, redemption, defeasance or other acquisition or retirement for value of subordinated Indebtedness or unsecured Indebtedness required under the terms thereof as a result of such change of control or Asset Sale at a price not to exceed one hundred and one percent (101%) of the outstanding principal amount thereof, plus accrued and unpaid interest thereon, if any; provided , however , that, in the notice to Holders relating to such change of control (if it constitutes a Fundamental Change) or Asset Sale under this Indenture, the Company will describe this Section 3.11(B)(vii) ;

(viii)    the payment of cash in lieu of fractional shares of Capital Stock in connection with any transaction otherwise permitted under this Indenture;

(ix)    cash distributions on (1) the Existing Preferred Shares, as required under the terms of such securities as in effect on the Issue Date; and (2) any Qualified Preferred Shares, provided that, in either case, at the time of and immediately after giving effect to such distribution, (I) no Default or Event of Default has occurred and is continuing or would result therefrom; and (II) (x) from, and including, August 1, 2018 to, but excluding, May 1, 2019, the Fixed Charge Coverage Ratio for the Company’s most recently ended four (4) full fiscal quarters for which internal financial statements are available immediately preceding the date of declaration of such distribution is not less than 1.00 to 1.00; or (y) from and after May 1, 2019, the Fixed Charge Coverage Ratio for the Company’s most recently ended four (4) full fiscal quarters for which internal financial statements are available immediately preceding the date of declaration of such distribution is not less than 1.25 to 1.00;

(x)    any Restricted Payment permitted by Section  5.09 ;

(xi)    purchases of or payments with respect to unsecured Indebtedness not to exceed ten million dollars ($10,000,000) in the aggregate since the Issue Date; and

(xii)    other Restricted Payments in an aggregate amount since the Issue Date not to exceed two million five hundred thousand dollars ($2,500,000), provided that the condition set forth in Section 3.11(A)(2) is satisfied at the time of each such Restricted Payment.

 

- 61 -


(C)     Determining Compliance with This Section . The amount of all Restricted Payments (other than cash) will be the Fair Market Value, on the date of the Restricted Payment, of the assets or securities proposed to be transferred or issued by the Company or the applicable Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The Fair Market Value of any assets or securities that are required to be valued by this Section  3.11 will be determined by the Board of Directors, whose determination will be evidenced by a Board Resolution. The Board of Directors’ determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the Fair Market Value exceeds fifteen million dollars ($15,000,000). For purposes of determining compliance with this Section  3.11 , if a Restricted Payment meets the criteria of more than one of the exceptions described in clauses (i)  through (xii) , inclusive, of Section 3.11(B) , or is entitled to be made pursuant to Section 3.11(A) , then the Company may classify (or later classify or reclassify, in whole or in part, in its sole discretion) such Restricted Payment in any manner that complies with this Section  3.11 .

Section 3.12.    D IVIDEND AND O THER P AYMENT R ESTRICTIONS A FFECTING S UBSIDIARIES .

(A)     Generally . The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:

(i)    pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or pay any Indebtedness or other obligations owed to the Company or any of its Restricted Subsidiaries;

(ii)    make loans or advances to the Company or any of its Restricted Subsidiaries; or

(iii)    transfer any of its Properties or assets to the Company or any of its Restricted Subsidiaries.

(B)     Permitted Restrictions . The restrictions in Section 3.12(A) will not apply to encumbrances or restrictions existing under or by reason of:

(i)    agreements governing Existing Indebtedness or First Priority Debt as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the Issue Date;

(ii)    this Indenture, the Notes, the Guarantees and the Collateral Agreements;

(iii)    applicable law;

(iv)    any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition, which encumbrance or restriction is not applicable to any Person, or the

 

- 62 -


Properties or assets of any Person, other than the Person, or the Property or assets of the Person, so acquired; provided , however , that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;

(v)    customary non-assignment provisions in leases entered into in the ordinary course of business and consistent with past practices;

(vi)    purchase money obligations for Property acquired in the ordinary course of business that impose restrictions on that Property of the nature described in Section 3.12(A)(iii) ;

(vii)    any agreement for the sale or other disposition of a Restricted Subsidiary of the Company that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;

(viii)    Permitted Refinancing Indebtedness, provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;

(ix)    agreements governing other Indebtedness of the Company and one or more Restricted Subsidiaries permitted under this Indenture, provided that the restrictions in the agreements governing such Indebtedness are not materially more restrictive, taken as a whole, than those in this Indenture or the Term Loan Agreement;

(x)    Liens permitted to be incurred under Section  3.16 that limit the right of the debtor to dispose of the assets subject to such Liens;

(xi)    provisions with respect to the disposition or distribution of assets or Property in joint venture agreements, asset sale agreements, stock sale agreements, agreements respecting Permitted Business Investments and other similar agreements entered into in the ordinary course of business; and

(xii)    restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.

Section 3.13.    I NCURRENCE OF I NDEBTEDNESS AND I SSUANCE OF P REFERRED S TOCK .

(A)     Generally . (i) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “ incur ”) any Indebtedness (including Acquired Debt); (ii) neither the Company nor any Guarantor will issue any Disqualified Stock; and (iii) the Company will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided , however , that the Company and the Guarantors may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock if the Fixed Charge Coverage Ratio for the Company’s most recently ended four (4) full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least

 

- 63 -


2.25 to 1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as applicable, at the beginning of such four (4) quarter period.

(B)     Permitted Debt . The provisions of Section 3.13(A) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “ Permitted Debt ”):

(i)    the incurrence by the Company or any Restricted Subsidiary of Indebtedness under the First Priority Debt Documents in an aggregate principal amount at any one time outstanding under this clause (i)  not to exceed, in the aggregate, the following amount: (x) in the case of First Priority Debt incurred under the Term Loan Documents, two hundred and fifty million dollars ($250,000,000); and (y) in the case of First Priority Debt that constitutes First Priority Permitted Refinancing Indebtedness, the amount set forth in clause (A)  of the definition of First Priority Permitted Refinancing Indebtedness;

(ii)    the incurrence by the Company or any of its Restricted Subsidiaries of the Existing Indebtedness;

(iii)    the incurrence by the Company of Indebtedness represented by the Notes to be issued on the Issue Date, and the incurrence by any Guarantor of Indebtedness to be represented by a Guarantee issued after the Issue Date;

(iv)    (1) Indebtedness of the Company or any of its Restricted Subsidiaries incurred to finance the acquisition, construction or improvement of any fixed or capital assets (including office equipment, data processing equipment and motor vehicles), including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any assets or secured by a Lien on any assets prior to the acquisition thereof; or (2) any Indebtedness of any Restricted Subsidiary issued and outstanding on or prior to the date on which such Restricted Subsidiary was acquired by the Company or any of its Restricted Subsidiaries, and not incurred in contemplation thereof, in a transaction permitted under this Indenture, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof, provided that (x) Indebtedness incurred pursuant to clause (1) of this Section 3.13(B)(iv) is incurred prior to or within two hundred and seventy (270) days after such acquisition or the completion of such construction or improvement; and (y) the aggregate principal amount of Indebtedness permitted by this Section 3.13(B)(iv) at any time outstanding does not exceed five million dollars ($5,000,000);

(v)    the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund Indebtedness (other than intercompany Indebtedness), that was permitted by this Indenture to be incurred pursuant to clauses (ii) , (iii) , (iv) or (xi) , or this clause (v) , of this Section 3.13(B) ;

 

- 64 -


(vi)    the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided , however , that:

(1)    if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, then such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, then such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Guarantee of such Guarantor, as the case may be; and

(2)    (x) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (y) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi) ;

(vii)    (1) letters of credit not exceeding seven million five hundred thousand dollars ($7,500,000) in aggregate face amount at any time outstanding; and (2) obligations under Permitted Swap Agreements entered into in the ordinary course and not for speculative purposes;

(viii)    the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness that was permitted to be incurred by another provision of this Section  3.13 ;

(ix)    the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net gas balancing positions arising in the ordinary course of business and consistent with past practice;

(x)    Indebtedness consisting of sureties or bonds provided to any Governmental Authority or other Person and assuring payment of contingent liabilities of the Company in connection with the operation of the Oil and Gas Properties, including with respect to plugging, facility removal and abandonment of its Oil and Gas Properties;

(xi)    Acquired Debt of a Restricted Subsidiary of the Company incurred and outstanding on the date on which such Restricted Subsidiary was acquired by, or merged into, the Company or any other Restricted Subsidiary of the Company; provided , however , that at the time such Restricted Subsidiary is acquired by the Company, either (1) the Company would have been able to incur one dollar ($1.00) of additional Indebtedness pursuant to Section 3.13(A) after giving effect to the incurrence of such Indebtedness pursuant to this clause (xi) ; or (2) the Fixed Charge Coverage Ratio of the Company after giving pro forma effect to such transaction is greater than or equal to the Company’s Fixed Charge Coverage Ratio immediately prior to such transaction;

(xii)    the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from agreements of the Company or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price or similar

 

- 65 -


obligations, in each case incurred or assumed in connection with the disposition of any business, assets or Capital Stock of a Subsidiary, provided that the maximum aggregate liability in respect of all such Indebtedness will at no time exceed the gross proceeds actually received by the Company and its Restricted Subsidiaries in connection with such disposition;

(xiii)    the incurrence of Indebtedness representing Paid-in-Kind Principal in accordance with this Indenture; and

(xiv)    the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, not to exceed one million dollars ($1,000,000).

(C)     Determining Compliance with This Section . For purposes of determining compliance with this Section  3.13 , in the event that an item of Indebtedness (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i)  through (xiv) , inclusive, of Section 3.13(B) , or is entitled to be incurred pursuant to Section 3.13(A) , the Company will be permitted to classify (or later classify or reclassify, in whole or in part, in its sole discretion) such item of Indebtedness in any manner that complies with this Section  3.13 ; provided , however , that Indebtedness under the Term Loan Agreement outstanding on the Issue Date will initially be deemed to have been incurred on the Issue Date pursuant to clause (i)  of Section 3.13(B) . The amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP. Indebtedness of any Person existing at the time such Person becomes a Restricted Subsidiary will be deemed to have been incurred by the Company and the applicable Restricted Subsidiary at the time such Person becomes a Restricted Subsidiary. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock, will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section  3.13 , provided , in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued.

(D)     Anti-Layering Covenant . The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Guarantee on substantially identical terms; provided , however , that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness solely by virtue of being unsecured or by virtue of being secured on a junior priority basis. In addition, the Company will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is secured by Liens that are contractually junior to the Liens securing any other Indebtedness of the Company or such Guarantor unless such Liens are also junior to the Liens securing the Notes and the applicable Guarantee.

 

- 66 -


Section 3.14.    A SSET S ALES .

(A)     General Prohibition . The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, other than Asset Sales not constituting Production Payments for which:

(i)    the Company (or the applicable Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;

(ii)    the Fair Market Value is determined by the Board of Directors and evidenced by a resolution of such Board of Directors set forth in an Officer’s Certificate delivered to the Trustee; and

(iii)    at least seventy five percent (75%) of the consideration received by the Company or such Restricted Subsidiary from all Asset Sales since the Issue Date, in the aggregate, is in the form of cash (which, for these purposes, will be deemed to include any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within ninety (90) days of the applicable Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion).

(B)     Permitted Use of the Net Proceeds within 360 Days of Receipt . During the three hundred and sixty (360) days after the receipt of any Net Proceeds from an Asset Sale, the Company or any such Restricted Subsidiary may apply those Net Proceeds at its option to any combination of the following:

(i)    to repay, redeem or repurchase First Priority Debt or Permitted Swap Agreements that are secured by Liens that are pari passu with the Liens securing the First Priority Claims;

(ii)    to acquire all or substantially all of the Properties or assets of one or more other Persons primarily engaged in the Oil and Gas Business within the SCOOP or Stack Play (for this purpose, a division or line of business of a Person will treated as a separate Person);

(iii)    to acquire a majority of the Voting Stock of one or more other Persons primarily engaged in the Oil and Gas Business within the SCOOP or Stack Play;

(iv)    to make one or more capital expenditures; or

(v)    to acquire Additional Assets or other long-term assets that are used or useful in the Oil and Gas Business and related to Additional Assets.

(C)     Permitted Use of Net Proceeds Pending Final Application . Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.

 

- 67 -


(D)     Application of Excess Proceeds .

(i)     Asset Sale Offer . Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 3.14(B) will constitute “ Excess Proceeds .” On the three hundred and sixty first (361st) day after any Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds fifteen million dollars ($15,000,000), then the Company will make an offer (the “ Asset Sale Offer ”) to all Holders to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, and will notify the Trustee of the same.

(ii)     Asset Sale Repurchase Price . The Asset Sale Repurchase Price for any Note to be repurchased in an Asset Sale Offer is an amount in cash equal to the principal amount of such Note plus accrued and unpaid interest on such Note to, but excluding, the applicable Asset Sale Repurchase Date; provided , however , that if such Asset Sale Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date, then (1) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such repurchase, to receive, on or before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date, if such Asset Sale Repurchase Date is before such Interest Payment Date); and (2) the Asset Sale Repurchase Price will not include accrued and unpaid interest on such Note to, but excluding, such Asset Sale Repurchase Date. For the avoidance of doubt, if an Interest Payment Date is not a Business Day within the meaning of Section 2.05(C) and such Asset Sale Repurchase Date occurs on the Business Day immediately after such Interest Payment Date, then (x) accrued and unpaid interest on Notes to, but excluding, such Interest Payment Date will be paid, in accordance with Section 2.05(C) , on the next Business Day to Holders at of the Close of Business on the immediately preceding Regular Record Date; and (y) the Asset Sale Repurchase Price will include interest on Notes to be repurchased from, and including, such Interest Payment Date.

(iii)     Use of any Excess Proceeds Remaining After Asset Sale; Pro-Rata Selection; Effect of Asset Sale Offer . If any Excess Proceeds remain after consummation of such an Asset Sale Offer, then the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, then, subject to any applicable subject to any the Depositary Procedures, the Company will select the Notes to be purchased pro rata. Upon completion of each such Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.

(E)     Compliance with Applicable Securities Laws . To the extent applicable, the Company will comply with all federal and state securities laws in connection with a Repurchase Upon Asset Sale (including complying with Rules 13e-4 and 14e-1 under the Exchange Act and filing any required Schedule TO, to the extent applicable) so as to permit effecting such Repurchase Upon Asset Sale in the manner set forth in this Indenture.

 

- 68 -


(F)     Repurchase in Part . Subject to the terms of this Section  3.14 , Notes may be repurchased pursuant to a Repurchase Upon Asset Sale in part, but only in Authorized Denominations. Provisions of this Section  3.14 applying to the repurchase of a Note in whole will equally apply to the repurchase of a permitted portion of a Note.

Section 3.15.    T RANSACTIONS WITH A FFILIATES .

(A)     Generally . The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its Properties or assets to, or purchase any Property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each, an “ Affiliate Transaction ”), unless:

(i)    the Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and

(ii)    the Company delivers to the Trustee:

(1)    with respect to any Affiliate Transaction, or series of related Affiliate Transactions involving aggregate consideration in excess of five million dollars ($5,000,000), an Officer’s Certificate certifying that such Affiliate Transaction complies with this Section  3.15 ; and

(2)    with respect to any Affiliate Transaction, or series of related Affiliate Transactions involving aggregate consideration in excess of fifteen million dollars ($15,000,000), the Company delivers to the Trustee a resolution of the Board of Directors set forth in an Officer’s Certificate certifying that such Affiliate Transaction complies with this Section  3.15 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors (which term, for purposes of this clause (2) , refers to the full Board of Directors and not to any committee thereof), if any.

(B)     Permitted Transactions . The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 3.15(A) :

(i)    any employment or severance agreement or other employee compensation agreement, arrangement or plan, or any amendment thereto, entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;

(ii)    transactions between or among any of the Company and its Restricted Subsidiaries;

(iii)    transactions with a Person that is an Affiliate of the Company solely because the Company directly or indirectly owns an Equity Interest in such Person;

(iv)    payment of reasonable directors’ fees and other benefits to persons who are not otherwise Affiliates of the Company;

 

- 69 -


(v)    provision of officers’ and directors’ indemnification and insurance in the ordinary course of business to the extent permitted by law;

(vi)    sales of Equity Interests (other than Disqualified Stock) in the Company to Affiliates of the Company;

(vii)    Permitted Investments or Restricted Payments that are permitted by Section  3.11 ;

(viii)    any payment or delivery permitted by Section  5.09 ;

(ix)    any transaction as to which the Company has received a written opinion that such Affiliate Transaction(s) are fair, from a financial point of view, to the Company and its Restricted Subsidiaries, taken as a whole, or that such Affiliate Transaction(s) are not less favorable to the Company and its Restricted Subsidiaries than could reasonably be expected to be obtained at the time in an arm’s-length transaction with a person who is not an Affiliate, in either such case issued by an independent accounting, appraisal or investment banking firm of national standing; and

(x)    any transaction with any Initial Holder or any Affiliate or Affiliated Entity of any Initial Holder.

Section 3.16.    L IENS .

The Company will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other than Permitted Liens) securing Indebtedness upon any of their Property or assets, now owned or hereafter acquired.

Section 3.17.    B USINESS A CTIVITIES .

The Company will not, and will not permit any Restricted Subsidiary to, engage in any business other than the Oil and Gas Business, except to such extent as would not be material to the Company and its Restricted Subsidiaries, taken as a whole.

Section 3.18.    D ESIGNATION OF R ESTRICTED AND U NRESTRICTED S UBSIDIARIES .

(A)     Designation of Unrestricted Subsidiaries . The Board of Directors may designate any Restricted Subsidiary of the Company to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary of the Company is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary properly designated will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 3.11(A) or represent Permitted Investments, as determined by the Company. That designation will only be permitted if the Investment would be permitted at that time and if the Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary.

 

- 70 -


(B)     Designation of Restricted Subsidiaries . The Board of Directors may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company; provided , however , that (i) such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary; and (ii) such designation will only be permitted if (1) such Indebtedness is permitted under Section  3.13 , calculated on a pro forma basis as if such designation had occurred at the beginning of the four (4) quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Section 3.19.    I MPAIRMENT OF S ECURITY I NTEREST .

Subject to the Intercreditor Agreement, neither the Company nor any of its Restricted Subsidiaries will take or omit to take any action that would adversely affect or impair in any material respect the Liens in favor of the Collateral Trustee with respect to the Collateral, except as otherwise permitted or required by the Collateral Agreements or this Indenture. Neither the Company nor any of its Restricted Subsidiaries will enter into any agreement that requires the proceeds received from any sale of Collateral to be applied to repay, redeem, defease or otherwise acquire or retire any Indebtedness of any Person, other than the First Priority Claims and the Notes. The Company will, and will cause each Guarantor to, at their sole cost and expense, execute and deliver all such agreements and instruments as the Collateral Trustee or the Trustee reasonably requests to more fully or accurately describe the Property intended to be Collateral or the obligations intended to be secured by the Collateral Agreements. The Company will, and will cause each Guarantor to, at their sole cost and expense, file any such notice filings or other agreements or instruments as may be reasonably necessary or desirable under applicable law to perfect the Liens created by the Collateral Agreements.

Section 3.20.    T ERMINATION OF C ERTAIN C OVENANTS ; R ELEASE OF C OLLATERAL .

If the Disposition Date occurs, then, effective from and after the Disposition Date (A) each of Sections 3.11 , 3.12 , 3.13 , 3.14 , 3.15 , 3.16 , 3.17 , 3.18 and 3.19 , and the obligations of the Company or the Guarantors under Article 10 , will cease to be of any force or effect, and, for the avoidance of doubt, any omission to comply with any of such Sections (whether directly or indirectly, by reason of any reference elsewhere in this Indenture to any of such Sections or by reason of any reference in any such Section to any other provision of this Indenture or in any other document) will not in itself constitute a Default or Event of Default; (B) and all Liens created pursuant to the Collateral Agreements will be released and all Collateral Agreements will be terminated. The Company will promptly deliver to the Trustee an Officer’s Certificate notifying the Trustee of the occurrence of the Disposition Date, and the Trustee will have no obligation to discover or verify the occurrence of the Disposition Date.

Section 3.21.    F URTHER I NSTRUMENTS AND A CTS .

At the request of the Trustee or the Collateral Trustee, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to more effectively carry out the purposes of this Indenture.

 

- 71 -


Article 4.    REPURCHASE AND REDEMPTION

Section 4.01.    N O S INKING F UND .

No sinking fund is required to be provided for the Notes.

Section 4.02.    R IGHT OF H OLDERS TO R EQUIRE THE C OMPANY TO R EPURCHASE N OTES UPON A F UNDAMENTAL C HANGE .

(A)     Right of Holders to Require the Company to Repurchase Notes Upon a Fundamental Change . Subject to the other terms of this Section  4.02 , if a Fundamental Change occurs, then each Holder will have the right (the “ Fundamental Change Repurchase Right ”) to require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized Denomination) on the Fundamental Change Repurchase Date for such Fundamental Change for a cash purchase price equal to the Fundamental Change Repurchase Price.

(B)     Repurchase Prohibited in Certain Circumstances . If the principal amount of the Notes has been accelerated and such acceleration has not been rescinded on or before the Fundamental Change Repurchase Date for a Repurchase Upon Fundamental Change (including as a result of the payment of the related Fundamental Change Repurchase Price, and any related interest pursuant to the proviso to Section 4.02(D) , on such Fundamental Change Repurchase Date), then (i) the Company may not repurchase any Notes pursuant to this Section  4.02 ; and (ii) the Company will cause any Notes theretofore surrendered for such Repurchase upon Fundamental Change to be returned to the Holders thereof (or, if applicable with respect to Global Notes, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interest in such Notes in accordance with the Depositary Procedures).

(C)     Fundamental Change Repurchase Date . The Fundamental Change Repurchase Date for any Fundamental Change will be a Business Day of the Company’s choosing that is no more than thirty five (35), nor less than twenty (20), Business Days after the date the Company sends the related Fundamental Change Notice pursuant to Section 4.02(E) .

(D)     Fundamental Change Repurchase Price . The Fundamental Change Repurchase Price for any Note to be repurchased upon a Repurchase Upon Fundamental Change following a Fundamental Change is an amount in cash equal to one hundred and one percent (101%) of the principal amount of such Note plus accrued and unpaid interest on such Note to, but excluding, the Fundamental Change Repurchase Date for such Fundamental Change; provided , however , that if such Fundamental Change Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such Repurchase Upon Fundamental Change, to receive, on or before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date, if such Fundamental Change Repurchase Date is before such Interest Payment Date); and (ii) the Fundamental Change Repurchase Price will not include accrued and unpaid interest on such Note to, but excluding, such Fundamental Change Repurchase Date. For the avoidance of

 

- 72 -


doubt, if an Interest Payment Date is not a Business Day within the meaning of Section 2.05(C) and such Fundamental Change Repurchase Date occurs on the Business Day immediately after such Interest Payment Date, then (x) accrued and unpaid interest on Notes to, but excluding, such Interest Payment Date will be paid, in accordance with Section 2.05(C) , on the next Business Day to Holders at of the Close of Business on the immediately preceding Regular Record Date; and (y) the Fundamental Change Repurchase Price will include interest on Notes to be repurchased from, and including, such Interest Payment Date.

(E)     Fundamental Change Notice . On or before the twentieth (20th) calendar day after the occurrence of a Fundamental Change, the Company will send to each Holder, the Trustee and the Paying Agent a notice of such Fundamental Change (a “ Fundamental Change Notice ”) stating:

(i)    briefly, the events causing such Fundamental Change;

(ii)    the effective date of such Fundamental Change;

(iii)    the procedures that a Holder must follow to require the Company to repurchase its Notes pursuant to this Section  4.02 , including the deadline for exercising the Fundamental Change Repurchase Right and the procedures for submitting and withdrawing a Fundamental Change Repurchase Notice;

(iv)    the Fundamental Change Repurchase Date for such Fundamental Change;

(v)    the Fundamental Change Repurchase Price per $1,000 principal amount of Notes for such Fundamental Change (and, if such Fundamental Change Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date, the amount, manner and timing of the interest payment payable pursuant to the proviso to Section 4.02(D) );

(vi)    the name and address of the Paying Agent and the Conversion Agent;

(vii)    the Conversion Rate in effect on the date of such Fundamental Change Notice and a description and quantification of any adjustments to the Conversion Rate that may result from such Fundamental Change (including pursuant to Section  5.07 );

(viii)    that Notes for which a Fundamental Change Repurchase Notice has been duly tendered and not duly withdrawn must be delivered to the Paying Agent for the Holder thereof to be entitled to receive the Fundamental Change Repurchase Price;

(ix)    that Notes (or any portion thereof) that are subject to a Fundamental Change Repurchase Notice that has been duly tendered may be converted only if such Fundamental Change Repurchase Notice is withdrawn in accordance with this Indenture; and

(x)    the CUSIP and ISIN numbers, if any, of the Notes.

Neither the failure to deliver a Fundamental Change Notice nor any defect in a Fundamental Change Notice will limit the Fundamental Change Repurchase Right of any Holder or otherwise affect the validity of any proceedings relating to any Repurchase Upon Fundamental Change.

 

- 73 -


(F)     Procedures to Exercise the Fundamental Change Repurchase Right .

(i)     Delivery of Fundamental Change Repurchase Notice and Notes to Be Repurchased . To exercise its Fundamental Change Repurchase Right for a Note following a Fundamental Change, the Holder thereof must deliver to the Paying Agent:

(1)    before the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date (or such later time as may be required by law), a duly completed, written Fundamental Change Repurchase Notice with respect to such Note; and

(2)    such Note, duly endorsed for transfer (if such Note is a Physical Note) or by book-entry transfer (if such Note is a Global Note).

The Paying Agent will promptly deliver to the Company a copy of each Fundamental Change Repurchase Notice that it receives.

(ii)     Contents of Fundamental Change Repurchase Notices . Each Fundamental Change Repurchase Notice with respect to a Note must state:

(1)    if such Note is a Physical Note, the certificate number of such Note;

(2)    the principal amount of such Note to be repurchased, which must be an Authorized Denomination; and

(3)    that such Holder is exercising its Fundamental Change Repurchase Right with respect to such principal amount of such Note;

provided , however , that if such Note is a Global Note, then such Fundamental Change Repurchase Notice must comply with the Depositary Procedures (and any such Fundamental Change Repurchase Notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.02(F) ).

(iii)     Withdrawal of Fundamental Change Repurchase Notice . A Holder that has delivered a Fundamental Change Repurchase Notice with respect to Note may withdraw such Fundamental Change Repurchase Notice by delivering a written notice of withdrawal to the Paying Agent at any time before the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date. Such withdrawal notice must state:

(1)    if such Note is a Physical Note, the certificate number of such Note;

 

- 74 -


(2)    the principal amount of such Note to be withdrawn, which must be an Authorized Denomination; and

(3)    the principal amount of such Note, if any, that remains subject to such Fundamental Change Repurchase Notice, which must be an Authorized Denomination;

provided , however , that if such Note is a Global Note, then such withdrawal notice must comply with the Depositary Procedures (and any such withdrawal notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.02(F) ).

Upon receipt of any such withdrawal notice with respect to a Note (or any portion thereof), the Paying Agent will (x) promptly deliver a copy of such withdrawal notice to the Company; and (y) if such Note is surrendered to the Paying Agent, cause such Note (or such portion thereof in accordance with Section  2.11 , treating such Note as having been then surrendered for partial repurchase in the amount set forth in such withdrawal notice as remaining subject to repurchase) to be returned to the Holder thereof (or, if applicable with respect to any Global Note, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interest in such Note in accordance with the Depositary Procedures).

(G)     Payment of the Fundamental Change Repurchase Price . Without limiting the Company’s obligation to deposit the Fundamental Change Repurchase Price within the time proscribed by Section 3.01(B) , the Company will cause the Fundamental Change Repurchase Price for a Note (or portion thereof) to be repurchased pursuant to a Repurchase Upon Fundamental Change to be paid to the Holder thereof on or before the later of (i) the applicable Fundamental Change Repurchase Date; and (ii) the date (x) such Note is delivered to the Paying Agent (in the case of a Physical Note) or (y) the Depositary Procedures relating to the repurchase, and the delivery to the Paying Agent, of such Holder’s beneficial interest in such Note to be redeemed are complied with (in the case of a Global Note). For the avoidance of doubt, interest payable pursuant to the proviso to Section 4.02(D) on any Note to be repurchased pursuant to a Repurchase Upon Fundamental Change must be paid pursuant to such proviso regardless of whether such Note is delivered or such Depositary Procedures are complied with pursuant to the first sentence of this Section 4.02(G) .

(H)     Compliance with Applicable Securities Laws . To the extent applicable, the Company will comply with all federal and state securities laws in connection with a Repurchase Upon Fundamental Change (including complying with Rules 13e-4 and 14e-1 under the Exchange Act and filing any required Schedule TO, to the extent applicable) so as to permit effecting such Repurchase Upon Fundamental Change in the manner set forth in this Indenture.

(I)     Repurchase in Part . Subject to the terms of this Section  4.02 , Notes may be repurchased pursuant to a Repurchase Upon Fundamental Change in part, but only in Authorized Denominations. Provisions of this Section  4.02 applying to the repurchase of a Note in whole will equally apply to the repurchase of a permitted portion of a Note.

 

- 75 -


Section 4.03.    R IGHT OF H OLDERS TO R EQUIRE THE C OMPANY TO R EPURCHASE N OTES F OLLOWING AN A SSET S ALE .

Holder will have the right to require the Company to repurchase such Holder’s Notes pursuant to, and subject to the provisions of, Section  3.14 .

Section 4.04.    R IGHT OF THE C OMPANY TO R EDEEM THE N OTES .

(A)     No Call Period . The Company may not redeem the Notes at its option except as provided in this Section  4.04 .

(B)     Right to Redeem the Notes .

(i)     Convertible Note Redemption . Subject to the terms of this Section  4.04 , the Company has the right, at its election, to redeem all, but not less than all of the Notes (except as provided below), at any time, on a Redemption Date on or after the date that is two (2) years after the Issue Date, for a cash purchase price equal to the applicable Redemption Price, but only if (1) a Requisite Stockholder Approval Failure has not occurred; and (2) if such Redemption Date is before March 1, 2021, the Last Reported Sale Price per share of Common Stock exceeds one hundred and fifty percent (150%) of the Conversion Price on each of the thirty (30) consecutive Trading Days ending on, and including, the Trading Day immediately before the Redemption Notice Date for such Redemption (it being understood that if such Redemption Date is on or after March 1, 2021, then the requirements of this clause (2)  will not apply) (a “ Convertible Note Redemption ”); provided , however , that the Company cannot call any Physical Notes the Conversion Shares underlying which (assuming Physical Settlement) would constitute “Registrable Securities” (as defined in the Registration Rights Agreement) (such Notes, “ Registration Rights Notes ”) for a Convertible Note Redemption unless:

(1)    the Company has elected Cash Settlement to apply to such Redemption pursuant to Section 5.03(A)(iii) ; or

(2)    both of the following are satisfied:

(I)    either (x) a “Registration Statement” (as defined in the Registration Rights Agreement) is effective under the Securities Act as of the Redemption Notice Date for such Redemption, and such Registration Statement registers, under the Securities Act, the resale of all Conversion Shares issuable upon such conversion of such Registration Rights Notes; or (y) none of such Conversion Shares will constitute a Transfer-Restricted Security at the time they are issued and delivered; and

(II)    no policy of the Company (including insider trading policies) would prohibit or otherwise restrict, and no information that may be material non-public information will have been communicated by or on behalf of the Company to any Holder of such Registration Rights Notes, which information would prohibit or otherwise restrict (including pursuant

 

- 76 -


to any securities laws), such Holder or any of its Affiliates from selling or otherwise transferring any Conversion Shares at any time from, and including, such Redemption Notice Date to, and including, the applicable Redemption Date, in each case as determined in good faith by the Company (after giving effect to any public disclosures to be made by the Company in connection with such Redemption, which the Company covenants it will do no later than such Redemption Notice Date).

Notwithstanding anything to the contrary in this Section 4.04(B)(i) , if the Company is prohibited from redeeming any Registration Rights Notes as a result of the proviso to the immediately preceding sentence, then such prohibition will not affect the Company’s ability to redeem any other Notes pursuant to a Convertible Notes Redemption, subject to the other requirements of this Section  4.04 .

(ii)     High Yield Note Redemption . Subject to the terms of this Section  4.04 , the Company has the right, at its election, to redeem all, but not less than all, of the Notes, at any time, on a Redemption Date after the High Yield Security Trigger Date, for a cash purchase price equal to the applicable Redemption Price, but only if a Requisite Stockholder Approval Failure has occurred (a “ High Yield Note Redemption ”).

For the avoidance of doubt, the calling of any Notes for Redemption will constitute a Make-Whole Fundamental Change pursuant to clause (B)  of the definition thereof

(C)     Redemption Prohibited in Certain Circumstances . If the principal amount of the Notes has been accelerated and such acceleration has not been rescinded on or before the Redemption Date (including as a result of the payment of the related Redemption Price, and any related interest pursuant to the proviso to Section 4.04(E) , on such Redemption Date), then (i) the Company may not call for Redemption or otherwise redeem any Notes pursuant to this Section  4.04 ; and (ii) the Company will cause any Notes theretofore surrendered for such Redemption to be returned to the Holders thereof (or, if applicable with respect to Global Notes, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interests in such Notes in accordance with the Depositary Procedures).

(D)     Redemption Date . The Redemption Date for any Redemption will be a Business Day of the Company’s choosing that is no more than forty (40), nor less than twenty five (25), Scheduled Trading Days after the Redemption Notice Date for such Redemption.

(E)     Redemption Price . The Redemption Price for any Note called for Redemption will be as follows:

(i)    if such Redemption is a Convertible Note Redemption, an amount in cash equal to one hundred percent (100%) of the principal amount of such Note, plus accrued and unpaid interest on such Note to, but excluding, the Redemption Date for such Redemption; and

(ii)    if such Redemption is a High Yield Note Redemption, an amount in cash equal to one hundred percent (100%) of the principal amount of such Note, plus accrued and unpaid interest on such Note to, but excluding, such Redemption Date, plus the Applicable Premium;

 

- 77 -


provided , however , that, in each case, if such Redemption Date is after a Regular Record Date and on or before the next Interest Payment Date, then (x) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such Redemption, to receive, on or before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date, if such Redemption Date is before such Interest Payment Date); and (y) the Redemption Price will not include accrued and unpaid interest on such Note to, but excluding, such Redemption Date. For the avoidance of doubt, if an Interest Payment Date is not a Business Day within the meaning of Section 2.05(C) and such Redemption Date occurs on the Business Day immediately after such Interest Payment Date, then (x) accrued and unpaid interest on Notes to, but excluding, such Interest Payment Date will be paid, in accordance with Section 2.05(C) , on the next Business Day to Holders at of the Close of Business on the immediately preceding Regular Record Date; and (y) the Redemption Price will include interest on Notes to be redeemed from, and including, such Interest Payment Date.

(F)     Redemption Notice . To call any Notes for Redemption, the Company must send to each Holder (and to any beneficial owner of a Global Note, if required by applicable law), the Trustee and the Paying Agent a written notice of such Redemption (a “ Redemption Notice ”).

Such Redemption Notice must state:

(i)    that the Notes have been called for Redemption, briefly describing the Company’s Redemption right under this Indenture;

(ii)    the Redemption Date for such Redemption;

(iii)    the Redemption Price per $1,000 principal amount of Notes for such Redemption or the method by which it is to be determined (and, if the Redemption Date is after a Regular Record Date and on or before the next Interest Payment Date, the amount, manner and timing of the interest payment payable pursuant to the proviso to Section 4.04(E) );

(iv)    the name and address of the Paying Agent and the Conversion Agent;

(v)    that Notes called for Redemption may be converted at any time before the Close of Business on the Business Day immediately before the Redemption Date (or, if the Company fails to pay the Redemption Price due on such Redemption Date in full, at any time until such time as the Company pays such Redemption Price in full);

(vi)    the Conversion Rate in effect on the Redemption Notice Date for such Redemption and a description and quantification of any adjustments to the Conversion Rate that may result from such Redemption (including pursuant to Section  5.07 );

 

- 78 -


(vii)    the Settlement Method that, subject to the last paragraph of Section 5.03(A) , will apply to all conversions of Notes with a Conversion Date that occurs on or after such Redemption Notice Date and before such Redemption Date;

(viii)    that Notes called for Redemption must be delivered to the Paying Agent (in the case of Physical Notes) or the Depositary Procedures must be complied with (in the case of Global Notes) for the Holder thereof to be entitled to receive the Redemption Price; and

(ix)    the CUSIP and ISIN numbers, if any, of the Notes.

On or before the Redemption Notice Date, the Company will send a copy of such Redemption Notice to the Trustee and the Paying Agent.

(G)     Payment of the Redemption Price . Without limiting the Company’s obligation to deposit the Redemption Price by the time proscribed by Section 3.01(B) , the Company will cause the Redemption Price for a Note subject to Redemption to be paid to the Holder thereof on or before the later of (i) the applicable Redemption Date; and (ii) the date (x) such Note is delivered to the Paying Agent (in the case of a Physical Note) or (y) the Depositary Procedures relating to the Redemption, and the delivery to the Paying Agent, of such Holder’s beneficial interest in such Note to be redeemed are complied with (in the case of a Global Note). For the avoidance of doubt, interest payable pursuant to the proviso to Section 4.04(E) on any Note (or portion thereof) subject to Redemption must be paid pursuant to such proviso regardless of whether such Note is delivered or such Depositary Procedures are complied with pursuant to the first sentence of this Section 4.04(G) .

Article 5.    CONVERSION

Section 5.01.    R IGHT TO C ONVERT .

(A)     Generally. Subject to the provisions of this Article 5 , on and after the date, if at all, when the Requisite Stockholder Approval is obtained, each Holder may, at its option, convert such Holder’s Notes into Conversion Consideration.

(B)     No Right to Convert Before the Requisite Stockholder Approval is Obtained . Notwithstanding anything to the contrary in this Indenture or the Notes, no Holder may convert any Notes, and the Notes will not be convertible, at any time before the date, if at all, when the Requisite Stockholder Approval is obtained.

(C)     Conversions in Part . Subject to the terms of this Indenture, Notes may be converted in part, but only in Authorized Denominations. Provisions of this Article 5 applying to the conversion of a Note in whole will equally apply to conversions of a permitted portion of a Note.

(D)     When Notes May Be Converted .

(i)     Generally . Subject to the other provisions of this Article 5 (including Section 5.01(B) ), a Holder may convert its Notes at any time until the Close of Business

 

- 79 -


on the Scheduled Trading Day immediately before the Maturity Date; provided , however , that if a Requisite Stockholder Approval Failure occurs, then, notwithstanding anything to the contrary in this Indenture or the Notes, the Notes will cease to be convertible, and, after the High Yield Security Trigger Date, no Holder will have the right to convert any Note and the other provisions of this Article 5 (including, for the avoidance of doubt, Section 5.04(A) ) will cease to have any force or effect.

(ii)     Limitations and Closed Periods .

(1)    Notes may be surrendered for conversion only after the Open of Business and before the Close of Business on a day that is a Business Day;

(2)    in no event may any Note be converted after the Close of Business on the Scheduled Trading Day immediately before the Maturity Date;

(3)    if the Company calls any Note for Redemption pursuant to Section  4.04 , then the Holder of such Note may not convert such Note after the Close of Business on the Business Day immediately before the applicable Redemption Date, except to the extent the Company fails to pay the Redemption Price for such Note in accordance with this Indenture; and

(4)    if a Fundamental Change Repurchase Notice (or any similar notice with respect to an Asset Sale Offer) is validly delivered pursuant to Section 4.02(F) (or the terms of such Asset Sale Offer) with respect to any Note, then such Note may not be converted, except to the extent (a) such Note is not subject to such notice; (b) such notice is withdrawn in accordance with Section 4.02(F) (or the terms of such Asset Sale Offer); or (c) the Company fails to pay the Fundamental Change Repurchase Price (or the Asset Sale Repurchase Price) for such Note in accordance with this Indenture.

Section 5.02.    C ONVERSION P ROCEDURES .

(A)     Generally .

(i)     Global Notes . To convert a beneficial interest in a Global Note that is convertible pursuant to Section 5.01(D) , the owner of such beneficial interest must (1) comply with the Depositary Procedures for converting such beneficial interest (at which time such conversion will become irrevocable); and (2) pay any amounts due pursuant to Section 5.02(D) or Section 5.02(E) .

(ii)     Physical Notes . To convert all or a portion of a Physical Note that is convertible pursuant to Section 5.01(D) , the Holder of such Note must (1) complete, manually sign and deliver to the Conversion Agent the conversion notice attached to such Physical Note or a facsimile of such conversion notice; (2) deliver such Physical Note to the Conversion Agent (at which time such conversion will become irrevocable); (3) furnish any endorsements and transfer documents that the Company or the Conversion Agent may require; and (4) pay any amounts due pursuant to Section 5.02(D) or Section 5.02(E) .

 

- 80 -


(B)     Effect of Converting a Note . At the Close of Business on the Conversion Date for a Note (or any portion thereof), such Note (or such portion thereof) will be deemed to cease to be outstanding (and, for the avoidance of doubt, no Person will be deemed to be a Holder of such Note (or such portion thereof) as of the Close of Business on such Conversion Date), except to the extent provided in Section 5.02(D) .

(C)     Holder of Record of Conversion Shares . The person in whose name any share of Common Stock is issuable upon conversion of any Note will be deemed to become the holder of record of such share as of the Close of Business on (i) the Conversion Date for such conversion, in the case of Physical Settlement; or (ii) the last VWAP Trading Day of the Observation Period for such conversion, in the case of Combination Settlement.

(D)     Interest Payable upon Conversion in Certain Circumstances . If the Conversion Date of a Note is after a Regular Record Date and before the next Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such conversion (and, for the avoidance of doubt, notwithstanding anything set forth in the proviso to this sentence), to receive, on or before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date); and (ii) the Holder surrendering such Note for conversion must deliver to the Conversion Agent, at the time of such surrender, an amount of cash equal to the amount of such interest referred to in clause (i) above; provided , however , that the Holder surrendering such Note for conversion need not deliver such cash (w) if the Company has specified a Redemption Date that is after such Regular Record Date and on or before the Business Day immediately after such Interest Payment Date; (w) if such Conversion Date occurs after the Regular Record Date immediately before the Maturity Date; (x) if the Company has specified a Fundamental Change Repurchase Date or an Asset Sale Repurchase Date that is after such Regular Record Date and on or before the Business Day immediately after such Interest Payment Date; or (y) to the extent of any overdue interest or interest that has accrued on any overdue interest. For the avoidance of doubt, as a result of, and without limiting the generality of, the foregoing, if a Note is converted with a Conversion Date that is after the Regular Record Date immediately before the Maturity Date, then the Company will pay, as provided above, the interest that would have accrued on such Note to, but excluding, the Maturity Date. For the avoidance of doubt, if the Conversion Date of a Note to be converted is on an Interest Payment Date, then the Holder of such Note at the Close of Business on the Regular Record Date immediately before such Interest Payment Date will be entitled to receive, on such Interest Payment Date, the unpaid interest that has accrued on such Note to, but excluding, such Interest Payment Date, and such Note, when surrendered for conversion, need not be accompanied by any cash amount pursuant to the first sentence of this Section 5.02(D) .

(E)     Taxes and Duties. If a Holder converts a Note, the Company will pay any documentary, stamp or similar issue or transfer tax or duty due on the issue of any shares of Common Stock upon such conversion; provided , however , that if any tax or duty is due because such Holder requested such shares to be issued in a name other than such Holder’s name, then such Holder will pay such tax or duty and, until having received a sum sufficient to pay such tax or duty, the Conversion Agent may refuse to deliver any such shares to be issued in a name other than that of such Holder.

 

- 81 -


(F)     Conversion Agent to Notify Company of Conversions . If any Note is submitted for conversion to the Conversion Agent or the Conversion Agent receives any notice of conversion with respect to a Note, then the Conversion Agent will promptly notify the Company and the Trustee of such occurrence, together with any other information reasonably requested by the Company, and will cooperate with the Company to determine the Conversion Date for such Note (it being understood that the Company will determine the Conversion Date and the Conversion Agent will have no responsibility to determine the Conversion Date).

Section 5.03.    S ETTLEMENT UPON C ONVERSION .

(A)     Settlement Method . Upon the conversion of any Note, the Company will settle such conversion by paying or delivering, as applicable and as provided in this Article 5 , either (x) shares of Common Stock, together, if applicable, with cash in lieu of fractional shares, as provided in Section 5.03(B)(i)(1) (a “ Physical Settlement ”); (y) solely cash, as provided in Section 5.03(B)(i)(2) (a “ Cash Settlement ”); or (z) a combination of cash and shares of Common Stock, together, if applicable, with cash in lieu of fractional shares, as provided in Section 5.03(B)(i)(3) (a “ Combination Settlement ”).

Subject to the immediately following paragraph, the Company will have the right to elect the Settlement Method applicable to any conversion of a Note; provided , however , that:

(i)    subject to clause (iii)  below, all conversions of Notes with a Conversion Date that occurs on or after September 1, 2021 will be settled using the same Settlement Method, and (subject to clause (v)  below) the Company will send notice of such Settlement Method to Holders, the Trustee and the Conversion Agent no later than the Close of Business on the Scheduled Trading Day immediately before September 1, 2021;

(ii)    subject to clause (iii)  below, if the Company elects a Settlement Method with respect to the conversion of any Note whose Conversion Date occurs before September 1, 2021, then the Company will send notice of such Settlement Method to the Holder of such Note, the Trustee and the Conversion Agent no later than the Close of Business on the Business Day immediately after such Conversion Date;

(iii)    if any Notes are called for Redemption, then the Company will specify, in the related Redemption Notice sent pursuant to Section 4.04(F) , the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after the related Redemption Notice Date and before the Business Day immediately before the related Redemption Date;

(iv)    the Company will use the same Settlement Method for all conversions of Notes with a Conversion Date that occurs on the same day (and, for the avoidance of doubt, the Company will not be obligated to use the same Settlement Method with respect to conversions of Notes whose Conversion Dates occur on different days, except as provided in clause (i)  or (iii) above);

(v)    if the Company does not timely elect a Settlement Method with respect to the conversion of a Note, then the Company will be deemed to have elected the Default Settlement Method (and, for the avoidance of doubt, the failure to timely make such election will not constitute a Default or Event of Default);

 

- 82 -


(vi)    if the Company timely elects Combination Settlement with respect to the conversion of a Note but does not timely notify the Holder of such Note of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of Notes (and, for the avoidance of doubt, the failure to timely send such notification will not constitute a Default or Event of Default); and

(vii)    the Settlement Method will be subject to Section 5.08(A)(2) .

Notwithstanding anything to the contrary in this Indenture or the Notes, at all times prior to the occurrence of a Common Stock Change Event where the related Reference Property consists entirely of cash, a Holder of an Affiliate Note (or any other Note held, of record or beneficially, by any of the Initial Holders or any of their Affiliates or Affiliated Entities) that converts such Note will have the right to require Physical Settlement to apply to such conversion by providing notice of the exercise of such right to the Company (and the Company will provide a copy of such notice to the Conversion Agent) at the time of delivery of its conversion notice for such conversion.

(B)     Conversion Consideration .

(i)     Generally . Subject to Section 5.03(B)(ii) and Section 5.03(B)(iii) , the type and amount of consideration (the “ Conversion Consideration ”) due in respect of each $1,000 principal amount of a Note to be converted will be as follows:

(1)    if Physical Settlement applies to such conversion, subject to Section 5.03(B)(ii) , a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion;

(2)    if Cash Settlement applies to such conversion, cash in an amount equal to the sum of the Daily Conversion Values for each VWAP Trading Day in the Observation Period for such conversion; or

(3)    if Combination Settlement applies to such conversion, consideration consisting, subject to Section 5.03(B)(ii) , of (a) a number of shares of Common Stock equal to the sum of the Daily Share Amounts for each VWAP Trading Day in the Observation Period for such conversion; and (b) an amount of cash equal to the sum of the Daily Cash Amounts for each VWAP Trading Day in such Observation Period.

(ii)     Cash in Lieu of Fractional Shares . If Physical Settlement or Combination Settlement applies to the conversion of any Note and the number of shares of Common Stock deliverable pursuant to Section 5.03(B)(i) upon such conversion is not a whole number, then such number will be rounded down to the nearest whole number and the Company will deliver, in addition to the other consideration due upon such conversion, cash in lieu of the related fractional share in an amount equal to the product of (1) such fraction and (2) (x) the Daily VWAP on the Conversion Date for such conversion (or, if

 

- 83 -


such Conversion Date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day), in the case of Physical Settlement; or (y) the Daily VWAP on the last VWAP Trading Day of the Observation Period for such conversion, in the case of Combination Settlement.

(iii)     Conversion of Multiple Notes by a Single Holder. If a Holder converts more than one (1) Note on a single Conversion Date, then the Conversion Consideration due in respect of such conversion will (in the case of any Global Note, to the extent permitted by, and practicable under, the Depositary Procedures) be computed based on the total principal amount of Notes converted on such Conversion Date by such Holder.

(iv)     Notice of Calculation of Conversion Consideration . If Cash Settlement or Combination Settlement applies to the conversion of any Note, then the Company will determine the Conversion Consideration due thereupon promptly following the last VWAP Trading Day of the applicable Observation Period and will promptly thereafter send notice to the Trustee and the Conversion Agent of the same and the calculation thereof in reasonable detail. Neither the Trustee nor the Conversion Agent will have any duty to make any such determination.

(C)     Delivery of the Conversion Consideration . Except as set forth in Sections 5.05(A) , 5.05(C) and 5.08 , the Company will pay or deliver, as applicable, the Conversion Consideration due upon the conversion of any Note to the Holder as follows: (i) if Cash Settlement or Combination Settlement applies to such conversion, on or before the third (3rd) (or, if the T+2 Effective Date has occurred by the last VWAP Trading Day of the Observation Period for such conversion, the second (2nd)) Business Day immediately after the last VWAP Trading Day of such Observation Period; and (ii) if Physical Settlement applies to such conversion, on or before the third (3rd) (or, if the T+2 Effective Date has occurred by the Conversion Date for such conversion, the second (2nd)) Business Day immediately after such Conversion Date.

(D)     Deemed Payment of Principal and Interest; Settlement of Accrued Interest Notwithstanding Conversion . If a Holder converts a Note, then the Company will not adjust the Conversion Rate to account for any accrued and unpaid interest on such Note, and, except as provided in Section 5.02(D) , the Company’s delivery of the Conversion Consideration due in respect of such conversion will be deemed to fully satisfy and discharge the Company’s obligation to pay the principal of, and accrued and unpaid interest, if any, on, such Note to, but excluding the Conversion Date. As a result, except as provided in Section 5.02(D) , any accrued and unpaid interest on a converted Note will be deemed to be paid in full rather than cancelled, extinguished or forfeited. In addition, subject to Section 5.02(D) , if the Conversion Consideration for a Note consists of both cash and shares of the Common Stock, then accrued and unpaid interest that is deemed to be paid therewith will be deemed to be paid first out of such cash.

Section 5.04.    R ESERVE AND S TATUS OF C OMMON S TOCK I SSUED UPON C ONVERSION .

(A)     Stock Reserve . At all times when any Notes are outstanding Article 5 , the Company will reserve, out of its authorized but unissued and unreserved shares of Common

 

- 84 -


Stock, a number of shares of Common Stock sufficient to permit the conversion of all then-outstanding Notes, assuming (x) Physical Settlement will apply to such conversion; and (y) the Conversion Rate is increased by the maximum amount pursuant to which the Conversion Rate may be increased pursuant to Section  5.07 .

(B)     Status of Conversion Shares; Listing . Each Conversion Share, if any, delivered upon conversion of any Note will be a newly issued or treasury share and will be duly and validly issued, fully paid, non-assessable, free from preemptive rights and free of any lien or adverse claim (except to the extent of any lien or adverse claim created by the action or inaction of the Holder of such Note or the Person to whom such Conversion Share will be delivered). If the Common Stock is then listed on any securities exchange, or quoted on any inter-dealer quotation system, then the Company will cause each Conversion Share, when delivered upon conversion of any Note, to be admitted for listing on such exchange or quotation on such system.

Section 5.05.    A DJUSTMENTS TO THE C ONVERSION R ATE .

(A)     Events Requiring an Adjustment to the Conversion Rate . The Conversion Rate will be adjusted from time to time as follows:

(i)     Stock Dividends, Splits and Combinations . If the Company issues solely shares of Common Stock as a dividend or distribution on all or substantially all shares of the Common Stock, or if the Company effects a stock split or a stock combination of the Common Stock (in each case excluding an issuance solely pursuant to a Common Stock Change Event, as to which the provisions set forth in Section  5.08 will apply), then the Conversion Rate will be adjusted based on the following formula:

 

 

 

CR 1

 

 

=

 

 

CR 0

 

 

×

 

 

 

  OS 1     
          OS 0     

where:

 

CR 0   =    the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such dividend or distribution, or immediately before the Open of Business on the effective date of such stock split or stock combination, as applicable;
CR 1   =    the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date or the Open of Business on such effective date, as applicable;
OS 0   =    the number of shares of Common Stock outstanding immediately before the Open of Business on such Ex-Dividend Date or effective date, as applicable, without giving effect to such dividend, distribution, stock split or stock combination; and
OS 1   =    the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, stock split or stock combination.

 

- 85 -


If any dividend, distribution, stock split or stock combination of the type described in this Section 5.05(A)(i) is declared or announced, but not so paid or made, then the Conversion Rate will be readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution or to effect such stock split or stock combination, to the Conversion Rate that would then be in effect had such dividend, distribution, stock split or stock combination not been declared or announced.

(ii)     Rights, Options and Warrants . If the Company distributes, to all or substantially all holders of Common Stock, rights, options or warrants (other than pursuant to a stockholder rights plan, as to which, for the avoidance of doubt, the provisions set forth in Sections 5.05(A)(iii)(1) and 5.05(E) will apply) entitling such holders, for a period of not more than sixty (60) calendar days after the record date of such distribution, to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced, then the Conversion Rate will be increased based on the following formula:

 

 

 

CR 1

 

 

=

 

 

CR 0

 

 

×

 

 

 

  OS  +  X   
          OS  +  Y   

where:

 

CR 0   =    the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such distribution;
CR 1   =    the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
OS   =    the number of shares of Common Stock outstanding immediately before the Open of Business on such Ex-Dividend Date;
X   =    the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and

Y

  =    a number of shares of Common Stock obtained by dividing (x) the aggregate price payable to exercise such rights, options or warrants by (y) the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced.

To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants (including as a result of such rights, options or warrants not being exercised), the Conversion Rate will be readjusted to the Conversion Rate that

 

- 86 -


would then be in effect had the increase to the Conversion Rate for such distribution been made on the basis of delivery of only the number of shares of Common Stock actually delivered upon exercise of such rights, option or warrants. To the extent such rights, options or warrants are not so distributed, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the Ex-Dividend Date for the distribution of such rights, options or warrants not occurred.

For purposes of this Section 5.05(A)(ii) , in determining whether any rights, options or warrants entitle holders of Common Stock to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date of the distribution of such rights, options or warrants is announced, and in determining the aggregate price payable to exercise such rights, options or warrants, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration, if not cash, to be determined by the Board of Directors.

(iii)     Spin-Offs and Other Distributed Property .

(1)     Distributions Other than Spin-Offs . If the Company distributes shares of its Capital Stock, evidences of its indebtedness or other assets or Property of the Company, or rights, options or warrants to acquire Capital Stock of the Company or other securities, to all or substantially all holders of the Common Stock, excluding:

(v)    dividends, distributions, rights, options or warrants for which an adjustment to the Conversion Rate is required pursuant to Section 5.05(A)(i) or 5.05(A)(ii) ;

(w)    dividends or distributions paid exclusively in cash for which an adjustment to the Conversion Rate is required pursuant to Section 5.05(A)(iv) ;

(x)    rights issued or otherwise distributed pursuant to a stockholder rights plan, except to the extent provided in Section 5.05(E) ;

(y)    Spin-Offs for which an adjustment to the Conversion Rate is required pursuant to Section 5.05(A)(iii)(2) ; and

(z)    a distribution solely pursuant to a Common Stock Change Event, as to which the provisions set forth in Section  5.08 will apply,

 

- 87 -


then the Conversion Rate will be increased based on the following formula:

 

 

 

CR 1

 

 

 

 

=

 

 

 

 

CR 0

 

 

×

 

 

 

  SP   
          SP  –  FMV   

where:

 

CR 0   =    the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such distribution;
CR 1   =    the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
SP   =    the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before such Ex-Dividend Date; and
FMV   =    the fair market value (as determined by the Board of Directors), as of such Ex-Dividend Date, of the shares of Capital Stock, evidences of indebtedness, assets, Property, rights, options or warrants distributed per share of Common Stock pursuant to such distribution;

provided , however , that if FMV is equal to or greater than SP , then, in lieu of the foregoing adjustment to the Conversion Rate, each Holder will receive, for each $1,000 principal amount of Notes held by such Holder on the record date for such distribution, at the same time and on the same terms as holders of Common Stock, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets, Property, rights, options or warrants that such Holder would have received if such Holder had owned, on such record date, a number of shares of Common Stock equal to the Conversion Rate in effect on such record date.

To the extent such distribution is not so paid or made, or such rights, options or warrants are not exercised before their expiration (including as a result of being redeemed or terminated), the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the distribution, if any, actually made or paid or on the basis of the distribution of only such rights, options or warrants, if any, that were actually exercised, if at all.

 

- 88 -


(2)     Spin-Offs . If the Company distributes or dividends shares of Capital Stock of any class or series, or similar equity interest, of or relating to an Affiliate, a Subsidiary or other business unit of the Company to all or substantially all holders of the Common Stock, and such Capital Stock or equity interest is listed or quoted (or will be listed or quoted upon the consummation of the transaction) on a U.S. national securities exchange (a “ Spin-Off ”), then the Conversion Rate will be increased based on the following formula:

 

 

 

CR 1

 

 

=

 

 

CR 0

 

 

×

 

 

 

  FMV  +  SP   
          SP   

where:

 

CR 0   =    the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such Spin-Off;
CR 1   =    the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
FMV   =    the product of (x) the average of the Last Reported Sale Price per share or unit of the Capital Stock or equity interests distributed in such Spin-Off over the ten (10) consecutive Trading Day period (the “ Spin-Off Valuation Period ”) beginning on, and including, such Ex-Dividend Date (such average to be determined as if references to Common Stock in the definitions of Last Reported Sale Price and Trading Day were instead references such Capital Stock or equity interests); and (y) the number of shares or units of such Capital Stock or equity interests distributed per share of Common Stock in such Spin-Off; and
SP   =    the average of the Last Reported Sale Prices per share of Common Stock over the Spin-Off Valuation Period.

The adjustment to the Conversion Rate pursuant to this Section 5.05(A)(iii)(2) will be calculated as of the Close of Business on the last Trading Day of the Spin-Off Valuation Period but will be given effect immediately after the Open of Business on the Ex-Dividend Date for the Spin-Off, with retroactive effect. If a Note is converted and the Conversion Date (in the case of Physical Settlement) or any VWAP Trading Day of the applicable Observation Period (in the case of Cash Settlement or Combination Settlement) occurs during the Spin-Off Valuation Period, then, notwithstanding anything to the contrary in this Indenture or the Notes, the Company will, if necessary, delay the settlement of such conversion until the third (3rd) (or, if the T+2 Effective Date has occurred by the last day of the Spin-Off Valuation Period, the second (2nd)) Business Day after the last day of the Spin-Off Valuation Period.

 

- 89 -


To the extent any dividend or distribution of the type set forth in this Section 5.05(A)(iii)(2) is declared but not made or paid, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the dividend or distribution, if any, actually made or paid.

(iv)     Cash Dividends or Distributions . If any cash dividend or distribution is made to all or substantially all holders of Common Stock, then the Conversion Rate will be increased based on the following formula:

 

 

 

CR 1

 

 

=

 

 

CR 0

 

 

×

 

 

 

  SP   
          SP – D   

where:

 

CR 0   =    the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such dividend or distribution;
CR 1   =    the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
SP   =    the Last Reported Sale Price per share of Common Stock on the Trading Day immediately before such Ex-Dividend Date; and
D   =    the cash amount distributed per share of Common Stock in such dividend or distribution;

provided , however , that if D is equal to or greater than SP , then, in lieu of the foregoing adjustment to the Conversion Rate, each Holder will receive, for each $1,000 principal amount of Notes held by such Holder on the record date for such dividend or distribution, at the same time and on the same terms as holders of Common Stock, the amount of cash that such Holder would have received if such Holder had owned, on such record date, a number of shares of Common Stock equal to the Conversion Rate in effect on such record date.

To the extent such dividend or distribution is declared but not made or paid, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the dividend or distribution, if any, actually made or paid.

(v)     Tender Offers or Exchange Offers . If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for shares of Common Stock, and the value (determined as of the Expiration Time by the Board of Directors) of the cash and other consideration paid per share of Common Stock in such tender or exchange offer exceeds the Last Reported Sale Price per share of Common Stock on the Trading Day immediately after the last date (the “ Expiration Date ”) on

 

- 90 -


which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), then the Conversion Rate will be increased based on the following formula:

 

 

 

CR 1

 

 

=

 

 

CR 0

 

 

×

 

 

 

  AC +  ( SP × OS 1 )   
          OS 0  ×  SP   

where:

 

CR 0   =    the Conversion Rate in effect immediately before the time (the “ Expiration Time ”) such tender or exchange offer expires;
CR 1   =    the Conversion Rate in effect immediately after the Expiration Time;
AC   =    the aggregate value (determined as of the Expiration Time by the Board of Directors) of all cash and other consideration paid for shares of Common Stock purchased in such tender or exchange offer;
OS 0   =    the number of shares of Common Stock outstanding immediately before the Expiration Time (before giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);
OS 1   =    the number of shares of Common Stock outstanding immediately after the Expiration Time (excluding all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and
SP   =    the average of the Last Reported Sale Prices per of Common Stock over the ten (10) consecutive Trading Day period (the “ Tender/Exchange Offer Valuation Period ”) beginning on, and including, the Trading Day immediately after the Expiration Date;

provided , however , that the Conversion Rate will in no event be adjusted down pursuant to this Section 5.05(A)(v) , except to the extent provided in the immediately following paragraph. The adjustment to the Conversion Rate pursuant to this Section 5.05(A)(v) will be calculated as of the Close of Business on the last Trading Day of the Tender/Exchange Offer Valuation Period but will be given effect immediately after the Expiration Time, with retroactive effect. If a Note is converted and the Conversion Date (in the case of Physical Settlement) or any VWAP Trading Day of the applicable Observation Period (in the case of Cash Settlement or Combination Settlement) occurs during the Tender/Exchange Offer Valuation Period, then, notwithstanding anything to the contrary in this Indenture or the Notes, the Company will, if necessary, delay the settlement of such conversion until the third (3rd) (or, if the T+2 Effective Date has occurred by the last day of the Tender/Exchange Offer Valuation Period, the second (2nd)) Business Day after the last day of the Tender/Exchange Offer Valuation Period.

 

- 91 -


To the extent such tender or exchange offer is announced but not consummated (including as a result of the Company being precluded from consummating such tender or exchange offer under applicable law), or any purchases or exchanges of shares of Common Stock in such tender or exchange offer are rescinded, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the purchases or exchanges of shares of Common Stock, if any, actually made, and not rescinded, in such tender or exchange offer.

(B)     No Adjustments in Certain Cases .

(i)     Where Holders Participate in the Transaction or Event Without Conversion . Notwithstanding anything to the contrary in Section 5.05(A) , the Company will not be obligated to adjust the Conversion Rate on account of a transaction or other event otherwise requiring an adjustment pursuant to Section 5.05(A) (other than a stock split or combination of the type set forth in Section 5.05(A)(i) or a tender or exchange offer of the type set forth in Section 5.05(A)(v) ) if each Holder participates, at the same time and on the same terms as holders of Common Stock, and solely by virtue of being a Holder of Notes, in such transaction or event without having to convert such Holder’s Notes and as if such Holder held a number of shares of Common Stock equal to the product of (i) the Conversion Rate in effect on the related record date, effective date or Expiration Date, as applicable; and (ii) the aggregate principal amount (expressed in thousands) of Notes held by such Holder on such date.

(C)     Adjustments Not Yet Effective. Notwithstanding anything to the contrary in this Indenture or the Notes, if:

(i)    a Note is to be converted;

(ii)    the record date, effective date or Expiration Time for any event that requires an adjustment to the Conversion Rate pursuant to any of clauses (i)  through (v) , inclusive, of Section 5.05(A) has occurred on or before the Conversion Date for such conversion (in the case of Physical Settlement) or on or before any VWAP Trading Day in the Observation Period for such conversion (in the case of Combination Settlement), but an adjustment to the Conversion Rate for such event has not yet become effective as of such Conversion Date or VWAP Trading Day, as applicable;

(iii)    the Conversion Consideration due upon such conversion (in the case of Physical Settlement) or due in respect of such VWAP Trading Day (in the case of Combination Settlement) includes any whole shares of Common Stock; and

(iv)    such shares are not entitled to participate in such event (because they were not held on the related record date or otherwise),

then, solely for purposes of such conversion, the Company will, without duplication, give effect to such adjustment on such Conversion Date (in the case of Physical Settlement) or such VWAP Trading Day (in the case of Combination Settlement). In such case, if the date on which the Company is otherwise required to deliver the consideration due upon such conversion is before

 

- 92 -


the first date on which the amount of such adjustment can be determined, then the Company will (x) deliver, on such date the Company is otherwise required by this Indenture, the Conversion Consideration due upon such conversion based on the applicable unadjusted Conversion Rate(s); and (y) deliver, on the Business Day immediately after such first date, any additional Conversion Consideration arising from giving effect to such adjustment to the applicable Conversion Rate(s).

(D)     Conversion Rate Adjustments where Converting Holders Participate in the Relevant Transaction or Event. Notwithstanding anything to the contrary in this Indenture or the Notes, if:

(i)    a Conversion Rate adjustment for any dividend or distribution becomes effective on any Ex-Dividend Date pursuant to any of clauses (i)  through (v) , inclusive, of Section 5.05(A) ;

(ii)    a Note is to be converted pursuant to Physical Settlement or Combination Settlement;

(iii)    the Conversion Date for such conversion (in the case of Physical Settlement) or any VWAP Trading Day in the Observation Period for such conversion (in the case of Combination Settlement) occurs on or after such Ex-Dividend Date and on or before the related record date;

(iv)    the Conversion Consideration due upon such conversion (in the case of Physical Settlement) or due with respect to such VWAP Trading Day (in the case of Combination Settlement) includes any whole shares of Common Stock based on a Conversion Rate that is adjusted for such dividend or distribution; and

(v)    such shares would be entitled to participate in such dividend or distribution (including pursuant to Section 5.02(C) ),

then (x) such Conversion Rate adjustment will not be given effect for such conversion (in the case of Physical Settlement) or for such VWAP Trading Day (in the case of Combination Settlement); and (y) the shares of Common Stock, if any, issuable upon such conversion (in the case of Physical Settlement) or issuable with respect to such VWAP Trading Day (in the case of Combination Settlement) based on such unadjusted Conversion Rate will be entitled to participate in such dividend or distribution.

(E)     Stockholder Rights Plans . If any shares of Common Stock are to be issued upon conversion of any Note and, at the time of such conversion, the Company has in effect any stockholder rights plan, then the Holder of such Note will be entitled to receive, in addition to, and concurrently with the delivery of, the Conversion Consideration otherwise payable under this Indenture upon such conversion, the rights set forth in such stockholder rights plan, unless such rights have separated from the Common Stock at such time, in which case, and only in such case, the Conversion Rate will be adjusted pursuant to Section 5.05(A)(iii)(1) on account of such separation as if, at the time of such separation, the Company had made a distribution of the type referred to in such Section to all holders of the Common Stock, subject to readjustment in accordance with such Section if such rights expire, terminate or are redeemed.

 

- 93 -


(F)     Limitation on Effecting Transactions Resulting in Certain Adjustments . The Company will not engage in or be a party to any transaction or event that would require the Conversion Rate to be adjusted pursuant to Section 5.05(A) or Section  5.07 to an amount that would result in the Conversion Price per share of Common Stock being less than the par value per share of Common Stock.

(G)     Equitable Adjustments to Last Reported Sale Price . Whenever any provision of this Indenture requires the Company to calculate the average of the Last Reported Sale Prices, or any function thereof, over a span of multiple days (including to calculate the Stock Price or an adjustment to the Conversion Rate), the Company will make proportionate adjustments, if any, to such calculations to account for any adjustment to the Conversion Rate pursuant to Section 5.05(A)(i) that becomes effective, or any event requiring such an adjustment to the Conversion Rate where the Ex-Dividend Date or effective date, as applicable, of such event occurs, at any time during the period over which such average is to be calculated.

(H)     Calculation of Number of Outstanding Shares of Common Stock . For purposes of Section 5.05(A) , the number of shares of Common Stock outstanding at any time will (i) include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock; and (ii) exclude shares of Common Stock held in the Company’s treasury (unless the Company pays any dividend or makes any distribution on shares of Common Stock held in its treasury).

(I)     Calculations . All calculations with respect to the Conversion Rate and adjustments thereto will be made to the nearest cent (with 0.5 of a cent rounded upward) or to the nearest 1/10,000th of a share of Common Stock (with 5/100,000ths rounded upward), as applicable.

(J)     Notice of Conversion Rate Adjustments . Upon the effectiveness of any adjustment to the Conversion Rate pursuant to Section 5.05(A) , the Company will promptly send notice to the Holders, the Trustee and the Conversion Agent containing (i) a brief description of the transaction or other event on account of which such adjustment was made; (ii) the Conversion Rate in effect immediately after such adjustment; and (iii) the effective time of such adjustment.

Section 5.06.    V OLUNTARY A DJUSTMENTS .

(A)     Generally . To the extent permitted by law and applicable stock exchange rules, the Company, from time to time, may (but is not required to) increase the Conversion Rate by any amount if (i) the Board of Directors determines that such increase is either (x) in the best interest of the Company; or (y) advisable to avoid or diminish any income tax imposed on holders of Common Stock or rights to purchase Common Stock as a result of any dividend or distribution of shares (or rights to acquire shares) of Common Stock or any similar event; (ii) such increase is in effect for a period of at least twenty (20) Business Days; and (iii) such increase is irrevocable during such period.

(B)     Notice of Voluntary Increases . If the Board of Directors determines to increase the Conversion Rate pursuant to this Section  5.06 , then, at least fifteen (15) Business Days

 

- 94 -


before such increase, the Company will send notice to each Holder, the Trustee and the Conversion Agent of such increase, the amount thereof and the period during which such increase will be in effect.

Section 5.07.    A DJUSTMENTS TO THE C ONVERSION R ATE IN C ONNECTION WITH A M AKE -W HOLE F UNDAMENTAL C HANGE .

(A)     Generally . If a Make-Whole Fundamental Change occurs and the Conversion Date for the conversion of a Note occurs during the related Make-Whole Fundamental Change Conversion Period, then, subject to this Section  5.07 , the Conversion Rate applicable to such conversion will be increased by a number of shares (the “ Additional Shares ”) set forth in the table below corresponding (after interpolation as provided in, and subject to, the provisions below) to the Make-Whole Fundamental Change Effective Date and the Stock Price of such Make-Whole Fundamental Change:

 

Make-Whole

Fundamental

Change Effective

Date

                                                                     
   Stock Price  
   $1.70      $2.00      $2.21      $2.50      $3.00      $3.50      $4.00      $4.50      $5.00      $5.50  

February 15, 2017

     135.73        122.99        101.21        78.54        52.14        35.34        24.13        16.41        10.97        7.08  

March 1, 2018

     135.73        118.22        96.25        73.62        47.69        31.53        20.96        13.83        8.91        5.46  

March 1, 2019

     135.73        114.04        91.37        68.38        42.67        27.16        17.34        10.91        6.61        3.69  

March 1, 2020

     135.73        105.36        81.74        58.4        33.52        19.49        11.24        6.22        3.07        1.22  

March 1, 2021

     135.73        90.9        65.2        40.54        15.04        —          —          —          —          —    

March 1, 2022

     135.73        47.57        —          —          —          —          —          —          —          —    

If such Make-Whole Fundamental Change Effective Date or Stock Price are not set forth in the table above, then:

(i)    if such Stock Price is between two Stock Prices in the table above or the Make-Whole Fundamental Change Effective Date is between two Make-Whole Fundamental Change Effective Dates in the table above, then the number of Additional Shares will be determined by a straight-line interpolation between the numbers of Additional Shares set forth for the higher and lower Stock Prices in the table and the earlier and later Make-Whole Fundamental Change Effective Dates in the table above, as applicable, based on a 365- or 366-day year, as applicable; and

(ii)    if the Stock Price is greater than $5.50 (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above are adjusted pursuant to Section 5.07(B) ), or less than $1.70 (subject to adjustment in the same manner), per share, then no Additional Shares will be added to the Conversion Rate.

Notwithstanding anything to the contrary in this Indenture or the Notes, in no event will the Conversion Rate be increased to an amount that exceeds 588.1660 shares of Common Stock per $1,000 principal amount of Notes, which amount is subject to adjustment in the same manner as, and at the same time and for the same events for which, the Conversion Rate is required to be adjusted pursuant to clauses (i)  through (v) , inclusive, of Section 5.05(A) .

(B)     Adjustment of Stock Prices and Additional Shares . The Stock Prices in the first row ( i.e. , the column headers) of the table set forth in Section 5.07(A) will be adjusted in the

 

- 95 -


same manner as, and at the same time and for the same events for which, the Conversion Price is adjusted as a result of the operation of clauses (i)  through (v) , inclusive, of Section 5.05(A) . The numbers of Additional Shares in the table set forth in Section 5.07(A) will be adjusted in the same manner as, and at the same time and for the same events for which, the Conversion Rate is adjusted pursuant to Section 5.07(A) .

(C)     Notice of the Occurrence of a Make-Whole Fundamental Change . If a Make-Whole Fundamental Change occurs, then, promptly and in no event later than the Business Day immediately after the Make-Whole Fundamental Change Effective Date of such Make-Whole Fundamental Change, the Company will notify the Holders, the Trustee and the Conversion Agent of the occurrence of such Make-Whole Fundamental Change and of such Make-Whole Fundamental Change Effective Date, briefly stating the circumstances under which the Conversion Rate will be increased pursuant to this Section  5.07 in connection with such Make-Whole Fundamental Change.

(D)     Settlement of Cash Make-Whole Fundamental Changes . For the avoidance of doubt, if holders of Common Stock receive solely cash in a Make-Whole Fundamental Change, then, pursuant to Section  5.08 , conversions of Notes will thereafter be settled no later than the third (3rd) Business Day after the relevant Conversion Date.

Section 5.08.    E FFECT OF C OMMON S TOCK C HANGE E VENT .

(A)     Generally . If there occurs any:

(i)    recapitalization, reclassification or change of the Common Stock (other than (x) changes solely resulting from a subdivision or combination of the Common Stock, (y) a change only in par value or from par value to no par value or no par value to par value and (z) stock splits and stock combinations that do not involve the issuance of any other series or class of securities);

(ii)    consolidation, merger, combination or binding share exchange involving the Company;

(iii)    sale, lease or other transfer of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person; or

(iv)    other event,

and, as a result which, the Common Stock is converted into, or is exchanged for, or represents solely the right to receive, other securities, cash or other Property, or any combination of the foregoing (such an event, a “ Common Stock Change Event ,” and such other securities, cash or Property, the “ Reference Property ,” and the amount and kind of Reference Property that a holder of one (1) share of Common Stock would be entitled to receive on account of such Common Stock Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other Property), a “ Reference Property Unit ”), then, notwithstanding anything to the contrary in this Indenture or the Notes,

 

- 96 -


(1)    at the effective time of such Common Stock Change Event, (I) the Conversion Consideration due upon conversion of any Note will be determined in the same manner as if each reference to any number of shares of Common Stock in this Article 5 (or in any related definitions) were instead a reference to the same number of Reference Property Units; and (II) for purposes of the definition of “Fundamental Change” and “Make-Whole Fundamental Change,” the term “Common Stock” will be deemed to mean the common equity, if any, forming part of such Reference Property;

(2)    if such Reference Property Unit consists entirely of cash, then the Company will be deemed to elect Cash Settlement in respect of all conversions whose Conversion Date occurs on or after the effective date of such Common Stock Change Event and will pay the cash due upon such conversions no later than the third (3rd) (or, if the T+2 Effective Date has occurred by the relevant Conversion Date, the second (2nd)) Business Day after such Conversion Date; and

(3)    for these purposes, the Daily VWAP or Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of a class of securities will be the fair value of such Reference Property Unit or portion thereof, as applicable, determined in good faith by the Company (or, in the case of cash denominated in U.S. dollars, the face amount thereof).

If the Reference Property consists of more than a single type of consideration to be determined based in part upon any form of stockholder election, then the composition of the Reference Property Unit will be deemed to be (x) the weighted average, per share of Common Stock, of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election; or (y) if no holders of Common Stock affirmatively make such an election, the types and amounts of consideration actually received, per share of Common Stock, by the holders of Common Stock. The Company will notify Holders, the Trustee and the Conversion Agent of the weighted average as soon as practicable after such determination is made.

At or before the effective date of such Common Stock Change Event, the Company and the resulting, surviving or transferee Person (if not the Company) of such Common Stock Change Event (the “ Successor Person ”) will execute and deliver to the Trustee a supplemental indenture pursuant to Section 8.01(F) , which supplemental indenture will (x) provide for subsequent conversions of Notes in the manner set forth in this Section  5.08 ; (y) provide for subsequent adjustments to the Conversion Rate pursuant to Section 5.07(A) in a manner consistent with this Section  5.08 ; and (z) contain such other provisions as the Company reasonably determines are appropriate to preserve the economic interests of the Holders and to give effect to the provisions of this Section 5.08(A) . If the Reference Property includes shares of stock or other securities or assets of a Person other than the Successor Person, then such other Person will also execute such supplemental indenture and such supplemental indenture will contain such additional provisions the Company reasonably determines are appropriate to preserve the economic interests of the Holders.

(B)     Notice of Common Stock Change Events . As soon as practicable after learning the anticipated or actual effective date of any Common Stock Change Event, the Company will

 

- 97 -


notify the Holders, the Trustee and the Conversion Agent of such Common Stock Change Event, including a brief description of such Common Stock Change Event, its anticipated effective date and a brief description of the anticipated change in the conversion right of the Notes.

(C)     Compliance Covenant . The Company will not become a party to any Common Stock Change Event unless its terms are consistent with this Section  5.08 .

Section 5.09.    I NAPPLICABILITY OF C ERTAIN C OVENANTS TO THE C ONVERSION OF THE N OTES .

Notwithstanding anything to the contrary in this Indenture or the Notes, neither Section  3.11 nor 3.15 will prohibit or otherwise restrict the conversion of any Note in accordance with the terms of this Indenture (including the transfer of any assets from any Subsidiary of the Company to the Company solely for purposes of delivering any Conversion Consideration upon conversion of any Note).

Section 5.10.    R ESPONSIBILITY OF T RUSTEE AND C ONVERSION A GENT .

Neither the Trustee nor any Conversion Agent (A) will at any time be under any duty or responsibility to any Holder to determine the Conversion Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment to (including any increase in) the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or provided in this Indenture or any supplemental indenture to be employed, in making the same; (B) will be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities, property or cash that may at any time be issued or delivered upon the conversion of any Note; (C) makes any representations with respect to the foregoing; or (D) will be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property or cash upon the surrender of any Note for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article 5 . Without limiting the generality of the foregoing, neither the Trustee nor any Conversion Agent will be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section  5.08 relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders upon the conversion of their Notes after any event referred to in Section  5.08 or to any adjustment to be made with respect thereto, but may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and will be protected in conclusively relying upon, the Officer’s Certificate (which the Company will file with the Trustee prior to the execution of any such supplemental indenture in addition to any other deliverables required under this Indenture in connection with the execution of such supplemental indenture) with respect thereto.

 

- 98 -


Article 6.    SUCCESSORS

Section 6.01.    W HEN THE C OMPANY M AY M ERGE , E TC .

(A)     Generally . The Company will not consolidate with or merge with or into, or sell, lease or otherwise transfer, in one transaction or a series of transactions, all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to another Person (a “ Business Combination Event ”), unless:

(i)    the resulting, surviving or transferee Person either (x) is the Company or (y) if not the Company, is a corporation (the “ Successor Corporation ”) duly organized and existing under the laws of the United States of America, any State thereof or the District of Columbia that expressly assumes (by executing and delivering to the Trustee, at or before the effective time of such Business Combination Event, a supplemental indenture pursuant to Section 8.01(E) ) all of the Company’s obligations under this Indenture, the Notes and the Collateral Agreements; and

(ii)    immediately after giving effect to such Business Combination Event, no Default or Event of Default will have occurred and be continuing.

(B)     Delivery of Officer’s Certificate and Opinion of Counsel to the Trustee . Before the effective time of any Business Combination Event, the Company will deliver to the Trustee and the Collateral Trustee an Officer’s Certificate and Opinion of Counsel, each stating that (i) such Business Combination Event (and, if applicable, the related supplemental indenture) comply with Section 6.01(A) ; and (ii) all conditions precedent to such Business Combination Event provided in this Indenture have been satisfied.

Section 6.02.    S UCCESSOR C ORPORATION S UBSTITUTED .

At the effective time of any Business Combination Event that complies with Section  6.01 , the Successor Corporation (if not the Company) will succeed to, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor Corporation had been named as the Company in this Indenture, the Notes and the Collateral Agreement, and, except in the case of a lease, the predecessor Company will be discharged from its obligations under this Indenture, the Notes and the Collateral Agreements.

Article 7.    DEFAULTS AND REMEDIES

Section 7.01.    E VENTS OF D EFAULT .

(A)     Definition of Events of Default . “ Event of Default ” means the occurrence of any of the following:

(i)    a default in the payment when due (whether at maturity, upon Redemption or Required Repurchase or otherwise) of the principal of, or the Redemption Price, Fundamental Change Repurchase Price or Asset Sale Repurchase Price for, any Note;

(ii)    a default for thirty (30) days in the payment when due of interest on any Note;

(iii)    the Company’s failure to deliver, when required by this Indenture, a Fundamental Change Notice, or a notice pursuant to Section 5.07(C) ;

 

- 99 -


(iv)    a default in the Company’s obligation to convert a Note in accordance with Article 5 upon the exercise of the conversion right with respect thereto;

(v)    a default in the Company’s obligations under Article 6 or in any Guarantor’s obligations under Section  9.04 ;

(vi)    a default in any of the Company’s obligations or agreements, or in any Guarantor’s obligations or agreements, under this Indenture or the Notes (other than a default set forth in clause (i) , (ii) , (iii) , (iv) or (v)  of this Section 7.01(A) ), or in any Collateral Agreement, where such default is not cured or waived within sixty (60) days after notice to the Company by the Trustee, or to the Company and the Trustee by Holders of at least twenty five percent (25%) of the aggregate principal amount of Notes then outstanding, which notice must specify such default, demand that it be remedied and state that the such notice is a “Notice of Default”;

(vii)    a default by the Company or any of its Restricted Subsidiaries with respect to any one or more mortgages, agreements or other instruments under which there is outstanding, or by which there is secured or evidenced, any indebtedness for money borrowed of at least fifteen million dollars ($15,000,000) (or its foreign currency equivalent) in the aggregate of the Company or any of its Restricted Subsidiaries, whether such indebtedness exists as of the Issue Date or is thereafter created, where such default:

(1)    constitutes a failure to pay the principal of, or premium or interest on, any of such indebtedness when due and payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise; or

(2)    results in such indebtedness becoming or being declared due and payable before its stated maturity,

and, in each case, such default is not cured or such Indebtedness repaid or discharged within thirty (30) days;

(viii)    one or more final judgments being rendered against the Company or any of its Subsidiaries for the payment of at least fifteen million dollars ($15,000,000) (or its foreign currency equivalent) in the aggregate (excluding any amounts covered by insurance), where such judgment is not discharged or stayed within sixty (60) days after (i) the date on which the right to appeal the same has expired, if no such appeal has commenced; or (ii) the date on which all rights to appeal have been extinguished;

(ix)    the Company or any of its Restricted Subsidiaries fails to make any payment required under the DrillCo Agreement, which failure is not cured or waived within thirty (30) days;

(x)    any Guarantee ceases to be in full force and effect or any Guarantor denies or disaffirms its obligations under its Guarantee;

 

- 100 -


(xi)    except as provided in this Indenture or any Collateral Agreement, any Collateral Agreement ceases to be in full force and effect in all material respects or ceases to give the Collateral Trustee the Liens, rights, powers and privileges purported to be created thereby, except to the extent all such cessations pursuant to this clause (xi)  relate to Collateral having a value that does not exceed five million dollars ($5,000,000) in the aggregate;

(xii)    the Company, the Guarantors, or any of their respective Significant Subsidiaries, pursuant to or within the meaning of any Bankruptcy Law, either:

(1)    commences a voluntary case or proceeding;

(2)    consents to the entry of an order for relief against it in an involuntary case or proceeding;

(3)    consents to the appointment of a custodian of it or for any substantial part of its Property;

(4)    makes a general assignment for the benefit of its creditors;

(5)    takes any comparable action under any foreign Bankruptcy Law; or

(6)    generally is not paying its debts as they become due; or

(xiii)    a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that either:

(1)    is for relief against Company, the Guarantors, or any of their respective Significant Subsidiaries in an involuntary case or proceeding;

(2)    appoints a custodian of the Company, the Guarantors, or any of their respective Significant Subsidiaries, or for any substantial part of the Property of the Company, the Guarantors, or any of their respective Significant Subsidiaries;

(3)    orders the winding up or liquidation of the Company, the Guarantors, or any of their respective Significant Subsidiaries; or

(4)    grants any similar relief under any foreign Bankruptcy Law,

and, in each case under this Section 7.01(A)(xiii) , such order or decree remains unstayed and in effect for at least sixty (60) days.

(B)     Cause Irrelevant . Each of the events set forth in Section 7.01(A) will constitute an Event of Default regardless of the cause thereof or whether voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.

 

- 101 -


Section 7.02.    A CCELERATION .

(A)     Automatic Acceleration in Certain Circumstances . If an Event of Default set forth in Section 7.01(A)(xii) or 7.01(A)(xiii) occurs with respect to the Company or any Guarantor (and not solely with respect to a Significant Subsidiary of the Company or any Guarantor), then the principal amount of, and all accrued and unpaid interest (and, if, and only if, a Requisite Stockholder Approval Failure has occurred, the Applicable Premium) on, all of the Notes then outstanding will immediately become due and payable without any further action or notice by any Person.

(B)     Optional Acceleration . Subject to Section  7.03 , if an Event of Default (other than an Event of Default set forth in Section 7.01(A)(xii) or 7.01(A)(xiii) with respect to the Company or any Guarantor and not solely with respect to a Significant Subsidiary of the Company or any Guarantor) occurs and is continuing, then the Trustee, by notice to the Company, or Holders of at least twenty five percent (25%) of the aggregate principal amount of Notes then outstanding, by notice to the Company and the Trustee, may declare the principal amount of, and all accrued and unpaid interest (and, if, and only if, a Requisite Stockholder Approval Failure has occurred, the Applicable Premium) on, all of the Notes then outstanding to become due and payable immediately.

(C)     Applicable Premium upon Acceleration . For the avoidance of doubt, if any Note is accelerated pursuant to clause (A)  or (B) above of this Section  7.02 , then the Applicable Premium will be payable upon such acceleration only if a Requisite Stockholder Approval Failure has occurred and, if a Requisite Stockholder Approval Failure has occurred, regardless of whether such Note has theretofore been called for Redemption.

(D)     Rescission of Acceleration . Notwithstanding anything to the contrary in this Indenture or the Notes, the Holders of a majority in aggregate principal amount of the Notes then outstanding, by notice to the Company and the Trustee, may, on behalf of all Holders, rescind any acceleration of the Notes and its consequences if (i) such rescission would not conflict with any judgment or decree of a court of competent jurisdiction; and (ii) all existing Events of Default (except the non-payment of principal of, or interest, or the Applicable Premium, on, the Notes that has become due solely because of such acceleration) have been cured or waived. No such rescission will affect any subsequent Default or impair any right consequent thereto.

Section 7.03.    S OLE R EMEDY FOR A F AILURE TO R EPORT .

(A)     Generally . Notwithstanding anything to the contrary in this Indenture or the Notes, the Company may elect that the sole remedy for any Event of Default (a “ Reporting Event of Default ”) pursuant to Section 7.01(A)(vi) arising from the Company’s failure to comply with Section  3.02 will, for each of the first one hundred and eighty (180) calendar days on which a Reporting Event of Default has occurred and is continuing, consist exclusively of the accrual of Special Interest on the Notes. If the Company has made such an election, then (i) the Notes will be subject to acceleration pursuant to Section  7.02 on account of the relevant Reporting Event of Default from, and including, the one hundred and eighty first (181st) calendar day on which a Reporting Event of Default has occurred and is continuing or if the Company fails to pay any accrued and unpaid Special Interest when due; and (ii) Special Interest

 

- 102 -


will cease to accrue on any Notes from, and including, such one hundred and eighty first (181st) calendar day (it being understood that interest on any defaulted Special Interest will nonetheless accrue pursuant to Section 2.05(B) ).

(B)     Amount and Payment of Special Interest . Any Special Interest that accrues on a Note pursuant to Section 7.03(A) will be payable on the same dates and in the same manner as the Stated Interest on such Note and will accrue at a rate per annum equal to one quarter of one percent (0.25%) of the principal amount thereof for the first ninety (90) days on which Special Interest accrues and, thereafter, at a rate per annum equal to one half of one percent (0.50%) of the principal amount thereof. For the avoidance of doubt, any Special Interest that accrues on a Note will be in addition to the Stated Interest that accrues on such Note and in addition to any High Yield Interest that accrues on such Note.

(C)     Notice of Election . To make the election set forth in Section 7.03(A) , the Company must send to the Holders, the Trustee and the Paying Agent, before the date on which each Reporting Event of Default first occurs, a notice that (i) briefly describes of the report(s) that the Company failed to file with or furnish to the SEC; (ii) states that the Company is electing that the sole remedy for such Reporting Event of Default consist of the accrual of Special Interest; and (iii) briefly describes the periods during which and rate at which Special Interest will accrue and the circumstances under which the Notes will be subject to acceleration on account of such Reporting Event of Default.

(D)     Notice to Trustee and Paying Agent; Trustee’s Disclaimer . If Special Interest accrues on any Note, then, no later than five (5) Business Days before each date on which such Special Interest is to be paid, the Company will deliver an Officer’s Certificate to the Trustee and the Paying Agent stating (i) that the Company is obligated to pay Special Interest on such Note on such date of payment; and (ii) the amount of such Special Interest that is payable on such date of payment. The Trustee will have no duty to determine whether any Special Interest is payable or the amount thereof.

(E)     No Effect on Other Events of Default . No election pursuant to this Section  7.03 with respect to a Reporting Event of Default will affect the rights of any Holder with respect to any other Event of Default, including with respect to any other Reporting Event of Default.

Section 7.04.    O THER R EMEDIES .

(A)     Trustee and Collateral Trustee May Pursue All Remedies . If an Event of Default occurs and is continuing, then the Trustee and the Collateral Trustee may pursue any available remedy to collect the payment of any amounts due with respect to the Notes or to enforce the performance of any provision of this Indenture, the Notes and the Collateral Agreements.

(B)     Procedural Matters . The Trustee or the Collateral Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in such proceeding. A delay or omission by the Trustee, the Collateral Trustee or any Holder in exercising any right or remedy following an Event of Default will not impair the right or remedy or constitute a waiver of, or acquiescence in, such Event of Default. All remedies will be cumulative to the extent permitted by law.

 

- 103 -


Section 7.05.    W AIVER OF P AST D EFAULTS .

An Event of Default pursuant to clause (i) , (ii) , (iv) or (vi)  of Section 7.01(A) (that, in the case of clause (vi)  only, results from a Default under any covenant that cannot be amended without the consent of each affected Holder), and a Default that could lead to such an Event of Default, can be waived only with the consent of each affected Holder. Each other Default or Event of Default may be waived, on behalf of all Holders, by the Holders of a majority in aggregate principal amount of the Notes then outstanding. If an Event of Default is so waived, then it will cease to exist. If a Default is so waived, then it will be deemed to be cured and any Event of Default arising therefrom will be deemed not to occur. However, no such waiver will extend to any subsequent or other Default or Event of Default or impair any right arising therefrom.

Section 7.06.    C ONTROL BY M AJORITY .

Subject to the terms of the Collateral Agreements, Holders of a majority in aggregate principal amount of the Notes then outstanding may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or the Collateral Trustee or exercising any trust or power conferred on it. However, the Trustee or the Collateral Trustee may refuse to follow any direction that conflicts with law, this Indenture, the Notes or the Intercreditor Agreement, or that, subject to Section  12.01 , the Trustee or the Collateral Trustee, as applicable, determines may be unduly prejudicial to the rights of other Holders (it being understood that neither the Trustee nor the Collateral Trustee has an affirmative duty to ascertain whether or not such direction is unduly prejudicial to such Holders) or may involve the Trustee or the Collateral Trustee, as applicable, in liability. Prior to taking any action hereunder, the Trustee or the Collateral Trustee, as applicable, will be entitled to security and indemnity satisfactory to the Trustee or the Collateral Trustee, as applicable, against any loss, liability or expense to the Trustee or the Collateral Trustee, as applicable, that may result from the following such direction.

Section 7.07.    L IMITATION ON S UITS .

No Holder may pursue any remedy with respect to this Indenture or the Notes (except to enforce (x) its rights to receive the principal of, or the Redemption Price, Fundamental Change Repurchase Price or Asset Sale Repurchase Price for, or interest on, any Notes; or (y) the Company’s obligations to convert any Notes pursuant to Article 5 ), unless:

(A)    such Holder has previously delivered to the Trustee or the Collateral Trustee, as applicable, notice that an Event of Default is continuing;

(B)    Holders of at least twenty five percent (25%) in aggregate principal amount of the Notes then outstanding deliver a request to the Trustee or the Collateral Trustee, as applicable, to pursue such remedy;

(C)    such Holder or Holders offer and, if requested, provide to the Trustee or the Collateral Trustee, as applicable, security and indemnity satisfactory to the Trustee or the Collateral Trustee, as applicable, against any loss, liability or expense to the Trustee or the Collateral Trustee, as applicable, that may result from the following such request;

 

- 104 -


(D)    the Trustee or the Collateral Trustee, as applicable, does not comply with such request within sixty (60) calendar days after its receipt of such request and such offer of security or indemnity; and

(E)    during such sixty (60) calendar day period, Holders of a majority in aggregate principal amount of the Notes then outstanding do not deliver to the Trustee or the Collateral Trustee, as applicable, a direction that is inconsistent with such request.

A Holder of a Note may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder. Neither the Trustee nor the Collateral Trustee will have any duty to determine whether any Holder’s use of this Indenture complies with the preceding sentence.

Section 7.08.    A BSOLUTE R IGHT OF H OLDERS TO I NSTITUTE S UIT FOR THE E NFORCEMENT OF THE R IGHT TO R ECEIVE P AYMENT AND C ONVERSION C ONSIDERATION .

Notwithstanding anything to the contrary in this Indenture or the Notes, but subject to the parenthetical in Section 8.02(A)(ii) , the right of each Holder of a Note to bring suit for the enforcement of any payment or delivery, as applicable, of the principal of, or the Redemption Price, Fundamental Change Repurchase Price or Asset Sale Repurchase Price for, or any interest on, or the Conversion Consideration due pursuant to Article 5 upon conversion of, such Note on or after the respective due dates therefor provided in this Indenture and the Notes, will not be impaired or affected without the consent of such Holder. Nothing in this Section  7.08 will affect the operation of Section  3.20 .

Section 7.09.    C OLLECTION S UIT BY T RUSTEE AND C OLLATERAL T RUSTEE .

Subject to the terms of the Intercreditor Agreement, each of the Trustee and the Collateral Trustee will have the right, upon the occurrence and continuance of an Event of Default pursuant to clause (i) , (ii) or (iv)  of Section 7.01(A) , to recover judgment in its own name and, in the case of the Trustee, as trustee of an express trust, in each case against the Company and the Guarantors for the total unpaid or undelivered principal of, or Redemption Price, Fundamental Change Repurchase Price or Asset Sale Repurchase Price for, or interest on, or Conversion Consideration due pursuant to Article 5 upon conversion of, the Notes, as applicable, and, to the extent lawful, any Default Interest on any Defaulted Amounts, and such further amounts sufficient to cover the costs and expenses of collection, including compensation provided for in Section  12.06 .

Section 7.10.    T RUSTEE AND C OLLATERAL T RUSTEE M AY F ILE P ROOFS OF C LAIM .

Each of the Trustee and the Collateral Trustee has the right to (A) file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee, the Collateral Trustee and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes) or its creditors or Property and (B) collect, receive and, subject to the terms of the Intercreditor Agreement, distribute any money or

 

- 105 -


other Property payable or deliverable on any such claims. Each Holder authorizes any custodian in such proceeding to make such payments to the Trustee or the Collateral Trustee, and, if the Trustee or the Collateral Trustee, as applicable, consents to the making of such payments directly to the Holders, to pay to the Trustee or the Collateral Trustee, as applicable any amount due to the Trustee or the Collateral Trustee, as applicable, for the reasonable compensation, expenses, disbursements and advances of the Trustee or the Collateral Trustee, as applicable, and its agents and counsel, and any other amounts payable to the Trustee or the Collateral Trustee, as applicable pursuant to Section  12.06 . To the extent that the payment of any such compensation, expenses, disbursements, advances and other amounts out of the estate in such proceeding, is denied for any reason, payment of the same will be secured by a lien on, and will be paid out of, any and all distributions, dividends, money, securities and other Properties that the Holders may be entitled to receive in such proceeding (whether in liquidation or under any plan of reorganization or arrangement or otherwise). Nothing in this Indenture will be deemed to authorize the Trustee or the Collateral Trustee to authorize, consent to, accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee or the Collateral Trustee to vote in respect of the claim of any Holder in any such proceeding.

Section 7.11.    P RIORITIES .

Subject to the Intercreditor Agreement, the Trustee or the Collateral Trustee, as applicable, will pay or deliver in the following order any money or other Property that it collects pursuant to this Article 7 :

First :    to the Trustee and the Collateral Trustee, and their respective agents and attorneys, for amounts due under Section  12.06 or 10.12 or any Collateral Agreements, including payment of all fees, compensation, expenses and liabilities incurred, and all advances made, by the Trustee or the Collateral Trustee and the costs and expenses of collection;

Second :    to Holders for unpaid amounts or other Property due on the Notes, including the principal of, or the Redemption Price, Fundamental Change Repurchase Price or Asset Sale Repurchase Price for, or any interest on, or any Conversion Consideration due upon conversion of, the Notes, ratably, and without preference or priority of any kind, according to such amounts or other Property due and payable on all of the Notes; and

Third :    to the Company or such other Person as a court of competent jurisdiction directs.

The Trustee may fix a record date and payment date for any payment or delivery to the Holders pursuant to this Section  7.11 , in which case the Trustee will instruct the Company to, and the Company will, deliver, at least fifteen (15) calendar days before such record date, to each Holder and the Trustee a notice stating such record date, such payment date and the amount of such payment or nature of such delivery, as applicable.

 

- 106 -


Section 7.12.    U NDERTAKING FOR C OSTS .

In any suit for the enforcement of any right or remedy under this Indenture or the Notes or in any suit against the Trustee or the Collateral Trustee for any action taken or omitted by it as Trustee or Collateral Trustee, as applicable, a court, in its discretion, may (A) require the filing by any litigant party in such suit of an undertaking to pay the costs of such suit, and (B) assess reasonable costs (including reasonable attorneys’ fees) against any litigant party in such suit, having due regard to the merits and good faith of the claims or defenses made by such litigant party; provided , however , that this Section  7.12 does not apply to any suit by the Trustee or the Collateral Trustee, any suit by a Holder pursuant to Section  7.08 or any suit by one or more Holders of more than ten percent (10%) in aggregate principal amount of the Notes then outstanding.

Article 8.    AMENDMENTS, SUPPLEMENTS AND WAIVERS

Section 8.01.    W ITHOUT THE C ONSENT OF H OLDERS .

Notwithstanding anything to the contrary in Section  8.02 , the Company, the Guarantors, the Trustee and the Collateral Trustee may amend or supplement this Indenture, the Notes or the Collateral Agreements without the consent of any Holder to:

(A)    cure any ambiguity or correct any omission, defect or inconsistency in this Indenture, the Notes or the Collateral Agreements;

(B)    add guarantees with respect to the Company’s obligations under this Indenture or the Notes;

(C)    secure the Notes or any Guarantees;

(D)    add to the Company’s or any Guarantor’s covenants or Events of Default for the benefit of the Holders or surrender any right or power conferred on the Company or any Guarantor;

(E)    provide for the assumption of the Company’s or any Guarantor’s obligations under this Indenture and the Notes pursuant to, and in compliance with, Article 6 or Section  9.04 , as applicable;

(F)    enter into supplemental indentures pursuant to, and in accordance with, Section  5.08 in connection with a Common Stock Change Event;

(G)    irrevocably elect or eliminate any Settlement Method or Specified Dollar Amount; provided , however , that (x) any such irrevocable election will in all cases be subject to the last paragraph of Section 5.03(A) ; and (y) in no event may the Company irrevocably eliminate Physical Settlement;

(H)    evidence or provide for the acceptance of the appointment, under this Indenture, of a successor Trustee or Collateral Trustee;

 

- 107 -


(I)    provide for the addition or release of Collateral or the amendment of any Collateral Agreement permitted under the terms of this Indenture or the Collateral Agreements;

(J)    amend the Collateral Agreements without the consent of any Holder in circumstances permitted by the Intercreditor Agreement;

(K)    comply with any requirement of the SEC in connection with any qualification of this Indenture or any supplemental indenture under the Trust Indenture Act, as then in effect;

(L)    to provide for the payment of High Yield Interest on any Note in the form of Paid-In-Kind Principal by (i) increasing the outstanding aggregate principal amount of such Note (in the case of a Global Note); or (ii) issuing one or more additional Physical Notes (in the case of any other Note), in each case in accordance with this Indenture;

(M)    in the event that High Yield Interest is paid as Paid-In-Kind Principal in accordance with this Indenture, to make appropriate amendments to this Indenture to reflect an appropriate minimum denomination of Physical Notes and establish minimum redemption amounts for Physical Notes; or

(N)    make any other change to this Indenture, the Notes or the Collateral Agreements that does not, individually or in the aggregate with all other such changes, adversely affect the rights of the Holders, as such, in any material respect.

Section 8.02.    W ITH THE C ONSENT OF H OLDERS .

(A)     Generally . Subject to Sections 8.01 , 7.05 and 7.08 and the immediately following sentence, the Company, the Guarantors, the Trustee and the Collateral Trustee may, with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding, amend or supplement this Indenture, the Notes and the Collateral Agreements or waive compliance with any provision of this Indenture, the Notes or the Collateral Agreements. Notwithstanding anything to the contrary in the foregoing sentence, without the consent of each affected Holder, no amendment or supplement to this Indenture, the Notes or any Collateral Agreement, or waiver of any provision of this Indenture, the Notes or any Collateral Agreement, may:

(i)    reduce the principal, or extend the stated maturity, of any Note;

(ii)    reduce the Redemption Price or Fundamental Change Repurchase Price for any Note or change the times at which, or the circumstances under which, the Notes may or will be redeemed or repurchased by the Company pursuant to a Redemption or in connection with a Fundamental Change (it being understood that an amendment or supplement that reduces the Asset Sale Repurchase Price or changes the times at which, or the circumstances under which, the Notes may or will be repurchased by the Company pursuant to Section  3.14 and Section  4.03 may be effected in accordance with the first sentence of this Section 8.02(A) );

(iii)    reduce the rate, or extend the time for the payment, of interest on any Note;

 

- 108 -


(iv)    make any change that adversely affects the conversion rights of any Note;

(v)    impair the rights of any Holder set forth in Section  7.08 (as such section is in effect on the Issue Date);

(vi)    change the ranking of the Notes or the Guarantees;

(vii)    modify or amend the terms and conditions of the obligations of the Guarantors, as guarantors of the Notes, in any manner that is adverse to the rights of the Holders, as such, except as expressly provided in this Indenture;

(viii)    make any note payable in money, or at a place of payment, other than that stated in this Indenture or the Note;

(ix)    reduce the amount of Notes whose Holders must consent to any amendment, supplement, waiver or other modification; or

(x)    make any direct or indirect change to any amendment, supplement, waiver or modification provision of this Indenture, the Notes or the Collateral Agreements that requires the consent of each affected Holder.

In addition, any amendment or supplement to, or waiver of any provision of, this Indenture, the Notes or any Collateral Agreement that has the effect of releasing the Liens on all or substantially all of the Collateral securing the Notes, other than in accordance with this Indenture and the Collateral Agreements, will require the consent of the Holders of not less than two thirds ( 2 / 3 ) of the principal amount of the Notes then outstanding.

Notwithstanding anything to the contrary in the two (2) immediately preceding paragraphs, any amendment or supplement to, or waiver of any provision of, this Indenture, the Notes or any Collateral Agreement that is permitted by this Section  8.02 with the consent of the Holders of a majority or two thirds ( 2 / 3 ), as applicable, in aggregate principal amount of the Notes then outstanding may instead be effected at any time before the Disposition Date with the written consent of Ares.

For the avoidance of doubt, pursuant to clauses (i) , (ii) , (iii) and (iv)  of this Section 8.02(A) , no amendment or supplement to this Indenture, the Notes or the Collateral Agreements, or waiver of any provision of this Indenture, the Notes or the Collateral Agreements, may change the amount or type of consideration due on any Note on an Interest Payment Date, Redemption Date, Fundamental Change Repurchase Date or the Maturity Date or upon conversion, or the date(s) or time(s) such consideration is payable or deliverable, as applicable, without the consent of each affected Holder, subject to the parenthetical in Section 8.02(A)(ii) .

(B)     Holders Need Not Approve the Particular Form of any Amendment . A consent of any Holder pursuant to this Section  8.02 need approve only the substance, and not necessarily the particular form, of the proposed amendment, supplement or waiver.

 

- 109 -


Section 8.03.    N OTICE OF A MENDMENTS , S UPPLEMENTS AND W AIVERS .

Promptly after any amendment, supplement or waiver pursuant to Section  8.01 or 8.02 becomes effective, the Company will send to the Holders, the Trustee and the Collateral Trustee notice that (A) describes the substance of such amendment, supplement or waiver in reasonable detail and (B) states the effective date thereof. The failure to send, or the existence of any defect in, such notice will not impair or affect the validity of such amendment, supplement or waiver.

Section 8.04.    R EVOCATION , E FFECT AND S OLICITATION OF C ONSENTS ; S PECIAL R ECORD D ATES ; E TC .

(A)     Revocation and Effect of Consents . The consent of a Holder of a Note to an amendment, supplement or waiver will bind (and constitute the consent of) each subsequent Holder of any Note to the extent the same evidences any portion of the same indebtedness as the consenting Holder’s Note, subject to the right of any Holder of a Note to revoke (if not prohibited pursuant to Section 8.04(B) ) any such consent with respect to such Note by delivering notice of revocation to the Trustee before the time such amendment, supplement or waiver becomes effective.

(B)     Special Record Dates . The Company may, but is not required to, fix a record date for the purpose of determining the Holders entitled to consent or take any other action in connection with any amendment, supplement or waiver pursuant to this Article 8 . If a record date is fixed, then, notwithstanding anything to the contrary in Section 8.04(A) , only Persons who are Holders as of such record date (or their duly designated proxies) will be entitled to give such consent, to revoke any consent previously given or to take any such action, regardless of whether such Persons continue to be Holders after such record date; provided , however , that no such consent will be valid or effective for more than one hundred and twenty (120) calendar days after such record date.

(C)     Solicitation of Consents . For the avoidance of doubt, each reference in this Indenture or the Notes to the consent of a Holder will be deemed to include any such consent obtained in connection with a repurchase of, or tender or exchange offer for, any Notes, regardless of whether all holders of Notes are entitled to participate in such offer or transaction.

(D)     Effectiveness and Binding Effect . Each amendment, supplement or waiver pursuant to this Article 8 will become effective in accordance with its terms and, when it becomes effective with respect to any Note (or any portion thereof), will thereafter bind every Holder of such Note (or such portion).

Section 8.05.    N OTATIONS AND E XCHANGES .

If any amendment, supplement or waiver changes the terms of a Note, then the Trustee or the Company may, in its discretion, require the Holder of such Note to deliver such Note to the Trustee so that the Trustee may place an appropriate notation prepared by the Company on such Note and return such Note to such Holder. Alternatively, at its discretion, the Company may, in exchange for such Note, issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section  2.02 , a new Note that reflects the changed terms. The failure to make any appropriate notation or issue a new Note pursuant to this Section  8.05 will not impair or affect the validity of such amendment, supplement or waiver.

 

- 110 -


Section 8.06.    T RUSTEE AND C OLLATERAL T RUSTEE TO E XECUTE S UPPLEMENTAL I NDENTURES .

Each of the Trustee and the Collateral Trustee will execute and deliver any amendment or supplemental indenture authorized pursuant to this Article 8 and, if applicable, the Intercreditor Agreement; provided , however , that neither the Trustee nor the Collateral Trustee need (but may, in its sole and absolute discretion) execute or deliver any such amendment or supplemental indenture that adversely affects the rights, duties, liabilities or immunities of the Trustee or the Collateral Trustee, as applicable. In executing any amendment or supplemental indenture, each of the Trustee and the Collateral Trustee will be entitled to receive, and (subject to Sections 12.01 and 12.02 ) will be fully protected in relying on, an Officer’s Certificate and an Opinion of Counsel stating that (A) the execution and delivery of such amendment or supplemental indenture is authorized or permitted by this Indenture and the Intercreditor Agreement; and (B) in the case of the Opinion of Counsel, such amendment or supplemental indenture is valid, binding and enforceable against the Company in accordance with its terms.

Article 9.    GUARANTEES

Section 9.01.    G UARANTEES .

(A)     Generally . By execution of this Indenture or any amendment or supplement to this Indenture pursuant to Section 8.01(B) , each Guarantor (x) acknowledges and agrees that it receives substantial benefits from the Company and that such Guarantor is providing its Guarantee for good and valuable consideration, including such substantial benefits; and (y) subject to this Article 9 , jointly and severally, fully and unconditionally guarantees, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee, the Collateral Trustee and their respective successors and assigns, regardless of the validity or enforceability of this Indenture or any of the Collateral Agreements, the Notes or the obligations of the Company under this Indenture, the Notes or any of the Collateral Agreements, that:

(i)    the principal of, any interest or Applicable Premium on, and any Conversion Consideration for, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, on a Fundamental Change Repurchase Date or Asset Sale Repurchase Date, upon Redemption or otherwise, and interest on the overdue principal of, any interest or Applicable Premium on, or any Conversion Consideration for, the Notes, if lawful, and all other obligations of the Company to the Holders, the Trustee or the Collateral Trustee under this Indenture or the Notes, will be promptly paid or delivered in full or performed, as applicable, in each case in accordance with this Indenture and the Notes; and

(ii)    in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration, on a Fundamental Change Repurchase Date or Asset Sale Repurchase Date, upon Redemption or otherwise,

 

- 111 -


(collectively, the “ Guaranteed Obligations ”), in each case subject to Section  9.02 .

Upon the failure of any payment when due of any amount so guaranteed, and upon the failure of any performance so guaranteed, for whatever reason, the Guarantors will be jointly and severally obligated to pay or perform, as applicable, the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

(B)     Guarantee Is Unconditional; Waiver of Diligence, Presentment, Etc . Each Guarantor agrees that its Guarantee of the Guaranteed Obligations is unconditional, regardless of the validity or enforceability of this Indenture, the Notes or the obligations of the Company under this Indenture or the Notes, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions of this Indenture or the Notes, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever, and covenants that this Guarantee will not be discharged except by complete performance of the obligations contained in this Indenture and the Notes.

(C)     Reinstatement of Guarantee Upon Return of Payments . If any Holder, the Trustee or the Collateral Trustee is required by any court or otherwise to return, to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to the Company or the Guarantors, any consideration paid or delivered by the Company or the Guarantors to such Holder, the Trustee or the Collateral Trustee, then each Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.

(D)     Subrogation . Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed by it under a Guarantee until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders, the Trustee and the Collateral Trustee, on the other hand, (i) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 7 , notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations; and (ii) if any Guaranteed Obligations are accelerated pursuant to Article 7 , then such Guaranteed Obligations will, whether or not due and payable, immediately become due and payable by the Guarantors. Each Guarantor will have the right to seek contribution from any non-paying Guarantor, but only if the exercise of such right does not impair the rights of the Holders under any Guarantee.

Section 9.02.    L IMITATION ON G UARANTOR L IABILITY .

Each Guarantor, and, by its acceptance of any Note, each Holder, confirms that each Guarantor and the Holders intend that the Guarantee of each Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the

 

- 112 -


extent applicable to any Guarantee. Each of the Trustee, the Collateral Trustee, the Holders and each Guarantor irrevocably agrees that the obligations of each Guarantor under its Guarantee will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee, result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent transfer or conveyance.

Section 9.03.    E XECUTION AND D ELIVERY OF G UARANTEE .

The execution by each Guarantor of this Indenture or an amendment or supplement to this Indenture pursuant to Section 8.01(B) evidences the Guarantee of such Guarantor, and the delivery of any Note by the Trustee after its authentication constitutes due delivery of each Guarantee on behalf of each Guarantor. A Guarantee’s validity will not be affected by the failure of any officer of a Guarantor executing any such amendment or supplement to this Indenture on such Guarantor’s behalf to hold, at the time any Note is authenticated, the same or any other office at such Guarantor, and each Guarantee will be valid and enforceable even if no notation, certificate or other instrument is set upon or attached to, or otherwise executed and delivered to the Holder of, any Note.

Section 9.04.    W HEN THE G UARANTORS M AY M ERGE , E TC .

(A)     Generally . No Guarantor will consolidate with or merge with or into, or sell, lease or otherwise transfer, in one transaction or a series of transactions, all or substantially all of the assets of such Guarantor and its Subsidiaries, taken as a whole, to another Person (a “ Guarantor Business Combination Event ”), unless the Guarantee of such Guarantor will be released in connection with such transaction pursuant to Section  9.07 or:

(i)    the resulting, surviving or transferee Person is either (x) such Guarantor or (y) if not such Guarantor, a Person (the “ Successor Corporation ”) that expressly assumes (by executing and delivering to the Trustee and the Collateral Trustee, at or before the effective time of such Guarantor Business Combination Event, a supplemental indenture pursuant to Section 8.01(E) ) all of such Guarantor’s obligations under this Indenture and the Notes; and

(ii)    immediately after giving effect to such Guarantor Business Combination Event, no Default or Event of Default will have occurred and be continuing.

(B)     Delivery of Officer s Certificate and Opinion of Counsel to the Trustee and the Collateral Trustee . Before the effective time of any Guarantor Business Combination Event, the Company will deliver to the Trustee and the Collateral Trustee an Officer’s Certificate and Opinion of Counsel, each stating that (i) such Guarantor Business Combination Event (and, if applicable, the related supplemental indenture) comply with Section 9.04(A) ; and (ii) all conditions precedent to such Guarantor Business Combination Event provided in this Indenture have been satisfied.

 

- 113 -


(C)     Successor Corporation Substituted . At the effective time of any Guarantor Business Combination Event that complies with Section 9.04(A) and Section 9.04(B) , the Successor Guarantor Corporation (if not the applicable Guarantor) will succeed to, and may exercise every right and power of, such Guarantor under this Indenture and the Notes with the same effect as if such Successor Guarantor Corporation had been named as a Guarantor in this Indenture and the Notes, and, except in the case of a lease, the predecessor Guarantor will be discharged from its obligations under this Indenture and the Notes.

Section 9.05.    F UTURE G UARANTORS .

If the Company or any of its Restricted Subsidiaries acquires or creates another Material Domestic Subsidiary after the Issue Date, or if any Restricted Subsidiary that is not already a Guarantor guarantees any other Indebtedness of the Company after such date, then, in either case, such Subsidiary will become a Guarantor by executing a supplemental indenture to this Indenture (substantially in the form set forth in Exhibit D ) pursuant to Section 8.01(B) (and, to the extent such Subsidiary holds assets required to be Collateral, one or more Collateral Agreements or supplements or amendments thereto needed to grant to the Collateral Trustee the Liens required to be granted pursuant to this Indenture) and deliver such supplemental indenture (and, if applicable, Collateral Agreement(s) or supplement(s) or amendment(s)) to the Trustee and the Collateral Trustee within twenty (20) Business Days of the date on which such Subsidiary was acquired or created or guaranteed Indebtedness of the Company, as applicable; provided , however , that the foregoing will not apply to Subsidiaries of the Company that have properly been designated as Unrestricted Subsidiaries in accordance with this Indenture for so long as they continue to constitute Unrestricted Subsidiaries. The Company or the Guarantor, as applicable, will provide one or more Opinions of Counsel and Officer’s Certificates with respect to the foregoing.

Section 9.06.    A PPLICATION OF C ERTAIN P ROVISIONS TO THE G UARANTORS .

(A)     Officer’s Certificates and Opinions of Counsel . Upon any request or application by any Guarantor to the Trustee or the Collateral Trustee to take any action under this Indenture, the Trustee or the Collateral Trustee, as applicable, will be entitled to receive an Officer’s Certificate and an Opinion of Counsel pursuant to Section  13.02 with the same effect as if each reference to the Company in Section  13.02 or in the definitions of “Officer,” “Officer’s Certificate” or “Opinion of Counsel” were instead a reference to such Guarantor.

(B)     Company Order . A Company Order may be given by any Guarantor with the same effect as if each reference to the Company in the definitions of “Company Order” or “Officer” were instead a reference to such Guarantor.

Section 9.07.    R ELEASES OF G UARANTEES .

The Guarantee of a Guarantor, and the Lien on a Guarantor’s Collateral, will be released automatically:

(A)    in connection with such Guarantor’s consolidation with or merger with or into, or sale, lease or other transfer, in one transaction or a series of transactions, of all or substantially all of the assets of such Guarantor and its Subsidiaries, taken as a whole, to a Person that is not (either before or after giving effect to such transaction) a Subsidiary of the Company, if such transaction does not violate Section  3.14 ;

 

- 114 -


(B)    in connection with any sale or other disposition of all of the Capital Stock of such Guarantor to a Person that is not (either before or after giving effect to such transaction) a Subsidiary of the Company such that such Guarantor is no longer a Restricted Subsidiary of the Company, if such sale or other disposition does not violate Section  3.14 .

(C)    in connection with any sale or other disposition of all of the Capital Stock of that Guarantor to a Person that is not (either before or after giving effect to such transaction) a Subsidiary of the Company such that the Guarantor is no longer a Restricted Subsidiary of the Company, if the sale or other disposition does not violate Section  3.14 hereof;

(D)    at such time when the Company designates such Guarantor to be an Unrestricted Subsidiary in accordance with Section  3.18 ; or

(E)    upon defeasance or discharge pursuant to Article 11 .

The Trustee will execute such instruments as may be reasonably requested by the Company to evidence such release upon delivery to it of an Officer’s Certificate and Opinion of Counsel to the effect that such release is permitted by this Indenture.

Article 10.    COLLATERAL

Section 10.01.    G RANT OF S ECURITY I NTEREST .

(A)     Generally . To secure the due and punctual payment of the principal of, premium, if any, and interest on the Notes and amounts due hereunder and under the Guarantees when and as the same become due and payable, whether on an Interest Payment Date, at maturity, by acceleration, purchase, repurchase, redemption or otherwise, and interest on the overdue principal of, premium, if any, and interest (to the extent permitted by law), if any, on the Notes and the performance of all other Obligations of the Company and the Guarantors to the Holders, the Collateral Trustee or the Trustee under this Indenture, the Collateral Agreements, the Guarantees and the Notes, the Company will, on the Issue Date, cause the Collateral Agreements to be executed and delivered, granting to the Collateral Trustee Liens (which are subject to Permitted Liens and the Intercreditor Agreement) on all collateral (other than Excluded Collateral) that, as of the Issue Date secures or will secure the First Priority Claims. The Company and the Guarantors covenant and agree that the form, content and terms of the Collateral Agreements (other than the Intercreditor Agreement) will in all respects be substantially identical to the collateral agreements which constitute the First Priority Debt Documents other than with respect to the priority of the respective Liens and Excluded Collateral and except that such Collateral Agreements may omit representations and covenants not customarily included in security documents for second lien bond financings (as determined in good faith by the Company). On the Issue Date, the Company will deliver standard closing opinions to the Collateral Trustee and the Trustee in respect of the Collateral Agreements in substantially identical form as delivered under the First Priority Debt Documents.

 

- 115 -


(B)     Acceptance by the Holders; Further Acts . Each Holder, by its acceptance of a Note, consents and agrees to the terms of each Collateral Agreement to be executed by the Company or any Guarantor on or after the Issue Date, as the same may be amended from time to time in accordance with their respective terms, and authorizes and directs the Collateral Trustee to enter into this Indenture and the Collateral Agreements and to perform its obligations and exercise its rights thereunder in accordance therewith. The Company will, and will cause each of its Domestic Subsidiaries to, do or cause to be done, at its sole cost and expense, all such actions and things as may be required by the provisions of the Collateral Agreements, to assure and confirm to the Collateral Trustee the security interests in the Collateral contemplated by the Collateral Agreements, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Notes and Guarantees secured hereby, according to the intent and purpose herein and therein expressed and subject to the Intercreditor Agreement, including taking all commercially reasonable actions required or as may be reasonably requested by the Collateral Trustee to cause the Collateral Agreements to create and maintain, as security for the Obligations contained in this Indenture, the Notes, the Collateral Agreement and the Guarantees valid and enforceable, perfected (to the extent required therein) security interests in and on all the Collateral, in favor of the Collateral Trustee, superior to and prior to the rights of all third Persons other than as set forth in the Intercreditor Agreement, and subject to no other Liens (other than Permitted Liens), in each case, except as expressly provided in this Indenture or therein. If required for the purpose of meeting the legal requirements of any jurisdiction in which any of the Collateral may at the time be located, the Company, the Trustee and the Collateral Trustee will have the power to appoint, and will take all reasonable action to appoint, one or more Persons reasonably acceptable to the Company to act as co-Collateral Trustee with respect to any such Collateral, with such rights and powers limited to those deemed necessary for the Company, the Trustee or the Collateral Trustee to comply with any such legal requirements with respect to such Collateral, and which rights and powers will not be inconsistent with the provisions of this Indenture, the Notes or the Guarantees. The Company will from time to time promptly pay all reasonable financing and continuation statement and mortgage recording and/or filing fees, charges and taxes relating to this Indenture, the Collateral Agreements and any amendments hereto or thereto and any other instruments of further assurance required pursuant hereto or thereto.

Section 10.02.    I NTERCREDITOR A GREEMENT .

THIS INDENTURE AND THE COLLATERAL AGREEMENTS ARE SUBJECT TO THE TERMS, LIMITATIONS AND CONDITIONS SET FORTH IN THE INTERCREDITOR AGREEMENT. THE TRUSTEE, THE COMPANY AND EACH HOLDER OF A NOTE, BY ITS ACCEPTANCE THEREOF, IS DEEMED TO HAVE AUTHORIZED AND INSTRUCTED THE COLLATERAL TRUSTEE TO ENTER INTO THE INTERCREDITOR AGREEMENT.

The Trustee, the Collateral Trustee and each Holder of a Note, by its acceptance thereof, acknowledge that the Collateral Agreements may be amended, modified or waived without the consent of the Trustee, the Collateral Trustee or the Holders, as and to the extent provided in the Intercreditor Agreement. The Trustee and the Collateral Trustee further acknowledge that the Collateral Trustee is required, under certain circumstances provided in the Intercreditor Agreement, to enter into additional documents and agreements to confirm that the Intercreditor Agreement applies to restatements and refinancings of the Credit Agreement.

 

- 116 -


Section 10.03.    R ECORDING .

On or after the Issue Date, each of the Company and the Guarantors will file financing statements in its jurisdiction of organization and in any other relevant jurisdictions describing itself as debtor, the Collateral Trustee as secured party, and the collateral covered by such financing statements as “All assets of Debtor, all proceeds thereof, and all rights and privileges with respect thereto, other than Excluded Collateral” (or substantially similar words) and, if the Collateral Trustee so requests, containing more specific descriptions of some or all of the Collateral. The Company and the Guarantors, and each of them, authorize the Collateral Trustee to file the foregoing financing statements from time to time on their behalf in all relevant jurisdictions and to file amendments and continuation statements from time to time with respect thereto.

Section 10.04.    L IENS ON A DDITIONAL P ROPERTY ; M INIMUM M ORTGAGE R EQUIREMENT .

(A)     Properties Acquired After the Issue Date . With respect to any Oil and Gas Property acquired (including any interest of the Company or any Guarantor in Oil and Gas Properties acquired as the result of the formation of any pool or unit or acquired with the proceeds of any disposition, but excluding DrillCo Excluded Property) after the Issue Date by the Company or any Guarantor as to which the Collateral Trustee, for the benefit of the Holders, the Trustee and the Collateral Trustee, does not have an Acceptable Security Interest (other than any Real Property not constituting an Oil and Gas Property):

(i)    with respective to Oil and Gas Properties with any associated Proved Reserves, promptly, and in any event within thirty (30) days, (1) execute and deliver to the Collateral Trustee such Collateral Agreements or amendments to Collateral Agreements and take all actions, including the filing of any financing statements or Mortgages, as the Collateral Trustee deems reasonably necessary or advisable to grant to the Collateral Trustee, for the benefit of the Holders, the Trustee and the Collateral Trustee, an Acceptable Security Interest in such Property; and (2) upon request by Holders of at least a majority in aggregate principal amount of the outstanding Notes, deliver to the Collateral Trustee such title information as may be reasonably necessary to verify the title of the Company or such Guarantor to such Property; provided , however , that, unless a Property is acquired for a purchase price or other consideration in excess of two hundred and fifty thousand dollars ($250,000), the Company will not be required to take the actions specified in this Section 10.04(A) prior to the end of the fiscal quarter in which the acquisition occurs, or if earlier, the date at which the cumulative amount of purchase price or other consideration for all Property acquired in such quarter equals or exceeds two hundred and fifty thousand dollars ($250,000), at which time all Property theretofore acquired and not previously made subject to a Lien in favor of the Collateral Trustee will be made so subject; and

(ii)    with respect to Oil and Gas Properties without any associated Proved Reserves, execute and deliver to the Collateral Trustee such Collateral Agreements or amendments to Collateral Agreements and take all actions, including the filing of any financing statements or Mortgages, as the Collateral Trustee deems necessary or

 

- 117 -


advisable to grant to the Collateral Trustee, for the benefit of the Holders, the Trustee and the Collateral Trustee, an Acceptable Security Interest in such Property promptly, and in any event within thirty (30) days following the earlier of (1) the end of the calendar month in which the recorded lease with respect to such Oil and Gas Property is received by the Company or any Guarantor, as applicable; and (2) the date such Oil and Gas Property is acquired if the purchase price of such Oil and Gas Property, together with all other such property acquired for which no Mortgage has been filed, equals or exceeds five million dollars ($5,000,000) in the aggregate; provided , however , that the Company will not be required to take the actions specified in this Section 10.04(A)(ii) with respect to any Subject Lease until the earlier of (I) the ninetieth (90th) day after such Subject Lease is acquired by the Company or any Guarantor (or, in the case of Subject Leases held on the Issue Date that were not subject to a mortgage under the Existing Credit Agreement, the ninetieth (90th) day after the Issue Date), and (II) the thirtieth (30th) day after the earlier to occur of (x) the date that the third party having a right to acquire an interest in such Subject Lease has acquired and paid for such interest; (y) the date that such third party has declined the offer to acquire such interest; and (z) the date that such third party’s right to acquire such interest has expired.

(B)     The Minimum Mortgage Requirement . The Company will cause there to be at all times an Acceptable Security Interest securing the Notes and other Obligations with respect thereto on Oil and Gas Properties on not less than each of (i) ninety percent (90%) of the PV10 of the Company’s and the Restricted Subsidiaries’ Proved Reserves attributable to the Oil and Gas Property evaluated in the most recent Reserve Report provided pursuant to Section  10.05 (other than any DrillCo Excluded Property and the Proved Reserves attributable thereto); and (ii) ninety percent (90%) of the net acres of Oil and Gas Properties (other than Proved Reserves and any DrillCo Excluded Property) as of the most recently ended fiscal quarter (including the fiscal year end) for which financial statements are available (the “ Minimum Mortgage Requirement ”), in each case, subject to the grace periods for filing a Mortgage and perfecting a lien thereon provided in Section 10.04(A) above. Concurrently with the delivery of each Reserve Report, the Company will deliver to the Collateral Trustee an Officer’s Certificate certifying that, as of the date of such certificate the Minimum Mortgage Requirement has been satisfied.

In the event Minimum Mortgage Requirement has not been satisfied, then the Company will, or will cause the applicable Guarantor to, within thirty (30) days after delivery of the certificate required pursuant to Section 10.04(B) , execute and deliver to the Collateral Trustee: (i) such executed mortgages or amendments or supplements to prior mortgages naming the Collateral Trustee, as mortgagee or beneficiary, as may be necessary to cause the Minimum Mortgage Requirement to be satisfied; (ii) satisfactory evidence of the completion of all recordings and filings of such mortgages, amendments or supplements in the proper recorders’ offices or appropriate public records (and payment of any taxes or fees in connection therewith); and (iii) local counsel opinion or opinions (each, subject to customary assumptions and qualifications) to the effect that the Collateral Trustee has a valid and perfected first-priority Lien (subject to the Intercreditor Agreement and to Permitted Prior Liens) with respect to the real property that is subject to the applicable Mortgage; provided , however , that, (x) to the extent corresponding mortgages securing the First Priority Debt are being delivered and (y) mortgages

 

- 118 -


have previously been recorded in the public records of the state applicable to such additional mortgages or amendments or supplements to prior mortgages, no such opinion will be required unless a corresponding opinion will be delivered to the First Priority Debt Agent.

Section 10.05.    R ESERVE R EPORTS .

Within forty five (45) days following June 30th of each year and within ninety (90) days following December 31st of each year, the Company will furnish or make available to the Holders of Affiliate Notes a Reserve Report prepared as of the immediately preceding June 30th or December 31st, as applicable, which Reserve Report, in the case of each December 31 report, will be prepared or audited by an Approved Petroleum Engineer and, in the case of each other Reserve Report, will be prepared by one or more petroleum engineers employed by the Company or, at the Company’s election, by an Approved Petroleum Engineer.

Section 10.06.    R ELEASE OF C OLLATERAL .

(A)     Generally . Subject to the Intercreditor Agreement (which will permit the First Priority Debt Agent to release the Lien of the Collateral Trustee on the Collateral under certain circumstances), the Collateral Trustee will not at any time release Collateral from the security interests created by the Collateral Agreements unless such release is in accordance with the provisions of this Indenture and the applicable Collateral Agreements.

(B)     Effect of Permitted Release The release of any Collateral from the terms of the Collateral Agreements will not be deemed to impair the security under this Indenture in contravention of the provisions of this Indenture if and to the extent the Collateral is released pursuant to this Indenture and the Collateral Agreements.

(C)     Special Provisions for Release of Certain Collateral . Notwithstanding anything to the contrary in any Collateral Agreement, but subject to the terms and conditions of the Intercreditor Agreement, Collateral comprised of accounts receivable, inventory or (prior to the occurrence and during the continuance of an Event of Default) the proceeds of the foregoing will be subject to release upon sales of such inventory and collection of the proceeds of such accounts receivable in the ordinary course of business and, as and when requested by the Company, the Collateral Trustee is authorized to execute and deliver UCC financing statement amendments or releases that delete such released Collateral or any Excluded Collateral from any previously filed financing statements that included such released Collateral or any Excluded Collateral in the description of the assets covered thereby. If requested in writing by the Company, the Trustee will instruct the Collateral Trustee to execute and deliver such documents, instruments or statements and to take such other action as the Company may request to evidence or confirm that the Collateral falling under this Section  10.06 has been released from the Liens of each of the Collateral Agreements. The Collateral Trustee will execute and deliver such documents, instruments and statements and will take all such actions promptly upon receipt of such instructions from the Trustee.

(D)     When Release Is Permitted; Officer s Certificate . Subject to the foregoing, Collateral may be released from the Lien and security interest created by the Collateral Agreements at any time or from time to time in accordance with the provisions of the Collateral Agreements or as provided hereby.

 

- 119 -


(i)    Upon the request of the Company pursuant to an Officer’s Certificate certifying that all conditions precedent hereunder have been met and without the consent of any Holder, the Company and the Guarantors will be entitled to releases of assets included in the Collateral from the Liens securing the Indenture Documents under any one or more of the following circumstances:

(1)    to enable the Company to consummate asset dispositions permitted or not prohibited under Section  3.14 ;

(2)    if any Subsidiary that is a Guarantor is released from its Guarantee, that Subsidiary’s assets will also be released from the Liens securing the Notes;

(3)    as permitted by Article 8 or Section  11.04 ;

(4)    to the extent any such asset is no longer subject to a Lien securing First Priority Claims pursuant to a disposition permitted under the terms of the First Priority Debt Documents or is Excluded Collateral; and

(5)    if required in accordance with the terms of the Intercreditor Agreement.

(ii)    The Liens on all Collateral that secures the Indenture Documents also will be released:

(1)    upon satisfaction and discharge of this Indenture or payment in full of the principal of, and premium, if any, and accrued and unpaid interest on, the Notes and all other Obligations that are then due and payable;

(2)    as permitted by Article 8 ; or

(3)    as provided in Section  3.20 .

Upon receipt of such Officer’s Certificate and an Opinion of Counsel and any necessary or proper instruments of termination, satisfaction or release prepared by the Company, the Collateral Trustee will execute, deliver or acknowledge such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Collateral Agreements.

Section 10.07.    F ORM AND S UFFICIENCY OF R ELEASE .

In the event that the Company or any Guarantor has sold, exchanged, or otherwise disposed of or proposes to sell, exchange or otherwise dispose of any portion of the Collateral that may be sold, exchanged or otherwise disposed of by the Company or such Guarantor, and the Company or such Guarantor requests the Trustee or the Collateral Trustee to furnish a written disclaimer, release or quit-claim of any interest in such Property under this Indenture and the Collateral Agreements, the Collateral Trustee and the Trustee, as applicable, will execute,

 

- 120 -


acknowledge and deliver to the Company or such Guarantor (in proper form) such an instrument promptly after satisfaction of the conditions set forth herein for delivery of any such release. Notwithstanding anything to the contrary in the immediately preceding sentence, all purchasers and grantees of any Property or rights purporting to be released herefrom will be entitled to rely upon any release executed by the Collateral Trustee hereunder as sufficient for the purpose of this Indenture and as constituting a good and valid release of the Property therein described from the Lien of this Indenture or of the Collateral Agreements.

Section 10.08.     P URCHASER P ROTECTED .

No purchaser or grantee of any Property or rights purporting to be released herefrom will be bound to ascertain the authority of the Trustee or the Collateral Trustee to execute the release or to inquire as to the existence of any conditions herein prescribed for the exercise of such authority; nor will any purchaser or grantee of any Property or rights permitted by this Indenture to be sold or otherwise disposed of by the Company be under any obligation to ascertain or inquire into the authority of the Company to make such sale or other disposition.

Section 10.09.    A CTIONS TO B E T AKEN BY THE C OLLATERAL T RUSTEE .

Subject to the provisions of the applicable Collateral Agreements:

(A)    the Collateral Trustee will execute and deliver the Collateral Agreements and act in accordance with the terms thereof;

(B)    the Collateral Trustee may, in its sole discretion and without the consent of the Trustee or the Holders, take all actions it deems necessary or appropriate in order to:

(i)    enforce any of the terms of the Collateral Agreements, and

(ii)    collect and receive any and all amounts payable in respect of the Obligations of the Company and the Guarantors hereunder and under the Notes, the Guarantees, the Collateral Agreements; and

(iii)    the Collateral Trustee will have power to institute and to maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral by any act that may be unlawful or in violation of the Collateral Agreements or this Indenture, and suits and proceedings as the Collateral Trustee may deem expedient to preserve or protect its interests and the interests of the Trustee and the Holders in the Collateral (including the power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest thereunder or be prejudicial to the interests of the Holders, the Trustee or the Collateral Trustee).

Notwithstanding anything to the contrary in any of the Indenture Documents, no Holder will have any right individually to realize upon any of the Collateral. All powers, rights and remedies of the Collateral Trustee hereunder and under the Collateral Agreements may be exercised solely by the Collateral Trustee.

 

- 121 -


Notwithstanding anything to the contrary in this Section  10.09 , the Collateral Trustee may, at the expense of the Company, request the direction of the Holders with respect to any such actions and upon receipt of the written consent of the Holders of at least a majority in aggregate principal amount of the outstanding Notes, will take such actions; provided that all actions so taken will, at all times, be in conformity with the requirements of the Intercreditor Agreement.

Section 10.10.    R ECEIPT OF F UNDS BY THE C OLLATERAL T RUSTEE .

The Collateral Trustee is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Collateral Agreements to the extent permitted under the Intercreditor Agreement, for turnover to the Trustee to make further distributions of such funds to itself, the Collateral Trustee and the Holders in accordance with the provisions of Section  7.11 and the other provisions of this Indenture.

Section 10.11.    T RUSTEE AND C OLLATERAL T RUSTEE N OT F IDUCIARY FOR H OLDERS OF F IRST P RIORITY C LAIMS .

The Trustee and the Collateral Trustee will not be deemed to owe any fiduciary duty to the holders of First Priority Claims and will not be liable to any such holders if the Trustee or the Collateral Trustee in good faith mistakenly pays over or distributes to Holders of Notes or to the Company or to any other Person cash, Property or securities to which any holders of First Priority Claims will be entitled by virtue of this Article 10 or otherwise. With respect to the holders of First Priority Claims, the Trustee and the Collateral Trustee undertake to perform or to observe only such of its covenants or obligations as are specifically set forth in this Article 10 , and no implied covenants or obligations with respect to holders of First Priority Claims will be read into this Indenture against the Trustee or the Collateral Trustee.

Section 10.12.    C OLLATERAL T RUSTEE R IGHTS , P ROTECTIONS AND D UTIES AND R ELATED P ROVISIONS .

(A)    The Trustee and each Holder, by acceptance of the Notes, designates and appoints the Collateral Trustee as its agent under this Indenture and the Collateral Agreements and the Trustee, and each Holder, by acceptance of the Notes, irrevocably authorizes the Collateral Trustee to take such action on its behalf under the provisions of this Indenture and the Collateral Agreements and to exercise such powers and perform such duties as are expressly delegated to the Collateral Trustee by the terms of this Indenture and the Collateral Agreements and consents and agrees to the terms of each Collateral Agreement, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Trustee agrees to act as such on the express conditions contained in this Section  10.12 . The provisions of this Section  10.12 are solely for the benefit of the Collateral Trustee, and none of the Trustee, any Holder, the Company or any Guarantor will have any rights as a third party beneficiary of any of the provisions of this Section  10.12 . Each Holder agrees that any action taken by the Collateral Trustee in accordance with this Indenture

 

- 122 -


and the Collateral Agreements, and the exercise by the Collateral Trustee of any rights or remedies set forth in this Indenture or therein, will be authorized and binding on all Holders. Notwithstanding anything to the contrary in this Indenture or the Collateral Agreements, the duties of the Collateral Trustee will be ministerial and administrative in nature, and the Collateral Trustee will not have any duties or responsibilities, except those expressly set forth in this Indenture or the Collateral Agreements to which the Collateral Trustee is a party, nor will the Collateral Trustee have any trust or other fiduciary relationship with the Trustee, any Holder, the Company or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities will be read into this Indenture or any Collateral Agreement or will otherwise exist against the Collateral Trustee. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Trustee is not intended to connote any fiduciary or other express or implied obligations arising under agency doctrine of any applicable law. Instead, such term is used in such context merely as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties.

(B)    The Collateral Trustee will be fully justified in failing or refusing to take any action under this Indenture or any Collateral Agreement unless it first receives such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes then outstanding as it determines and, if it so requests, it will first be indemnified to its satisfaction by the Holders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The Collateral Trustee will in all cases be fully protected in acting, or in refraining from acting, under this Indenture or any Collateral Agreement, in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then-outstanding Notes. and such request and any action taken or failure to act pursuant thereto will be binding upon all of the Holders.

(C)    The Collateral Trustee will not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Collateral Trustee has received written notice from the Trustee or the Company, referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Trustee will take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 7 or the Holders of a majority in aggregate principal amount of the Notes then outstanding (subject to this Section  10.12 ).

(D)    Neither the Collateral Trustee nor any of its officers, directors, employees will be liable to the Company, any Guarantor, the Holders or the Trustee for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so, and neither of them will be under any obligation to sell or otherwise dispose of any Collateral at the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. Neither the Collateral Trustee nor any of its officers, directors, employees, attorneys, representatives or agents will be responsible for any act or failure to act under this Indenture, except to the extent such act is found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct.

 

- 123 -


(E)    The Collateral Trustee is authorized and directed to (i) enter into the Collateral Agreements to which it is party, whether executed on or after the Issue Date; (ii) bind the Holders on the terms as set forth in the Collateral Agreements; and (iii) perform and observe its obligations under the Collateral Agreements.

(F)    The Collateral Trustee will have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by the Company or any Guarantor or is cared for, protected or insured or has been encumbered, or that the Collateral Trustee’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Company’s or any Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Agreements has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities or powers granted or available to the Collateral Trustee pursuant to this Indenture or any Collateral Agreement, other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes then outstanding or as otherwise provided in the Collateral Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Trustee will have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.

(G)    No provision of this Indenture or any Collateral Agreement will require the Collateral Trustee or the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or of the Trustee, in the case of the Collateral Trustee) unless the Collateral Trustee has received indemnity satisfactory to the Collateral Trustee against potential costs and liabilities incurred by the Collateral Trustee relating thereto. Notwithstanding anything to the contrary in this Indenture or the Collateral Agreements, if the Collateral Trustee is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, then the Collateral Trustee will not be required to commence such action or exercise such remedy or inspect or conduct any studies of any property under the mortgages or take any other action if the Collateral Trustee determines that it may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property of any hazardous substances unless the Collateral Trustee has received security or indemnity from the Holders in an amount and in a form all satisfactory to the Collateral Trustee in its sole discretion, protecting the Collateral Trustee from all such liability. The Collateral Trustee will always be entitled to cease taking any action set forth above if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient.

(H)    The Collateral Trustee does not assume any responsibility for any failure or delay in performance or any breach by the Company or any Guarantor under this Indenture or any Collateral Agreement. The Collateral Trustee will not be responsible to any Holder or Person for (i) any recitals, statements, information, representations or warranties contained in this Indenture or any Collateral Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Trustee under or in connection with, this Indenture or any Collateral Agreement; (ii) the execution, validity, genuineness, effectiveness or

 

- 124 -


enforceability of any Collateral Agreement of any other party thereto; (iii) the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien therein; (iv) the validity, enforceability or collectability of any Obligations; (v) the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any obligor; or (vi) any failure of any obligor to perform its Obligations under this Indenture or any Collateral Agreement. The Collateral Trustee has no obligation to any Holder or any other Person to ascertain or inquire into the existence of any Default or Event of Default, the observance or performance by any obligor of any terms of this Indenture or any Collateral Agreement, or the satisfaction of any conditions precedent contained in this Indenture or any Collateral Agreement. The Collateral Trustee will not be required to initiate or conduct any litigation or collection or other proceeding under this Indenture or any Collateral Agreement unless expressly set forth under this Indenture or thereunder. The Collateral Trustee will have the right to seek instructions from the Holders with respect to the administration of this Indenture and the Collateral Agreements.

(I)    The parties to this Indenture and the Holders agree and acknowledge that the Collateral Trustee will not assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses or costs (including any remediation, corrective action, response, removal or remedial action, any or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture or any Collateral Agreement, or for any actions taken pursuant to this Indenture or thereto. The parties to this Indenture and the Holders agree and acknowledge that, in the exercise of rights under this Indenture or any Collateral Agreement, the Collateral Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Trustee in the Collateral, including the properties under the real property that constitute Collateral, and that any actions taken by the Collateral Trustee will not be construed as or otherwise constitute any participation in the management of such Collateral, including the real properties that constitute Collateral, as those terms are defined in Section 101(20)(E) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq ., as amended.

(J)    Upon receipt by the Collateral Trustee of a Company Order (a “ Collateral Agreement Order ”), the Collateral Trustee is authorized to execute and enter into, and will execute and enter into, without the further consent of any Holder or the Trustee, any Collateral Agreement to be executed after the Issue Date. Such Collateral Agreement Order will (i) state that it is being delivered to the Collateral Trustee pursuant to, and is a Collateral Agreement Order referred to in, this Section 10.12(J) ; and (ii) instruct the Collateral Trustee to execute and enter into such Collateral Agreement. Any such execution of a Collateral Agreement will be at the direction and expense of the Company, upon delivery to the Collateral Trustee of an Officer’s Certificate and Opinion of Counsel stating that all conditions precedent to the execution and delivery of the Collateral Agreement have been satisfied. The Holders, by their acceptance of the Notes, authorize and direct the Collateral Trustee to execute such Collateral Agreements.

 

- 125 -


(K)    Notwithstanding anything to the contrary in this Indenture or any Collateral Agreement, the Collateral Trustee will not be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by this Indenture or any Collateral Agreement (including the filing or continuation of any UCC financing or continuation statements or similar documents or instruments), and the Collateral Trustee will not be responsible for, and the Collateral Trustee makes no representation regarding, the validity, effectiveness or priority of any of the Collateral Agreements or the security interests or Liens intended to be created thereby.

(L)    Before the Collateral Trustee acts or refrains from acting at the request or direction of the Company or any Guarantor, or in connection with any Collateral Agreement, it may require an Officer’s Certificate and an Opinion of Counsel. The Collateral Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.

(M)    The Collateral Trustee, in its capacity as such, will be entitled to the same rights and protections afforded to the Trustee by Sections 12.02 , 12.03 , 12.04 and 12.06 , will be subject to replacement in the same manner as the Trustee pursuant to Section  12.07 , and will be subject to Section  12.08 , in each case as if references to the Trustee in such Sections were instead references to the Collateral Trustee, mutatis mutandis . Each reference in this Indenture to any Section, clause or other part of Article 12 with respect to the Collateral Trustee will be deemed to be a reference to such Section, clause or part as modified by this Section  10.12 .

Article 11.    SATISFACTION AND DISCHARGE;

DEFEASANCE OF RESTRICTIVE COVENANTS

Section 11.01.    T ERMINATION OF C OMPANY S O BLIGATIONS .

This Indenture will be discharged, and will cease to be of further effect as to all Notes issued under this Indenture, and all Liens created pursuant to the Collateral Agreements will be released, when:

(A)    all Notes then outstanding (other than Notes replaced pursuant to Section  2.13 ) have (A) been delivered to the Trustee for cancellation; or (B) become due and payable or, if a Required Stockholder Approval Failure has occurred, will become due and payable within one (1) year (whether on a Redemption Date, a Fundamental Change Repurchase Date, an Asset Sale Repurchase Date, the Maturity Date, upon conversion or otherwise) for an amount of cash or Conversion Consideration, as applicable, that has been fixed;

(B)    the Company has caused there to be irrevocably deposited with the Trustee, or with the Paying Agent (or, with respect to Conversion Consideration, the Conversion Agent), or has otherwise caused there to be delivered to the Holders, cash (or, with respect to Notes to be converted, Conversion Consideration) sufficient to satisfy all amounts or other Property due on all Notes then outstanding (other than Notes replaced pursuant to Section  2.13 );

(C)    the Company has paid all other amounts payable by it under this Indenture; and

(D)    the Company has delivered to the Trustee and the Collateral Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that the conditions precedent to the discharge of this Indenture have been satisfied;

 

- 126 -


provided , however , that Article 12 and Sections 13.01 and 10.12 will survive such discharge and, until no Notes remain outstanding, Section  2.15 and the obligations of the Trustee, the Collateral Trustee, the Paying Agent and the Conversion Agent with respect to money or other Property deposited with them will survive such discharge.

At the Company’s request, each of the Trustee and the Collateral Trustee will acknowledge the satisfaction and discharge of this Indenture.

Section 11.02.    R EPAYMENT TO C OMPANY .

Subject to applicable unclaimed Property law, the Trustee, the Collateral Trustee, the Paying Agent and the Conversion Agent will promptly notify the Company if there exists (and, at the Company’s request, promptly deliver to the Company) any cash, Conversion Consideration or other Property held by any of them for payment or delivery on the Notes that remain unclaimed two (2) years after the date on which such payment or delivery was due. After such delivery to the Company, the Trustee, the Collateral Trustee, the Paying Agent and the Conversion Agent will have no further liability to any Holder with respect to such cash, Conversion Consideration or other Property, and Holders entitled to the payment or delivery of such cash, Conversion Consideration or other Property must look to the Company for payment as a general creditor of the Company.

Section 11.03.    R EINSTATEMENT .

If the Trustee, the Collateral Trustee, the Paying Agent or the Conversion Agent is unable to apply any cash or other Property deposited with it pursuant to Section  11.01 because of any legal proceeding or any order or judgment of any court or other governmental authority that enjoins, restrains or otherwise prohibits such application, then the discharge of this Indenture pursuant to Section  11.01 will be rescinded; provided , however , that if the Company thereafter pays or delivers any cash or other Property due on the Notes to the Holders thereof, then the Company will be subrogated to the rights of such Holders to receive such cash or other Property from the cash or other Property, if any, held by the Trustee, the Collateral Trustee, the Paying Agent or the Conversion Agent, as applicable.

Section 11.04.    D EFEASANCE OF R ESTRICTIVE C OVENANTS .

If a Requisite Stockholder Approval Failure has not occurred and, at any time after the High Yield Security Trigger Date:

(A)    the Company has caused there to be irrevocably deposited, with the Trustee or the Paying Agent for the benefit of the Holders, cash in an aggregate amount equal to the sum of (i) the remaining scheduled interest payments on each Note outstanding as of the time of such deposit (assuming, for these purposes, that Additional Interest, Special Interest and High Yield Interest would accrue on such Note at their respective maximum rates per annum provided in Sections 3.05 , 7.03 and 3.04 , respectively, and that High Yield Interest is added to the principal amount of the Notes to the maximum extent permitted in Section  3.04 ); and (ii) one hundred and one percent (101%) of the principal amount of each Note outstanding as of the time of such deposit;

 

- 127 -


(B)    with respect to each Note, if any, for which a Conversion Date has occurred, but the Conversion Consideration due in respect of such Note has not been fully paid or delivered, as of the time of the deposit referred to in clause (A)  above, the Company has caused there to be irrevocably deposited, with the Trustee or the Conversion Agent for the benefit of the Holders, the maximum kind and amount of Conversion Consideration due in respect of such Note (together, if applicable, with cash in the amount of any interest due on such Note pursuant to clause (i) of Section 5.02(D) );

(C)    the Company irrevocably instructs the Trustee, the Paying Agent or the Conversion Agent, as applicable, to pay or deliver cash or other Property due on the Notes from the cash or other Property deposited pursuant clauses (A)  and (B) above as the same becomes due;

(D)    as of the time of the deposits referred into clauses (A)  and (B) above, (i) no Default in the payment or delivery of any amount or Property (including Conversion Consideration) on any Note has occurred and is continuing; and (ii) there are no Notes that have been called for Redemption, but that have not been redeemed, as of the time of such deposits;

(E)    pursuant to Section 8.01(G) , the Company has irrevocably elected Physical Settlement, or Combination Settlement with a Specified Dollar Amount not exceeding $1,000 per $1,000 principal amount of Notes, to apply to all subsequent conversions of Notes;

(F)    the Company has delivered to the Trustee an Opinion of Counsel confirming that the Holders of the Notes will not recognize any income, gain or loss for federal income tax purposes as a result of the Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times, as would have been the case if the Covenant Defeasance had not occurred;

(G)    the Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture, but solely in connection with the incurrence of any Indebtedness to finance the Covenant Defeasance) to which the Company or any of the Guarantors is a party or by which the Company or any of the Guarantors is bound;

(H)    the Company has delivered to the Trustee an Officer’s Certificate stating that the deposits referred into clauses (A)  and (B) above were not made by the Company with the intent of preferring the Holders over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others; and

(I)    the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Covenant Defeasance have been complied with,

 

- 128 -


then, notwithstanding anything to the contrary in the Indenture or the Notes:

(i)    each of Sections 3.11 , 3.12 , 3.13 , 3.14 , 3.15 , 3.16 , 3.17 , 3.18 and 3.19 , and the obligations of the Company or the Guarantors under Article 10 , will thereafter cease to be of any force or effect, and, for the avoidance of doubt, any omission to comply with any of such Sections (whether directly or indirectly, by reason of any reference elsewhere in this Indenture to any of such Sections or by reason of any reference in any such Section to any other provision of this Indenture or in any other document) will not in itself constitute a Default or Event of Default;

(ii)    all Liens created pursuant to the Collateral Agreements will be released and all Collateral Agreements will be terminated; and

(iii)    each Guarantor will be discharged from its obligations under this Indenture and the Notes.

For the avoidance of doubt, the remainder of this Indenture and the Notes will be unaffected by and Covenant Defeasance and will continue to be in full force and effect.

Each of the Trustee, the Paying Agent and the Conversion Agent will return to the Company any cash or other Property deposited with it pursuant to clause (A)  or (B) above that remains on deposit after (x) all Notes have been paid in full and none remain outstanding; and (y) the Company has paid all other amounts payable by it under this Indenture.

Article 12.    TRUSTEE

Section 12.01.    D UTIES OF THE T RUSTEE .

(A)    If an Event of Default has occurred and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

(B)    Except during the continuance of an Event of Default:

(i)    the duties of the Trustee will be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations will be read into this Indenture against the Trustee; and

(ii)    in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel that are provided to the Trustee and conform to the requirements of this Indenture. However, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but will not be required to verify any mathematical calculations or factual statements contained therein).

 

- 129 -


(C)    The Trustee may not be relieved from liabilities for its negligence, bad faith or willful misconduct, except that:

(i)    this paragraph will not limit the effect of Section 12.01(B) ;

(ii)    the Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and

(iii)    the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section  7.06 .

(D)    Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A) , (B) and (C)  of this Section  12.01 , regardless of whether such provision so expressly provides.

(E)    No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.

(F)    The Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.

Section 12.02.    R IGHTS OF THE T RUSTEE .

(A)    The Trustee may conclusively rely on any document that is believes to be genuine and signed or presented by the proper Person, and the Trustee need not investigate any fact or matter stated in such document.

(B)    Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate, an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel; and the advice of such counsel, or any Opinion of Counsel, will constitute full and complete authorization of the Trustee to take or omit to take any action in good faith in reliance thereon without liability.

(C)    The Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any such agent appointed with due care.

(D)    The Trustee will not be liable for any action it takes or omits to take in good faith and that it believes to be authorized or within the rights or powers vested in it by this Indenture.

(E)    Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company will be sufficient if signed by an Officer of the Company.

(F)    The Trustee need not exercise any rights or powers vested in it by this Indenture at the request or direction of any Holder unless such Holder has offered the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense that it may incur in complying with such request or direction.

 

- 130 -


(G)    The Trustee will not be deemed to have knowledge of any Default or Event of Default unless (i) a Responsible Officer has actual knowledge of such Default or Event of Default; or (ii) written notice of any event that is in fact such a Default or Event of Default is received by the Trustee in accordance with Section  13.01 , and such notice references the Notes and this Indenture.

(H)    The permissive rights of the Trustee to act under this Indenture are not a duties.

(I)    Neither the Trustee nor any Note Agent will be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including loss of profit), regardless of whether the Trustee or any Note Agent has been advised of the likelihood of such loss or damage or the form of action.

(J)    The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and titles of officers authorized at such times to take specified actions pursuant to this Indenture.

(K)    The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and will be enforceable by, the Trustee in each of its capacities under this Indenture, and each agent, custodian and other Person employed to act under this Indenture.

(L)    The Trustee will not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.

Section 12.03.    I NDIVIDUAL R IGHTS OF THE T RUSTEE .

The Trustee, in its individual or any other capacity, may become the owner or pledgee of any Note and may otherwise deal with the Company, any Guarantor or any Affiliate of the Company with the same rights that it would have if it were not Trustee; provided , however , that if the Trustee acquires a “conflicting interest” (within the meaning of Section 310(b) of the Trust Indenture Act), then it must eliminate such conflict within ninety (90) days, apply to the SEC for permission to continue as Trustee (if this Indenture has been qualified under the Trust Indenture Act) or resign as Trustee. Each Note Agent will have that same rights and duties as the trustee under this Section  12.03 .

Section 12.04.    T RUSTEE S D ISCLAIMER .

The Trustee will not be (A) responsible for, and makes no representation as to, the validity or adequacy of this Indenture or the Notes; (B) accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture; (C) responsible for the use or application of any money received by any Paying Agent other than the Trustee; and (D) responsible for any statement or recital in this Indenture, the Notes or any other document relating to the sale of the Notes or this Indenture, other than the Trustee’s certificate of authentication.

 

- 131 -


Section 12.05.    N OTICE OF D EFAULTS .

If a Default or Event of Default occurs and is continuing and is known to the Trustee, then the Trustee will send Holders a notice of such Default or Event of Default within ninety (90) days after it occurs or, if it is not known to the Trustee at such time, promptly (and in any event within twenty (20) Business Days) after it becomes known to the Trustee (as provided in Section 12.02(G) ); provided , however , that, except in the case of a Default or Event of Default in the payment of the principal of, or interest on, any Note, the Trustee may withhold such notice if and for so long as it in good faith determines that withholding such notice is in the interests of the Holders.

Section 12.06.    C OMPENSATION AND I NDEMNITY .

(A)    The Company will, from time to time, pay the Trustee reasonable compensation for its acceptance of this Indenture and services under this Indenture as the parties agree in writing. The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust. In addition to the compensation for the Trustee’s services, the Company will reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it under this Indenture, including the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.

(B)    The Company and the Guarantors will, jointly and severally, indemnify, defend, protect and hold the Trustee harmless from and against any and all losses, liabilities, damages, costs or expenses suffered or incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Company and the Guarantors (including this Section  12.06 ) and defending itself against any claim (whether asserted by the Company, any Guarantor, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties under this Indenture, except to the extent any such loss, liability or expense may be attributable to its gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. The Trustee will promptly notify the Company and the Guarantors of any claim for which it may seek indemnity, but the Trustee’s failure to so notify the Company or the Guarantors will not relieve the Company or the Guarantors of their obligations under this Section 12.06(B) . The Company and the Guarantors will defend such claim, and the Trustee will cooperate in such defense. If the Trustee is advised by counsel that it may have defenses available to it that are in conflict with the defenses available to the Company, or that there is an actual or potential conflict of interest, then the Trustee may retain separate counsel, and the Company and the Guarantors will pay the reasonable fees and expenses of such counsel (including the reasonable fees and expenses of counsel to the Trustee incurred in evaluating whether such a conflict exists). The Company and the Guarantors need not pay for any settlement of any such claim made without their consent, which consent will not be unreasonably withheld.

(C)    The obligations of the Company and the Guarantors under this Section  12.06 will survive the resignation or removal of the Trustee and the discharge of this Indenture.

(D)    To secure the Company’s and the Guarantors’ payment obligations in this Section  12.06 ,

 

- 132 -


the Trustee will have a lien prior to the Notes on all money or Property held or collected by the Trustee, except that held in trust to pay principal of, or interest on, particular Notes, which lien will survive the discharge of this Indenture.

(E)    If the Trustee incurs expenses or renders services after an Event of Default pursuant to clause (xii)  or (xiii) of Section 7.01(A) occurs, then such expenses and the compensation for such services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

Section 12.07.    R EPLACEMENT OF THE T RUSTEE .

(A)    Notwithstanding anything to the contrary in this Section  12.07 , a resignation or removal of the Trustee, and the appointment of a successor Trustee, will become effective only upon such successor Trustee’s acceptance of appointment as provided in this Section  12.07 .

(B)    The Trustee may resign at any time and be discharged from the trust created by this Indenture by so notifying the Company. The Holders of a majority in aggregate principal amount of the Notes then outstanding may remove the Trustee by so notifying the Trustee and the Company in writing at least thirty (30) days in advance of such removal. The Company may remove the Trustee if:

(i)    the Trustee fails to comply with Section  12.09 ;

(ii)    the Trustee is adjudged to be bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

(iii)    a custodian or public officer takes charge of the Trustee or its Property; or

(iv)    the Trustee becomes incapable of acting.

(C)    If the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, then (i) the Company will promptly appoint a successor Trustee; and (ii) at any time within one (1) year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the Notes then outstanding may appoint a successor Trustee to replace such successor Trustee appointed by the Company.

(D)    If a successor Trustee does not take office within thirty (30) days after the retiring Trustee resigns or is removed, then the retiring Trustee, the Company or the Holders of at least ten percent (10%) in aggregate principal amount of the Notes then outstanding may petition any court of competent jurisdiction for the appointment of a successor Trustee.

(E)    If the Trustee, after written request by a Holder of at least six (6) months, fails to comply with Section  12.09 , then such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

(F)    A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company, upon which notice the resignation or removal of the retiring Trustee will become effective and the successor Trustee will have all the rights, powers and

 

- 133 -


duties of the Trustee under this Indenture. The successor Trustee will send notice of its succession to Holders. The retiring Trustee will, upon payment of all amounts due to it under this Indenture, promptly transfer all Property held by it as Trustee to the successor Trustee, which Property will, for the avoidance of doubt, be subject to the lien provided for in Section 12.06(D) . Notwithstanding any replacement of the Trustee pursuant to this Section  12.07 , the Company’s and the Guarantors’ obligations under Section  12.06 will continue for the benefit of the retiring Trustee.

Section 12.08.    S UCCESSOR T RUSTEE BY M ERGER , E TC .

If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, then such corporation will become the successor Trustee without any further act.

Section 12.09.    E LIGIBILITY ; D ISQUALIFICATION .

There will at all times be a Trustee under this Indenture that is a corporation organized and doing business under the laws of the United States of America or of any state thereof, that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50.0 million as set forth in its most recent published annual report of condition.

Article 13.    MISCELLANEOUS

Section 13.01.    N OTICES .

Any notice or communication by the Company, any Guarantor, the Trustee or the Collateral Trustee to the other will be deemed to have been duly given if in writing and delivered in person or by first class mail (registered or certified, return receipt requested), facsimile transmission, electronic transmission or other similar means of unsecured electronic communication or overnight air courier guaranteeing next day delivery, or to the other’s address, which initially is as follows:

If to the Company or any Guarantor:

Gastar Exploration Inc.

1331 Lamar Street

Suite 650

Houston, TX 77010

Attention: Chief Financial Officer

with a copy (which will not constitute notice) to:

Vinson & Elkins LLP

1001 Fannin Street

Suite 2500

Houston, TX 77002

Attention: James M. Prince

 

- 134 -


If to the Trustee or the Collateral Trustee:

Wilmington Trust, National Association

Global Capital Markets

15950 N. Dallas Parkway, Suite 550

Dallas, TX 75248

Facsimile: 888-316-6238

Attention: Gastar Exploration Inc. Account Manager

The Company, any Guarantor, the Trustee and the Collateral Trustee, by notice to the others, may designate additional or different addresses (including facsimile numbers and electronic addresses) for subsequent notices or communications.

All notices and communications (other than those sent to Holders) will be deemed to have been duly given: (A) at the time delivered by hand, if personally delivered; (B) five (5) Business Days after being deposited in the mail, postage prepaid, if mailed; (C) when receipt acknowledged, if transmitted by facsimile, electronic transmission or other similar means of unsecured electronic communication; and (D) the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery, provided that any notice or communication delivered to the Trustee or the Collateral Trustee will be deemed effective upon actual receipt thereof.

All notices or communications required to be made to a Holder pursuant to this Indenture must be made in writing and will be deemed to be duly sent or given in writing if mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery, to its address shown on the Register; provided , however , that a notice or communication to a Holder of a Global Note may, but need not, instead be sent pursuant to the Depositary Procedures (in which case, such notice will be deemed to be duly sent or given in writing). The failure to send a notice or communication to a Holder, or any defect in such notice or communication, will not affect its sufficiency with respect to any other Holder.

If a notice or communication is mailed or sent in the manner provided above within the time prescribed, it will be deemed to have been duly given, whether or not the addressee receives it.

Notwithstanding anything to the contrary in this Indenture or the Notes, whenever any provision of this Indenture requires a party to send notice to another party, no such notice need be sent if the sending party and the recipient are the same Person acting in different capacities.

 

- 135 -


Section 13.02.    D ELIVERY OF O FFICER S C ERTIFICATE AND O PINION OF C OUNSEL AS TO C ONDITIONS P RECEDENT .

Upon any request or application by the Company to the Trustee or the Collateral Trustee to take or refrain from taking any action under this Indenture, the Company will furnish to the Trustee or the Collateral Trustee, as applicable

(A)    an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee or the Collateral Trustee, as applicable, that complies with Section  13.03 and states that, in the opinion of the signatory thereto, all conditions precedent and covenants, if any, provided for in this Indenture relating to such action have been satisfied; and

(B)    an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee or the Collateral Trustee, as applicable, that complies with Section  13.03 and states that, in the opinion of such counsel, all such conditions precedent and covenants, if any, have been satisfied.

Section 13.03.    S TATEMENTS R EQUIRED IN O FFICER S C ERTIFICATE AND O PINION OF C OUNSEL .

Each Officer’s Certificate (other than an Officer’s Certificate pursuant to Section  3.06 ) or Opinion of Counsel with respect to compliance with a covenant or condition provided for in this Indenture will include:

(A)    a statement that the signatory thereto has read such covenant or condition;

(B)    a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained therein are based;

(C)    a statement that, in the opinion of such signatory, he, she or it has made such examination or investigation as is necessary to enable him, her or it to express an informed opinion as to whether or not such covenant or condition has been satisfied; and

(D)    a statement as to whether, in the opinion of such signatory, such covenant or condition has been satisfied.

Section 13.04.    R ULES BY THE T RUSTEE , THE R EGISTRAR AND THE P AYING A GENT .

The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

Section 13.05.    N O P ERSONAL L IABILITY OF D IRECTORS , O FFICERS , E MPLOYEES AND S TOCKHOLDERS .

No past, present or future director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or any Guarantor under this Indenture, the Notes or the Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting any Note, each Holder waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes.

 

- 136 -


Section 13.06.    G OVERNING L AW ; W AIVER OF J URY T RIAL .

THIS INDENTURE, THE GUARANTEES AND THE NOTES, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE, THE GUARANTEES OR THE NOTES, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY, EACH GUARANTOR, THE TRUSTEE AND THE COLLATERAL TRUSTEE IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED BY THIS INDENTURE, THE NOTES OR THE GUARANTEES.

Section 13.07.    S UBMISSION TO J URISDICTION .

Any legal suit, action or proceeding arising out of or based upon this Indenture or the transactions contemplated by this Indenture may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the State of New York, in each case located in the City of New York (collectively, the “ Specified Courts ”), and each party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth in Section  13.01 will be effective service of process for any such suit, action or proceeding brought in any such court. Each of the Company, each Guarantor, the Trustee, the Collateral Trustee and each Holder (by its acceptance of any Note) irrevocably and unconditionally waives any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waives and agrees not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum.

Section 13.08.    N O A DVERSE I NTERPRETATION OF O THER A GREEMENTS .

Neither this Indenture nor the Notes may be used to interpret any other indenture, note, loan or debt agreement of the Company or its Subsidiaries or of any other Person, and no such indenture, note, loan or debt agreement may be used to interpret this Indenture or the Notes.

Section 13.09.    S UCCESSORS .

All agreements of the Company and the Guarantors in this Indenture and the Notes will bind their respective successors. All agreements of the Trustee or the Collateral Trustee in this Indenture will bind its successors.

 

- 137 -


Section 13.10.    F ORCE M AJEURE .

The Trustee, the Collateral Trustee and each Note Agent will not be responsible for and will not incur any liability for any failure or delay in performing any act or fulfilling any duty, obligation or responsibility under this Indenture or the Notes by reason of any occurrence beyond its control (including any act or provision of any present or future law or regulation or governmental authority, strikes, work stoppages, accidents, act of God or war, civil unrest, local or national disturbance or disaster, act of terrorism, unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility or interruptions or loss or malfunctions of utilities, communications or computer (software and hardware) services).

Section 13.11.    U.S.A. P ATRIOT A CT .

The Company acknowledges that, in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee and the Collateral Trustee, like all financial institutions, in order to help fight the funding of terrorism and money laundering, are required to obtain, verify and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee or the Collateral Trustee. The Company agrees to provide the Trustee and the Collateral Trustee with such information as it may request to enable the Trustee and the Collateral Trustee to comply with the U.S.A. Patriot Act.

Section 13.12.    C ALCULATIONS .

Except as otherwise provided in this Indenture, the Company will be responsible for making all calculations called for under this Indenture or the Notes, including determinations of the Last Reported Sale Price, the Daily Cash Amount, the Daily Share Amount, accrued interest on the Notes and the Conversion Rate.

The Company will make all calculations in good faith, and, absent manifest error, its calculations will be final and binding on all Holders. The Company will provide a schedule of its calculations to the Trustee, the Collateral Trustee and the Conversion Agent, and each of the Trustee, the Collateral Trustee and the Conversion Agent may rely conclusively on the accuracy of the Company’s calculations without independent verification. Each of the Trustee and the Collateral Trustee will promptly forward a copy of each such schedule to a Holder upon its written request therefor. None of the Trustee, the Collateral Trustee or the Conversion Agent will (A) have any liability or responsibility or obligation in connection with any calculation or information relating to any calculation; or (B) responsibility or obligation to determine when or whether any Notes may be converted at any time.

Section 13.13.    S EVERABILITY .

If any provision of this Indenture or the Notes is invalid, illegal or unenforceable, then the validity, legality and enforceability of the remaining provisions of this Indenture or the Notes will not in any way be affected or impaired thereby.

Section 13.14.    C OUNTERPARTS .

The parties may sign any number of copies of this Indenture. Each signed copy will be an original, and all of them together represent the same agreement. Delivery of an executed counterpart of this Indenture by facsimile, electronically in portable document format or in any other format will be effective as delivery of a manually executed counterpart.

 

- 138 -


Section 13.15.    T ABLE OF C ONTENTS , H EADINGS , E TC .

The table of contents and the headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions of this Indenture.

Section 13.16.    W ITHHOLDING T AXES .

Each Holder of a Note agrees, and each beneficial owner of an interest in a Global Note, by its acquisition of such interest, is deemed to agree, that if the Company or other applicable withholding agent pays withholding taxes or backup withholding on behalf of such Holder or beneficial owner as a result of an adjustment to the Conversion Rate, then the Company or such withholding agent, as applicable, may, at its option, set off such payments against payments of cash or the delivery of other Conversion Consideration on such Note, any payments on the Common Stock or sales proceeds received by, or other funds or assets of, such Holder or the beneficial owner of such Note.

[ The Remainder of This Page Intentionally Left Blank; Signature Page Follows ]

 

- 139 -


IN WITNESS WHEREOF , the parties to this Indenture have caused this Indenture to be duly executed as of the date first written above.

 

G ASTAR E XPLORATION I NC .
By:  

/s/ Michael A. Gerlich

Name:   Michael A. Gerlich
Title:   Senior Vice President, Chief Financial Officer and Corporate Secretary
N ORTHWEST P ROPERTY V ENTURES LLC
By:  

/s/ Michael A. Gerlich

Name:   Michael A. Gerlich
Title:   Senior Vice President, Chief Financial Officer and Corporate Secretary

 

Signature Page to Indenture


IN WITNESS WHEREOF , the parties to this Indenture have caused this Indenture to be duly executed as of the date first written above.

 

W ILMINGTON T RUST , N ATIONAL A SSOCIATION , as Trustee and Collateral Trustee
By:  

/s/ Timothy P. Mowdy

Name:   Timothy P. Mowdy
Title:   Administrative Vice President

 

Signature Page to Indenture


EXHIBIT A

FORM OF NOTE

[ Insert Global Note Legend, if applicable ]

[ Insert Restricted Note Legend, if applicable ]

[ Insert Non-Affiliate Legend, if applicable ]

GASTAR EXPLORATION INC.

Convertible Notes due 2022

 

CUSIP No.:    [          ][ Insert for a “restricted” CUISP number : * ]       Certificate No.    [                      ]
ISIN No.:    [          ][ Insert for a “restricted” ISIN number : *]         

Gastar Exploration Inc., a Delaware corporation, for value received, promises to pay to [Cede & Co.], or its registered assigns, the principal sum of [          ] dollars ($[          ]) [(as revised by the attached Schedule of Exchanges of Interests in the Global Note)] , on March 1, 2022 and to pay interest thereon, as provided in such Indenture, until the principal and all accrued and unpaid interest are paid or duly provided for.

 

Interest Payment Dates:    March 1, June 1, September 1 and December 1 of each year, commencing on [ date ].
Regular Record Dates:    February 15, May 15, August 15 and November 15.

Additional provisions of this Note are set forth on the other side of this Note.

[ The Remainder of This Page Intentionally Left Blank; Signature Page Follows ]

 

 

* This Note will be deemed to be identified by CUSIP No. [          ] and ISIN No. [          ] from and after such time when the Company delivers, pursuant to Section 2.12 of the within-mentioned Indenture, written notice to the Trustee of the deemed removal of the Restricted Note Legend affixed to this Note.
  Insert bracketed language for Global Notes only.

 

A-1


IN WITNESS WHEREOF , Gastar Exploration Inc. has caused this instrument to be duly executed as of the date set forth below.

 

    G ASTAR E XPLORATION I NC .
Date:                                                                                   By:  

 

    Name:  
    Title:  

 

A-2


TRUSTEE’S CERTIFICATE OF AUTHENTICATION

Wilmington Trust, National Association, as Trustee, certifies that this is one of the Notes referred to in the within-mentioned Indenture.

 

Date:                                                                                   By:  

 

    Authorized Signatory

 

A-3


GASTAR EXPLORATION INC.

Convertible Notes due 2022

This Note is one of a duly authorized issue of notes of Gastar Exploration Inc., a Delaware corporation (the “ Company ”), designated as its Convertible Notes due 2022 (the “ Notes ”), all issued or to be issued pursuant to an indenture, dated as of March 3, 2017 (as the same may be amended from time to time, the “ Indenture ”), among the Company, the Guarantors and Wilmington Trust, National Association, as trustee and collateral trustee. Capitalized terms used in this Note without definition have the respective meanings ascribed to them in the Indenture.

The Indenture sets forth the rights and obligations of the Company, the Guarantors, the Trustee, the Collateral Trustee and the Holders and the terms of the Notes. Notwithstanding anything to the contrary in this Note, to the extent that any provision of this Note conflicts with the provisions of the Indenture, the provisions of the Indenture will control.

1.     Interest . This Note will accrue interest at a rate and in the manner set forth in Section 2.05 of the Indenture. Stated Interest on this Note will begin to accrue from, and including, [ date ].

2.     Maturity . This Note will mature on March 1, 2022, unless earlier repurchased, redeemed or converted.

3.     Guarantees . The Company’s obligations under the Indenture and the Notes are fully and unconditionally guaranteed by the Guarantors as provided in Article 9 of the Indenture.

4.     Method of Payment . Cash amounts due on this Note will be paid in the manner set forth in Section 2.04 of the Indenture.

5.     Persons Deemed Owners . The Holder of this Note will be treated as the owner of this Note for all purposes.

6.     Denominations; Transfers and Exchanges . All Notes will be in registered form, without coupons, in principal amounts equal to any Authorized Denominations. Subject to the terms of the Indenture, the Holder of this Note may transfer or exchange this Note by presenting it to the Registrar and delivering any required documentation or other materials.

7.     Right of Holders to Require the Company to Repurchase . Each Holder will have the right to require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized Denomination) for cash in the manner, and subject to the terms, set forth in Section 4.02 and Section 4.03 of the Indenture.

8.     Right of the Company to Redeem the Notes . The Company will have the right to redeem the Notes for cash in the manner, and subject to the terms, set forth in Section 4.04 of the Indenture.

 

A-4


9.     Conversion . The Holder of this Note may convert this Note into Conversion Consideration in the manner, and subject to the terms, set forth in Article 5 of the Indenture.

10.     When the Company May Merge, Etc . Article 6 of the Indenture places limited restrictions on the Company’s ability to be a party to a Business Combination Event.

11.     Security . The Notes will be secured in the manner, and subject to the terms, set forth in the Indenture, the Collateral Agreements and the Intercreditor Agreement.

12.     Defaults and Remedies . If an Event of Default occurs, then the principal amount of, and all accrued and unpaid interest (and, if, and only if, a Requisite Stockholder Approval Failure has occurred, the Applicable Premium) on, all of the Notes then outstanding may (and, in certain circumstances, will automatically) become due and payable in the manner, and subject to the terms, set forth in Article 7 of the Indenture.

13.     Amendments, Supplements and Waivers . The Company, the Guarantors, the Trustee and the Collateral Trustee may amend or supplement the Indenture or the Notes or waive compliance with any provision of the Indenture or the Notes in the manner, and subject to the terms, set forth in Article 8 of the Indenture.

14.     No Personal Liability of Directors, Officers, Employees and Stockholders . No past, present or future director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or any Guarantor under the Indenture, the Notes or the Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting any Note, each Holder waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes.

15.     Authentication . No Note will be valid until it is authenticated by the Trustee. A Note will be deemed to be duly authenticated only when an authorized signatory of the Trustee (or a duly appointed authenticating agent) manually signs the certificate of authentication of such Note.

16.     Abbreviations . Customary abbreviations may be used in the name of a Holder or its assignee, such as TEN COM (tenants in common), TEN ENT (tenants by the entireties), JT TEN (joint tenants with right of survivorship and not as tenants in common), CUST (custodian), and U/G/M/A (Uniform Gift to Minors Act).

17.     Governing Law . THIS NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS NOTE, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

* * *

 

A-5


To request a copy of the Indenture, which the Company will provide to any Holder at no charge, please send a written request to the following address:

Gastar Exploration Inc.

1331 Lamar Street

Suite 650

Houston, TX 77010

Attention: Chief Financial Officer

 

A-6


CONVERSION NOTICE

GASTAR EXPLORATION INC.

Convertible Notes due 2022

Subject to the terms of the Indenture, by executing and delivering this Conversion Notice, the undersigned Holder of the Note identified below directs the Company to convert (check one):

☐  the entire principal amount of

☐  $          * aggregate principal amount of

the Note identified by CUSIP No.          and Certificate No.                      .

The undersigned acknowledges that if the Conversion Date of a Note to be converted is after a Regular Record Date and before the next Interest Payment Date, then such Note, when surrendered for conversion, must, in certain circumstances, be accompanied with an amount of cash equal to the interest that would have accrued on such Note to, but excluding, such Interest Payment Date.

 

Date:                                                                                  

 

      (Legal Name of Holder)
    By:  

 

    Name:  
    Title:  
    Signature Guaranteed:
   

 

      Participant in a Recognized Signature
      Guarantee Medallion Program
    By:  

 

      Authorized Signatory

 

 

* Must be an Authorized Denomination.

 

A-7


FUNDAMENTAL CHANGE REPURCHASE NOTICE

GASTAR EXPLORATION INC.

Convertible Notes due 2022

Subject to the terms of the Indenture, by executing and delivering this Fundamental Change Repurchase Notice, the undersigned Holder of the Note identified below is exercising its Fundamental Change Repurchase Right with respect to (check one):

☐  the entire principal amount of

☐  $          * aggregate principal amount of

the Note identified by CUSIP No.          and Certificate No.                      .

The undersigned acknowledges that this Note, duly endorsed for transfer, must be delivered to the Paying Agent before the Fundamental Change Repurchase Price will be paid.

 

Date:                                                                                  

 

      (Legal Name of Holder)
    By:  

 

    Name:  
    Title:  
    Signature Guaranteed:
   

 

      Participant in a Recognized Signature
      Guarantee Medallion Program
    By:  

 

      Authorized Signatory

 

 

* Must be an Authorized Denomination.

 

A-8


ASSIGNMENT FORM

GASTAR EXPLORATION INC.

Convertible Notes due 2022

Subject to the terms of the Indenture, the undersigned Holder of the within Note assigns to:

 

Name:   

 

  
Address:   

 

  
  

 

  
  

 

  
Social security or tax identification number:   

 

  

the within Note and all rights thereunder irrevocably appoints:

 

                                                                                                    

as agent to transfer the within Note on the books of the Company. The agent may substitute another to act for him/her.

 

Date:                                                                                  

 

      (Legal Name of Holder)
    By:  

 

    Name:  
    Title:  
    Signature Guaranteed:
   

 

      Participant in a Recognized Signature
      Guarantee Medallion Program
    By:  

 

      Authorized Signatory

 

A-9


TRANSFEROR ACKNOWLEDGEMENT

If the within Note bears a Restricted Note Legend, the undersigned further certifies that (check one):

 

1.        Such Transfer is being made to the Company or a Subsidiary of the Company.
2.        Such Transfer is being made pursuant to, and in accordance with, a registration statement that is effective under the Securities Act at the time of the Transfer.
3.        Such Transfer is being made pursuant to, and in accordance with, Rule 144A under the Securities Act, and, accordingly, the undersigned further certifies that the within Note is being transferred to a Person that the undersigned reasonably believes is purchasing the within Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act in a transaction meeting the requirements of Rule 144A. If this item is checked, then the transferee must complete and execute the acknowledgment contained on the next page .
4.        Such Transfer is being made pursuant to, and in accordance with, any other available exemption from the registration requirements of the Securities Act (including, if available, the exemption provided by Rule 144 under the Securities Act).

 

Dated:  

 

(Legal Name of Holder)
By:  

 

Name:  
Title:  
Signature Guaranteed:

 

(Participant in a Recognized Signature
Guarantee Medallion Program)
By:  

 

  Authorized Signatory        

 

A-10


TRANSFEREE ACKNOWLEDGEMENT

The undersigned represents that it is purchasing the within Note for its own account, or for one or more accounts with respect to which the undersigned exercises sole investment discretion, and that and the undersigned and each such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act. The undersigned acknowledges that the transferor is relying, in transferring the within Note on the exemption from the registration and prospectus-delivery requirements of the Securities Act of 1933, as amended, provided by Rule 144A and that the undersigned has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A.

 

Dated:  

 

(Name of Transferee)
By:  

 

Name:  
Title:  

 

A-11


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *

INITIAL PRINCIPAL AMOUNT OF THIS GLOBAL NOTE: $[        ]

The following exchanges, transfers or cancellations of, and additions of Paid-In-Kind Principal to, this Global Note have been made:

 

Date

  

Amount of Increase

(Decrease) in

Principal Amount of

this Global Note

  

Principal Amount of

this Global Note

After Such Increase

(Decrease)

  

Signature of

Authorized

Signatory of Trustee

        

 

  

 

  

 

  

 

        

 

  

 

  

 

  

 

        

 

  

 

  

 

  

 

        

 

  

 

  

 

  

 

        

 

  

 

  

 

  

 

        

 

  

 

  

 

  

 

        

 

  

 

  

 

  

 

        

 

  

 

  

 

  

 

        

 

  

 

  

 

  

 

        

 

  

 

  

 

  

 

        

 

  

 

  

 

  

 

        

 

  

 

  

 

  

 

        

 

  

 

  

 

  

 

        

 

  

 

  

 

  

 

        

 

  

 

  

 

  

 

 

* Insert for Global Notes only.

 

A-12


EXHIBIT B-1

FORM OF RESTRICTED NOTE LEGEND

THE OFFER AND SALE OF THIS NOTE AND THE SHARES OF COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

 

(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT; AND

 

(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT ONLY:

 

  (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF;

 

  (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT;

 

  (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT;

 

  (D) PURSUANT TO RULE 144 UNDER THE SECURITIES ACT; OR

 

  (E) PURSUANT TO ANY OTHER EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

BEFORE THE REGISTRATION OF ANY SALE OR TRANSFER IN ACCORDANCE WITH (2)(C), (D) OR (E) ABOVE, THE COMPANY, THE TRUSTEE AND THE REGISTRAR RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATES OR OTHER DOCUMENTATION OR EVIDENCE (INCLUDING OPINIONS OF COUNSEL) AS THEY MAY REASONABLY REQUIRE IN ORDER TO DETERMINE THAT THE PROPOSED SALE OR TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.*

 

 

* This paragraph and the immediately preceding paragraph will be deemed to be removed from the face of this Note at such time when the Company delivers written notice to the Trustee of such deemed removal pursuant to Section 2.12 of the within-mentioned Indenture.

 

B1-1


EXHIBIT B-2

FORM OF GLOBAL NOTE LEGEND

THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS THE OWNER AND HOLDER OF THIS NOTE FOR ALL PURPOSES.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL NOTE WILL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE WILL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE 2 OF THE INDENTURE HEREINAFTER REFERRED TO.

 

B2-1


EXHIBIT B-3

FORM OF NON-AFFILIATE LEGEND

NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED) OF THE COMPANY MAY PURCHASE OR OTHERWISE ACQUIRE THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN.

 

B3-1


EXHIBIT C

FORM OF INTERCREDITOR AGREEMENT

(See Attached)

 

C-1


EXHIBIT D

FORM OF SUPPLEMENTAL INDENTURE

SUPPLEMENTAL INDENTURE (this “ Supplemental Indenture ”), dated as of [ date ], among [ legal name of Guarantor ] (the “ New Guarantor ”), a subsidiary of Gastar Exploration Inc. (or its successor) (the “ Company ”), and Wilmington Trust, National Association, a national banking association, as trustee under the indenture referred to below (the “ Trustee ”).

W I T N E S S E T H:

WHEREAS the Company, each Guarantor party thereto and the Trustee have heretofore executed an indenture, dated as of March 3, 2017 (as amended, supplemented or otherwise modified, the “ Indenture ”), providing for the issuance of the Company’s Convertible Notes due 2022 (the “ Notes ”);

WHEREAS Section 9.05 of the Indenture requires the Company to cause the New Guarantor to execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor will fully and unconditionally guarantee the Guaranteed Obligations on the terms and conditions set forth in this Supplemental Indenture and the Indenture; and

WHEREAS pursuant to Section 8.01(B) of the Indenture, the Trustee and the Company are authorized to execute and deliver this Supplemental Indenture.

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantor, the Company and the Trustee agree for the equal and ratable benefit of the holders of the Notes as follows:

1.     Defined Terms . As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital to this Supplemental Indenture are used in this Supplemental Indenture as therein defined, except that the term “ holders ” in this Supplemental Indenture refers to the term “Holders” as defined in the Indenture and the Trustee acting on behalf of and for the benefit of such Holders. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular Section hereof.

2.     Agreement to Guarantee . The New Guarantor agrees, jointly and severally with all existing Guarantors, to fully and unconditionally guarantee the Guaranteed Obligations under the Securities and the Indenture on the terms and subject to the conditions set forth in Article 9 of the Indenture and to be bound by all other applicable provisions of the Indenture and the Notes and to perform all of the obligations and agreements of a Guarantor under the Indenture.

3.     Ratification of Indenture; Supplemental Indentures Part of Indenture . Except as expressly amended by this Supplemental Indenture, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof will remain in full

 

D-1


force and effect. This Supplemental Indenture will form a part of the Indenture for all purposes, and every holder of Notes heretofore or hereafter authenticated and delivered will be bound by this Supplemental Indenture.

4.     Trustee Makes No Representation . The Trustee makes no representation as to the validity, enforceability or sufficiency of this Supplemental Indenture or as to the statements made in the recitals, all of which are statements of the Company and the Guarantors.

5.     Miscellaneous . Sections 13.01, 13.05, 13.06, 13.07, 13.13, 13.14 and 13.15 of the Indenture will apply to this Supplemental Indenture as if the same were reproduced in this Supplemental Indenture, mutatis mutandis .

[ The Remainder of This Page Intentionally Left Blank; Signature Page Follows ]

 

D-2


IN WITNESS WHEREOF , the parties to this Indenture have caused this Indenture to be duly executed as of the date first written above.

 

G ASTAR E XPLORATION I NC .
By:  

 

Name:  
Title:  
[ LEGAL NAME OF GUARANTOR ], as Guarantor
By:  

 

Name:  
Title:  
W ILMINGTON T RUST , N ATIONAL A SSOCIATION , as Trustee and Collateral Trustee
By:  

 

Name:  
Title:  

 

D-3

Exhibit 4.3

REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (this “ Agreement ”) is made and entered into as of March 3, 2017, by and among Gastar Exploration Inc., a Delaware corporation (the “ Company ”) and each of the purchasers listed on Schedule I hereto (the “ Holders ”).

WHEREAS, the Holders have, pursuant to that certain Securities Purchase Agreement, dated as of February 16, 2017, by and among the Company and the Holders (the “ Purchase Agreement ”), agreed to purchase (a) the Company’s Convertible Notes due 2022 (the “ Notes ”), which Notes are convertible into cash, newly issued shares (the “ Conversion Shares ”) of common stock, par value $0.001 per share, of the Company (the “ Common Stock ”), or a combination of cash and Conversion Shares and (b) 29,408,305 shares (the “ Firm Shares ”) of the Common Stock, subject to the terms and conditions set forth therein; and

WHEREAS, it is a condition to the closing (the “ Closing ”) of the transactions contemplated by the Purchase Agreement that the Company and the Holders enter into this Agreement at or prior to the Closing in order to grant the Holders certain registration rights as set forth herein.

NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Holders agree as follows:

1.     Definitions . Capitalized terms used and not otherwise defined herein that are defined in the Purchase Agreement shall have the meanings given such terms in the Purchase Agreement. As used in this Agreement, the following terms shall have the respective meanings set forth in this Section 1:

Affiliate ” of any Person shall mean any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. For purposes of this definition, “control” when used with respect to any Person has the meaning specified in Rule 12b-2 under the Exchange Act; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

Automatic Shelf Registration Statement ” means an “automatic shelf registration statement” as defined under Rule 405.

Available ” means, with respect to a Registration Statement, that such Registration Statement does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, such that such Registration Statement will be available for the resale of Registrable Securities.

Black-Out Period ” has the meaning set forth in Section 2(b).

Business Day ” means a day that is a Monday, Tuesday, Wednesday, Thursday or Friday and is not a day on which banking institutions in New York, New York generally are authorized or obligated by law, regulation or executive order to close.


Commission ” means the Securities and Exchange Commission or any other federal agency then administering the Securities Act or Exchange Act.

Effectiveness Date ” means:

(a)    with respect to the initial Registration Statement required to be filed to cover the resale by the Holders of the Registrable Securities, (i) the date such Registration Statement is filed, if the Company is a WKSI as of such date, or (ii) if the Company is not a WKSI as of the date such Registration Statement is filed, the date that is four (4) calendar months following the earlier of March 16, 2017 and the date the Company first files with the Commission its Annual Report on Form 10-K for the year ended December 31, 2016 (or if such date is not a Business Day, the next Business Day); and

(b)    with respect to any additional Registration Statements that may be required pursuant to Section 2(a) hereof, (i) if the Company is a WKSI, the date such additional Registration Statement is filed or (ii) if the Company is not a WKSI, the earlier of: (x) the 90 th day following the date on which the Company first knows, or reasonably should have known, that such additional Registration Statement is required under such Section and (y) the fifth Trading Day following the date on which the Company is notified by the Commission that such additional Registration Statement will not be reviewed or is no longer subject to further review and comments.

Effectiveness Period ” has the meaning set forth in Section 2(a).

Electing Holders ” means one or more Holders that hold no less than a majority of the Registrable Securities then held by the Holders.

Exchange Act ” means the Securities Exchange Act of 1934, as amended.

Filing Date ” means:

(a)    with respect to the initial Registration Statement required to be filed to cover the resale by the Holders of the Registrable Securities, the date that is four (4) calendar months following the Closing (or if such date is not a Business Day, the next Business Day); and

(b)    with respect to any additional Registration Statements that may be required pursuant to Section 2(a) hereof, the 20 th Business Day following the date on which the Company first knows, or reasonably should have known, that such additional Registration Statement is required under such Section.

Freely Tradable ” means, with respect to any security, a security that is eligible to be sold by the Holder thereof without any volume or manner of sale restrictions under the Securities Act pursuant to Rule 144.

Indemnified Party ” has the meaning set forth in Section 5(c).

 

2


Indemnifying Party ” has the meaning set forth in Section 5(c).

Indenture ” has the meaning set forth in the Purchase Agreement.

Losses ” has the meaning set forth in Section 5(a).

Person ” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

Plan of Distribution ” means the plan of distribution in substantially the form attached hereto as Annex A.

Proceeding ” means a pending action, claim, suit, or proceeding (including, without limitation, an investigation or partial proceeding, such as a deposition) or investigation known to the Company to be threatened.

Prospectus ” means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by a Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.

Questionnaire ” has the meaning set forth in Section 3(k).

Registrable Securities ” means (i) the Conversion Shares issuable or issued upon conversion of the Notes, (ii) the Firm Shares and (iii) any securities issued as (or issuable upon the conversion, exercise or exchange of any warrant, right or other security that is issued as) a dividend, stock split, combination, or any reclassification, recapitalization, merger, consolidation, exchange or any other distribution or reorganization with respect to, or in exchange for, or in replacement of, the securities referenced in clause (i) or (ii) (without giving effect to any election by the Company therein), above or this clause (iii); provided , however , that the term “ Registrable Securities ” shall exclude in all cases any securities (1) sold or exchanged by a Person pursuant to an effective registration statement under the Act or in compliance with Rule 144, (2) that are Freely Tradable (it being understood that for purposes of determining eligibility for resale under clause (2) of this proviso, no securities held by any Holder shall be considered Freely Tradable (x) to the extent such Holder reasonably determines that it is an Affiliate of the Company or (y) whenever a Holder, collectively with its Affiliates, owns at least (i) 25,000,000 shares of Common Stock or (ii) $50,000,000 in recent trading value of Common Stock (including for this purpose all Conversion Shares issuable under the Notes assuming such Notes were converted entirely into Common Stock, but excluding additional “make whole” shares unless such Holder is presently entitled to such shares) or (3) that shall have ceased to be outstanding.

 

3


Registration Statement ” means a registration statement in the form required to register the resale of the Registrable Securities, and including the Prospectus, amendments and supplements to each such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement.

Rule 144 ” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

Rule 405 ” means Rule 405 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

Rule 415 ” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

Rule 424 ” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

Rule 433 ” means Rule 433 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

Securities Act ” means the Securities Act of 1933, as amended.

Suspension Notice ” has the meaning set forth in Section 3(j)(B).

“S-1 Amendment Period” has the meaning set forth in Section 2(a).

Trading Day ” means a day during which trading in the Common Stock generally occurs.

Trading Market ” means the principal national securities exchange on which the Common Stock is listed.

Use Notice ” has the meaning set forth in Section 3(j).

WKSI ” means a “ well known seasoned issuer ” as defined under Rule 405.

2.     Registration .

(a)    On or prior to each Filing Date, the Company will use reasonable best efforts to prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. The Registration Statement (i) shall be on Form S-3 (except if the Company is not then eligible to register for

 

4


resale the Registrable Securities on Form S-3, in which case such registration shall be on another appropriate form for such purpose, including Form S-1) and, if the Company is a WKSI as of the Filing Date, shall be an Automatic Shelf Registration Statement and (ii) shall contain (except if otherwise requested by the Electing Holders or required pursuant to written comments received from the Commission upon a review of such Registration Statement) the Plan of Distribution. The Company will use its reasonable best efforts to cause the Registration Statement to be declared effective or otherwise to become effective under the Securities Act as soon as possible but, in any event, no later than the Effectiveness Date, and will use its reasonable best efforts to keep the Registration Statement (or a replacement Registration Statement) continuously effective under the Securities Act until the registration rights under this Agreement terminate in accordance with Section 2(c) (the “ Effectiveness Period ”). In addition, the Company will, promptly and from time to time, use reasonable best efforts to file such additional Registration Statements to cover resales of any Registrable Securities which are not registered for resale pursuant to a pre-existing Registration Statement no later than the Filing Date with respect thereto, and will use its reasonable best efforts to cause such Registration Statement to be declared effective or otherwise to become effective under the Securities Act as soon as practicable after the applicable Filing Date but, in any event, no later than the applicable Effectiveness Date, and will use its reasonable best efforts to keep the Registration Statement continuously effective under the Securities Act at all times during the Effectiveness Period; provided that, the Company will not be obligated to update the Registration Statement and no sales may made under the applicable Registration Statement during any Black-Out Period of which the Holders have received actual notice; and provided further , that if the Registration Statement is on Form S-1, the Effectiveness Period shall not include (and the Company shall not be required to keep the Registration Statement effective during) any period commencing on the date an amendment to the Registration Statement is required to be filed, or has been filed and the amended Registration Statement not yet declared effective by the Commission, to update information as a result of the filing by the Company of an Annual Report on Form 10-K or any other material development that would require, in the reasonable judgment of legal counsel to the Company or upon advice from the staff of the Commission, an amendment to such Registration Statement, provided (i) any required amendment to the Registration Statement is filed promptly by the Company, (ii) any comments of the staff of the Commission with respect to such amended Registration Statement are addressed promptly by the Company and (iii) a request for declaration of effectiveness of such amended Registration Statement is requested by the Company for a date which is not more than five (5) Trading Days following the date of receipt of notice or other communication from the staff of the Commission that it has no further comments to the amended Registration Statement (such period, until such amended Registration Statement is declared effective by the Commission, being herein referred to as an “ S-1 Amendment Period ”).

(b)    If the Company at any time during a period the Registration Statement is effective reasonably determines in good faith and in its reasonable judgment, and based on the advice of outside legal counsel, that (i) the ongoing registration would be reasonably likely to materially interfere with a bona fide business or financing transaction of the Company, would require premature disclosure of information (the premature disclosure of which could materially and adversely affect the Company) or would otherwise be seriously detrimental to the Company or (ii) that the Registration Statement is subject to a stop order, is no longer effective or is otherwise not Available for use, the Company may suspend sales of securities pursuant to the

 

5


Registration Statement for a period of not more than seventy five (75) consecutive calendar days or an aggregate of one hundred twenty (120) days in any twelve month period (a “ Black-Out Period ”) and agrees to (i) furnish to each Holder a certificate signed by an officer of the Company to that effect and (ii) notify each Holder promptly upon each of the commencement and termination of each Black-Out Period. Each Holder agrees that, upon any such notice from the Company, it will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement until receipt of the Company’s notice as to the termination of the Black-Out Period. Each of the Holders agree to keep the notice of Black-Out Period confidential and shall not disclose such notice or reasons to any Person other than such Holder’s legal counsel or as required by law. For the avoidance of doubt, an S-1 Amendment Period shall not be considered a Black-Out Period.

(c)    The registration rights granted under this Section 2 shall automatically terminate at such time as there are no outstanding Registrable Securities.

3.     Registration Procedures .

The procedures to be followed by the Company and each selling Holder, and the respective rights and obligations of the Company and such Holders, with respect to the preparation, filing and effectiveness of a Registration Statement, and the distribution of Registrable Securities pursuant thereto, are as follows:

(a)    The Company will, at least five (5) Trading Days prior to the filing of a Registration Statement or any related Prospectus or any amendment or supplement thereto (other than any amendment or supplement made through the incorporation by reference of, or if the Registration Statement is on Form S-1 made solely for the purpose of including, ordinary course Exchange Act filings), (i) furnish to the Holders copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such Holders and (ii) use its reasonable best efforts to address in each such document when so filed with the Commission such comments as the Holders reasonably shall propose.

(b)    Subject to Section 2, the Company will use reasonable best efforts to (i) prepare and file with the Commission such amendments, including post-effective amendments, and supplements to each Registration Statement and the Prospectus used in connection therewith as may be necessary under applicable law with respect to the disposition of all Registrable Securities covered by such Registration Statement and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424; and (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to each Registration Statement or any amendment thereto and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement that pertains to the Holders as selling securityholders but not any comments that would result in the disclosure to the Holders of material and non-public information concerning the Company.

 

6


(c)    The Company will comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the Registration Statements and the disposition of all Registrable Securities covered by each Registration Statement.

(d)    The Company will notify the Holders as promptly as reasonably possible of (i) the issuance by the Commission of any stop order suspending the effectiveness of a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; and (ii) the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose.

(e)    The Company will use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, at the earliest practicable moment, or if any such order or suspension is made effective during any Black-Out Period, at the earliest practicable moment after the Black-Out Period is over.

(f)    During the Effectiveness Period, the Company will furnish to each Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto and all exhibits to the extent requested by such Person (including those incorporated by reference) promptly after the filing of such documents with the Commission; provided , that the Company will not have any obligation to provide any document pursuant to this clause that is available on the EDGAR system.

(g)    The Company will promptly deliver to each Holder, without charge, as many copies of each Prospectus or Prospectuses (other than any amendment or supplement made through the incorporation by reference of ordinary course Exchange Act filings) as such Persons may reasonably request during the Effectiveness Period. The Company consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto in accordance with this Agreement.

(h)    The Company will, prior to any public offering of Registrable Securities, use reasonable best efforts to register or qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the applicable state securities or blue sky laws of those jurisdictions within the United States as any Holder reasonably requests in writing to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and use its reasonable best efforts to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statements; provided , that the Company will not be required to (i) qualify generally to do business or as a dealer in securities in any jurisdiction where it is not then so qualified or (ii) take any action which would subject the Company to general service of process or any material tax in any such jurisdiction where it is not then so subject.

 

7


(i)    The Company will cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a sale or proposed sale effected pursuant to the Registration Statements, which certificates shall be free, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holders may request in writing. In connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effectiveness of the Registration Statement cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to its transfer agent when and as required by such transfer agent from time to time, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without legend upon sale by the holder of such shares of Registrable Securities under the Registration Statement.

(j)    Subject to Section 2, the Company will use reasonable best efforts to prepare such supplements or amendments, including a post-effective amendment, if required by applicable law, to each applicable Registration Statement and file any other required document so that such Registration Statement will be Available at all times during the Effectiveness Period; provided , that no such supplement, amendment or filing will be required during a Black-Out Period. No later than 8:00 p.m. (New York time) on any Trading Day on which the Company receives a written notice (a “ Use Notice ”) prior to 2:00 p.m. (New York time) on such Trading Day (or if such request is received after 2:00 p.m. (New York time), no later than 8:00 p.m. (New York time) on the following Trading Day) from a Holder that such Holder intends to use the Registration Statement to resell Registrable Securities, the Company will (A) provide written confirmation to such Holder that the applicable Registration Statement is Available or (B) provide written notice (a “ Suspension Notice ”) that the use of such Registration Statement is suspended due to a Black-Out Period. No Suspension Notice will contain the reason for the Black-Out Period. The Company will promptly provide the Holders written notice when the Black-Out Period ends. If a Black-Out Period commences during any 30 Trading Day period following delivery of a Use Notice and a notice from the Company under clause (A) above, the Company will provide as promptly as practicable the Holders with written notice thereof and that the Registration Statement is no longer Available.

(k)    Notwithstanding any other provision of the Agreement, no Holder of Registrable Securities may include any of its Registrable Securities in the Registration Statement pursuant to this Agreement unless the Holder furnishes to the Company a completed questionnaire substantially in the form of Exhibit A (the “ Questionnaire ”) for use in connection with the Registration Statement at least five (5) Trading Days prior to the filing of the Registration Statement or an amendment thereof; provided , however , that unless reasonably requested by the Company in writing, a Holder shall not be required to furnish a Questionnaire in connection with the initial Registration Statement if such Holder owns Notes or Firm Shares initially purchased by such Holder at the Closing as of the initial Filing Date. Each Holder who intends to include any of its Registrable Securities in the Registration Statement shall promptly furnish the Company in writing such other information as the Company may reasonably request in writing.

(l)    The Holders may distribute the Registrable Securities by means of up to four underwritten offerings; provided that (a) the Electing Holders provide written notice to the

 

8


Company of their intention to distribute Registrable Securities by means of an underwritten offering, (b) the managing underwriter or underwriters thereof shall be designated by the Electing Holders, provided , however , that such designated managing underwriter or underwriters shall be reasonably acceptable to the Company, (c) each Holder participating in such underwritten offering agrees to sell such Holder’s Registrable Securities on the basis provided in any underwriting arrangements approved by the persons entitled selecting the managing underwriter or underwriters hereunder and (d) each Holder participating in such underwritten offering completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements. The Company hereby agrees with each Holder that, in connection with any underwritten offering in accordance with the terms hereof, it will negotiate in good faith and execute all indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements, including using reasonable best efforts to procure customary legal opinions and auditor “cold comfort” letters.

(m)    In the event the Holders seek to complete an underwritten offering pursuant to Section 3(l), for a reasonable period prior to the filing of any Registration Statement, and throughout the Effectiveness Period, the Company will make available upon reasonable notice at the Company’s principal place of business or such other reasonable place for inspection by the managing underwriter or underwriters selected in accordance with Section 3(l), such financial and other information and books and records of the Company, and cause the officers, employees, counsel and independent certified public accountants of the Company to respond to such inquiries, as shall be reasonably necessary (and in the case of counsel, not violate an attorney-client privilege in such counsel’s reasonable belief), to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided , however , that the foregoing inspection and information gathering on behalf of the Holders (and any managing underwriter or underwriters) shall be conducted by legal counsel to the Holders (and legal counsel to such managing underwriter or underwriters); provided further , that each such party shall be required to maintain in confidence and not to disclose to any other Person any information or records reasonably designated by the Company as being confidential, until such time as (A) such information becomes a matter of public record (whether by virtue of its inclusion in the Registration Statement or in any other manner other than through the release of such information by any Person afforded access to such information pursuant hereto), or (B) such Person shall be required so to disclose such information pursuant to a subpoena or order of any court or other governmental agency or body having jurisdiction over the matter (subject to the requirements of such order, and only after such Person shall have given the Company prompt prior written notice of such requirement).

4.     Registration Expenses . All fees and expenses incident to the Company’s performance of or compliance with their obligations under this Agreement (excluding any underwriting discounts and selling commissions, but including legal fees and expenses of one legal counsel to the Holders of up to $50,000 in connection with the initial filing and for each underwritten offering) shall be borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses (A) with respect to filings required to be made with the Trading Market, and (B) in compliance with applicable state securities or blue sky laws), (ii) printing

 

9


expenses (including, without limitation, expenses of printing certificates for Registrable Securities and of printing prospectuses if the printing of prospectuses is reasonably requested by the Electing Holders included in the Registration Statement), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act liability insurance, if the Company so desires such insurance, and (vi) fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement. In addition, the Company shall be responsible for all of their internal expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of their officers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange as required hereunder. For the avoidance of doubt, each Holder shall pay all underwriting and placement discounts and commissions, agency and placement fees, brokers’ commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities.

5.     Indemnification .

(a)     Indemnification by the Company . The Company will, notwithstanding any termination of this Agreement, jointly and severally, indemnify and hold harmless each Holder and each underwriter, broker-dealer or selling agent, if any, which facilitates the disposition of Registrable Securities, the officers, directors, agents, partners, members, stockholders and employees of each of them, each Person who controls any such Holder, underwriter, broker-dealer or selling agent (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, agents and employees of each such controlling Person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable costs of preparation and reasonable attorneys’ fees) and expenses (collectively, “ Losses ”), as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus or any form of prospectus (including, without limitation, any “issuer free writing prospectus” as defined in Rule 433), or any “road show” (as defined in Rule 433 of the rules and regulations of the Commission under the Securities Act) that does not otherwise constitute an “issuer free writing prospectus,” or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or form of prospectus (including, without limitation, any “issuer free writing prospectus” as defined in Rule 433) or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent, but only to the extent, that (i) such Losses arise out of or are based upon any untrue statements, alleged untrue statements, omissions or alleged omissions that are based solely upon information regarding such Holder, underwriter, broker-dealer or selling agent furnished in writing to the Company by such Person expressly for use therein in the Questionnaire or pursuant to Section 3(k) or (ii) such Losses arise out of or are based upon transfers of Registrable Securities during a Black-Out Period of which the Holders received actual notice. The Company shall notify the Holders promptly of the institution, threat or assertion of any Proceeding of which the Company is aware in connection with the transactions contemplated by this Agreement.

 

10


(b)     Indemnification by Holders . Each Holder shall, notwithstanding any termination of this Agreement, severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling Persons, to the fullest extent permitted by applicable law, from and against all Losses, as incurred, arising solely out of or based solely upon any untrue statement of a material fact contained in any Registration Statement, any Prospectus, or any form of prospectus (including, without limitation, any “issuer free writing prospectus” as defined in Rule 433), or in any amendment or supplement thereto, or arising solely out of or based solely upon any omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, or any form of prospectus (including, without limitation, any “issuer free writing prospectus” as defined in Rule 433) or supplement thereto, in light of the circumstances under which they were made) not misleading to the extent, but only to the extent, that such untrue statements or omissions are based solely upon information regarding such Holder furnished in writing to the Company by such Holder in the Questionnaire or pursuant thereto. In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation.

(c)     Conduct of Indemnification Proceedings . If any Proceeding shall be brought or asserted against any Person entitled to indemnity hereunder (an “ Indemnified Party ”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “ Indemnifying Party ”) in writing, and the Indemnifying Party shall be permitted to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party (whose approval shall not be unreasonably withheld) and the payment of all fees and expenses incurred in connection with defense thereof; provided , that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have proximately and materially adversely prejudiced the Indemnifying Party.

An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding (whose approval shall not be unreasonably withheld); or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Party); provided that the Indemnifying Party shall not be liable for the fees and

 

11


expenses of more than one separate firm of attorneys at any time for all Indemnified Parties. The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably withheld. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include a statement as to or any admission of fault, culpability or failure to act by any Indemnified Party.

All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, promptly upon receipt of written notice thereof to the Indemnifying Party (regardless of whether it is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder; provided that the Indemnifying Party may require such Indemnified Party to undertake to reimburse all such fees and expenses to the extent it is finally judicially determined that such Indemnified Party is not entitled to indemnification hereunder).

(d)     Contribution . If a claim for indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified Party (by reason of public policy or otherwise), then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in Section 5(c), any reasonable attorneys’ or other reasonable fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this Section was available to such party in accordance with its terms.

The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 5(d), no Holder shall be required to contribute, in the aggregate, any amount in excess of the amount by which the proceeds actually received by such Holder, net of any stock transfer taxes or underwriting or brokers’ commissions paid by such Holder, from the sale of the Registrable Securities subject to the Proceeding exceeds the amount of any damages, indemnity or contribution that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.

 

12


The indemnity and contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties and are not in diminution or limitation of the indemnification provisions under the Purchase Agreement.

6.     Facilitation of Sales Pursuant to Rule 144 . To the extent it shall be required to do so under the Exchange Act, the Company shall timely file the reports required to be filed by it under the Exchange Act or the Securities Act (including the reports under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144) and submit all required Interactive Data Files (as defined in Rule 11 of Regulation S-T of the Commission), and shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable the Holders to sell Registrable Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144. Upon the request of any Holder in connection with that Holder’s sale pursuant to Rule 144, the Company shall deliver to such Holder a written statement as to whether it has complied with such requirements.

7.     Miscellaneous .

(a)     Remedies . In the event of a breach by the Company or by a Holder, of any of their obligations under this Agreement, each Holder or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Company and each Holder agree that monetary damages alone would not provide adequate compensation for any Losses incurred by reason of a breach by it of any of the provisions of this Agreement and further agree that, in the event of any action for specific performance in respect of such breach, it shall waive the defense that a remedy at law would be adequate.

(b)     Discontinued Disposition . Each Holder agrees by its acquisition of such Registrable Securities that, that it will not commence a disposition of Registrable Securities under the Registration Statement until such Holder has received (A) written confirmation from the Company of the availability of the Registration Statement as described in Section 3(j)(A), (B) written confirmation from the Company that the Black-Out Period has ceased as described in Section 3(j) or (C) copies of the supplemented Prospectus and/or amended Registration Statement as described in Section 3(j), and, in each case, has also received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.

(c)     Amendments and Waivers . No provision of this Agreement may be waived or amended except in a written instrument signed by the Company and the Electing Holders. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right.

 

13


(d)     Notices . Except where explicitly stated otherwise, any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing (which shall include emails to each of the email addresses specified for such party below) and shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile or email as specified in this Section prior to 5:00 p.m. (New York time) on a Business Day, (ii) the Business Day after the date of transmission, if such notice or communication is delivered via facsimile or electronic mail as specified in this Agreement later than 5:00 p.m. (New York time) on any date and earlier than 11:59 p.m. (New York time) on such date, (iii) the Business Day following the date of mailing, if sent by nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as follows:

(i)    If to the Company, addressed as follows:

Gastar Exploration Inc.

1331 Lamar Street, Suite 650

Houston, TX 77010

Facsimile No.: 713-729-0458

Attention: J. Russell Porter, President and CEO

                 Michael A. Gerlich, SVP and Chief Financial Officer

E-mail:     rporter@gastar.com

                 mgerlich@gastar.com

with a copy (which shall not constitute notice) to:

Vinson & Elkins LLP

1001 Fannin Street, Suite 2500

Houston, TX 77002

Facsimile No.: 713-615-5962

Attention: David H. Stone and James M. Prince

Email:      dstone@velaw.com

                 jprince@velaw.com

 

14


(ii)    If to any Holder, addressed as follows:

Ares Management LLC

2000 Avenue of the Stars, 12th Floor

Los Angeles, CA 90067

Attention: Nate Walton, Jesse Yanocha, Preston Hayes and Eric Waxman

Email:       walton@aresmgmt.com

 jyanocha@aresmgmt.com

 phayes@aresmgmt.com

 ewaxman@aresmgmt.com

with a copy (which shall not constitute notice) to:

811 Main Street, Suite 3700

Houston, TX 77002

Facsimile: (713) 546-5401

Attention:  Michael Chambers and Greg Rodgers

Email:        michael.chambers@lw.com

 greg.rodgers@lw.com

or such other address as may be designated in writing hereafter, in the same manner, by such Person.

(e)     Successors and Assigns . This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties and shall inure to the benefit of each Holder; provided , however , that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the Indenture. The Company may not assign (other than by operation of law) its rights or obligations hereunder without the prior written consent of the Electing Holders. The Holders may not assign their rights and obligations hereunder (other than by operation of law); provided that a Holder may assign its rights and obligations hereunder to an Affiliate of such Holder.

(f)     Execution and Counterparts . This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and, all of which taken together shall constitute one and the same Agreement. In the event that any signature is delivered by facsimile or electronic mail transmission, such signature shall create a valid binding obligation of the party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such signature delivered by facsimile or electronic mail transmission were the original thereof.

(g)     Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

(h)     Submission to Jurisdiction . Each of the parties to this Agreement irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the courts of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any Proceeding arising out of or relating to this Agreement, or for the recognition or enforcement

 

15


of any judgment, and each of the parties hereto irrevocably and unconditionally agrees that all claims in respect of any such Proceeding may be heard and determined in such New York State court or, to the fullest extent permitted by applicable law, in such federal court. Each of the parties hereto agrees that a final judgment in any such Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

(i)     Waiver of Venue . Each of the parties to this Agreement irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, (i) any objection that it may now or hereafter have to the laying of venue of any Proceeding arising out of or relating to this Agreement in any court referred to in Section 7(h) and (ii) the defense of an inconvenient forum to the maintenance of such Proceeding in any such court.

(j)     Cumulative Remedies . The remedies provided herein are cumulative and not exclusive of any remedies provided by law.

(k)     Severability . If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.

(l)     Entire Agreement . This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and supersedes all other prior agreements and understandings, both written and oral, between the parties, with respect to the subject matter hereof.

(m)     Headings; Section References . The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. Unless otherwise stated, references to Sections, Schedules and Exhibits are to the Sections, Schedules and Exhibits of this Agreement.

[ Signature Pages Follow ]

 

16


IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.

 

COMPANY:
GASTAR EXPLORATION INC.
By:  

/s/ Michael A. Gerlich

Name:   Michael A. Gerlich
Title:  

Senior Vice President, Chief

Financial Officer and Corporate Secretary

 

[ Signature Page to the Registration Rights Agreement ]


IN WITNESS WHEREOF, the parties have executed or caused this Agreement to be executed as of the date first written above.

 

HOLDERS:

AF V ENERGY I AIV A1, L.P.

AF V ENERGY I AIV A2, L.P.

AF V ENERGY I AIV A3, L.P.

AF V ENERGY I AIV A4, L.P.

AF V ENERGY I AIV A5, L.P.

AF V ENERGY I AIV A6, L.P.

AF V ENERGY I AIV A7, L.P.

AF V ENERGY I AIV A8, L.P.

AF V ENERGY I AIV A9, L.P.

AF V ENERGY I AIV A10, L.P.

AF V ENERGY I AIV A11, L.P.

AF V ENERGY I AIV A12, L.P.

AF V ENERGY I AIV A13, L.P.

AF V ENERGY I AIV B1, L.P.

By:

  AF V Energy I AIV GP, L.P.,
    as general partner

By:

 

/s/ Jesse Yanocha

Name:

  Jesse Yanocha

Title:

  Authorized Signatory

 

[ Signature Page to the Registration Rights Agreement ]


SCHEDULE I

AF V Energy I AIV A1 L.P.

AF V Energy I AIV A2 L.P.

AF V Energy I AIV A3 L.P.

AF V Energy I AIV A4 L.P.

AF V Energy I AIV A5 L.P.

AF V Energy I AIV A6 L.P.

AF V Energy I AIV A7 L.P.

AF V Energy I AIV A8 L.P.

AF V Energy I AIV A9 L.P.

AF V Energy I AIV A10 L.P.

AF V Energy I AIV A11 L.P.

AF V Energy I AIV A12 L.P.

AF V Energy I AIV A13 L.P.

AF V Energy I AIV B1 L.P.


ANNEX A

PLAN OF DISTRIBUTION

The selling securityholders, including their pledgees, donees, transferees, distributees, beneficiaries or other successors in interest, may from time to time offer some or all of the shares of common stock (collectively, “ Securities ”) covered by this prospectus. To the extent required, this prospectus may be amended and supplemented from time to time to describe a specific plan of distribution.

The selling securityholders will not pay any of the costs, expenses and fees in connection with the registration and sale of the shares covered by this prospectus, but they will pay any and all underwriting discounts, selling commissions and stock transfer taxes, if any, attributable to sales of the shares. We will not receive any proceeds from the sale of the shares of common stock covered hereby.

The selling securityholders may sell the Securities covered by this prospectus from time to time, and may also decide not to sell all or any of the Securities that they are allowed to sell under this prospectus. The selling securityholders will act independently of us in making decisions regarding the timing, manner and size of each sale. These dispositions may be at fixed prices, at market prices prevailing at the time of sale, at prices related to such prevailing market prices, at varying prices determined at the time of sale, or at privately negotiated prices. Sales may be made by the selling securityholders in one or more types of transactions, which may include:

 

    purchases by underwriters, dealers and agents who may receive compensation in the form of underwriting discounts, concessions or commissions from the selling securityholders and/or the purchasers of the Securities for whom they may act as agent;

 

    one or more block transactions, including transactions in which the broker or dealer so engaged will attempt to sell the Securities as agent but may position and resell a portion of the block as principal to facilitate the transaction, or in crosses, in which the same broker acts as an agent on both sides of the trade;

 

    ordinary brokerage transactions or transactions in which a broker solicits purchases;

 

    purchases by a broker-dealer or market maker, as principal, and resale by the broker-dealer for its account;

 

    the pledge of Securities for any loan or obligation, including pledges to brokers or dealers who may from time to time effect distributions of Securities;

 

    short sales or transactions to cover short sales relating to the Securities;


    one or more exchanges or over the counter market transactions;

 

    through distribution by a selling securityholder or its successor in interest to its members, general or limited partners or shareholders (or their respective members, general or limited partners or shareholders);

 

    privately negotiated transactions;

 

    the writing of options, whether the options are listed on an options exchange or otherwise;

 

    distributions to creditors and equity holders of the selling securityholders; and

 

    any combination of the foregoing, or any other available means allowable under applicable law.

A selling securityholder may also resell all or a portion of its Securities in open market transactions in reliance upon Rule 144 under the Securities Act provided it meets the criteria and conforms to the requirements of Rule 144.

The selling securityholders may enter into sale, forward sale and derivative transactions with third parties, or may sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those sale, forward sale or derivative transactions, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions and by issuing securities that are not covered by this prospectus but are exchangeable for or represent beneficial interests in the common stock. The third parties also may use shares received under those sale, forward sale or derivative arrangements or shares pledged by the selling securityholder or borrowed from the selling securityholders or others to settle such third-party sales or to close out any related open borrowings of common stock. The third parties may deliver this prospectus in connection with any such transactions. Any third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement (or a post-effective amendment to the registration statement of which this prospectus is a part).

In addition, the selling securityholders may engage in hedging transactions with broker-dealers in connection with distributions of Securities or otherwise. In those transactions, broker-dealers may engage in short sales of securities in the course of hedging the positions they assume with selling securityholders. The selling securityholders may also sell securities short and redeliver securities to close out such short positions. The selling securityholders may also enter into option or other transactions with broker-dealers which require the delivery of securities to the broker-dealer. The broker-dealer may then resell or otherwise transfer such securities pursuant to this prospectus. The selling securityholders also may loan or pledge shares, and the borrower or pledgee may sell or otherwise transfer the Securities so loaned or pledged pursuant to this prospectus. Such borrower or pledgee also may transfer those Securities to investors in our securities or the selling securityholders’ securities or in connection with the offering of other securities not covered by this prospectus.


To the extent necessary, we may amend or supplement this prospectus from time to time to describe a specific plan of distribution. We will file a supplement to this prospectus, if required, upon being notified by the selling securityholders that any material arrangement has been entered into with a broker-dealer for the sale of shares through a block trade, offering or a purchase by a broker or dealer. The applicable prospectus supplement will set forth the specific terms of the offering of securities, including:

 

    the number of Securities offered;

 

    the price of such Securities;

 

    the proceeds to the selling securityholders from the sale of such Securities;

 

    the names of the underwriters or agents, if any;

 

    any underwriting discounts, agency fees or other compensation to underwriters or agents; and

 

    any discounts or concessions allowed or paid to dealers.

The selling securityholders may, or may authorize underwriters, dealers and agents to, solicit offers from specified institutions to purchase Securities from the selling securityholders at the public offering price listed in the applicable prospectus supplement. These sales may be made under “delayed delivery contracts” or other purchase contracts that provide for payment and delivery on a specified future date. Any contracts like this will be described in and be subject to the conditions listed in the applicable prospectus supplement.

Broker-dealers or agents may receive compensation in the form of commissions, discounts or concessions from the selling securityholders. Broker-dealers or agents may also receive compensation from the purchasers of Securities for whom they act as agents or to whom they sell as principals, or both. Compensation as to a particular broker-dealer might be in excess of customary commissions and will be in amounts to be negotiated in connection with transactions involving securities. In effecting sales, broker-dealers engaged by the selling securityholders may arrange for other broker-dealers to participate in the resales.

In connection with sales of Securities covered hereby, the selling securityholders and any underwriter, broker-dealer or agent and any other participating broker-dealer that executes sales for the selling securityholders may be deemed to be an “underwriter” within the meaning of the Securities Act of 1933, as amended (the “ Securities Act ”). Accordingly, any profits realized by the selling securityholders and any compensation earned by such underwriter, broker-dealer or agent may be deemed to be underwriting discounts and commissions. Because the selling securityholders may be deemed to be “underwriters” under the Securities Act, the selling securityholders must deliver this prospectus and any prospectus supplement in the manner required by the Securities Act. This prospectus delivery requirement may be satisfied through the facilities of the NYSE MKT LLC in accordance with Rule 153 under the Securities Act or satisfied in accordance with Rule 174 under the Securities Act.


We and the selling securityholders have agreed to indemnify each other against certain liabilities, including liabilities under the Securities Act. In addition, we or the selling securityholders may agree to indemnify any underwriters, broker-dealers and agents against or contribute to any payments the underwriters, broker-dealers or agents may be required to make with respect to, civil liabilities, including liabilities under the Securities Act. Underwriters, broker-dealers and agents and their affiliates are permitted to be customers of, engage in transactions with, or perform services for us and our affiliates or the selling securityholders or their affiliates in the ordinary course of business.

The selling securityholders will be subject to applicable provisions of Regulation M of the Securities Exchange Act of 1934 and the rules and regulations thereunder, which provisions may limit the timing of purchases and sales of any of the Securities by the selling securityholders. Regulation M may also restrict the ability of any person engaged in the distribution of the Securities to engage in market-making activities with respect to the Securities. These restrictions may affect the marketability of such Securities.

In order to comply with applicable securities laws of some states, the Securities may be sold in those jurisdictions only through registered or licensed brokers or dealers. In addition, in certain states the Securities may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirements is available. In addition, any Securities of a selling securityholder covered by this prospectus that qualify for sale pursuant to Rule 144 under the Securities Act may be sold in open market transactions under Rule 144 rather than pursuant to this prospectus.

In connection with an offering of Securities under this prospectus, the underwriters may purchase and sell securities in the open market. These transactions may include short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of securities than they are required to purchase in an offering. Stabilizing transactions consist of certain bids or purchases made for the purpose of preventing or retarding a decline in the market price of the securities while an offering is in progress.

The underwriters also may impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount received by it because the underwriters have repurchased securities sold by or for the account of that underwriter in stabilizing or short-covering transactions.

These activities by the underwriters may stabilize, maintain or otherwise affect the market price of the Securities offered under this prospectus. As a result, the price of the Securities may be higher than the price that otherwise might exist in the open market. If these activities are commenced, they may be discontinued by the underwriters at any time. These transactions may be effected on the NYSE MKT LLC or another securities exchange or automated quotation system, or in the over-the-counter market or otherwise.


EXHIBIT A

FORM OF

SELLING SECURITYHOLDER QUESTIONNAIRE

Reference is made to that certain registration rights agreement (the “ Registration Rights Agreement ”), dated as of March 3, 2017, by and between Gastar Exploration Inc. (the “ Company ”) and each of the purchasers listed on Schedule I thereto. Capitalized terms used and not defined herein shall have the meanings given to such terms in the Registration Rights Agreement.

The undersigned Holder (the “ Selling Securityholder ”) of the Registrable Securities is providing this Selling Securityholder Questionnaire pursuant to Section 3(k) of the Registration Rights Agreement. The Selling Securityholder, by signing and returning this Selling Securityholder Questionnaire, understands that it will be bound by the terms and conditions of this Selling Securityholder Questionnaire and the Registration Rights Agreement. The Selling Securityholder hereby acknowledges its indemnity obligations pursuant to Section 5(b) of the Registration Rights Agreement.

The Selling Securityholder provides the following information to the Company and represents and warrants that such information is accurate and complete:

 

(1)    (a)      Full Legal Name of Selling Securityholder:   
       

 

  
   (b)      Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities listed in (3) below are held:
       

 

  
   (c)      Full Legal Name of DTC Participant (if applicable and if not the same as (b) above) through which Registrable Securities listed in (3) below are held:
       

 

  
(2)    Address for Notices to Selling Securityholder:
       

 

  
       

 

  

Telephone (including area code):                                                                

Fax (including area code):                                                                           

Contact Person:                                                                                            

 

(3) Beneficial Ownership of Registrable Securities:

                                                                                                                                          

 

(a) Type and Principal Amount/Number of Registrable Securities beneficially owned:

                                                                                                                                          

 

(b) CUSIP No(s). of such Registrable Securities beneficially owned:

                                                                                                                                          


(4) Beneficial Ownership of Other Securities of the Company Owned by the Selling Securityholder with Respect to Which Item 403 or Item 507 of Regulation S-K Requires Disclosure in the Prospectus to Which This Questionnaire Relates (“ Other Securities ”):

Except as set forth below in this Item (4), the Selling Securityholder is not the beneficial or registered owner of any Other Securities of the Company other than the Registrable Securities listed above in Item (3).

 

  (a) Type and Amount of Other Securities beneficially owned by the Selling Securityholder:
                                                                                             

 

(b) CUSIP No(s). of such Other Securities beneficially owned:

 

(5) Relationship with the Company:

Except as set forth below, neither the Selling Securityholder nor any of its affiliates, officers, directors or principal equity holders (5% or more) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years.

State any exceptions here:

 

(6) Is the Selling Securityholder a registered broker-dealer?

 

Yes
No

If “Yes”, please answer subsection (a) and subsection (b):

(a) Did the Selling Securityholder acquire the Registrable Securities as compensation for underwriting/broker-dealer activities to the Company?

Yes     ☐

No      ☐

(b) If you answered “No” to question 6(a), please explain your reason for acquiring the Registrable Securities:

                                                                                                                                                            

                                                                                                                                                            

 

(7) Is the Selling Securityholder an affiliate of a registered broker-dealer?

 

Yes
No

If “Yes”, please identify the registered broker-dealer(s), describe the nature of the affiliation(s) and answer subsection (a) and subsection (b):

                                                                                                                           

                                                                                                                           

(a) Did the Selling Securityholder purchase the Registrable Securities in the ordinary course of business (if no, please explain)?

Yes     ☐

No      ☐


Explain:

                                                                                                                           

                                                                                                                           

(b) Did the Selling Securityholder have an agreement or understanding, directly or indirectly, with any person to distribute the Registrable Securities at the same time the Registrable Securities were originally purchased (if yes, please explain)?

Yes    ☐

No     ☐

Explain:

 

(8) Is the Selling Securityholder a non-public entity?

 

Yes
No

If “Yes”, please answer subsection (a):

(a) Identify the natural person or persons that have voting or investment control over the Registrable Securities that the non-public entity owns:

 

(9) Plan of Distribution:

The Selling Securityholder (including its donees and pledgees) intends to distribute the Registrable Securities listed above in Item (3) pursuant to the Registration Statement in accordance with [the Plan of Distribution attached as Annex A to the Registration Rights Agreement]  ☐.

The Selling Securityholder acknowledges that it understands its obligations to comply with the provisions of the Securities Exchange Act of 1934, as amended, and the rules thereunder relating to stock manipulation, particularly Regulation M thereunder (or any successor rules or regulations), in connection with any offering of Registrable Securities pursuant to the Shelf Registration Agreement. The Selling Securityholder agrees that neither it nor any person acting on its behalf will engage in any transaction in violation of such provisions.

Pursuant to the Registration Rights Agreement, the Company has agreed under certain circumstances to indemnify the Selling Securityholder against certain liabilities.

In the event the Selling Securityholder transfers all or any portion of the Registrable Securities listed in Item (3) above after the date on which such information is provided to the Company such that such securities remain Registrable Securities under the Registration Rights Agreement, the Selling Securityholder agrees to notify the transferee(s) at the time of the transfer of its rights and obligations under this Selling Securityholder Questionnaire and the Registration Rights Agreement.

In accordance with the Selling Securityholder’s obligation under the Registration Rights Agreement to provide such information as may be required by law or by the staff of the Commission for inclusion in the Registration Statement, the Selling Securityholder agrees to promptly notify the Company of any inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof at any time while the Registration Statement remains effective. All notices to the Selling Securityholder pursuant to the Registration Rights Agreement shall be made in writing, by hand-delivery, first-class mail, or air courier guaranteeing overnight delivery to the address set forth below.


By signing below, the Selling Securityholder consents to the disclosure of the information contained herein in its answers to Items (1) through (9) above and the inclusion of such information in the Registration Statement and the related Prospectus. The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and the related Prospectus.

By signing below, the undersigned agrees that if the Company notifies the undersigned that the Registration Statement is not available pursuant to the terms of the Registration Rights Agreement, the undersigned will suspend use of the Prospectus until notice from the Company that the Prospectus is again available.

Once this Selling Securityholder Questionnaire is executed by the undersigned and received by the Company, the terms of this Selling Securityholder Questionnaire, and the representations, warranties and agreements contained herein, shall be binding on, shall inure to the benefit of and shall be enforceable by the respective successors, heirs, personal representatives, and assigns of the Company and the undersigned with respect to the Registrable Securities beneficially owned by the undersigned and listed in Item (3) above. This Selling Securityholder Questionnaire shall be governed by and construed in accordance with the laws of the State of New York without regard to choice of laws or conflicts of laws provisions thereof that would require the application of the laws of any other jurisdiction.


IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Selling Securityholder Questionnaire to be executed and delivered either in person or by its duly authorized agent.

Dated:                     

 

 

Beneficial Owner

By:

 

 

Name:

 

 

Title:

 

 

PLEASE RETURN THE COMPLETED AND EXECUTED

SELLING SECURITYHOLDER QUESTIONNAIRE TO THE COMPANY AT:

Gastar Exploration Inc.

1331 Lamar Street, Suite 650

Houston, TX 77010

Attention:     Chief Executive Officer and Chief Financial Officer

E-mail:         rporter@gastar.com; mgerlich@gastar.com

Exhibit 10.1

SECURITIES PURCHASE AGREEMENT

BY AND AMONG

GASTAR EXPLORATION INC.

AND

EACH OF THE PURCHASERS LISTED ON SCHEDULE I HERETO

Dated as of February 16, 2017


TABLE OF CONTENTS

 

1.

 

Definitions

     1  

2.

 

Authorization, Purchase and Sale of the Securities

     8  

2.1.

 

Authorization, Purchase and Sale

     8  

2.2.

 

Closing

     8  

3.

 

Representations and Warranties of the Company

     9  

3.1.

 

Organization and Power

     9  

3.2.

 

Capitalization

     9  

3.3.

 

Registration Rights

     10  

3.4.

 

Authorization

     10  

3.5.

 

Valid Issuance

     11  

3.6.

 

No Conflict

     11  

3.7.

 

No Defaults

     12  

3.8.

 

Consents

     12  

3.9.

 

SEC Reports; Financial Statements

     12  

3.10.

 

Absence of Certain Changes

     13  

3.11.

 

Absence of Litigation

     13  

3.12.

 

NYSE MKT

     13  

3.13.

 

Investment Company Act

     13  

3.14.

 

General Solicitation; No Integration

     13  

3.15.

 

Brokers

     13  

3.16.

 

Property

     14  

3.17.

 

Intellectual Property

     14  

3.18.

 

Labor

     15  

3.19.

 

Taxes

     15  

3.20.

 

ERISA

     16  

3.21.

 

Environmental

     16  

3.22.

 

Insurance

     17  

3.23.

 

Internal Controls

     17  

3.24.

 

Dividends

     17  

3.25.

 

Disclosure Controls

     17  

3.26.

 

Sarbanes-Oxley Act

     18  

3.27.

 

Anti-Corruption

     18  

3.28.

 

Money Laundering Laws

     18  

3.29.

 

Margin Securities

     18  

3.30.

 

Sanctions

     19  

3.31.

 

No Subsidiaries

     19  

3.32.

 

Reliance by the Purchasers

     19  

4.

 

Representations and Warranties of the Purchasers

     19  

4.1.

 

Organization

     19  

4.2.

 

Authorization

     19  

4.3.

 

No Conflict

     20  


TABLE OF CONTENTS (CONTINUED)

 

4.4.

 

Consents

     20  

4.5.

 

Absence of Litigation

     20  

4.6.

 

Available Funds

     20  

4.7.

 

Brokers and Finders

     20  

4.8.

 

Purchase Entirely for Own Account

     20  

4.9.

 

Investor Status

     21  

4.10.

 

Offer and Sale of Securities Not Registered

     21  

4.11.

 

Legends

     21  

4.12.

 

Reliance by the Company

     22  

5.

 

Covenants

     22  

5.1.

 

HSR Approval

     22  

5.2.

 

Shares Issuable Upon Conversion

     22  

5.3.

 

Further Assurances

     23  

5.4.

 

Board Nominees and Observers

     23  

5.5.

 

Board Composition

     25  

5.6.

 

Specific Performance

     25  

5.7.

 

Use of Proceeds

     26  

5.8.

 

PATRIOT Act

     26  

5.9.

 

DTC

     26  

5.10.

 

Preemptive Rights

     26  

5.11.

 

Standard of Care; Corporate Opportunities

     28  

5.12.

 

No Purchaser Short Positions

     29  

5.13.

 

Notice of Developments

     30  

5.14.

 

Interim Operating Covenants

     30  

5.15.

 

Credit Agreement Delivery

     30  

6.

 

Conditions Precedent

     30  

6.1.

 

Conditions to the Obligation of the Purchasers

     30  

6.2.

 

Conditions to the Obligation of the Company

     32  

7.

 

Transfer of the Securities

     33  

7.1.

 

Transfer Requirements

     33  

8.

 

Termination

     33  

8.1.

 

Conditions of Termination

     33  

8.2.

 

Effect of Termination

     33  

9.

 

Indemnification of the Purchasers

     34  

9.1.

 

General

     34  

9.2.

 

Claims; Disputes

     34  

9.3.

 

Opportunity to Defend Third Party Claims

     34  

9.4.

 

Settlement

     35  


TABLE OF CONTENTS (CONTINUED)

 

10.

 

Miscellaneous Provisions

     35  

10.1.

 

Public Statements or Releases

     35  

10.2.

 

Interpretation

     35  

10.3.

 

Notices

     36  

10.4.

 

Severability

     37  

10.5.

 

Governing Law; Submission to Jurisdiction; Venue; Waiver of Trial by Jury

     37  

10.6.

 

Waiver

     38  

10.7.

 

Expenses

     38  

10.8.

 

Assignment

     38  

10.9.

 

Confidential Information

     39  

10.10.

 

Third Parties

     39  

10.11.

 

Counterparts

     40  

10.12.

 

Entire Agreement; Amendments

     40  

10.13.

 

Survival

     40  

10.14.

 

Recourse

     40  


TABLE OF CONTENTS (CONTINUED)

 

Schedules  

Schedule I

 

Purchasers and Purchased Securities

Schedule II

 

Litigation Matters

Schedule III

 

Environmental Matters

Schedule IV

 

Parties to Lock-Up Agreements

Exhibits  

Exhibit A

 

Form of Indenture

Exhibit B

 

Form of Registration Rights Agreement

Exhibit C

 

Form of Intercreditor Agreement

Exhibit D

 

Corporate Legal Opinion Matters

Exhibit E

 

Form of Lock-Up Agreement


This SECURITIES PURCHASE AGREEMENT (this “ Agreement ”) is dated as of February 16, 2017, by and among Gastar Exploration Inc., a Delaware corporation (the “ Company ”), and each of the purchasers listed on Schedule I hereto (each, a “ Purchaser ” and together, with their successors and permitted assigns, the “ Purchasers ”).

WHEREAS, the Company has authorized (a) the issuance of $125,000,000 aggregate principal amount of its Convertible Notes due 2022 (the “ Notes ”) to be issued in accordance with the terms and conditions of the indenture substantially in the form attached as Exhibit A hereto (the “ Indenture ”), which Notes shall be convertible into cash, newly issued shares (the “ Conversion Shares ”) of common stock, par value $0.001 per share, of the Company (the “ Common Stock ”) or a combination of cash and Conversion Shares and (b) the issuance of 29,408,305 shares (the “ Firm Shares ”) of Common Stock;

WHEREAS, the Company desires to issue and sell to the Purchasers pursuant to this Agreement, and the Purchasers, collectively, desire to purchase from the Company (a) the aggregate principal amount of Notes as is set forth in Schedule I hereto and (b) the aggregate number of Firm Shares as is set forth opposite in Schedule I hereto;

WHEREAS, the Purchasers will be entitled to registration rights as set forth in a registration rights agreement, substantially in the form attached to this Agreement as Exhibit B (the “ Registration Rights Agreement ”);

WHEREAS, the Company also intends to enter into the Credit Agreement, which provides for a new $250,000,000 senior secured first lien term loan facility (the “ New Term Facility ”);

WHEREAS, the Company has agreed to secure the Notes by granting a second-priority security interest on certain assets of the Company that will secure the New Term Facility (the “ Collateral ”) pursuant to the Security Agreement (as defined in Section  1 below) and all other instruments, agreements and other documents granting (or purporting to grant) to Wilmington Trust, National Association, as collateral agent on behalf of the holders of the Notes (in such capacity, the “ Collateral Agent ”) a lien or security interest in or to the Collateral required under the Security Agreement (such other instruments, together with the Collateral Trust Agreement and the Security Agreement, the “ Collateral Documents ”); and

WHEREAS, certain rights of the Purchasers relating to the Collateral will be subject to an intercreditor agreement to be entered into, among the Company, the Trustee, the Collateral Agent and Wilmington Trust, National Association, as collateral agent on behalf of the First Lien Secured Parties (as defined in Section  1 below), substantially in the form attached to this Agreement as Exhibit C (the “ Intercreditor Agreement ”).

NOW THEREFORE, in consideration of the mutual agreements, representations, warranties and covenants herein contained, the parties hereto agree as follows:

1.     Definitions . As used in this Agreement, the following terms shall have the following respective meanings:

Action ” shall mean any claim, suit, action, arbitration, cause of action, complaint, allegation, criminal prosecution, investigation, demand letter, or proceeding, whether at law or at equity and whether public or private, before or by any Governmental Authority, any arbitrator or other tribunal.


Affiliate ” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under direct or indirect common control with such Person, provided , that each Affiliated Entity, and each Affiliate of an Affiliated Entity, of the Purchasers shall be deemed to be an Affiliate of the Purchasers.

Affiliated Entity ” shall mean any investment fund or holding company (including any special purpose vehicle) formed for investments purposes that is primarily managed, advised or serviced by the Purchasers or by an Affiliate of the Purchasers or whose general partner, managing member or other controlling Person is a Purchaser or an Affiliate of a Purchaser.

Agreement ” has the meaning set forth in the first paragraph hereof.

Beneficially Own ,” “ Beneficially Owned ,” or “ Beneficial Ownership ” shall have the meaning set forth in Rule 13d-3 of the rules and regulations promulgated under the Exchange Act, except that for purposes of this Agreement the words “within sixty days” in Rule 13d-3(d)(1)(i) shall not apply, to the effect that a Person shall be deemed to be the beneficial owner of a security if that Person has the right to acquire beneficial ownership of such security at any time.

Benefit Plans ” shall mean employee benefit plans as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended or modified from time to time, and all other employee benefit practices or arrangements, including any such practices or arrangements providing severance pay, sick leave, vacation pay, salary continuation for disability, retirement benefits, deferred compensation, bonus pay, incentive pay, stock options or other stock-based compensation, hospitalization insurance, medical insurance, life insurance, scholarships or tuition reimbursements, maintained by the Company or to which the Company is obligated to contribute for employees or former employees.

Board Nominees ” has the meaning set forth in Section  5.4(a) hereof.

Board of Directors ” shall mean the Board of Directors of the Company.

Change in Control ” shall mean the occurrence of any of the following events: (i) the Company sells all or substantially all of its consolidated assets to an unaffiliated third party, (ii) any Person or “group” (as such term is used in Section 13 of the Exchange Act) (other than the Purchasers or any “group” including the Purchasers), directly or indirectly, obtains Beneficial Ownership of 50% or more of the total outstanding voting power of the Voting Stock or (iii) the Company participates in any merger, consolidation or similar transaction unless immediately following the consummation of such transaction the stockholders of the Company immediately prior to the consummation of such transaction continue to hold (in substantially the same proportion as their ownership of the Company’s Voting Stock immediately prior to the transaction) more than 50% of all of the outstanding common stock or other securities entitled to vote for the election of directors of the surviving or resulting entity in such transaction.

 

- 2 -


Closing ” has the meaning set forth in Section  2.2 hereof.

Closing Date ” has the meaning set forth in Section  2.2 hereof.

Code ” shall mean the Internal Revenue Code of 1986, as amended or modified from time to time and including the regulations and published interpretations thereunder.

Collateral ” has the meaning set forth in the recitals hereof.

Collateral Agent ” has the meaning set forth in the recitals hereof.

Collateral Documents ” has the meaning set forth in the recitals hereof.

Common Stock ” has the meaning set forth in the recitals hereof.

Company ” has the meaning set forth in the first paragraph hereof.

Competitor ” shall mean any entity that is an operating company which directly engages in the exploration for and production of oil and natural gas (it being agreed that “Competitor” shall not include (i) any entity whose primary business is to be a lender, investor or similar venture and (ii) the Purchasers or any affiliated entities of the Purchasers solely as a result of loans to, or investments in, such entities, in each case with respect to the preceding clauses (i) and (ii) whether or not such entities are indirectly engaged in the exploration for and production of oil and natural gas as a result of having made such loans or investments).

Confidential Information ” has the meaning set forth in Section  10.9 hereof.

Control ” (including the terms “ controlling ” and “ controlled by ”) with respect to any Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

Control Agreement ” means a deposit account, securities or commodity account control agreement, as applicable, to be executed and delivered among the Company, the Collateral Agent and each bank at which such Person maintains any deposit, securities or commodity account, in each case, which shall be in form and substance substantially similar to the analogous agreement delivered under the Credit Agreement, with such changes as are reasonably necessary to reflect the second priority status of such agreement, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

Conversion Shares ” has the meaning set forth in the recitals hereof. For purpose of determining the number of Conversion Shares issuable upon conversion of the Notes, the Company shall be deemed to elect “Physical Settlement” (as defined in the Indenture).

Credit Agreement ” means the Third Amended and Restated Credit Agreement in substantially the form of the draft thereof delivered by Latham & Watkins LLP, counsel to the Purchasers, to Vinson & Elkins LLP, counsel to the Company, via email at 2:06 p.m. CST on February 16, 2017.

 

- 3 -


Disclosed ” means set forth in the SEC Reports, excluding any disclosures set forth in risk factors or any “forward-looking statements.”

DTC ” has the meaning set forth in Section  5.9 hereof.

Environmental Laws ” has the meaning set forth in Section  3.21 hereof.

Equity Securities ” means any and all shares of (i) Common Stock, (ii) Preferred Stock, and (iii) any equity securities (including preferred stock) of the Company convertible into, or exchangeable or exercisable for, any of the foregoing shares, and options, warrants or other rights to acquire any of the foregoing shares or other securities.

ERISA ” has the meaning set forth in Section  3.18 hereof.

Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended or modified from time to time, and all of the rules and regulations promulgated thereunder.

Excluded Stock ” means (i) shares of Equity Securities issued by the Company as a stock dividend payable in shares of equity securities, or upon any subdivision or split up of the outstanding shares of capital stock, (ii) the issuance of shares of Equity Securities (including upon exercise of options) to directors, employees or consultants of the Company pursuant to a stock option plan, restricted stock plan or other similar plan, which, in any such case, has been approved by the Board of Directors, (iii) the issuance of shares of equity securities in connection with bona fide acquisitions of securities, or substantially all of the assets of another person or business (other than issuances to persons that were Affiliates of the Company at the time that the agreement with respect to such issuance was entered into), (iv) securities issued pursuant to the conversion, exercise or exchange of the Notes, (v) shares of a Subsidiary of the Company issued to the Company, or (vi) securities of a joint venture (provided that no Affiliate (other than any Subsidiary of the Company) of the Company acquires any interest in such securities in connection with such issuance).

Exempt Persons ” has the meaning set forth in Section  5.12 hereof.

Expired Rights Agreement ” has the meaning set forth in Section  3.2 hereof.

Federal Reserve Board ” has the meaning set forth in Section  3.29 hereof.

Financial Statements ” has the meaning set forth in Section 3.9(b) hereof.

Firm Shares ” has the meaning set forth in the recitals hereof.

First Lien Secured Parties ” shall mean “Secured Parties” (as such term is defined in the Credit Agreement), lenders under any “Senior Credit Facility” (as such term is defined in the Credit Agreement) and any “Qualified Counterparties” (as such term is defined in the Credit Agreement).

GAAP ” has the meaning set forth in Section 3.9(b) hereof.

 

- 4 -


Governmental Authority ” shall mean any legislature, agency, bureau, branch, department, division, commission, instrumentality, court, tribunal, magistrate, justice, multi-national organization, quasi-governmental body, or other similar recognized organization or body of any federal, state, county, municipal, local, provincial or foreign government or any court, arbitrator, arbitration panel or similar judicial body.

HSR Act ” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended or modified from time to time.

Indemnification Notice ” has the meaning set forth in Section  9.2 hereof.

Indemnified Person ” has the meaning set forth in Section  9.1 hereof.

Indenture ” has the meaning set forth in the recitals hereof.

Intellectual Property ” has the meaning set forth in Section  3.17 hereof.

Intercreditor Agreement ” has the meaning set forth in the recitals hereof.

Investment Company Act ” has the meaning set forth in Section  3.13 hereof.

Losses ” has the meaning set forth in Section  9.1 hereof.

Material Adverse Effect ” shall mean such facts, circumstances, events or changes that are, individually or in the aggregate, materially adverse to (i) the assets, business, business prospects, operations, earnings, properties, condition (financial or otherwise), stockholders’ equity or results of operations of the Company or (ii) the Company’s ability to consummate the transactions contemplated by the Transaction Agreements.

Money Laundering Laws ” has the meaning set forth in Section  3.28 hereof.

Mortgaged Properties ” means the each of the properties listed on Schedule 1.01 to the Credit Agreement.

Mortgages ” means all mortgages, deeds of trust, amendments to mortgages, security agreements, assignments of production, pledge agreements, collateral mortgages, collateral chattel mortgages, collateral assignments, financing statements and other documents, instruments and agreements evidencing, creating, perfecting or otherwise establishing the Liens on the Mortgaged Properties, which shall be in form and substance substantially similar to the analogous documents, instruments and agreements delivered under the Credit Agreement, with such changes as are reasonably necessary to reflect the second priority status of such documents, instruments and agreements.

NYSE MKT ” has the meaning set forth in Section  3.12 hereof.

New Term Facility ” has the meaning set forth in the recitals hereof.

Notes ” has the meaning set forth in the recitals hereof.

 

- 5 -


Observers ” has the meaning set forth in Section 5.4(e) hereof.

Permitted Business Liens shall mean the all liens, security interests, pledges, charges, encumbrances, mortgages and restrictions described in clauses (E), (G), (L) and (M) of the definition of “Permitted Liens” set forth in the Indenture.

Person ” shall mean an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or any other entity or organization.

Pre-Closing Period ” shall mean the period commencing on the date hereof and terminating on the earlier to occur of (a) the Closing and (b) the termination of this Agreement in accordance with the provisions hereof.

Preferred Stock ” means the preferred stock of the Company, par value $0.01 per share.

Pro Rata Share ” has the meaning set forth in Section  5.10 hereof.

Proposed Securities ” has the meaning set forth in Section  5.10 hereof.

Purchaser ” has the meaning set forth in the first paragraph hereof.

Purchaser Adverse Effect ” has the meaning set forth in Section  4.3 hereof.

Qualification Requirement ” has the meaning set forth in Section 5.4(a) hereof.

Registration Rights Agreement ” has the meaning set forth in the recitals hereof.

Representatives ” has the meaning set forth in Section  10. 9 hereof.

Restricted Period ” has the meaning set forth in Section 7.1(a) hereof.

Revolving Credit Facility has the meaning set forth in Section  3.16 hereof.

Rights Agreement shall mean that certain Rights Agreement dated as of January 27, 2017 between the Company and American Stock Transfer & Trust Company, LLC, as Rights Agent.

rights-of-way ” has the meaning set forth in Section  3.1 6 hereof.

Rule 144 ” shall mean Rule 144 (or any successor provision) under the Securities Act, as such provision may be amended from time to time.

Sanctions ” has the meaning set forth in Section  3.30 hereof.

SEC ” shall mean the Securities and Exchange Commission.

SEC Reports ” shall mean the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015, the Company’s Quarterly Reports on Form 10-Q for each of the

 

- 6 -


fiscal quarters ended March 31, 2016, June 30, 2016 and September 30, 2016, the Company’s Proxy Statement on Schedule 14A for its 2016 Annual Meeting of Stockholders, and any Current Reports on Form 8-K filed or furnished by the Company after December 31, 2015 and on or prior to the date hereof.

Securities ” shall mean the Notes, the Conversion Shares and the Firm Shares.

Securities Act ” shall mean the Securities Act of 1933, as amended or modified from time to time, and all of the rules and regulations promulgated thereunder.

Security Agreement ” means that certain Pledge and Security Agreement executed and delivered by the Company on the Closing Date in favor of the Collateral Agent, for the benefit of the Collateral Agent and holders of the Notes, which shall be in form and substance substantially similar to the draft of the analogous agreement under the Credit Agreement delivered by Latham & Watkins LLP, counsel to the Purchasers, to Vinson & Elkins LLP, counsel to the Company, via email at 2:06 p.m. CST on February 16, 2017, with such changes as are reasonably necessary to reflect the second priority status of such agreement.

Security Instruments ” means collectively, the Security Agreement, all Control Agreements and all Mortgages, deeds of trust, security agreements, pledge agreements, guaranty agreements (other than this Agreement), collateral assignments and all other collateral documents, now or hereafter executed and delivered by the Company or any other Person as security for the payment or performance of the obligations hereunder, which shall be in form and substance substantially similar to the analogous documents and agreements delivered under the Credit Agreement, with such changes as are reasonably necessary to reflect the second priority status of such documents and agreements.

Senior Secured Notes has the meaning set forth in Section  3.16 hereof.

Specified Person ” has the meaning set forth in Section 10.14(b) hereof.

Subsidiary ” when used with respect to any party shall mean any corporation or other organization, whether incorporated or unincorporated (x) of which such party or a Subsidiary of such party is a general partner or managing member or (y) of which at least a majority of the securities or other interests of which having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such party or by any one or more of its Subsidiaries, or by such party and one or more of its Subsidiaries.

Transaction Agreements ” shall mean this Agreement, the Registration Rights Agreement, the Indenture, the Notes, the Collateral Documents and the Intercreditor Agreement.

Transfer ” has the meaning set forth in Section 7.1(a) hereof.

Trustee ” shall mean Wilmington Trust, National Association or such other financial institution that provides corporate trust services as proposed by the Company and consented to by the Purchasers.

 

- 7 -


Voting Stock ” shall mean securities of any class or kind ordinarily having the power to vote generally for the election of directors, managers or other voting members of the governing body of the Company or any successor thereto.

2.     Authorization, Purchase and Sale of the Securities .

2.1.     Authorization, Purchase and Sale .

(a)    The Company has authorized (a) the initial sale and issuance to the Purchasers of the Notes and (b) the issuance of the Conversion Shares, if any, to be issued upon the conversion of the Notes. Subject to and upon the terms and conditions set forth in this Agreement, at the Closing, the Company shall issue and sell to the Purchasers, and the Purchasers, jointly and severally, shall purchase from the Company, the aggregate principal amount of Notes set forth in Schedule I hereto, at a purchase price equal to the principal amount of Notes purchased.

(b)    The Company has authorized the initial sale and issuance to the Purchasers of the Firm Shares. Subject to and upon the terms and conditions set forth in this Agreement, at the Closing, the Company shall issue and sell to the Purchasers, and the Purchasers, jointly and severally, shall purchase from the Company, the aggregate number of the Firm Shares set forth in Schedule I hereto, at a purchase price of $1.7002 per share.

(c)    Notwithstanding anything in this Section  2.1 to the contrary, (i) no later than one (1) business day prior to the Closing, the Purchasers shall deliver to the Company an updated version of Schedule I , which shall set forth the aggregate principal amount of the Notes and the number of the Firm Shares that each Purchaser shall purchase pursuant to this Agreement, (ii) following the delivery of the updated version of Schedule I pursuant to this Section  2.1(c) , subject to and upon the terms and conditions set forth in this Agreement, at the Closing the Company shall issue and sell to each Purchaser, and each Purchaser shall purchase from the Company (A) the aggregate principal amount of the Notes set forth opposite its name in the updated version of Schedule I and (B) the number of the Firm Shares set forth opposite its name in the updated version of Schedule I , and (iii) following the delivery of the updated version of Schedule I pursuant to this Section  2.1(c) , the obligations of each Purchaser to purchase its respective Notes and Firm Shares as provided in such updated version of Schedule I shall be several and not joint. In connection with an update of Schedule  I pursuant to this Section  2.1(c) , in no event shall the aggregate principal amount of the Notes or the aggregate number of the Firm Shares set forth on Schedule  I as of the date of this Agreement be modified or amended.

2.2.     Closing .

(a)    Subject to the satisfaction or waiver of the conditions set forth in Section  6 , the closing of the purchase and sale of the Notes and the Firm Shares (the “ Closing ”) shall take place at the offices of Vinson & Elkins LLP, 1001 Fannin Street, Suite 2500, Houston, TX 77002 either (i) no later than the date that is three (3) business days following the satisfaction or waiver of the conditions set forth in Section  6 or (ii) on such other date as is mutually agreed upon in writing by the Company and the Purchasers (the “ Closing Date ”).

 

- 8 -


(b)    At the Closing:

(i)    the Notes shall be delivered in certificated form with appropriate restrictive legends and transfer restriction notations as set forth in the Indenture to the account(s) specified by the Purchasers (or any Affiliate of Ares Management LLC to which the rights and obligations under this Agreement are assigned prior to the Closing Date consistent with the terms of this Agreement and in aggregate principal amount held entirely by the Purchasers); and

(ii)    the Purchasers shall receive evidence of the Firm Shares credited to book-entry accounts maintained by the Company’s transfer agent, duly issued by the Company and registered in the name of the Purchasers or the name of any Affiliate of Ares Management LLC to which the rights and obligations under this Agreement are assigned prior to the Closing Date consistent with the terms of this Agreement, bearing the legend or restrictive notation set forth in Section  4.11 , free and clear of any liens, other than transfer restrictions under applicable federal and state securities laws and under this Agreement,

in each case against payment to the Company of the purchase price therefor by wire transfer of immediately available funds to an account to be designated by the Company.

3.     Representations and Warranties of the Company . The Company hereby represents and warrants to the Purchasers as follows:

3.1.     Organization and Power . The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with the corporate power and authority to own its properties and to conduct its business as it is currently being conducted. The Company is duly qualified to transact business and is in good standing as a foreign corporation in each other jurisdiction in which its ownership or leasing of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, have a Material Adverse Effect.

3.2.     Capitalization .

(a)    As of September 30, 2016, (i) the total number of outstanding shares of Common Stock was 131,725,215 (including 1,168,925 shares issued as restricted stock subject to forfeiture or future vesting) and the total number of shares of Common Stock issuable upon exercise of outstanding options to acquire shares of Common Stock was 214,600, (ii) the total number of outstanding shares of Preferred Stock consisted of 4,045,000 shares of 8.625% Series A Cumulative Preferred Stock and 2,140,000 shares of 10.75% Series B Cumulative Preferred Stock, (iii) 1,475,730 performance based units were issued and outstanding subject to payment in Common Stock upon vesting of between 0 and 2.0 shares per unit and (iv) no other shares of stock or options or rights to acquire stock were outstanding, except stockholder rights distributed or created pursuant to that certain Rights Agreement dated January 18, 2016 between the Company and American Stock Transfer & Trust Company, LLC, as Rights Agent, as amended, (the “ Expired Rights Agreement ”) which rights have expired by their terms. Since September 30, 2016 through the date hereof, the Company has issued (i) 24,054,862 shares of Common Stock pursuant to its at-the-market sales agency plan, (ii) 935,756 shares of restricted Common Stock subject to vesting (and net of forfeitures) pursuant to its Long-Term Incentive

 

- 9 -


Stock Plan, (iii) 207,125 performance based units subject to payment in Common Stock upon vesting of between 0 and 2.0 shares per unit issued pursuant to the Company’s Long-Term Incentive Stock Plan and (iv) grants under the Company’s Long-Term Incentive Plan of an additional 544,051 restricted stock units and 544,051 performance based units, the payment of which in Common Stock remains subject to approval by stockholders of the Company at its 2017 annual meeting of stockholders. Except as provided in the foregoing sentence, since September 30, 2016 there have been no other options or other rights to acquire shares of Common Stock issued except certain rights distributed to stockholders or created for the benefit of stockholders pursuant to the Rights Agreement and shares of capital stock issued by the Company pursuant to outstanding options and other rights to purchase shares of Common Stock. All such issued and outstanding shares of Common Stock and Preferred Stock have been duly authorized and validly issued and are fully paid and non-assessable. As of the date of this Agreement, no dividends have been paid or declared with respect to the shares of Common Stock except for the dividend declaration and distribution of rights issued pursuant to the Expired Rights Agreement and the Rights Agreement.

(b)    As of the date of this Agreement, except as set forth in Section  3.2(a) , and except for pursuant to the Company’s Benefit Plans, rights issued pursuant to the Rights Agreement and the outstanding Preferred Stock, there are no existing options, warrants, calls, preemptive (or similar) rights, subscriptions or other rights, agreements or commitments obligating the Company to issue, transfer or sell, or cause to be issued, transferred or sold, any capital stock of the Company or any securities convertible into or exchangeable for such capital stock, and there are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any of its shares of capital stock.

3.3.     Registration Rights . Except as set forth in the Transaction Agreements, the Company has not granted to any Person the right to require the Company to register Common Stock on or after the date of this Agreement.

3.4.     Authorization . The Company has all requisite corporate power to enter into the Transaction Agreements and to carry out and perform its obligations under the terms of the Transaction Agreements. All corporate action on the part of the Company and its officers, directors and stockholders necessary for the authorization of the Securities, the authorization, execution, delivery and performance of the Transaction Agreements and the consummation of the transactions contemplated herein and therein has been taken. The execution, delivery and performance of the Transaction Agreements by the Company, the issuance of the Securities in accordance with their terms and the consummation of the other transactions contemplated herein and therein do not require any approval of the Company’s stockholders (other than such approval as has already been obtained and other than the Requisite Stockholder Approval (as defined in the Indenture)). Assuming this Agreement constitutes the legal and binding agreement of the Purchasers, this Agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting creditors generally or by general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). Upon their respective execution by the Company and the other parties thereto and assuming that they constitute legal and binding agreements of the other parties thereto, each of the Transaction Agreements will constitute a

 

- 10 -


legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting creditors generally or by general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law).

3.5.     Valid Issuance . The Notes being purchased by the Purchasers hereunder will, upon issuance pursuant to the terms hereof and the terms of the Indenture and upon payment therefor, be valid and legally binding obligations of the Company, enforceable in accordance with their terms and the terms of the Indenture, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting creditors generally or by general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). At or prior to the Closing and at all times thereafter, the Company will have authorized and have available for issuance at least the number of Conversion Shares into which the Notes may be converted, assuming that all outstanding Notes were converted at the same time under Physical Settlement (as defined in the Indenture) and at the maximum conversion rate set forth in the last sentence of Section 5.07(A) of the Indenture. The Conversion Shares issuable upon conversion of the Notes have been duly authorized for issuance and, when issued upon conversion of the Notes will be duly and validly issued, fully paid and non-assessable and will not be subject to any pre-emptive or similar rights and will rank pari passu in all respects with all other existing shares of Common Stock. The Firm Shares have been duly authorized and, upon issuance in accordance with the terms hereof, will be validly issued, fully paid and non-assessable and will not be subject to any pre-emptive or similar rights and will rank pari passu in all respects with all other existing shares of Common Stock. Subject to the accuracy of the representations made by the Purchasers in Section  4 hereof, the Securities will be issued to the Purchasers in compliance with applicable exemptions from (i) the registration and prospectus delivery requirements of the Securities Act and (ii) the registration and qualification requirements of applicable securities laws of the states of the United States.

3.6.     No Conflict . The execution, delivery and performance of the Transaction Agreements by the Company, the issuance of the Securities and the consummation of the other transactions contemplated hereby will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, constitute a default under (nor constitute any event which with or without notice, lapse of time or both would result in any breach or violation of or constitute a default under), give rise to any right of termination or other right or the cancellation or acceleration of any right or obligation or loss of a benefit under, or give rise to the creation or imposition of any lien, encumbrance, security interest, claim or charge upon any property or assets of the Company pursuant to any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or its Subsidiaries is a party or by which either the Company or any of its properties may be bound or to which any of their property or assets is subject, (ii) result in any violation of the provisions of the charter or by-laws (or analogous governing instrument, as applicable) of the Company, or (iii) result in any violation of any law, statute, rule, regulation, judgment, order or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company, or any of its properties or assets, except, with respect to clauses (i) and (iii), for any such conflict, breach, violation or default as would not, individually or in the aggregate, have a Material Adverse Effect.

 

- 11 -


3.7.     No Defaults . The Company is not in breach or violation of or in default (nor has any event occurred which with notice, lapse of time or both would result in any breach or violation of, or constitute a default) (i) under the provisions of its charter or bylaws (or analogous governing instrument, as applicable) or (ii) in the performance or observance of any term, covenant, obligation, agreement or condition contained in any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or such Subsidiary is a party or by which any of its properties may be bound or affected, or (iii) in the performance or observance of any statute, law, rule, regulation, ordinance, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such Subsidiary or any of its properties, as applicable, except, with respect to clauses (ii) and (iii) above, to the extent any such contravention has been waived or would not, individually or in the aggregate, result in a Material Adverse Effect.

3.8.     Consents . No approval, authorization, consent or order of or filing, qualification or registration with, any person or entity (including court or governmental agency or body, foreign or domestic), which has not been made, obtained or taken and is not in full force and effect, is required of the Company in connection with the execution, delivery and performance of the Transaction Agreements by the Company, the issuance of the Securities and the consummation of the other transactions contemplated by the Transaction Agreements other than (i) such filings as may be required under the Securities Act pursuant to the Registration Rights Agreement, (ii) such filings as may be required under the rules of the Financial Industry Regulatory Authority, (iii) such filings as may be required by the NYSE MKT, (iv) any required filing on Form 8-K under the Exchange Act or (v) the expiration or termination of any applicable waiting periods under the HSR Act or any foreign antitrust requirements in connection with the issuance of Conversion Shares upon conversion of the Notes.

3.9.     SEC Reports; Financial Statements .

(a)    The Company has filed all required registration statements, prospectuses, reports, schedules, forms, statements and other documents required to be filed by it with the SEC since December 31, 2012 through the date hereof. The information contained or incorporated by reference in the SEC Reports (but excluding representations and warranties contained in any instrument or agreement filed as an exhibit thereto) was true and correct in all material respects as of the respective dates of the filing thereof with the SEC (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing); and, as of such respective dates, the SEC Reports did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All of the SEC Reports, as of their respective dates, complied as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder.

(b)    The consolidated financial statements of the Company included in the SEC Reports (collectively, the “ Financial Statements ”) fairly present in all material respects the consolidated financial position of the Company as of the dates indicated, and the results of its operations and cash flows for the periods therein specified, all in accordance with United States

 

- 12 -


generally accepted accounting principles applied on a consistent basis (“ GAAP ”) throughout the periods therein specified (except as otherwise noted therein, and in the case of quarterly financial statements except for the absence of footnote disclosure and subject, in the case of interim periods, to normal year-end adjustments).

(c)    Except as disclosed in the SEC Reports, the Company has not incurred any liabilities that are of a nature that would be required to be disclosed on a balance sheet of the Company or the footnotes thereto prepared in conformity with GAAP, other than (i) liabilities incurred in the ordinary course of business since September 30, 2016, and (ii) liabilities that would not, individually or in the aggregate, have a Material Adverse Effect.

3.10.     Absence of Certain Changes . Since September 30, 2016, there have not been any changes, circumstances, conditions or events which, individually or in the aggregate, have had, or would reasonably be expected to have, a Material Adverse Effect.

3.11.     Absence of Litigation . Except as disclosed in Schedule II , there are no material legal or governmental actions, suits, claims or proceedings pending or, to the Company’s knowledge, threatened or contemplated to which the Company is or would be a party or of which any of their respective properties is or would be subject at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, or before or by any self-regulatory organization or other non-governmental regulatory authority.

3.12.     NYSE MKT . The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed on the NYSE MKT LLC (“ NYSE MKT ”), and the Company has no action pending to terminate the registration of the Common Stock under the Exchange Act or delist the Common Stock from the NYSE MKT, nor has the Company received any notification that the SEC or the NYSE MKT is currently contemplating terminating such registration or listing.

3.13.     Investment Company Act . The Company is not, and immediately after receipt of payment for the Securities will not be, (i) an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “ Investment Company Act ”), and the rules and regulations of the SEC thereunder, or (ii) a “business development company” (as defined in Section 2(a)(48) of the Investment Company Act).

3.14.     General Solicitation; No Integration . Neither the Company nor any other Person or entity authorized by the Company to act on its behalf has engaged in a general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) of investors with respect to offers or sales of the Securities. The Company has not, directly or indirectly, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act) which, to its knowledge, is or will be integrated with the Securities sold pursuant to this Agreement.

3.15.     Brokers . Neither the Company nor any other Person authorized by the Company to act on its behalf has retained, utilized or been represented by any broker or finder in connection with the transactions contemplated by this Agreement whose fees the Purchasers would be required to pay, other than as previously disclosed in writing to Purchasers.

 

- 13 -


3.16.     Property . Except as otherwise set forth in the SEC Reports or such as in the aggregate does not, individually or in the aggregate, currently result in, and is not reasonably expected in the future to result in, a Material Adverse Effect, the Company has title to their respective properties as follows: (a) with respect to wells (including leasehold interests and appurtenant personal property) and non-producing oil and gas properties (including undeveloped locations on leases held by production and those leases not held by production), such title is good and free and clear of all liens, security interests, pledges, charges, encumbrances, mortgages and restrictions (except Permitted Business Liens and those arising under or in connection with the Company’s Second Amended and Restated Credit Agreement, as amended (the “ Revolving Credit Facility ”) or the Company’s 8.625% Senior Secured Notes due 2018 (the “ Senior Secured Notes ”)); (b) with respect to non-producing properties in exploration prospects, such title was investigated in accordance with customary industry procedures prior to the acquisition thereof by the Company or any such Subsidiary; (c) with respect to real property other than oil and gas interests, such title is good and marketable free and clear of all liens, security interests, pledges, charges, encumbrances, mortgages and restrictions (except Permitted Business Liens and those arising under or in connection with the Revolving Credit Facility or the Senior Secured Notes); and (d) with respect to personal property other than that appurtenant to oil and gas interests, such title is free and clear of all liens, security interests, pledges, charges, encumbrances, mortgages and restrictions (except Permitted Business Liens and those arising under or in connection with the Revolving Credit Facility or the Senior Secured Notes). No real property owned, leased, licensed, or used by the Company or any Subsidiary lies in an area which is, or to the knowledge of the Company will be, subject to restrictions which would prohibit, and no statements of facts relating to the actions or inaction of another person or entity or his or its ownership, leasing, licensing, or use of any real or personal property exists or will exist which would prevent, the continued effective ownership, leasing, licensing, exploration, development or production or use of such real property in the business of the Company or any such Subsidiary as presently conducted, except as such that in the aggregate does not currently result in, and is not reasonably expected in the future to result in, a Material Adverse Effect. The working interests in oil, gas and mineral leases or mineral interests that constitute a portion of the real property held by the Company reflect in all material respects the right of the Company to explore, develop or receive production from such real property, subject to statutes, regulations and administrative orders regarding forced pooling and rights of third parties to participate in the drilling of wells on such leases pursuant to agreements entered into in the ordinary course of business or described in the SEC Reports or pursuant to that certain Development Agreement dated as of October 14, 2016. The Company has such consents, easements, rights of way or licenses from any person (“ rights-of-way ”) as are necessary to enable the Company to conduct its business as it is currently being conducted, except for such rights-of-way the lack of which would not have, individually or in the aggregate, a Material Adverse Effect.

3.17.     Intellectual Property . The Company owns or possesses the right to use all patents, trademarks, trademark registrations, service marks, service mark registrations, trade names, copyrights, licenses, inventions, software, databases, know-how, Internet domain names, trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures, and other intellectual property (collectively, “ Intellectual Property ”)

 

- 14 -


necessary to carry on its businesses as currently conducted, and the Company is not aware of any claim to the contrary or any challenge by any other person to the rights of the Company with respect to the foregoing except for those that could not, individually or in the aggregate, have a Material Adverse Effect. The Company’s Intellectual Property licenses are, to the knowledge of the Company, valid, binding upon, and enforceable by or against the parties thereto in accordance with their terms. The Company has complied in all material respects with, and are not in breach nor have received any asserted or threatened claim of breach of, any Intellectual Property license, and the Company has no knowledge of any breach or anticipated breach by any other person of any Intellectual Property license. The business of the Company as now conducted does not and will not infringe or conflict with any patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses or other Intellectual Property or franchise right of any person. The Company has not received written notice of any claim against the Company alleging the infringement by the Company of any patent, trademark, service mark, trade name, copyright, trade secret, license in or other intellectual property right or franchise right of any person. The Company has taken all reasonable steps to protect, maintain and safeguard its rights in all Intellectual Property, including the execution of appropriate nondisclosure and confidentiality agreements. The consummation of the transactions contemplated by this Agreement will not result in the loss or impairment of or payment of any additional amounts with respect to, nor require the consent of any other person in respect of, the right of the Company to own, use or hold for use any of the Intellectual Property as owned, used or held for use in the conduct of the businesses as currently conducted. The Company does not own any patents or has made application for the issuance of a patent.

3.18.     Labor . No labor problem or dispute with the employees of the Company exists, or, to the Company’s knowledge, is threatened or imminent, which would reasonably be expected to result in a Material Adverse Effect. The Company is not aware that any key employee or significant group of employees of the Company plans to terminate employment with the Company. Except for matters which would not, individually or in the aggregate, result in a Material Adverse Effect, (i) there is (A) no unfair labor practice complaint pending or, to the Company’s knowledge, threatened against the Company before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending or, to the Company’s knowledge, threatened, (B) no strike, labor dispute, slowdown or stoppage pending or, to the Company’s knowledge, threatened against the Company and (C) no union representation dispute currently existing concerning the employees of the Company and (ii) to the Company’s knowledge, (A) no union organizing activities are currently taking place concerning the employees of the Company and (B) there has been no violation of any federal, state, local or foreign law relating to discrimination in the hiring, promotion or pay of employees, any applicable wage or hour laws or any provision of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), or the rules and regulations promulgated thereunder concerning the employees of the Company.

3.19.     Taxes . Except as would not, individually or in the aggregate, result in a Material Adverse Effect, each of the Company (i) has timely filed all necessary federal, state, local and foreign income and franchise tax returns (or timely filed applicable extensions therefor) that have been required to be filed, and (ii) is not in default in the payment of any taxes which were payable pursuant to such returns or any assessments with respect thereto, other than any which the Company is contesting in good faith and for which adequate reserves have been

 

- 15 -


provided and reflected in the Financial Statements. The Company has no tax deficiency that has been or, to the knowledge of the Company, is reasonably likely to be asserted or threatened against it that would, individually or in the aggregate, result in a Material Adverse Effect. None of the Company has engaged in any transaction which is a corporate tax shelter or which could be characterized as such by the Internal Revenue Service or any other taxing authority.

3.20.     ERISA . Except as would not, individually or in the aggregate, result in a Material Adverse Effect, (i) the Company is in compliance in all material respects with all presently applicable provisions of ERISA; (ii) no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Company would have any liability; (iii) the Company has not incurred and does not expect to incur liability under Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or Sections 412 or 4971 of the Code; and (iv) each “pension plan” for which the Company would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.

3.21.     Environmental . The Company (i) is in compliance with any and all applicable federal, state and local laws, orders, rules, regulations, ordinances, legally enforceable directives, decrees and judgments or other legally enforceable requirements of any Governmental Authority relating to the protection of occupational health and safety (to the extent such health and safety relate to exposure to hazardous or toxic substances or wastes), the environment, flora and fauna or to hazardous or toxic substances or wastes, pollutants or contaminants (“ Environmental Laws ”) that are applicable to such entities; (ii) has timely applied for and where received is in compliance with, all such permits, authorizations or other approvals required of it under applicable Environmental Laws to conduct their respective businesses as they are currently being conducted; and (iii) is in compliance with all terms and conditions of any such received permit, authorization or approval, except in the case of each of clauses (i), (ii), and (iii) where such noncompliance with applicable Environmental Laws, such failure to apply for or receive required permits, authorizations or other approvals or such failure to comply with the terms and conditions of such received permits, authorizations or approvals would not, individually or in the aggregate, result in a Material Adverse Effect. The Company has not received notice of any actual or alleged violation of, or potential liability under any applicable Environmental Laws regarding the presence, disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except for any such actual or alleged violation of, or any such potential liability under applicable Environmental Laws that would, individually or in the aggregate, not result in a Material Adverse Effect. Except as disclosed in Schedule III , (A) there are no material governmental proceedings that are pending, or known by the Company to be threatened, against the Company, under Environmental Laws, and (B) to the knowledge of the Company, there are no material conditions or occurrences regarding compliance with applicable Environmental Laws, or liabilities under applicable Environmental Laws. To the knowledge of the Company, there are no material costs or liabilities under applicable Environmental Laws arising with respect to the conduct of the business by each of the Company (including any capital or operating expenditures required for clean-up, closure of properties or compliance with applicable Environmental Laws or any permit, authorization or approval, any related constraints on operating activities and any potential liabilities to third parties).

 

- 16 -


3.22.     Insurance . The Company maintains or is covered by insurance provided by recognized, financially sound and reputable institutions with insurance policies in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries. All such insurance is fully in force on the date hereof and will be fully in force as of the Closing; the Company is in compliance with the terms of such policies in all material respects; and none of the Company has received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance; and there are not claims by the Company under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause. The Company has no reason to believe that it will not be able to renew their existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate, have a Material Adverse Effect. The Company has not been denied any material insurance policy or coverage for which it has applied. The Company does not insure risk of loss through any captive insurance, risk retention group, reciprocal group or by means of any fund or pool of assets specifically set aside for contingent liabilities.

3.23.     Internal Controls . The Company maintains a system of internal controls over financial reporting that complies with the requirements of the Exchange Act and has been designed under the supervision of the Company’s principal executive and principal financial officers to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company maintains internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

3.24.     Dividends . Except as prohibited by law, no Subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such Subsidiary’s capital stock, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary of the Company.

3.25.     Disclosure Controls . The Company has established, maintains and evaluates “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) and 15d-15(e) under the Exchange Act), which (i) are designed to ensure that material information relating to the Company is made known to the Company’s principal executive officer and its principal financial officer by others within those entities, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared, (ii) have been evaluated for effectiveness as of the end of the last fiscal period covered by the Financial Statements; and (iii) such disclosure controls and procedures are effective to perform the functions for which they were established. There are no significant deficiencies or material weaknesses in the design or operation of internal controls which could adversely affect the

 

- 17 -


Company’s ability to record, process, summarize, or report financial data to management and the board of directors of the Company. The Company is not aware of any fraud, whether or not material, that involves management or other employees who have a role in the Company’s internal controls; and since the date of the most recent evaluation of such disclosure controls and procedures, there have been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.

3.26.     Sarbanes-Oxley Act . The Company, and to its knowledge, each of its directors or officers, in their capacities as such, are in compliance in all material respects with all applicable effective provisions of the Sarbanes-Oxley Act and any related rules and regulations promulgated by the SEC. Each of the principal executive officer and the principal financial officer of the Company has made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules, forms, statements and other documents required to be filed by him or her with the SEC. For purposes of the preceding sentence, “principal executive officer” and “principal financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley Act.

3.27.     Anti-Corruption . Neither the Company nor, to the Company’s knowledge, any other person associated with or acting on behalf of the Company, including any director, officer, agent or employee of the Company has, directly or indirectly, while acting on behalf of the Company (i) used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity or failed to disclose fully any contribution in violation of law, (ii) made any payment to any federal or state governmental officer or official, or other person charged with similar public or quasi-public duties in violation of the laws of the United States or any jurisdiction thereof, (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.

3.28.     Money Laundering Laws . The operations of the Company is and has been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the USA PATRIOT Act, money laundering statutes, rules and regulations thereunder, and related or similar rules, regulations or guidelines, issued, administered or enforced by a governmental agency (collectively, the “ Money Laundering Laws ”) and no material action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened against the Company.

3.29.     Margin Securities . The Company does not own any “margin securities” as that term is defined in Regulation U of the Board of Governors of the Federal Reserve System (the “ Federal Reserve Board ”), and none of the proceeds of the sale of the Securities will be used, directly or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any of the Securities to be considered a “purpose credit” within the meanings of Regulation T, U or X of the Federal Reserve Board.

 

- 18 -


3.30.     Sanctions . None of the Company or, to the knowledge of the Company, after due inquiry, any director, officer, agent, employee or affiliate of the Company is (i) currently subject to or the target of any sanctions administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “ Sanctions ”); or (ii) located, organized or resident in a country that is the subject of Sanctions (including Cuba, Iran, North Korea, Sudan, and Syria); and the Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any affiliate, subsidiary, joint venture partner or other person or entity, which, to the Company’s knowledge, will use such proceeds for the purpose of financing the activities of any person currently subject to or the target of Sanctions, or in any other manner that will result in a violation by any person (including any person participating in the transaction whether as an underwriter, advisor, investor or otherwise) of Sanctions. The Company has not knowingly engaged in for the past five years, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction is or was the subject or target of Sanctions.

3.31.     No Subsidiaries . The Company has no Subsidiaries other than such that constitute “Immaterial Subsidiaries” under and as defined in the Indenture.

3.32.     Reliance by the Purchasers . The Company acknowledges that the Purchasers will rely upon the truth and accuracy of, and the Company’s compliance with, the representations, warranties, agreements, acknowledgements and understandings of the Company set forth herein.

4.     Representations and Warranties of the Purchasers . The Purchasers represents and warrants to the Company as follows:

4.1.     Organization . The Purchasers are duly organized, validly existing and in good standing under the laws of the jurisdiction of their respective organization and have the requisite power and authority to own, lease and operate their respective properties and to carry on their businesses as now conducted.

4.2.     Authorization . The Purchasers have all requisite corporate or similar power to enter into this Agreement and the other Transaction Agreements to which they will be a party and to carry out and perform their obligations hereunder and thereunder. All corporate, member or partnership action on the part of the Purchasers or their respective stockholders, members or partners necessary for the authorization, execution, delivery and performance of this Agreement and the other Transaction Agreements to which they will be a party and the consummation of the other transactions contemplated herein has been taken. Assuming this Agreement constitutes the legal and binding agreement of each party hereto other than the Purchasers, this Agreement constitutes a legal, valid and binding obligation of the Purchasers, enforceable against the Purchasers in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting creditors generally or by general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). Upon their respective execution

 

- 19 -


by the Purchasers and the other parties thereto and assuming that they constitute legal and binding agreements of each party thereto other than the Purchasers, each of the other Transaction Agreements to which the Purchasers will be a party will constitute a legal, valid and binding obligation of the Purchasers, enforceable against the Purchasers in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting creditors generally or by general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law).

4.3.     No Conflict. The execution, delivery and performance by the Purchasers of the Transaction Agreements to which it is a party will not conflict with or result in any violation of or default by the Purchasers (with or without notice or lapse of time, or both) under (i) any provision of the organizational documents of the Purchasers or (ii) any agreement or instrument, credit facility, franchise, license, judgment, order, statute, law, ordinance, rule or regulations, applicable to the Purchasers or their respective properties or assets, except, in the case of clause (ii), as would not, individually or in the aggregate, be reasonably expected to materially delay or hinder the ability of the Purchasers to perform their obligations under the Transaction Agreements (a “ Purchaser Adverse Effect ”).

4.4.     Consents . All consents, approvals, orders and authorizations required on the part of the Purchasers in connection with the execution, delivery or performance by the Purchasers of the Transaction Agreements to which it is a party have been obtained or made, other than (i) the expiration or termination of the applicable waiting period under the HSR Act or any foreign antitrust requirements and (ii) such consents, approvals, orders and authorizations the failure of which to make or obtain, individually or in the aggregate, would not reasonably be expected to have a Purchaser Adverse Effect.

4.5.     Absence of Litigation . As of the date hereof, there is no action, suit, proceeding, investigation or inquiry pending or, to the Purchasers’ knowledge, threatened by or before any Governmental Authority against the Purchasers which, individually or in the aggregate, would reasonably be expected to have a Purchaser Adverse Effect, nor are there any orders, writs, injunctions, judgments or decrees outstanding of any court or Governmental Authority binding upon the Purchasers that would reasonably be expected to have a Purchaser Adverse Effect.

4.6.     Available Funds . At the Closing, the Purchasers will have all funds necessary to pay to the Company the purchase price for the Securities being purchased by the Purchasers pursuant to this Agreement in immediately available funds.

4.7.     Brokers and Finders . The Purchasers have not retained, utilized or been represented by any broker or finder in connection with the transactions contemplated by this Agreement whose fees the Company would be required to pay (other than pursuant to the reimbursement of expenses provisions of Section  10.7 hereof if applicable).

4.8.     Purchase Entirely for Own Account . The Purchasers are acquiring the Securities for its own account and not with a view to, or for sale in connection with, any distribution of the Securities in violation of the Securities Act. The Purchasers have no present agreement, undertaking, arrangement, obligation or commitment providing for the disposition of the Securities.

 

- 20 -


4.9.     Investor Status .

(a)    The Purchasers certify and represent to the Company that the Purchasers are each an “accredited investor” as defined in Rule 501 of Regulation D promulgated under the Securities Act.

(b)    The Purchasers (i) have such knowledge and experience in financial and business matters as to be able to evaluate the risks and merits of its prospective investment in the Securities and (ii) have the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment.

(c)    The Purchasers (i) have conducted its own investigation of the Company and the terms of the Securities, (ii) have had access to the Company’s public filings and to such business, financial and other information as it deems necessary to make its investment decision, (iii) have been afforded the opportunity to ask questions of and receive answers from the management of the Company concerning this investment, and (iv) have sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities.

4.10.     Offer and Sale of Securities Not Registered . The Purchasers understand that the offer and sale of the Securities have not been registered under the Securities Act, by reason of their issuance by the Company in a transaction exempt from the registration requirements of the Securities Act, and that the Securities must continue to be held by the Purchasers unless a subsequent disposition thereof is registered under the Securities Act or is exempt from such registration and in each case in accordance with any applicable securities laws of any state of the United States. The Purchasers understand that the exemptions from registration afforded by Rule 144 (the provisions of which are known to it) promulgated under the Securities Act depend on the satisfaction of various conditions including, but not limited to, as to manner of sale and a minimum holding period, and on requirements relating to the Company which are outside of the Purchasers’ control and which the Company is under no obligation and may not be able to satisfy, and that, if applicable, Rule 144 may afford the basis for sales only in limited amounts. The Purchasers understand that the purchase of the Securities and other rights afforded to the Purchasers or their Affiliates pursuant to the Transaction Documents may deem the Purchasers and their Affiliated Entities “affiliates” of the Company within the meaning of Rule 144 and as a result further restrict the Purchasers’ ability to resell or transfer the Securities under Rule 144.

4.11.     Legends . The Purchasers understand that the certificates evidencing the Firm Shares or the book-entry accounts maintained by the transfer agent evidencing ownership of the Firm Shares, as applicable, will bear the following legend or restrictive notation:

“THE OFFER AND SALE OF THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR

 

- 21 -


HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREUNDER AND, IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT OR THE ISSUER HAS RECEIVED DOCUMENTATION REASONABLY SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER SUCH ACT.”

4.12.     Reliance by the Company . The Purchasers acknowledge that the Company will rely upon the truth and accuracy of, and the Purchasers’ compliance with, the representations, warranties, agreements, acknowledgements and understandings of the Purchasers set forth herein.

5.     Covenants .

5.1.     HSR Approval . The Company and the Purchasers acknowledge that one or more filings under the HSR Act may be necessary in connection with the issuance of the Conversion Shares upon conversion of the Notes. The Purchasers shall be solely responsible for determining whether any filings under the HSR Act or any foreign antitrust requirements may be necessary in connection with any conversion of Notes held by them and will promptly notify the Company if any such filing is required. If the Purchasers determine that any such filing is required, the Purchasers shall not convert the Notes until such time as the applicable requirements of the HSR Act or such foreign antitrust requirements have been satisfied and any related approvals, consents or waivers have been received, or such time as the Purchasers determine that such requirements are no longer applicable. To the extent reasonably requested, the Company will cooperate with the Purchasers in timely making or causing to be made all applications and filings under the HSR Act or any non-U.S. antitrust requirements in connection with the issuance of the Conversion Shares upon conversion of Notes held by the Purchasers as promptly as reasonably practicable or as required by the law of the applicable jurisdiction. The Company shall as promptly as reasonably practicable provide from time-to-time such information and documentation regarding the Company as the Purchasers or their assignees may reasonably request in order to determine what non-U.S. antitrust requirements may exist with respect to any potential conversion of the Notes. The Purchasers shall be responsible for the payment of the filing fees associated with any such applications or filings. For the avoidance of doubt, any delivery of the Conversion Shares upon conversion of the Notes shall be subject to the terms and conditions of the Indenture.

5.2.     Shares Issuable Upon Conversion . At any time that the Notes are outstanding, the Company shall cause to be maintained all authorizations required for the issuance of a number of Conversion Shares which the Company may be liable to issue upon the conversion of the Notes from time to time remaining outstanding, in accordance with the terms and conditions of the Notes. All Conversion Shares delivered upon conversion of the Notes shall be newly issued shares or shares held in treasury by the Company, shall have been duly authorized and validly issued and shall be fully paid and non-assessable and free of any lien and shall not be subject to any pre-emptive rights or similar rights and shall rank pari passu in all respects with other existing shares of Common Stock. The Company will cause any Conversion Shares issued upon conversion of the Notes to be listed with the NYSE MKT or, if the Common Stock is no longer listed on the NYSE MKT, the primary stock exchange or quotation system on which the Common Stock is then listed or quoted.

 

- 22 -


5.3.     Further Assurances . Each party agrees to cooperate with each other and their respective officers, employees, attorneys, accountants and other agents, and, generally, do such other reasonable acts and things in good faith as may be necessary to effectuate the intents and purposes of this Agreement, subject to the terms and conditions hereof and compliance with applicable law, including taking reasonable action to facilitate the filing of any document or the taking of reasonable action to assist the other parties hereto in complying with the terms hereof. Without limiting the foregoing: the Company shall (x) execute and deliver the Indenture and engage a trustee under the Indenture and cause such trustee to execute and deliver the Indenture, and (y) the Company will execute and deliver to the Purchasers the Registration Rights Agreement.

5.4.     Board Nominees and Observers .

(a)    Following the Closing, the Purchasers shall, collectively, have the right to nominate, pursuant to the terms and subject to the conditions of this Section  5.4 , two nominees to the Board of Directors (the “ Board Nominees ”). Each such nominee shall not be prohibited from serving as a director pursuant to any applicable law (including, the Exchange Act and the Clayton Antitrust Act of 1914, as amended) or rule or regulation of the SEC or any national securities exchange on which the Company’s Common Stock is listed or admitted to trading (the “ Qualification Requirement ”); provided , that Messrs. Nathan Walton and Ronald Scott (the initial Board Nominees) shall be deemed to satisfy such Qualification Requirement. In addition, at least one such nominee shall satisfy the independence requirements of the NYSE MKT or any other national securities exchange on which the Company’s Common Stock is listed or admitted to trading (other than for service on the audit committee), as determined in the good faith, reasonable judgment of the Company. The Board of Directors and the appropriate committees of the Board of Directors shall conduct the consideration of the qualifications, suitability and independence of a Board Nominee, and make any determinations with respect thereto, in a manner consistent with considerations and determinations in respect of other members of the Board of Directors. The Purchasers will take all necessary action to cause any nominee for Board Nominee to make himself or herself reasonably available for interviews, to consent to such reference and background checks or other investigations and to provide such information (including information necessary to determine the nominee’s independence status under various requirements and institutional investor guidelines as well as information necessary to determine any disclosure obligations of the Company) as the Board of Directors or its Nominating and Governance Committee may reasonably request; provided , that in each such case, all interviews, investigations and information are generally required to be delivered to the Company by the outside directors of the Company. Provided that the Board Nominees then meet the Qualification Requirement, the Company shall nominate (x) each Board Nominee for re-election as director at the end of each term of such Board Nominee in the event the Purchasers, together with their Affiliated Entities, collectively, then Beneficially Own at least 15% of the outstanding Common Stock or (y) one Board Nominee for re-election as director at the end of the term of such Board Nominee in the event the Purchasers, together with their Affiliated Entities, collectively, then Beneficially Own at least 5% but less than 15% of the outstanding Common Stock, in each case as part of the slate proposed by the Company that is included in the

 

- 23 -


proxy statement (or consent solicitation or similar document) of the Company relating to the election of the Board of Directors and will use its reasonable best efforts to cause the election of such Board Nominee(s) to the Board of Directors (including providing the same level of support as is provided for other nominees of the Company to the Board of Directors). In the event that a Board Nominee ceases to be a member of the Board of Directors and at such time another Board Nominee is still a member of the Board of Directors, so long as the Purchasers, together with their Affiliated Entities, collectively, Beneficially Own at least 15% of the outstanding Common Stock, the Purchasers may select another person as a nominee for Board Nominee to fill the vacancy created thereby and, if the Board of Directors determines that such nominee meets the Qualification Requirement, such nominee shall become a Board Nominee and shall be appointed to fill such vacancy. In the event that a Board Nominee ceases to be a member of the Board of Directors and at such time there are no other Board Nominee on the Board of Directors, so long as the Purchasers, together with their Affiliated Entities, collectively, Beneficially Own at least 5% of the outstanding Common Stock, the Purchasers may select another person as a nominee for Board Nominee to fill the vacancy created thereby and, if the Board of Directors determines that such nominee meets the Qualification Requirement, such nominee shall become a Board Nominee and shall be appointed to fill such vacancy.

(b)    The Board Nominees shall be subject to the policies and requirements of the Company and its Board of Directors, including the corporate governance guidelines of the Board of Directors and the Company’s Code of Ethics, in a manner consistent with the application of such policies and requirements to other members of the Board of Directors and in a manner that does not discriminate against the Purchasers or their Affiliates. The Company shall compensate the Board Nominees, reimburse their expenses, indemnify them and provide the Board Nominees with director and officer insurance to the same extent it compensates, reimburses, indemnifies and provides insurance for the outside members of the Board of Directors pursuant to its organizational documents, applicable law or otherwise.

(c)    Subject to applicable law and the approval of the Board of Directors to the extent such approval is required by law, which the Company will use its best efforts to obtain, at least one Board Nominee shall be entitled (but not be required) to sit as a member of each committee of the Board of Directors.

(d)    Other than transfers to an Affiliate of the Purchasers (which shall not require the consent of the Company), the rights of the Purchasers pursuant to this Section  5.4 shall be specific to the Purchasers and may not be transferred or assigned, in whole or in part, by the Purchasers directly or indirectly (including by way of direct or indirect transfers of equity interests in such Persons) without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Without limiting any other reason for the Company to withhold consent, it will be deemed reasonable for the Company to withhold consent to the transfer or assignment of the rights of the Purchasers pursuant to this Section  5.4 to a Competitor.

(e)    So long as the Purchasers, together with their Affiliated Entities, collectively, then Beneficially Own at least 5% of the outstanding Common Stock (including for this purpose all Conversion Shares issuable upon the Notes assuming such Notes were converted entirely into Common Stock), the Purchasers shall be entitled to appoint a number of observers

 

- 24 -


(the “ Observers ”) to the Board of Directors, who shall be reasonably acceptable to the Company, equal to the number of Board Nominees that the Purchasers are then entitled to nominate, less the number of Board Nominees of the Purchasers that are then members of the Board of Directors. The Observers shall be permitted to attend and observe all meetings (other than executive sessions) of the Board of Directors, including any committees of the Board of Directors. The Observers shall not have the right to vote on any matter that comes before the Board of Directors. The Observers shall receive copies of all written materials distributed to the Board of Directors and shall receive notice of each meeting or action by written consent of the Board of Directors at the same time and in the same manner as notice is given to the Board of Directors. Notwithstanding the foregoing, the Company shall be entitled to withhold any information from an Observer and exclude such Observer from any meeting, or any portion thereof, (i) if the Company reasonably determines that such withholding or exclusion is necessary to preserve attorney-client privilege, to protect highly confidential competitively sensitive information or for other similar reasons, or (ii) if the Company believes in good faith that such Observer has a conflict of interest. The Observers shall execute a confidentiality agreement in form and substance reasonably acceptable to the Company and such Observers with respect to the information and discussions to which the Observers will have access.

(f)    All obligations of the Company pursuant to Sections 5.4(a) , (b) , (c) and (e)  shall terminate upon the first to occur of: (i) such time as the Purchasers, together with their Affiliated Entities, collectively, do not Beneficially Own at least 5% of the outstanding Common Stock, (ii) the Company sells all or substantially all of its consolidated assets to an unaffiliated third party, (iii) any Person or “group” (as such term is used in Section 13 of the Exchange Act) (other than the Purchasers or any “group” including the Purchasers), directly or indirectly, obtains Beneficial Ownership of 50% or more of the total outstanding voting power of the Voting Stock, (iv) the Company participates in any merger, consolidation or similar transaction unless immediately following the consummation of such transaction the stockholders of the Company immediately prior to the consummation of such transaction continue to hold (in substantially the same proportion as their ownership of the Company’s Voting Stock immediately prior to the transaction) more than 50% of all of the outstanding common stock or other securities entitled to vote for the election of directors of the surviving or resulting entity in such transaction or (v) the Purchasers irrevocably waive and terminate all of its rights under this Section  5.4 . In addition, the right of the Purchasers to nominate two nominees to the Board of Directors pursuant to Section 5.4(a) shall be reduced to one nominee at such time as the Purchasers, together with their Affiliated Entities, collectively, do not Beneficially Own at least 15% of the outstanding Common Stock.

5.5.     Board Composition . Subject to the terms of the Company’s existing 8.625% Series A Cumulative Preferred Stock and 10.75% Series B Cumulative Preferred Stock as of the date hereof, for so long as the Purchasers have the right to nominate at least one person to the Board of Directors in accordance with Section  5.4 , the Company shall not, without the prior written consent of the Purchasers, increase the size of the Board of Directors in excess of eight (8) directors or decrease the size of the Board of Directors if such decrease would require the resignation of a Board Nominee.

5.6.     Specific Performance . The Purchasers and the Company agree that irreparable damage would occur and that the Company and the Purchasers, as applicable, would

 

- 25 -


not have any adequate remedy at law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such failure to perform or breach. Accordingly, the Purchasers and the Company agree that in the event of any breach or threatened breach by the Company on the one hand and the Purchasers on the other hand, of any of their respective covenants or obligations set forth in this Agreement, the Company and the Purchasers, as applicable, shall without the necessity of proving the inadequacy of money damages or posting a bond or other security be entitled to an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms, provisions and covenants contained herein, this being in addition to any other remedy to which they are entitled at law or in equity.

5.7.     Use of Proceeds . The Company shall use the proceeds from the issuance of securities pursuant to this Agreement solely to repay all outstanding borrowings under the Revolving Credit Facility, redeem in full the Senior Secured Notes and for general corporate purposes.

5.8.     PATRIOT Act . The Company shall use reasonable best efforts to provide all documentation at least two business days prior to the Closing Date that the Purchasers or the Purchasers’ financing sources have reasonably determined is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the U.S.A. PATRIOT Act of 2001 to the extent such documentation is requested by the Purchasers at least ten (10) business days prior to the Closing Date.

5.9.     DTC . The Company will (i) cause the Notes to be eligible for inclusion in the book-entry settlement system of The Depository Trust Company (the “ DTC ”) and (ii) comply with all of its obligation set forth in the representations letter (and related riders) of the Company to the DTC relating to such inclusion.

5.10.     Preemptive Rights .

(a)    From and after the Closing, for so long as the Purchasers, together with their Affiliated Entities, collectively, Beneficially Own at least 10% of the outstanding Common Stock (including for this purpose all Conversion Shares issuable upon conversion of the Notes assuming such Notes were converted entirely into Common Stock at such time), if the Company proposes to issue for cash Equity Securities of any kind, other than Excluded Stock, then, the Company shall:

(i)    give written notice to each Purchaser (no less than five (5) business days prior to the closing of such issuance or if the Company reasonably expects such issuance to be completed in less than five (5) business days, such shorter period, which shall be as long as commercially practicable (and in any event no less than three (3) business days), required for the Purchasers to participate in such issuance) setting forth in reasonable detail (A) the designation and all of the terms and provisions of the Equity Securities proposed to be issued (the “ Proposed Securities ”), including, where applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or

 

- 26 -


restrictions thereof and interest rate and maturity; (B) the price and other terms of the proposed sale of such securities; (C) the amount of such securities proposed to be issued; and (D) such other information as the any Purchaser may reasonably request in order to evaluate the proposed issuance; and

(ii)    offer to issue and sell to each of the Purchasers, on such terms as the Proposed Securities are issued, up to that portion of the Proposed Securities equal to a percentage determined by dividing (A) the number of shares of Common Stock such Purchasers Beneficially Own (on an as-converted basis) by (B) the total number of shares of Common Stock then outstanding (on an as-converted basis) (the “ Pro Rata Share ”).

(b)    The Purchasers must exercise their purchase rights hereunder within four (4) business days after receipt of such notice from the Company, or if the Company reasonably expects such issuance to be completed in less than four (4) business days, such shorter period, which shall be as long as practicable (and in any event no less than three (3) business days after receipt of notice from the Company), required for the Purchasers to participate in such issuance. If the Company offers two (2) or more securities in units to the other participants in the offering, the Purchasers must purchase such units as a whole and will not be given the opportunity to purchase only one (1) of the securities making up such unit. The closing of the exercise of such subscription right shall take place simultaneously with the closing of the sale of the Proposed Securities giving rise to such subscription right.

(c)    Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Purchasers have not elected to purchase during the ninety (90) days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Purchasers in the notice delivered in accordance with Section 5.10(a)(i) . Any Proposed Securities offered or sold by the Company after such 90-day period must be reoffered to the Purchasers pursuant to this Section  5.10 .

(d)    In the case of any underwritten offering conducted by the Company pursuant to a registration statement under the Securities Act or the exemption from registration in Rule 144A of the Securities Act that would otherwise be subject to this Section  5.10 , in lieu of the procedures set forth in clauses (a) through (c) above, the Company shall cause its lead underwriter to (i) deliver written notice to the Purchasers regarding the expected range of pricing in such offering, with the highest expected price in such range not to exceed 110% of the lowest expected price in such range, at least three (3) business days prior to the day of pricing of such offering and the other information contemplated by Section  5.10(a)(i)(A) , (C) and (D) , (ii) solicit an order from each Purchaser on the day of pricing in the same way orders are solicited from other investors on the day of pricing and (iii) fill any such order submitted by a Purchaser, at the pricing of such offering and subject to any price caps or volume restrictions specified by such Purchaser, up to the relevant Purchaser’s Pro Rata Share of such offering (including any Green Shoe option contemplated thereby). For the avoidance of doubt, the Company shall be liable for any breach of these procedures by its lead underwriter. In the event the Purchasers do not submit one or more orders as contemplated by clause (iii) above, the Company will be free to sell such Proposed Securities in such underwritten offering on terms and conditions no more favorable to the purchasers thereof than those quoted to the Purchasers by the lead underwriter on the day of pricing, as contemplated by Section 5.10(d)(ii) . Any Proposed Securities offered or sold by the Company in any subsequent underwritten offering must be reoffered to the Purchasers pursuant to this Section 5.10(d) .

 

- 27 -


(e)    The election by any Purchaser not to exercise its subscription rights under this Section  5.10 in any one instance shall not affect their right as to any subsequent proposed issuance. Any sale of Equity Securities by the Company without first giving the Purchasers the rights described in this Section  5.10 shall be void and of no force and effect.

(f)    Purchasers acknowledge that delivery of any notice delivered in accordance with Section 5.10(a)(i) or any notice of any lead underwriter delivered in accordance with Section 5.10(d) , and the information provided in any such notice, shall be treated as Confidential Information (as defined in Section  10.9 ).

(g)    Notwithstanding anything to the contrary in this Agreement, the rights of Purchasers under this Section  5.10 (i) shall terminate at the first time following Closing that Purchasers, together with their Affiliated Entities, collectively, cease to Beneficially Own at least 10% of the outstanding Common Stock (including for this purpose all Conversion Shares issuable upon conversion of the Notes assuming such Notes were converted entirely into Common Stock) and (ii) shall be limited to the right to purchase only such amount of Proposed Securities as may be permitted without requiring the approval of stockholders of the Company under any then applicable rule of the primary securities exchange on which the Common Stock is traded.

(h)    Other than transfers to an Affiliate of the Purchasers in connection with the transfer of Notes or Firm Shares to such Affiliate (which shall not require the consent of the Company), the rights of the Purchasers pursuant to this Section  5.10 shall be specific to the Purchasers and may not be transferred or assigned, in whole or in part, by the Purchasers directly or indirectly (including by way of direct or indirect transfers of equity interests in such Persons) without the prior written consent of the Company, which consent may be withheld, conditioned or delayed in its sole and absolute discretion.

5.11.     Standard of Care; Corporate Opportunities .

(a)    To the fullest extent permitted by the General Corporation Law of the State of Delaware, the Company acknowledges that: (i) the Purchasers (subject to the proviso below) and each of their Affiliates, (ii) the Board Nominees and the Observers and (iii) any other employee, consultant, officer or director of the Company specifically designated by the Purchasers or one of their respective Affiliates (collectively, the “ Exempt Persons ”) shall not make any representations or warranties, express or implied, in respect of the services to be provided by the Purchasers nor any of their respective Affiliates hereunder or by virtue of holding Equity Securities in the Company. In no event will any Exempt Person be liable to the Company or any of its Affiliates for any act, alleged act, omission or alleged omission relating to the actions of such Exempt Person in his or her or its capacity as a director, observer, employee or stockholder of the Company that does not constitute willful misconduct or bad faith of such Exempt Person.

 

- 28 -


(b)    In recognition that the Exempt Persons have access to information about the Company that will enhance such persons’ knowledge and understanding of the industries in which the Company operates, and currently have and will in the future have or will consider acquiring, investments in numerous companies with respect to which each Exempt Person may serve as an advisor, a director or in some other capacity, and in recognition that the Exempt Persons have myriad duties to various investors and partners, and in anticipation that the Company, on the one hand, and the Exempt Persons, on the other hand, may engage in the same or similar activities or lines of business and have an interest in the same areas of corporate opportunities, and in recognition of the benefits to be derived by the Company hereunder and in recognition of the difficulties which may confront any advisor who desires and endeavors fully to satisfy such advisor’s duties in determining the full scope of such duties in any particular situation, the provisions of this Section 5.11(b) are set forth to regulate, define and guide the conduct of certain affairs of the Company as they may involve the Exempt Persons, and, except as the Exempt Persons may otherwise agree in writing after the date hereof:

(i)    the Exempt Persons will have the right (and none of the Exempt Persons will be liable to the Company or any of its shareholders or Affiliates as a result of the right of the Exempt Persons): (A) to directly or indirectly engage in any business (including, any business activities or lines of business that are the same as or similar to those pursued by, or competitive with, the Company), (B) to directly or indirectly do business with any client or customer of the Company, (C) to take any other action that the Exempt Persons believes in good faith is necessary to or appropriate to fulfill its obligations as described in the first sentence of this Section 5.11(b) to third parties and (D) not to communicate or present potential transactions, matters or business opportunities to the Company, and to pursue, directly or indirectly, any such opportunity for itself, and to direct any such opportunity to another person or entity;

(ii)    the Exempt Persons will have no duty (contractual or otherwise) to communicate or present any corporate opportunities to the Company or any of its Affiliates (including potential opportunities in the oil and gas industry generally or that relate directly or indirectly to the Company’s past, current or future lines of business) or to refrain from any actions specified in Section 5.11(b)(i) , and the Company, on its own behalf and on behalf of its Affiliates, hereby renounce and waive any right to require the Exempt Persons to act in a manner inconsistent with the provisions of this Section  5.11 ; and

(iii)    there is no restriction on the Exempt Persons from using such knowledge and understanding in making investment, voting, monitoring, governance or other decisions relating to other entities or securities.

5.12.     No Purchaser Short Positions . From and after the date of this Agreement and for so long as Purchasers, together with their Affiliated Entities, collectively, Beneficially Own at least 5% of the outstanding any Common Stock (including for this purpose all Conversion Shares issuable upon conversion of the Notes assuming such Notes were converted entirely into Common Stock at such time) and have at least one director nominee or designee on the Board of Directors, each Purchaser shall refrain from executing or creating, either directly or indirectly including through the use of derivative securities and trading instruments or through positions created by any of its Affiliated Entities, a short sale trade or a short trading position in the Common Stock or the Notes.

 

- 29 -


5.13.     Notice of Developments . During the Pre-Closing Period, the Company shall promptly notify the Purchasers of the occurrence of any transaction or event or series of transactions or events if prior to the Closing as a consequence to which (a) any representation or warranty made by the Company in this Agreement was, when made, or has subsequently become, untrue or inaccurate such that the conditions to Closing set forth in Section  6 hereof would not be satisfied, (b) the occurrence of any event or series of events that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (c) any Person asserts that its consent or approval is required to consummate the transactions contemplated hereby, or (d) the consummation of the transactions contemplated by this Agreement or the other Transaction Agreements would reasonably be expected to be prevented or materially delayed.

5.14.     Interim Operating Covenants . During the Pre-Closing Period, without the prior written consent of the Purchasers (such consent not to be unreasonably withheld), the Company shall not:

(a)    take any action which would cause an adjustment to the Conversion Rate (as defined in the Indenture), if the Notes were outstanding;

(b)    take any action that would constitute a violation of Article VII of the Indenture if such action were to be taken following the Closing;

(c)    incur any Lien (as defined in the Indenture) on any assets, properties or rights of the Company other than Permitted Business Liens;

(d)    initiate, commence, file, waive, release, assign, settle or compromise any material action, suit or proceeding relating to any material assets that would, following the Closing, constitute Collateral; or

(e)    authorize, or commit or agree to take, any of the foregoing actions.

5.15.     Credit Agreement Delivery . Substantially concurrently with the satisfaction or waiver of the conditions set forth in Section  6.1 (other than the conditions set forth in Section 6.1(i) ), the Purchasers shall deliver to the Company counterparts to the Credit Agreement executed by the Affiliates of Ares Management LLC party thereto.

6.     Conditions Precedent .

6.1.     Conditions to the Obligation of the Purchasers . The obligations of the Purchasers to consummate the transactions to be consummated at the Closing, and to purchase and pay for the Securities being purchased by them at the Closing pursuant to this Agreement, are subject to the satisfaction or waiver of the following conditions precedent:

(a)    The representations and warranties contained herein of the Company shall be true and correct on and as of the Closing Date, with the same force and effect

 

- 30 -


as though made on and as of the Closing Date (it being understood and agreed by the Purchasers that, in the case of any representation and warranty of the Company contained herein which is not hereinabove qualified by application thereto of a materiality standard, such representation and warranty need be true and correct only in all material respects).

(b)    The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date.

(c)    The Purchasers shall have received a certificate, dated the Closing Date and signed by the Chief Executive Officer or the Chief Financial Officer of the Company, certifying on behalf of the Company that the conditions specified in the foregoing Sections 6.1(a) and (b)  have been fulfilled.

(d)    The purchase of and payment for the Notes and the Firm Shares by the Purchasers shall not be prohibited or enjoined by any law or governmental or court order or regulation.

(e)    The Company and the Trustee shall have executed and delivered the Indenture to the Purchasers and the Company shall have executed and delivered the Notes and issued and delivered the Firm Shares to the Purchasers.

(f)    The Company shall have executed and delivered the Registration Rights Agreement in substantially the form attached hereto as Exhibit B to the Purchasers.

(g)    The Purchasers shall have received from Vinson & Elkins LLP, counsel to the Company, an opinion covering the matters set forth on Exhibit D in form and substance reasonably satisfactory to the Purchasers.

(h)    The Purchasers shall have received from Vinson & Elkins LLP, counsel to the Company, an opinion covering collateral matters in form and substance reasonably satisfactory to the Purchasers.

(i)    The Purchasers shall have received from Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., local Oklahoma counsel to the Company, an opinion in form and substance reasonably satisfactory to the Purchasers.

(j)    The Company shall have caused each person listed on Schedule I hereto to furnish to the Purchasers a letter agreement in substantially the form attached hereto as Exhibit E .

(k)    On or prior to the Closing, each of the conditions to the effectiveness of the Credit Agreement shall have been satisfied or waived (other than the concurrent issuance of the Notes and the Firm Shares hereunder), the Company shall have delivered to the Purchasers counterparts to the Credit Agreement executed by the Company and the Subsidiaries of the Company party thereto and the Credit Agreement shall be in full force and effect.

 

- 31 -


(l)    The Company shall have taken all actions required to call for redemption and to satisfy and discharge the Senior Secured Notes substantially simultaneously with the Closing.

(m)    The Collateral Agent shall have received (i) the Security Agreement, together with such other assignments, conveyances, amendments, agreements and other writings, including UCC-1 financing statements, necessary to create first priority Liens (as defined in the Indenture), subject in priority only to Permitted Prior Liens (as defined in the Indenture), in all of the Collateral in which a security interest is required to be granted in favor of the Collateral Agent pursuant to the Security Instruments, including all of the Equity Interests (as defined in the Indenture) of each Subsidiary now or hereafter owned by the Company or any Subsidiary, (ii) a Mortgage covering each of the Mortgaged Properties, (iii) each Control Agreement and (iv) the Intercreditor Agreement.

(n)    The Purchasers and their counsel shall be reasonably satisfied that there are no Liens (as defined in the Indenture) on the Collateral other than Permitted Liens (as defined in the Indenture).

(o)    The Closing shall occur no earlier than the date that is fifteen (15) business days following the date of this Agreement and notice thereof shall be provided to the Purchasers no earlier than the date of this Agreement.

(p)    The transactions contemplated hereby (including the issuance of Common Stock upon conversion of the Notes and any acquisition of Common Stock pursuant to Section 5.10) shall have been approved by the Board of Directors for purposes of Section 203 of the Delaware General Corporation Law in a manner acceptable to the Purchasers.

(q)    The Company shall have taken all action necessary, in a manner acceptable to the Purchasers, such that the transactions contemplated hereby (including the issuance of Common Stock upon conversion of the Notes and any acquisition of Common Stock pursuant to Section 5.10) will not cause any holder of any capital stock, or any rights to acquire capital stock, of the Company to acquire an exercisable right to acquire any preferred stock of the Company (including pursuant to that certain Rights Agreement, dated as of January 27, 2017, between the Company and American Stock Transfer & Trust Company, LLC, as rights agent, as the same may be amended or replaced from time to time).

6.2.     Conditions to the Obligation of the Company . The obligation of the Company to consummate the transactions to be consummated at the Closing, and to issue and sell to the Purchasers the Securities to be purchased by it at the Closing pursuant to this Agreement, is subject to the satisfaction or waiver of the following conditions precedent:

(a)    The representations and warranties contained herein of the Purchasers shall be true and correct on and as of the Closing Date, with the same force and effect as though made on and as of the Closing Date (it being understood and agreed by the Company that, in the case of any representation and warranty of the Purchasers contained herein which is not hereinabove qualified by application thereto of a materiality standard, such representation and warranty need be true and correct only in all material respects).

 

- 32 -


(b)    The Purchasers shall have performed in all material respects all obligations and conditions herein required to be performed or observed by the Purchasers on or prior to the Closing Date.

(c)    The Company shall have received a certificate, dated the Closing Date, on behalf of the Purchasers, signed by an authorized representative thereof, certifying on behalf of the Purchasers that the conditions specified in the foregoing Sections 6.2(a) and (b)  have been fulfilled.

(d)    The purchase of and payment for the Securities by the Purchasers shall not be prohibited or enjoined by any law or governmental or court order or regulation.

(e)    On or prior to the Closing, the Purchasers shall deliver to the Company counterparts to the Credit Agreement executed by the Affiliates of Ares Management LLC party thereto and the loans under the Credit Agreement shall be advanced to the Company.

7.     Transfer of the Securities .

7.1.     Transfer Requirements .

(a)    During the period commencing on the Closing Date and ending on the earliest of (x) the six (6) month anniversary of the Closing Date and (y) the occurrence of any Change in Control or the Company entering into a definitive agreement with respect to a transaction that would result in a Change in Control (such period, the “ Restricted Period ”), the Purchasers may not sell, assign, transfer or otherwise dispose of (collectively, “ Transfer ”) any of the Securities except to (i) an Affiliated Entity, (ii) to the Company or (iii) in connection with any merger or consolidation or similar transaction to which the Company is a party or any tender offer for Common Stock. The Company and the Trustee shall not register any Transfer of the Securities in violation of this Section  7.1 . The Company may, and may instruct any transfer agent for the Company to, place such stop transfer orders during the Restricted Period as may be required on the transfer books of the Company in order to ensure compliance with the provisions of this Section  7.1 .

(b)    The restrictions set forth in this Section  7.1 shall be in addition to the applicable transfer restrictions or other requirements set forth in the Indenture and under applicable law, and the Purchasers acknowledge and agree to be bound thereby.

8.     Termination .

8.1.     Conditions of Termination . Notwithstanding anything to the contrary contained herein, this Agreement may be terminated at any time before the Closing (a) by mutual consent of the Company and the Purchasers, or (b) by either the Company or the Purchasers if the Closing shall not have occurred on or prior to the date six months from the date hereof.

8.2.     Effect of Termination . In the event of any termination pursuant to Section  8.1 hereof, this Agreement shall become null and void and have no effect, with no liability on the part of the Company or the Purchasers, or their directors, officers, general or limited partners, agents or stockholders, with respect to this Agreement, except for liability

 

- 33 -


arising from any knowing and intentional breach by such party of any provision of this Agreement; provided that Article 9 , Section 10.7 and Section  10.14 of this Agreement shall indefinitely survive any termination of this Agreement.

9.     Indemnification of the Purchasers .

9.1.     General . The Purchasers, their Affiliates and their respective directors, officers, members, partners, employees and agents (each an “ Indemnified Person ”) shall be indemnified by the Company for any and all losses, claims, damages, penalties, liabilities, fines, judgments, awards, settlements, costs, fees and expenses (including reasonable attorneys’ fees) (collectively, “ Losses ”) to which such Indemnified Persons may become subject as a result of, arising in connection with, or relating to any Action by any Person (including any stockholder of the Company regardless of whether such Action is against a Purchaser) if such Action either (x) alleges a breach of any duty, right or other obligation by the Company and/or any officers or directors of any of the foregoing in such capacity or (y) involves a claim or cause of action with respect to which the Indemnified Persons would not have any liability unless there were a breach of any duty, right or other obligation by the Company and/or any officers or directors of any of the foregoing in such capacity, in each case with respect to any of the transactions contemplated by this Agreement; provided that the Company will not be liable to indemnify any Indemnified Person for any such Losses to the extent that such Losses (w) have resulted from an Action by the Company against the Purchasers in connection with such Purchasers’ breach of this Agreement, (x) are as a result of an Action brought against the Purchasers by any Person who is a limited partner of, or other investor in, such Purchasers in such Person’s capacity as a limited partner of, or other investor in, such Purchasers, (y) as a result of any Action brought against the Purchasers or their Affiliates by any Person providing financing to the Purchasers or their Affiliates in connection with the Purchasers’ or their Affiliates investment in the Securities.

9.2.     Claims; Disputes . Each Indemnified Person shall give the Company prompt written notice (an “ Indemnification Notice ”) of any third party Action it has actual knowledge of that might give rise to Losses, which notice shall set forth a description of those elements of such Action of which such Indemnified Person has knowledge; provided, that any delay or failure to give such Indemnification Notice shall not affect the indemnification obligations of the Company hereunder except to the extent the Company is materially prejudiced by such delay or failure.

9.3.     Opportunity to Defend Third Party Claims . The Company shall have the right, exercisable by written notice to the applicable Indemnified Person(s) within thirty (30) days of receipt of the applicable Indemnification Notice, to select counsel to defend and control the defense of any third party claim set forth in such Indemnification Notice; provided that the Company shall not be entitled to so select counsel or control the defense of any claim if (i) such claim seeks primarily non-monetary or injunctive relief against the Indemnified Person or alleges any violation of criminal law, (ii) the Company does not, subsequent to its assumption of such defense in accordance with this Section  9.3 , conduct the defense of the such claim actively and diligently, (iii) such claim includes as the named parties both the Company and the applicable Indemnified Person(s) and such Indemnified Persons reasonably determine upon the advice of counsel that representation of all such Indemnified Persons by the same counsel would be prohibited by applicable codes of professional conduct, or (iv) in the event that, based on the

 

- 34 -


reasonable advice of counsel for the applicable Indemnified Person(s), there are one or more material defenses available to the applicable Indemnified Person(s) that are not available to the Company. If the Company does not assume the defense of any third party claim in accordance with this Section  9.3 , the applicable Indemnified Person(s) may continue to defend such claim at the sole cost of the Company and the Company may still participate in, but not control, the defense of such third party claim at the Company’s sole cost and expense.

9.4.     Settlement . No Indemnified Person shall consent to a settlement of, or the entry of any judgment arising from, any such claim, without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed). Except with the prior written consent of the applicable Indemnified Person(s) (such consent not to be unreasonably withheld, conditioned or delayed), the Company, in the defense of any such claim, shall not consent to the entry of any judgment or enter into any settlement that (i) provides for injunctive or other nonmonetary relief affecting any Indemnified Person; (ii) does not include as an unconditional term thereof the giving by each claimant or plaintiff to each such Indemnified Person(s) of an unconditional release of such Indemnified Person(s) from all liability with respect to such Action; or (iii) includes any admission of fault or culpability or a failure to act by or on behalf of any Indemnified Person. In any such third party claim where the Company has assumed control of the defense thereof, the Company shall keep the applicable Indemnified Person(s) informed as to the status of such claim at all stages thereof (including all settlement negotiations and offers), promptly submit to such Indemnified Person(s) copies of all pleadings, responsive pleadings, motions and other similar legal documents and paper received or filed in connection therewith, permit such Indemnified Person(s) and their respective counsels to confer with the Company and its counsel with respect to the conduct of the defense thereof, and permit such Indemnified Person(s) and their respective counsel(s) a reasonable opportunity to review all legal papers to be submitted prior to their submission.

10.     Miscellaneous Provisions .

10.1.     Public Statements or Releases . No party to this Agreement shall make any public announcement with respect to the existence or terms of this Agreement or the transactions provided for herein without the prior approval of the other parties, which shall not be unreasonably withheld or delayed, other than a statement consistent with public announcements that were previously made by a party hereto in accordance with this Section  10.1 . Notwithstanding the foregoing, nothing in this Section  10.1 shall prevent any party from making any public announcement it considers necessary in order to satisfy its obligations under the law or under the rules of any national securities exchange.

10.2.     Interpretation . The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement, and section and subsection references are to this Agreement unless otherwise specified. The headings in this Agreement are included for convenience of reference only and will not limit or otherwise affect the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” The phrases “the date of this Agreement,” “the date hereof” and terms of similar import, unless the context otherwise requires, will be deemed to refer to the date set forth in the first paragraph of this

 

- 35 -


Agreement. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. All matters to be agreed to by any party hereto must be agreed to in writing by such party unless otherwise indicated herein. References to agreements, policies, standards, guidelines or instruments, or to statutes or regulations, are to such agreements, policies, standards, guidelines or instruments, or statutes or regulations, as amended or supplemented from time to time (or to successors thereto).

10.3.     Notices . Any notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed to be given when delivered in person or by private courier with receipt, if (for those parties that have included a fax number below) telefaxed when verbal or email confirmation from the recipient is received, if delivered by email to each of the indicated email addresses when verbal or email confirmation is received, or three (3) days after being deposited in the United States mail, first-class, registered or certified, return receipt requested, with postage paid and:

(a) If to the Company, addressed as follows:

Gastar Exploration Inc.

1331 Lamar Street, Suite 650

Houston, TX 77010

Attention:   J. Russell Porter and Michael Gerlich

E-mail:       rporter@gastar.com

 mgerlich@gastar.com

with a copy (which shall not be deemed notice)to:

Vinson & Elkins LLP

1001 Fannin Street, Suite 2500

Houston, TX 77002

Attention:  T. Mark Kelly, David H. Stone and James M. Prince

Email:        mkelly@velaw.com

 dstone@velaw.com

 jprince@velaw.com

(b) If to the Purchasers, addressed as follows:

Ares Management LLC

2000 Avenue of the Stars, 12th Floor

Los Angeles, CA 90067

Attention:  Nate Walton, Jesse Yanocha, Preston Hayes and Eric Waxman

Email:        walton@aresmgmt.com

 jyanocha@aresmgmt.com

 phayes@aresmgmt.com

 ewaxman@aresmgmt.com

 

- 36 -


with a copy (which shall not be deemed notice) to:

811 Main Street, Suite 3700

Houston, TX 77002

Facsimile:   (713) 546-5401

Attention:   Michael Chambers and Greg Rodgers

Email:         michael.chambers@lw.com

  greg.rodgers@lw.com

Any Person may change the address to which notices and communications to it are to be addressed by notification as provided for herein.

10.4.     Severability . If any part or provision of this Agreement is held unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect and shall be binding upon the parties hereto so long as the economic or legal substance of the transactions contemplated hereby is not effected in any manner materially adverse to any party. Upon such determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible. Notwithstanding the foregoing, the parties intend that the provisions of Section  10.14 be construed as integral provisions of this Agreement and that all such provisions shall not be severable in any manner.

10.5.     Governing Law; Submission to Jurisdiction; Venue; Waiver of Trial by Jury .

(a)    This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

(b)    Each of the parties hereto hereby irrevocably and unconditionally:

(i)    submits for itself and its property in any legal action or proceeding relating solely to this Agreement or the transactions contemplated hereby, to the non-exclusive, general jurisdiction of the Supreme Court of the State of New York, County of New York or the United States Federal District Court sitting for the Southern District of New York (and appellate courts thereof);

(ii)    consents that any such action or proceeding may be brought in such courts, and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same to the extent permitted by applicable law;

(iii)    agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the party, as the case may be, at its address set forth in Section  10.3 or at such other address of which the other party shall have been notified pursuant thereto;

 

- 37 -


(iv)    agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction for recognition and enforcement of any judgment or if jurisdiction in the courts referenced in the foregoing clause (i) are not available despite the intentions of the parties hereto;

(v)    agrees that final judgment in any such suit, action or proceeding brought in such a court may be enforced in the courts of any jurisdiction to which such party is subject by a suit upon such judgment, provided that service of process is effected upon such party in the manner specified herein or as otherwise permitted by law;

(vi)    agrees that to the extent that such party has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process with respect to itself or its property, such party hereby irrevocably waives such immunity in respect of its obligations under this Agreement, to the extent permitted by law; and

(vii)    irrevocably and unconditionally waives trial by jury in any legal action or proceeding in relation to this Agreement.

10.6.     Waiver . No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition of this Agreement.

10.7.     Expenses . The Company shall reimburse the Purchasers for their reasonable and documented out-of-pocket fees and expenses, including the fees and expenses of attorneys, accountants and consultants employed by the Purchasers, incurred in connection with the proposed investment in the Securities, the negotiation of the Transaction Agreements or the consummation of the transactions contemplated thereby, subject to a maximum reimbursement, in the aggregate, of $2,000,000 by the Company. Following the Closing, the Company shall pay such fees and expenses upon receipt from the Purchasers of written notice detailing such fees and expenses, together with appropriate supporting documentation evidencing the calculation of the amount of such fees and expenses. For the avoidance of doubt, (i) the fees, costs and expenses of Seaport Global Securities LLC, serving as placement agent, shall be expenses of the Company and (ii) this Section  10.7 shall not affect the Company’s obligations under Section  9.1 .

10.8.     Assignment . None of the parties may assign its rights or obligations under this Agreement or designate another Person (i) to perform all or part of its obligations under this Agreement or (ii) to have all or part of its rights and benefits under this Agreement, in each case without the prior written consent of (x) the Company and (y) the Purchasers; provided , unless otherwise expressly provided in any other provision of this Agreement, that the Purchasers may assign their rights and obligations under this Agreement to one or more of its Affiliated Entities without the prior written consent of the Company. In the event of any assignment in accordance with the terms of this Agreement, the assignee shall specifically assume and be bound by the provisions of the Agreement by executing a writing agreeing to be bound by and subject to the provisions of this Agreement and shall deliver an executed counterpart signature page to this Agreement.

 

- 38 -


10.9.     Confidential Information .

(a)    The Purchasers acknowledge that from time to time, the Purchasers may be given access to non-public, proprietary information with respect to the Company (“ Confidential Information ”). For purposes hereof, for the Purchasers, Confidential Information does not include, however, (i) information which is or becomes generally available to the public in accordance with law other than as a result of a disclosure by the Purchasers or their directors, managing members, officers, employees, agents, legal counsel, financial advisors, accounting representatives or potential funding sources (“ Representatives ”) or their Affiliates, subsidiaries or franchisees in violation of this Section  10.9 or any other confidentiality agreement to which the Company is a party or beneficiary, (ii) is, or becomes, available to the Purchasers on a non-confidential basis from a source other than the Company or any of its Affiliates or any of its Representatives, provided , that such source was not known to the Purchasers (after reasonable investigation) to be bound by a confidentiality agreement with, or any other contractual, fiduciary or other legal obligation of confidentiality to, us or any of our subsidiaries or any of the Company’s representatives, (iii) is already in the Purchasers’ possession (other than information furnished by or on behalf of the Company or directors, officers, employees, representatives and/or agents of the Company), or (iv) is independently developed by the Purchasers without violating any of the confidentiality terms herein. The Purchasers agree (i) except as required by law or regulatory or legal process, to keep all Confidential Information confidential and not to disclose or reveal any such Confidential Information to any Person other than to its Affiliates and its and their respective Representatives who need to know the Confidential Information for the purpose of evaluating, monitoring or taking any other action with respect to the investment by the Purchasers in the Securities and to cause those Affiliates and Representatives to observe the terms of this Section  10.9 and (ii) not to use Confidential Information for any purpose other than in connection with evaluating, monitoring or taking any other action with respect to the investment by the Purchasers in the Securities.

(b)    The Purchasers acknowledge that the United States securities laws prohibit any person who has received material, nonpublic information regarding the Company from the Company from purchasing or selling securities of the Company and the Purchasers agree that for as long as the Purchasers possess any Confidential Information that is material to the Company it will not purchase or sell any securities of the Company in violation of such laws.

10.10.     Third Parties . Nothing in this Agreement, express or implied, is intended to confer on any Person other than the parties to this Agreement any rights, remedies, claims, benefits, obligations or liabilities under or by reason of this Agreement, and no Person that is not a party to this Agreement (including any partner, member, shareholder, director, officer, employee or other beneficial owner of any party to this Agreement, in its own capacity as such or in bringing a derivative action on behalf of a party to this Agreement) shall have any standing as a third party beneficiary with respect to this Agreement or the transactions contemplated hereby; provided that (x)  Article 9 shall be for the benefit of and shall be enforceable by each of the Indemnified Persons, (y)  Section 10.14 shall be for the benefit of and shall be enforceable by each of the Specified Persons and (z) all of the provisions of this Agreement are for the benefit of and shall be enforceable by any Affiliated Entity that owns any Securities.

 

- 39 -


10.11.     Counterparts . This Agreement may be signed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.

10.12.     Entire Agreement; Amendments . This Agreement and the other Transaction Agreements constitute the entire agreement between the parties hereto respecting the subject matter hereof and supersedes all prior agreements, negotiations, understandings, representations and statements respecting the subject matter hereof, whether written or oral. No modification, alteration, or change in any of the terms of this Agreement shall be valid or binding upon the parties hereto unless made in writing and duly executed by the Company and the Purchasers. The Company, on the one hand, and the Purchasers, on the other hand, may by an instrument signed in writing by such parties waive the performance, compliance or satisfaction by the Purchasers or the Company, respectively, with any term or provision hereof or any condition hereto to be performed, complied with or satisfied by the Purchasers or the Company, respectively.

10.13.     Survival . Except with respect to the representations and warranties contained in Section  3.1 , Section  3.4 , Section  3.5 , Section 3.6(ii) , Section  3.10 , Section  3.12 , Section  3.13 and Section  3.14 (which shall survive until the applicable statute of limitations), the representations and warranties contained in this Agreement shall terminate upon the first to occur of (x) the twelve (12) month anniversary of the Closing or (y) the termination of this Agreement pursuant to Section  8.1 hereof.

10.14.     Recourse .

(a)    Notwithstanding anything to the contrary in this Agreement and without diminution of the rights to seek specific performance as acknowledged and granted in Section  5.6 , the Purchasers’ liability for any liability, loss, damage or recovery of any kind (including special, exemplary, consequential, indirect or punitive damages or damages arising from loss of profits, business opportunities or goodwill, diminution in value or any other losses or damages, whether at law, in equity, in contract, in tort or otherwise) arising under or in connection with any breach of this Agreement (whether willfully, intentionally, unintentionally or otherwise) or the failure of the Closing to occur for any reason or otherwise in connection with the transactions contemplated by any Transaction Agreement or in respect of any oral representations made or alleged to have been made in connection therewith shall be no greater than $17,500,000 and the Purchasers shall have no further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby or any other Transaction Agreement in excess of such amount.

(b)    Notwithstanding the fact that the Purchasers are limited partnerships, by their acceptance of the benefits of this Agreement, the Company acknowledges and agrees that it has no right of recovery against, no recourse shall be had against and no personal liability shall attach to, any former, current and future direct or indirect equityholders, controlling persons, stockholders, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners, attorneys or other representatives of the Purchasers, or any of their respective successors or assignees or any of the former, current and future direct or indirect equityholders, controlling persons, stockholders, directors, officers, employees, agents,

 

- 40 -


Affiliates, members, managers, general or limited partners, lenders, attorneys or other representatives or successors or assignees of any of the foregoing (in each a “ Specified Person ” and together, the “ Specified Persons ”), whether by or through attempted piercing of the corporate (or limited liability company or limited partnership) veil, by or through a claim (whether at law or equity in tort, contract or otherwise) by or on behalf any of the Specified Person, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any applicable law, or otherwise, except, for the avoidance of doubt, for its rights to recover from the Purchasers (but not any other Person) under and to the extent provided in this Agreement; it being agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any Specified Person for any obligation of the Purchasers or any of their successors or permitted assigns under this Agreement or any documents or instrument delivered in connection herewith or in respect of any oral representations made or alleged to have been made in connection herewith or for any claim (whether at law or in equity or in tort, contract or otherwise) based on, in respect of, or by reason of such obligation or their creation. Recourse against the Purchasers under this Agreement subject to the limitations and conditions set forth herein, together with any right to specific performance pursuant to Section  5.6 of this Agreement, shall be the sole and exclusive remedy of the Company and all of its Affiliates against the Purchasers and any Specified Person in respect of any liabilities or obligations arising under, or in connection with, this Agreement or in connection with the failure of the Closing to be consummated for any reason or in respect of any representations made or alleged to be made in connection therewith, whether at law or in equity, in contract, in tort or otherwise. Nothing set forth in this Agreement shall confer or give or shall be construed to confer or give to any Person other than the Company (including any Person acting in a representative capacity) any rights or remedies against any Person other than the Purchasers as expressly set forth herein.

[Remainder of Page Intentionally Left Blank.]

 

- 41 -


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

 

COMPANY:
GASTAR EXPLORATION INC.
By:  

/s/ J. Russell Porter

Name:   J. Russell Porter
Title:   President and Chief Executive Officer

 

[Signature Page to Securities Purchase Agreement]


PURCHASERS:
AF V ENERGY I AIV A1, L.P.
AF V ENERGY I AIV A2, L.P.
AF V ENERGY I AIV A3, L.P.
AF V ENERGY I AIV A4, L.P.
AF V ENERGY I AIV A5, L.P.
AF V ENERGY I AIV A6, L.P.
AF V ENERGY I AIV A7, L.P.
AF V ENERGY I AIV A8, L.P.
AF V ENERGY I AIV A9, L.P.
AF V ENERGY I AIV A10, L.P.
AF V ENERGY I AIV A11, L.P.
AF V ENERGY I AIV A12, L.P.
AF V ENERGY I AIV A13, L.P.
AF V ENERGY I AIV B1, L.P.
By:   AF V ENERGY I AIV GP, L.P.,
  as general partner
By:  

/s/ Jesse Yanocha

Name:   Jesse Yanocha
Title:   Authorized Signatory

 

[Signature Page to Securities Purchase Agreement]


SCHEDULE I

PURCHASERS AND PURCHASED SECURITIES

 

Purchaser Name

   Principal Amount of
Notes to be Purchased
     Number of Firm Shares
to be Purchased
 

AF V Energy I AIV A1 L.P.

     

AF V Energy I AIV A2 L.P.

     

AF V Energy I AIV A3 L.P.

     

AF V Energy I AIV A4 L.P.

     

AF V Energy I AIV A5 L.P.

     

AF V Energy I AIV A6 L.P.

     

AF V Energy I AIV A7 L.P.

     

AF V Energy I AIV A8 L.P.

     

AF V Energy I AIV A9 L.P.

     

AF V Energy I AIV A10 L.P.

     

AF V Energy I AIV A11 L.P.

     

AF V Energy I AIV A12 L.P.

     

AF V Energy I AIV A13 L.P.

     

AF V Energy I AIV B1 L.P.

     
  

 

 

    

 

 

 

TOTAL:

   $ 125,000,000        29,408,305  


SCHEDULE II

LITIGATION MATTERS

 

1. Gastar Exploration Inc. v. Christopher McArthur (Cause No.: 2015-77605) 157th Judicial District Court, Harris County, Texas.  On December 29, 2015, Gastar Exploration Inc. (“Gastar”) filed suit against Christopher McArthur (“McArthur”) in the District Court of Harris County, Texas. Gastar alleges tortious interference with an existing contract. McArthur has filed a general denial.

 

2. Torchlight Energy Resources, Inc., Torchlight Energy, Inc. v. Husky Ventures, Inc., et al., (Cause No.  429-01961-2016) 429th Judicial District Court in Collin County, Texas. Torchlight Energy Resources, Inc. and Torchlight Energy, Inc. (collectively “Torchlight”) brought a lawsuit against Gastar, two of its executive officers, its chairman of the board of directors and a former director of Gastar on May 3, 2016 in Collin County, Texas. Torchlight alleges multiple causes of action against Gastar and its officers and directors arising out of the sale of Torchlight’s assets and other business dealings it had with Husky Ventures, Inc.

 

3. Eagle Natrium, LLC v. Gastar Exploration USA, Inc., G.D. No.  14-007208 pending in Allegheny County, Pennsylvania. Gastar filed a commercial tort claim against Eagle Natrium, LLC claims for lost revenues, rig up costs and rig down damages of approximately $6 million.


SCHEDULE III

ENVIRONMENTAL MATTERS

None.


SCHEDULE IV

PARTIES TO LOCK-UP AGREEMENTS

J. Russell Porter

Michael A. Gerlich

Keith R. Blair

Henry J. Hansen

Jerry R. Schuyler

John H. Cassels

Randolph C. Coley

Stephen A. Holditch

Robert D. Penner

Henry Hansen

Trent Determann


EXHIBIT A

FORM OF INDENTURE

See attached.


EXHIBIT B

FORM OF REGISTRATION RIGHTS AGREEMENT

See attached.


EXHIBIT C

FORM OF INTERCREDITOR AGREEMENT

See attached.


EXHIBIT D

CORPORATE LEGAL OPINION MATTERS

 

1. The Company is validly existing as a corporation and in good standing under the laws of the State of Delaware, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct the businesses in which it is currently engaged;

 

2. The Firm Shares have been duly authorized by all necessary corporate action of the Company and, when issued and delivered by the Company to the Purchasers upon payment therefor in accordance with the Purchase Agreement, will be validly issued, fully paid and non-assessable;

 

3. The equity holders of the Company have no preemptive rights with respect to the Firm Shares under federal law, the General Corporation Law of the State of Delaware (the “ DGCL ”) or any agreement filed as an exhibit to the Company’s SEC Reports to which the Company is a party or by which the Company may be bound;

 

4. The Purchase Agreement, the Registration Rights Agreement and the Indenture have been duly authorized, executed and delivered by the Company; the Purchase Agreement, the Registration Rights Agreement and the Indenture constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer and similar laws affecting creditors’ rights generally or by general principles of equity, including principles of commercial reasonableness, fair dealing and good faith;

 

5. The Notes have been duly authorized, executed and delivered by the Company; the Notes, when duly authenticated as provided in the Indenture and paid for as provided in the Purchase Agreement, will constitute the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer and similar laws affecting creditors’ rights generally or by general principles of equity, including principles of commercial reasonableness, fair dealing and good faith.

 

6. The shares of Common Stock initially issuable upon conversion of the Notes (assuming, for this purpose, that the Notes are converted solely into shares of Common Stock (and cash in lieu of fractional shares) and are converted at the maximum “make-whole” conversion rate provided for in the Indenture) have been duly authorized and reserved for issuance upon such conversion and, assuming the Notes have been delivered to and paid for by the Purchasers in accordance with the terms of the Purchase Agreement, when such shares of Common Stock are issued upon conversion of the Notes, will be validly issued, fully paid and nonassessable; and the issuance of such shares of Common Stock upon conversion of the Notes will not violate any preemptive or similar rights pursuant to (i) any agreement or instrument filed as an exhibit to the Company’s SEC Reports, (ii) the Certificate of Incorporation or Bylaws of the Company in effect on the date hereof or (iii) the DGCL.


7. No approval, authorization, license, registration, qualification, decree, consent or order under any federal law, the DGCL, the laws of the State of New York or approval, authorization, license, registration, qualification, decree, consent or order of or filing with any U.S. federal, New York or Delaware governmental or regulatory commission, board, body, authority or agency, is necessary or required in connection with the issuance and sale of the Securities or the consummation by the Company of the transactions contemplated by the Purchase Agreement, the Registration Rights Agreement, the Indenture and the Securities except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Purchasers (as to which we express no opinion) and except that we express no opinion in this paragraph with respect to federal securities laws.

 

8. The execution, delivery and performance of the Purchase Agreement, the Registration Rights Agreement, the Indenture and the Securities by the Company, the issuance and sale of the Securities and the consummation of the transactions contemplated by the Purchase Agreement, the Registration Rights Agreement, the Indenture and the Securities do not and will not result in any breach or violation of or constitute a default under (nor constitute any event which, with notice, lapse of time or both, would result in any breach or violation of or constitute a default under or give the holder of any indebtedness (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness under) (or result in the creation or imposition of a lien, charge or encumbrance on any property or assets of the Company or any Subsidiary pursuant to) (i) any agreement or instrument filed as an exhibit to the Company’s SEC Reports, (ii) the United States federal laws, the DGCL, the laws of the State of New York, in each case, of a kind typically applicable to such transactions, or (iii) any decree, judgment or order applicable to the Company or any of its respective properties, which decree, judgment or order is known by us; provided that with respect to clause (ii) above, we state no opinion as to any federal or state securities or Blue Sky laws or federal or state antifraud laws, rules or regulations.

 

9. Assuming the accuracy of the representations and warranties contained in the Purchase Agreement, the sale and issuance of the Securities by the Company to the Purchasers solely in the manner contemplated by the Purchase Agreement are exempt from the registration requirements of the Securities Act and it is not necessary to qualify the Indenture under the Trust Indenture Act of 1939, as amended; provided, that, we express no opinion as to any subsequent sale or resale; and

 

10. The Company is not now and, after giving effect to the issuance and sale of the Securities by the Company and the applications of the proceeds therefrom, the Company will not be required to register as an “investment company” within the meaning of the Investment Company Act.


EXHIBIT E

FORM OF LOCK-UP AGREEMENT

See attached.

Exhibit 10.2

AMENDMENT NO. 1

TO THE

SECURITIES PURCHASE AGREEMENT

This AMENDMENT NO. 1 (this “ Amendment ”), dated as of March 3, 2017, to the Securities Purchase Agreement, dated as of February 16, 2017 (the “ Agreement ”), by and among Gastar Exploration Inc., a Delaware corporation (the “ Company ”) and each of the purchasers listed on Schedule I thereto (the “ Purchasers ”). The Company and the Purchasers are each referred to individually as a “ Party ” and are collectively referred to as the “ Parties .”

R E C I T A L S

WHEREAS, the Parties desire to amend certain provisions of the Agreement pursuant to Section 10.12 thereof, as more particularly set forth in this Amendment.

A G R E E M E N T S

NOW, THEREFORE, in consideration of the mutual agreements set forth in the Agreement and this Amendment, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

ARTICLE I

AMENDMENT

1.1      Defined Terms; References . Unless otherwise specifically defined in this Amendment, each term used herein that is defined in the Agreement has the meaning assigned to such term in the Agreement, and each reference to a specific Exhibit, Section or Article shall refer to the particular Exhibit, Section or Article in the Agreement. Each reference to “hereof,” “hereunder,” “herein,” “hereby” and each other similar reference contained in the Agreement shall refer, from and after the date of this Amendment, to the Agreement as amended by this Amendment.

1.2      Amendment to Section  1 . The definition of “Beneficially Own,” “Beneficially Owned,” or “Beneficial Ownership” set forth in Section 1 is hereby amended and restated in its entirety as follows:

“ “ Beneficially Own ,” “ Beneficially Owned ,” or “ Beneficial Ownership ” shall have the meaning set forth in Rule 13d-3 of the rules and regulations promulgated under the Exchange Act; provided , that for purposes of this Agreement the words “within sixty days” in Rule 13d-3(d)(1)(i) shall not apply, to the effect that a Person shall be deemed to be the beneficial owner of a security if that Person has the right to acquire beneficial ownership of such security at any time; provided further that, solely for purposes of Section 5.4(a) , Section 5.4(f)(i) and the last sentence of Section 5.4(f) , Rule 13d-3(d)(1) shall not apply, to the effect that a Person shall not be deemed to be the beneficial owner of a security if that Person only has the right to acquire beneficial ownership of such security.”


1.3      Amendment of Section 5.4(a) . Section 5.4(a) is hereby amended and restated in its entirety as follows:

“Following the Closing, the Purchasers shall, collectively, have the right to nominate, pursuant to the terms and subject to the conditions of this Section  5.4 , two nominees to the Board of Directors (the “ Board Nominees ”). Each such nominee shall not be prohibited from serving as a director pursuant to any applicable law (including, the Exchange Act and the Clayton Antitrust Act of 1914, as amended) or rule or regulation of the SEC or any national securities exchange on which the Company’s Common Stock is listed or admitted to trading (the “ Qualification Requirement ”); provided , that Messrs. Nathan Walton and Ronald Scott (the initial Board Nominees) shall be deemed to satisfy such Qualification Requirement. In addition, at least one such nominee shall satisfy the independence requirements of the NYSE MKT or any other national securities exchange on which the Company’s Common Stock is listed or admitted to trading (other than for service on the audit committee), as determined in the good faith, reasonable judgment of the Company. The Board of Directors and the appropriate committees of the Board of Directors shall conduct the consideration of the qualifications, suitability and independence of a Board Nominee, and make any determinations with respect thereto, in a manner consistent with considerations and determinations in respect of other members of the Board of Directors. The Purchasers will take all necessary action to cause any nominee for Board Nominee to make himself or herself reasonably available for interviews, to consent to such reference and background checks or other investigations and to provide such information (including information necessary to determine the nominee’s independence status under various requirements and institutional investor guidelines as well as information necessary to determine any disclosure obligations of the Company) as the Board of Directors or its Nominating and Governance Committee may reasonably request; provided , that in each such case, all interviews, investigations and information are generally required to be delivered to the Company by the outside directors of the Company. Provided that the Board Nominees then meet the Qualification Requirement, the Company shall nominate (x) each Board Nominee for re-election as director at the end of each term of such Board Nominee in the event the Purchasers, together with their Affiliated Entities, collectively, then Beneficially Own at least 15% of the total outstanding voting power of the Voting Stock or (y) one Board Nominee for re-election as director at the end of the term of such Board Nominee in the event the Purchasers, together with their Affiliated Entities, collectively, then Beneficially Own at least 5% but less than 15% of the total outstanding voting power of the Voting Stock, in each case as part of the slate proposed by the Company that is included in the proxy statement (or consent solicitation or similar document) of the Company relating to the election of the Board of Directors and will use its reasonable best efforts to cause the election of such Board Nominee(s) to the Board of Directors (including providing the same level of support as is provided for other nominees of the Company to the Board of Directors). In the event that a Board Nominee ceases to be a member of the Board of Directors and at such time another Board Nominee is still a member of the Board of Directors, so long as the Purchasers, together with their Affiliated Entities, collectively, Beneficially Own at least 15% of the total outstanding voting power of the Voting Stock, the Purchasers may select another person as a nominee for Board Nominee to fill the vacancy created thereby and, if the Board of Directors determines that such nominee

 

2


meets the Qualification Requirement, such nominee shall become a Board Nominee and shall be appointed to fill such vacancy. In the event that a Board Nominee ceases to be a member of the Board of Directors and at such time there are no other Board Nominee on the Board of Directors, so long as the Purchasers, together with their Affiliated Entities, collectively, Beneficially Own at least 5% of the total outstanding voting power of the Voting Stock, the Purchasers may select another person as a nominee for Board Nominee to fill the vacancy created thereby and, if the Board of Directors determines that such nominee meets the Qualification Requirement, such nominee shall become a Board Nominee and shall be appointed to fill such vacancy.”

1.4      Amendment of Section 5.4(f) . Section 5.4(f) is hereby amended and restated in its entirety as follows:

All obligations of the Company pursuant to Sections 5.4(a) , (b) , (c) and (e)  shall terminate upon the first to occur of: (i) such time as the Purchasers, together with their Affiliated Entities, collectively, do not Beneficially Own at least 5% of the total outstanding voting power of the Voting Stock, (ii) the Company sells all or substantially all of its consolidated assets to an unaffiliated third party, (iii) any Person or “group” (as such term is used in Section 13 of the Exchange Act) (other than the Purchasers or any “group” including the Purchasers), directly or indirectly, obtains Beneficial Ownership of 50% or more of the total outstanding voting power of the Voting Stock, (iv) the Company participates in any merger, consolidation or similar transaction unless immediately following the consummation of such transaction the stockholders of the Company immediately prior to the consummation of such transaction continue to hold (in substantially the same proportion as their ownership of the Company’s Voting Stock immediately prior to the transaction) more than 50% of all of the outstanding common stock or other securities entitled to vote for the election of directors of the surviving or resulting entity in such transaction or (v) the Purchasers irrevocably waive and terminate all of its rights under this Section  5.4 . In addition, the right of the Purchasers to nominate two nominees to the Board of Directors pursuant to Section 5.4(a) shall be reduced to one nominee at such time as the Purchasers, together with their Affiliated Entities, collectively, do not Beneficially Own at least 15% of the total outstanding voting power of the Voting Stock.”

1.5      Amendment of Exhibit A . The definition of “Requisite Stockholder Approval” set forth in Section 1.01 of Exhibit A is hereby amended and restated in its entirety as follows:

“ “ Requisite Shareholder Approval ” means any and all stockholder approvals that would be required under the listing standards of The NYSE MKT to permit all outstanding Notes to be converted into shares of Common Stock (assuming Physical Settlement at the maximum Conversion Rate referred to in Section  5.07(A) ).”

 

3


ARTICLE II

MISCELLANEOUS

2.1      No Other Amendments; No Waiver of Rights . This Amendment is intended to be, and shall be construed as, an amendment of the Agreement. Except as amended by this Amendment, the Agreement shall remain unmodified and in full force and effect. The Agreement, together with this Amendment, shall be read together and have effect so far as practicable as though the provisions thereof and the relevant provisions hereof are contained in one document. To the extent that the terms and conditions of this Amendment conflict with the terms and conditions of the Agreement, the terms and conditions of this Amendment shall control. This Amendment shall not be construed as a waiver or amendment of any other provision of the Agreement for any purpose, except as expressly set forth herein.

2.2      Governing Law . THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF DELAWARE.

2.3      Counterparts . This Amendment may be executed and delivered (including by .pdf, email or facsimile transmission) in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart.

[Signature page follows]

 

4


IN WITNESS WHEREOF , each of the Parties has executed this Amendment as of the date first above written.

 

  COMPANY:
  GASTAR EXPLORATION INC.
By:  

/s/ Michael A. Gerlich

Name:   Michael A. Gerlich
Title:   Senior Vice President, Chief Financial Officer and Corporate Secretary

 

AMENDMENT N O . 1 T O

S ECURITIES P URCHASE A GREEMEN T


PURCHASERS:
AF V ENERGY I AIV A1, L.P.
AF V ENERGY I AIV A2, L.P.
AF V ENERGY I AIV A3, L.P.
AF V ENERGY I AIV A4, L.P.
AF V ENERGY I AIV A5, L.P.
AF V ENERGY I AIV A6, L.P.
AF V ENERGY I AIV A7, L.P.
AF V ENERGY I AIV A8, L.P.
AF V ENERGY I AIV A9, L.P.
AF V ENERGY I AIV A10, L.P.
AF V ENERGY I AIV A11, L.P.
AF V ENERGY I AIV A12, L.P.

AF V ENERGY I AIV A13, L.P.

AF V ENERGY I AIV B1, L.P.

 

By:   AF V ENERGY I AIV GP, L.P.,
  as general partner
By:  

/s/ Jesse Yanocha

Name:   Jesse Yanocha
Title:   Authorized Signatory

 

AMENDMENT N O . 1 T O

S ECURITIES P URCHASE A GREEMENT

E XHIBIT 10.3

 

 

 

THIRD AMENDED AND RESTATED CREDIT AGREEMENT

dated as of

March 3, 2017

among

GASTAR EXPLORATION INC.,

as Borrower

The Guarantors from time to time Party Hereto,

The Lenders Party Hereto,

and

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Administrative Agent

 

 

 


TABLE OF CONTENTS

 

         Page  

Article I. Definitions

     2  

Section 1.01

 

Defined Terms

     2  

Section 1.02

 

Terms Generally

     25  

Article II. The Credits

     26  

Section 2.01

 

Accounting Terms; GAAP

     26  

Section 2.02

 

Loans and Commitments

     26  

Section 2.03

 

Request for Loans

     27  

Section 2.04

 

Funding of Loans

     27  

Section 2.05

 

Repayment of Loans; Evidence of Debt

     27  

Section 2.06

 

Optional Prepayment of Loans

     28  

Section 2.07

 

Mandatory Prepayment of Loans

     28  

Section 2.08

 

Offer of Prepayment Upon any Change of Control

     29  

Section 2.09

 

Payment of Applicable Premium

     30  

Section 2.10

 

Interest and Fees

     30  

Section 2.11

 

Increased Costs

     31  

Section 2.12

 

Taxes

     32  

Section 2.13

 

Payments Generally; Pro Rata Treatment; Sharing of Set-offs

     35  

Article III. Representations and Warranties

     36  

Section 3.01

 

Organization; Powers

     36  

Section 3.02

 

Authorization; Enforceability

     36  

Section 3.03

 

Governmental Approvals; No Conflicts

     36  

Section 3.04

 

Financial Condition; No Material Adverse Change

     37  

Section 3.05

 

Properties

     37  

Section 3.06

 

Litigation and Environmental Matters

     39  

Section 3.07

 

Compliance with Laws and Agreements

     39  

Section 3.08

 

Investment Company Status

     39  

Section 3.09

 

Taxes

     39  

Section 3.10

 

ERISA

     39  

Section 3.11

 

Disclosure

     39  

Section 3.12

 

Labor Matters

     40  

Section 3.13

 

Capitalization

     40  

Section 3.14

 

Margin Stock

     40  

Section 3.15

 

Bank Accounts

     40  

Section 3.16

 

Insurance

     40  

 

i


Section 3.17

 

Material Contracts

     40  

Section 3.18

 

Gas Imbalances

     40  

Section 3.19

 

Reserve Reports

     41  

Section 3.20

 

Sale of Production

     41  

Section 3.21

 

Anti-Corruption Laws and Sanctions

     41  

Section 3.22

 

No Foreign Operations

     41  

Section 3.23

 

Solvency

     41  

Article IV. Conditions

     42  

Section 4.01

 

Effective Date

     42  

Article V. Affirmative Covenants

     45  

Section 5.01

 

Financial Statements; Other Information

     45  

Section 5.02

 

Notices of Material Events

     47  

Section 5.03

 

Existence; Conduct of Business

     47  

Section 5.04

 

Payment of Obligations

     47  

Section 5.05

 

Maintenance of Properties; Insurance

     48  

Section 5.06

 

Books and Records; Inspection Rights

     48  

Section 5.07

 

Compliance with Laws

     48  

Section 5.08

 

Environmental Matters

     48  

Section 5.09

 

Use of Proceeds

     48  

Section 5.10

 

Collateral Matters

     49  

Section 5.11

 

Title Data

     50  

Section 5.12

 

Swap Agreements

     51  

Section 5.13

 

Operation of Oil and Gas Property

     51  

Section 5.14

 

Subsidiaries

     51  

Section 5.15

 

Pledged Capital Stock

     51  

Section 5.16

 

Accounts

     52  

Section 5.17

 

Further Assurances

     52  

Section 5.18

 

Redemption of Existing Notes

     52  

Section 5.19

 

Post-Closing Matters

     52  

Article VI. Negative Covenants

     53  

Section 6.01

 

[Reserved]

     53  

Section 6.02

 

Indebtedness

     53  

Section 6.03

 

Liens

     54  

Section 6.04

 

Fundamental Changes

     55  

Section 6.05

 

Disposition of Assets

     55  

Section 6.06

 

Nature of Business

     57  

Section 6.07

 

Investments

     57  

Section 6.08

 

Swap Agreements

     58  

Section 6.09

 

Restricted Payments

     58  

Section 6.10

 

Transactions with Affiliates

     59  

Section 6.11

 

Restrictive Agreements

     59  

Section 6.12

 

Disqualified Stock

     60  

 

ii


Section 6.13

 

Certain Amendments to Organizational Documents and Convertible Notes

     60  

Section 6.14

 

Sale and Leaseback Transactions and other Off-Balance Sheet Liabilities

     60  

Section 6.15

 

DrillCo Restrictions

     60  

Section 6.16

 

Lease Restrictions

     60  

Article VII. Guarantee of Obligations

     61  

Section 7.01

 

Guarantee of Payment

     61  

Section 7.02

 

Guarantee Absolute

     61  

Section 7.03

 

Guarantee Irrevocable

     61  

Section 7.04

 

Reinstatement

     61  

Section 7.05

 

Subrogation

     62  

Section 7.06

 

Subordination

     62  

Section 7.07

 

Payments Generally

     62  

Section 7.08

 

Setoff

     62  

Section 7.09

 

Formalities

     63  

Section 7.10

 

Limitations on Guarantee

     63  

Section 7.11

 

Keepwell

     63  

Section 7.12

 

Survival

     63  

Article VIII. Events of Default

     63  

Article IX. The Administrative Agent

     67  

Section 9.01

 

Appointment and Authority

     67  

Section 9.02

 

Rights as a Lender

     67  

Section 9.03

 

Exculpatory Provisions

     67  

Section 9.04

 

Reliance by Administrative Agent

     69  

Section 9.05

 

Delegation of Duties

     69  

Section 9.06

 

Collateral and Guaranty Matters

     69  

Section 9.07

 

Resignation and Removal of Administrative Agent

     70  

Section 9.08

 

Non-Reliance on Administrative Agent and Other Lenders

     71  

Section 9.09

 

Administrative Agent May File Proofs of Claim

     71  

Article X. Miscellaneous

     73  

Section 10.01

 

Notices

     73  

Section 10.02

 

Waivers; Amendments

     74  

Section 10.03

 

Expenses; Indemnity; Damage Waiver

     76  

Section 10.04

 

Successors and Assigns

     77  

Section 10.05

 

Survival

     80  

Section 10.06

 

Counterparts; Integration; Effectiveness; Electronic Execution

     81  

Section 10.07

 

Severability

     81  

Section 10.08

 

Right of Setoff

     81  

Section 10.09

 

GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS

     82  

 

iii


Section 10.10

 

WAIVER OF JURY TRIAL

     82  

Section 10.11

 

Headings

     82  

Section 10.12

 

Confidentiality

     83  

Section 10.13

 

Material Non-Public Information

     83  

Section 10.14

 

Authorization to Distribute Certain Materials to Public-Siders

     83  

Section 10.15

 

Interest Rate Limitation

     84  

Section 10.16

 

USA PATRIOT Act

     84  

Section 10.17

 

Release of Guarantees and Liens

     84  

Section 10.18

 

Amendment and Restatement

     85  

Section 10.19

 

Swap Intercreditor Agreement

     85  

Section 10.20

 

INTERCREDITOR AGREEMENTS

     85  

Section 10.21

 

Master Assignment

     86  

Section 10.22

 

Limited Third Party Beneficiaries

     86  

 

iv


EXHIBITS :

Exhibit A – Form of Assignment and Assumption

Exhibit B – Form of Borrowing Request

Exhibit C – Form of Counterpart Agreement

Exhibit D – Form of Intercreditor Agreement

Exhibit E – Form of Mortgage

Exhibit F – Form of Security Agreement

Exhibit G – Form of Note

Exhibits H-1 through H-4 – Form of Tax Certificates

SCHEDULES :

Schedule I – Existing Loans

Schedule 1.01(a) – Mortgaged Properties

Schedule 1.01(b) – Drillco Excluded Property

Schedule 1.01(c) – Subject Leases

Schedule 2.01 – Commitments

Schedule 3.04 – Material Liabilities

Schedule 3.06 – Disclosed Matters

Schedule 3.13 – Capitalization

Schedule 3.15 – Bank Accounts

Schedule 3.17– Material Contracts

Schedule 3.18 – Gas Imbalances

Schedule 3.19 – Changes to Reserves

Schedule 3.20 – Marketing Agreements

Schedule 6.02 – Existing Indebtedness

Schedule 6.03 – Existing Liens

Schedule 6.07(c) – Investment Commitments

Schedule 6.07(g) – Existing Investments

 

v


THIRD AMENDED AND RESTATED CREDIT AGREEMENT

This THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 3, 2017, is among GASTAR EXPLORATION INC., a Delaware corporation, as Borrower, CERTAIN SUBSIDIARIES OF BORROWER, as Guarantors, the LENDERS party hereto, and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Administrative Agent.

RECITALS

WHEREAS, the Borrower, Wells Fargo Bank National Association, as administrative agent and collateral agent (the “ Existing Administrative Agent ”) and issuing lender and each of the financial institutions party thereto as lenders (the “ Existing Lenders ”) are party to that certain Second Amended and Restated Credit Agreement dated as of June 13, 2013 (as amended, amended and restated, or otherwise modified from time to time, the “ Existing Credit Agreement ”), pursuant to which the Existing Lenders provided certain loans and extensions of credit to the Borrower;

WHEREAS, pursuant to that certain Master Reaffirmation and Assignment and Assumption of Liens and Security Interests (the “ Master Assignment ”) of even date herewith, the Existing Administrative Agent and the Existing Lenders have assigned to Administrative Agent, Collateral Agent and the Lenders all of their respective right, title and interest in and to the Existing Credit Agreement, and the deeds of trust, mortgages, security agreements and other instruments executed or delivered pursuant thereto;

WHEREAS, Borrower, Administrative Agent and the Lenders are willing to amend and restate the Existing Credit Agreement in order to provide for certain amendments thereto and to provide for the making of term loans, all on the terms set forth in this Agreement, which making of term loans and amendment and restatement in the form of this Agreement shall be subject to the satisfaction of certain conditions precedent set forth in this Agreement and the occurrence of the Effective Date;

WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities existing under the Existing Credit Agreement or evidence payment of all or any of such obligations and liabilities; that this Agreement amend and restate in its entirety the Existing Credit Agreement and renew and extend the extensions of credit under the Existing Credit Agreement, as so amended and restated; and that from and after the Effective Date the Existing Credit Agreement be of no further force or effect except as to evidence the incurrence of the obligations of Borrower and its Subsidiaries thereunder; and

WHEREAS, the Borrower has entered into that certain Securities Purchase Agreement (the “ Securities Purchase Agreement ”), dated as of February 16, 2017, by and among the Borrower and each of the purchasers party thereto, pursuant to which the Borrower agreed concurrently with the borrowings hereunder to issue and sell additional common stock and its Senior Secured Second Lien Convertible Notes due 2022.

 

Page 1


NOW, THEREFORE , in consideration of the mutual covenants and agreements contained herein, the parties hereto hereby amend and completely restate the Existing Credit Agreement, effective as of the Effective Date as defined below, and do hereby agree as follows:

ARTICLE I.

DEFINITIONS

Section 1.01     Defined Terms . As used in this Agreement, the following terms have the meanings specified below:

Acceptable Security Interest ” means, with respect to any Property, a Lien which (a) exists in favor of the Administrative Agent for the benefit of the Secured Parties, (b) is superior to all Liens or rights of any other Person in the Property encumbered thereby (other than Permitted Liens), (c) secures the Obligations, and (d) is perfected and enforceable. Any requirement that the Credit Parties provide an Acceptable Security Interest with respect to any DrillCo PDP Reserves shall be satisfied if the applicable Credit Party grants a Wellbore Lien with respect to such DrillCo PDP Reserves and the Oil and Gas Properties owned by any Credit Party attributable thereto, so long as the Wellbore Lien meets the foregoing criteria.

Accepting Lenders ” has the meaning assigned to such term in Section 2.08(b).

Acquisition ” means, the acquisition by the Borrower or any Subsidiary, whether by purchase, merger (and, in the case of a merger with any such Person, with such Person being the surviving corporation) or otherwise, of all or substantially all of the Capital Stock of, or all or substantially all of the business, property or fixed assets of or business line or unit or a division of, any other Person engaged solely in the business of producing oil or natural gas or the acquisition by the Borrower or any Subsidiary of Property consisting of Oil and Gas Property.

Additional Assets ” means (a) Oil and Gas Properties prospective for the SCOOP and/or the STACK play, (b) the Capital Stock of a Person that becomes a Subsidiary as a result of the acquisition of such Capital Stock by the Borrower or another Subsidiary, (c) Capital Stock constituting a minority interest in any Person that at such time is a Subsidiary of the Company, and (d) other long-term assets that are used or useful in the Oil and Gas Business and related to Additional Assets; provided, however, that, in respect of (b) and (c) above, (i) the assets of the Subsidiary whose Capital Stock has been acquired consist primarily of Oil and Gas Properties prospective for the SCOOP and/or the STACK play (ii) the Borrower and/or the applicable Subsidiary has complied with Section 5.15 in connection with such acquisition.

Administrative Agent ” means Wilmington Trust, National Association, in its capacity as Administrative Agent under any of the Loan Documents, and any successor agent appointed pursuant to Article IX.

Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

Advance Payment Contract ” means any contract whereby any Credit Party either (a) receives or becomes entitled to receive (either directly or indirectly) any payment (an “ Advance Payment ”) to be applied toward payment of the purchase price of Hydrocarbons produced or to be produced from Oil and Gas Property owned by any Credit Party and which Advance Payment is, or is to be, paid in advance of actual delivery of such production to or for the account of the purchaser regardless of such production, or (b) grants an option or right of refusal to the purchaser to take delivery of such production in lieu of payment, and, in either of the foregoing instances, the Advance Payment is, or is to be, applied as payment in full for such production when sold and delivered or is, or is to be, applied as payment for a portion only of the purchase price thereof or of a percentage or share of such production; provided that inclusion of the standard “take or pay” provision in any gas sales or purchase contract or any other similar contract in the ordinary course of business shall not, in and of itself, constitute such contract as an Advance Payment Contract for the purposes hereof.

Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

Aggregate Commitment ” means, at any time, the sum of the Commitments of all the Lenders at such time. As of the Effective Date, the Aggregate Commitment is $250,000,000.

 

Page 2


Aggregate Credit Exposure ” means, as of any date of determination, the sum of the Credit Exposure of all of the Lenders as of such date.

Agreement ” means this Third Amended and Restated Credit Agreement, dated as of March 3, 2017, as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

Anti-Corruption Laws ” shall mean all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Affiliates from time to time concerning or relating to bribery or corruption, including without limitation the United States Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010 and other similar legislation in any other jurisdictions.

Applicable Percentage ” means, with respect to any Lender at any time, a percentage equal to a fraction, the numerator of which is such Lender’s Credit Exposure at such time and the denominator of which is the Aggregate Credit Exposure at such time.

Applicable Premium ” has the meaning assigned to such term in Section 2.09.

Applicable Rate ” means 8.50% per annum.

Approved Fund ” has the meaning assigned to such term in Section 10.04.

Approved Petroleum Engineer ” means Wright & Company, Inc. or any reputable firm of independent petroleum engineers selected by the Borrower and reasonably acceptable to the Majority Lenders.

Ares ” means (a) Ares Management LLC, its Affiliated investment managers and funds or accounts managed by any of them (but excluding any portfolio companies that are owned in whole or in part by any of the foregoing) and (b) any partner, member, manager, principal, director or officer of any of the foregoing.

Asset Sale ” means any Disposition by any Credit Party of any Property other than (a) Dispositions permitted by clauses (a), (b), (c), (d), (e), (f), (h) and (k) of Section 6.05, (b) Casualty Events and (c) any single Disposition or series of related Dispositions that involves Properties having a Fair Market Value not exceeding $2,000,000 and when aggregated together with all other Dispositions under this clause (c) the total does not exceed $10,000,000.

Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any Person whose consent is required under 10.04), and accepted by the Administrative Agent, in the form of Exhibit  A or any other form approved by the Administrative Agent.

Bankruptcy Event ” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Majority Lenders, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, unless such ownership interest results in or provides such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permits such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

 

Page 3


Board ” means the Board of Governors of the Federal Reserve System of the United States of America.

Borrower ” means Gastar Exploration Inc., a Delaware corporation, and its successors and permitted assigns.

Borrowing Request ” means a written request by the Borrower for a Loan in accordance with Section 2.03, which shall be substantially in the form of Exhibit B .

Business Day ” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed.

Capital Lease Obligations ” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases or lease obligations on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

Capital Stock ” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.

Cash Equivalents ” means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (b) certificates of deposit, time deposits, or overnight bank deposits having maturities of six months or less from the date of acquisition issued by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof having combined capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated at least A-2 by S&P or P-2 by Moody’s, or carrying an equivalent rating by a “nationally recognized statistical rating organization” (within the meaning of proposed Rule 3b-10 promulgated by the SEC under the Exchange Act), if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within six months from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory, the securities of which state, commonwealth, territory, political subdivision or taxing authority (as the case may be) are rated at least A by S&P or A by Moody’s; (f) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition; and (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition.

Casualty Event ” means any loss, casualty or other insured damage to, or any nationalization, taking under power of eminent domain or by condemnation or similar proceeding of, any Oil and Gas Property of the Credit Parties.

Change in Law ” means the occurrence after the date of this Agreement or, with respect to the Administrative Agent or any Lender, such later date on which the Administrative Agent or such Lender becomes a party to this Agreement of (a) the adoption of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental

 

Page 4


Authority or (c) compliance by any Lender (or, for purposes of Section 2.11(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be a “Change in Law” regardless of the date enacted, adopted or issued.

Change of Control ” means

(a)    any “person” or “group” (as such terms are used in sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”)), other than Ares or any Related Party thereof, is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that such person or group shall be deemed to have “beneficial ownership” of all shares that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 35% of the total voting power of the outstanding Capital Stock normally entitled to vote in the election of directors (“ Voting Stock ”) of the Borrower (or its successor by merger, consolidation or purchase of all or substantially all of its assets);

(b)    the occurrence of a “Change of Control” as such term is defined under any Permitted Junior Lien Debt;

(c)    a disposition by Borrower or a Subsidiary pursuant to which Borrower or any Subsidiary sells, leases, licenses, transfers, assigns or otherwise Disposes, in one or a series of related transactions, all or substantially all of the properties or assets of Borrower and its Subsidiaries as determined by reference to the Borrower’s and its Subsidiaries’ financial statements on the last day of the most recently ended fiscal quarter, determined on a consolidated basis in accordance with GAAP; or

(d)    the Company’s stockholders approve any plan relating to the liquidation or dissolution of the Borrower.

Charges ” has the meaning assigned to such term in Section 10.15.

Code ” means the Internal Revenue Code of 1986, as amended from time to time.

Collateral ” means all assets, whether now owned or hereafter acquired by any Borrower or any other Credit Party, in which a Lien is granted or purported to be granted to any Secured Party as security for any Obligation.

Commitment means, with respect to each Lender, the commitment of such Lender to make Loans hereunder on the Effective Date. The amount of each Lender’s Commitment as of the Effective Date is set forth on Schedule 2.01 .

Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

Common Stock Purchase ” means the purchase by Ares of shares of common stock of the Borrower on the Effective Date pursuant to the Securities Purchase Agreement.

 

Page 5


Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

Consolidated EBITDA ” means, for any period, Consolidated Net Income for such period plus (a) without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of (i) consolidated interest expense for such period, (ii) consolidated income tax expense for such period, (iii) all amounts attributable to depreciation, amortization or depletion for such period and (iv) any non-cash charges or any extraordinary losses for such period, and minus (b) without duplication (i) all cash payments made during such period on account of reserves, restructuring charges and other non-cash charges added to Consolidated Net Income pursuant to clause (a)(iv) above in a previous period and (ii) to the extent included in determining such Consolidated Net Income, any extraordinary gains and all non-cash items of income for such period, all determined on a consolidated basis in accordance with GAAP; provided that, such Consolidated EBITDA shall be subject to pro forma adjustments for acquisitions and non-ordinary course asset sales assuming that such transactions had occurred on the first day of the applicable calculation period, which adjustments shall be made in accordance with the guidelines for pro forma presentations set forth by the SEC or in a manner otherwise acceptable to the Majority Lenders and with supporting documentation acceptable to the Majority Lenders.

Consolidated Fixed Charges ” means, as of the date of any payment of dividends under Section 6.09(e), the sum of (a) Consolidated Interest Expense of the Borrower and the Subsidiaries for the period of four fiscal quarters most recently ended for which financial statements are available, (b) the aggregate amount of scheduled principal payments made during such period in respect of long term Indebtedness of the Borrower and the Subsidiaries (other than payments made by the Borrower or any Subsidiary to the Borrower or a Subsidiary), (c) the aggregate amount of principal payments (other than scheduled principal payments) made during such period in respect of long term Indebtedness of the Borrower and the Subsidiaries, to the extent that such payments reduced any scheduled principal payments that would have become due within one year after the date of the applicable payment, (d) dividends paid in cash during such period on the Capital Stock of the Borrower together with the amount of dividends paid under Section 6.09(e) since the end of such period and including the amount of such dividends paid on the date of determination and (e) the aggregate amount of Taxes paid in cash by the Borrower and the Subsidiaries during such period. In the event that any Credit Party incurs, repays, repurchases or redeems any Indebtedness or issues, repurchases or redeems Disqualified Stock subsequent to the commencement of the period for which the Consolidated Fixed Charges are being calculated but prior to the event for which the calculation of such Consolidated Fixed Charges is made, then the Consolidated Fixed Charges shall be calculated giving pro forma effect to such incurrence, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock, as if the same had occurred at the beginning of the period.

Consolidated Interest Expense ” means, for any period, the sum of (a) the interest expense (including imputed interest expense in respect of Capital Lease Obligations) of the Borrower and the Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, plus (b) any interest accrued during such period in respect of Indebtedness of the Borrower or any Subsidiary that is required to be capitalized rather than included in consolidated interest expense for such period in accordance with GAAP.

Consolidated Net Income ” means, for any period, the net income or loss of the Borrower and the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income of any Subsidiary to the extent that the declaration or payment of dividends or similar distributions by the Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such Subsidiary and (b) the income of any Person in which any other Person (other than the Borrower or a wholly owned Subsidiary or any director holding qualifying shares in accordance with applicable law) has a joint interest, except to the extent of the amount of dividends or other distributions actually paid to the Borrower or a wholly owned Subsidiary by such Person during such period.

 

Page 6


Consolidated Subsidiaries ” means, for any Person, any Subsidiary or other entity the accounts of which would be consolidated with those of such Person in its consolidated financial statements in accordance with GAAP.

Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.

Control Agreement ” means a deposit account, securities or commodity account control agreement, as applicable, to be executed and delivered among any Credit Party, the Administrative Agent and each bank at which such Credit Party maintains, any deposit, securities or commodity account, in each case, in form and substance acceptable to the Administrative Agent and the Majority Lenders, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

Convertible Indenture ” means that certain indenture, effective as of the Effective Date, governing the Convertible Notes, between Wilmington Trust, National Association, as trustee, and the Borrower, as issuer.

Convertible Notes ” means those certain senior second lien secured convertible notes due 2022, issued by the Borrower pursuant to the Securities Purchase Agreement on the Effective Date or on a later date as permitted by Section 6.02(k).

Counterpart Agreement ” means a Counterpart Agreement substantially in the form of Exhibit C delivered by a Guarantor pursuant to Section 5.14.

Credit Exposure ” means, with respect to any Lender at any time, the outstanding principal amount of such Lender’s Loans at such time.

Credit Parties ” means collectively, Borrower and each Guarantor, and each individually, a “ Credit Party ”.

Declining Lender ” has the meaning assigned to such term in Section 2.08(b).

Default ” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

Disclosed Matters ” means the actions, suits and proceedings and the environmental matters disclosed in Schedule  3.06 .

Disposition ” or “ Dispose ” means the sale, transfer, license, lease, exchange or other disposition (including any Sale and Leaseback Transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

Disqualified Stock ” means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable for any consideration other than other Capital Stock (which would not constitute Disqualified Stock), pursuant to a sinking fund obligation or otherwise, or is redeemable for any consideration other than other Capital Stock (which would not constitute Disqualified Stock) at the sole option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the Maturity Date.

 

Page 7


Dollars ” or “ $ ” refers to lawful money of the United States of America.

DrillCo Agreement ” means that certain Development Agreement dated as of October 14, 2016 by and between the Borrower and DrillCo Investor, as amended as permitted under this Agreement.

DrillCo Contract Area ” means the following locations in Kingfisher County, Oklahoma: Township 18 North – Range 6 West, Township 18 North – Range 7 West and Township 18 North – Range 8 West.

DrillCo Excluded Property ” means (a) as of the Effective Date, Oil and Gas Property listed on Schedule 1.01(b) and (b) at all times after the Effective Date, Oil and Gas Properties (whether owned as of the Effective Date or hereafter acquired by a Credit Party) in the DrillCo Contract Area other than Oil and Gas Properties hereafter acquired by any Credit Party to which DrillCo PDP Reserves are attributed.

DrillCo Investor ” means STACK Exploration LLC, a Delaware limited liability company.

DrillCo Joint Well ” means a “Joint Well Program Interest,” as that term is defined in the DrillCo Agreement, that is located in the DrillCo Contract Area.

DrillCo Operating Agreement ” means a “DrillCo Operating Agreement” as that term is defined in the DrillCo Agreement.

DrillCo PDP Reserves ” means the Proved Developed Producing Reserves of any Credit Party attributable to any well located in the DrillCo Contract Area.

DrillCo Required Disposition ” means an assignment to the DrillCo Investor of an interest in a DrillCo Joint Well in accordance with the DrillCo Agreement pursuant to a DrillCo Wellbore Assignment.

DrillCo Wellbore Assignment ” means a “Wellbore Assignment” as that term is defined in the DrillCo Agreement.

Effective Date ” has the meaning specified in Section 4.01.

Electronic Signature ” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record.

Eligible Assignee ” means any Person that qualifies as an assignee pursuant to Section 10.04(b)(i); provided that, notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or any of the Borrower’s Affiliates or Subsidiaries.

Eligible Contract Participant ” means an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder.

Environmental Laws ” means all laws (including common law), rules, regulations, codes, ordinances, orders, determinations, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, pollution, the management, release or threatened release of any Hazardous Material or to health and safety matters.

Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any Credit Party directly or indirectly resulting from or based upon (a) violation of or liability under any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal (or arrangement for the disposal) of

 

Page 8


any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

ERISA Affiliate ” means any trade or business (whether or not incorporated) that, together with any Credit Party, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

ERISA Event ” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the failure of any Plan to satisfy the minimum funding standard applicable to that Plan for a plan year under Section 412 of the Code or Section 302 of ERISA; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by any Credit Party or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by any Credit Party or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by any Credit Party or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by any Credit Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Credit Party or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

Event of Default ” has the meaning assigned to such term in Article VIII.

Excluded Account ” means (a) any deposit accounts that are designated to hold cash as collateral in support of performance bond obligations or other similar obligations or (b) any deposit accounts that are designated solely as accounts for, and are used solely for, employee benefits, taxes, payroll funding or petty cash in an amount not to exceed $500,000 in the aggregate.

Excluded Hedges ” means, collectively, Swap Agreements that (a) are basis differential only swaps for volumes of natural gas included under other Swap Agreements permitted by Section 6.08(a) or (b) are a hedge of volumes of Hydrocarbons by means of a price “floor” for which there exists no deferred obligation to pay the related premium or other purchase price or the only deferred obligation is to either pay the premium or other purchase price on each settlement date so long as such settlement date occurs at least monthly, or pay the financing for such premium or other purchase price.

Excluded Swap Obligation ” means with respect to any Guarantor, any obligation under any Swap Agreement if, and to the extent that, all or a portion of the guaranty by such Guarantor of, or the grant by such Guarantor of a security interest or lien to secure, or the provision by such Guarantor of other support of, such obligation is or becomes illegal under the Commodity Exchange Act by virtue of such party’s failure for any reason to constitute an Eligible Contract Participant at the time such guaranty, grant of security interest or lien or provision of support of, such Swap Obligation becomes effective. If an obligation arises under a master agreement governing more than one Swap Agreement, such exclusion shall apply only to the portion of such obligation that is attributable to Swap Agreements for which such guaranty, grant of security interest or lien to secure or provision of other support is or becomes illegal.

 

Page 9


Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.12, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.12(f) and (g) and (d) any U.S. Federal withholding Taxes imposed under FATCA.

Existing Administrative Agent ” has the meaning assigned to such term in the recitals.

Existing Credit Agreement ” has the meaning assigned to such term in the recitals.

Existing Indenture ” means that certain Indenture, dated as of May 15, 2013 governing the Existing Notes, among the Borrower, as issuer, the guarantors party thereto from time to time and Wells Fargo Bank, National Association, as trustee.

Existing Lenders ” has the meaning assigned to such term in the recitals.

Existing Loans ” has the meaning assigned to such term in Section 2.02(a).

Existing Notes ” means the Borrower’s 8.625% senior secured notes due 2018.

Fair Market Value ” means, with respect to any asset or liability, the fair market value of such asset or liability as determined by the Borrower in good faith in accordance with generally accepted finance practices.

FASB ” means Financial Accounting Standards Board.

FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities entered into in connection with the implementation of the foregoing.

Federal Funds Effective Rate ” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

 

Page 10


Fee Letter ” means that certain Fee Letter by and between the Borrower and the Administrative Agent dated as of the Effective Date, as may be amended, restated, supplemented or otherwise modified from time to time.

Financial Officer ” means the chief financial officer, principal accounting officer, treasurer or controller of any Credit Party. Any document delivered hereunder that is signed by a Financial Officer of a Credit Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Credit Party and such Financial Officer shall be conclusively presumed to have acted on behalf of such Credit Party.

Fixed Charge Coverage Ratio ” means, as of the date of any payment of dividends under Section 6.09(e), the ratio of (a) Consolidated EBITDA of the Borrower and the Subsidiaries for the period of four fiscal quarters most recently ended for which financial statements are available to (b) Consolidated Fixed Charges as of such date.

Foreign Lender ” means a Lender that is not a U.S. Person.

GAAP ” means generally accepted accounting principles in the United States of America as in effect from time to time subject to the terms and conditions set forth in Section 1.03.

Gas Imbalance ” means (a) a sale or utilization by the Borrower or any of its Subsidiaries of volumes of natural gas in excess of its gross working interest, (b) receipt of volumes of natural gas into a gathering system and redelivery by the Borrower or any of its Subsidiaries of a larger or smaller volume of natural gas under the terms of the applicable transportation agreement, or (c) delivery to a gathering system of a volume of natural gas produced by the Borrower or any of its Subsidiaries that is larger or smaller than the volume of natural gas such gathering system redelivers for the account of the Borrower or any of its Subsidiaries, as applicable.

Governmental Authority ” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity properly exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

Guarantee ” of or by any Person (in this definition, the “ guarantor ”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided , that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.

Guaranteed Liabilities ” has the meaning assigned to such term in Section 7.01.

Guarantor ” means the Borrower (with respect to the Obligations of the other Credit Parties) and each Subsidiary that is a party hereto or hereafter executes and delivers to the Administrative Agent and the Lenders a Counterpart Agreement pursuant to Section 5.14 or otherwise.

 

Page 11


Hazardous Materials ” means all explosive or radioactive materials, substances or wastes and all hazardous or toxic materials, substances or wastes or other chemicals or pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other materials, substances or wastes of any nature regulated pursuant to, or for which liability or standards of conduct may be imposed under, any Environmental Law.

Hedge Modification ” means the amendment, modification, cancellation, monetization, sale, transfer, assignment, early termination or other disposition of any Swap Agreement.

Hydrocarbon Interests ” all presently existing or after-acquired rights, titles and interests in and to oil and gas leases, oil, gas and mineral leases, other Hydrocarbon leases, mineral interests, mineral servitudes, overriding royalty interests, royalty interests, net profits interests, production payment interests and other similar interests. Unless otherwise qualified, all references to a Hydrocarbon Interest or Hydrocarbon Interests in this Agreement shall refer to a Hydrocarbon Interest or Hydrocarbon Interests of the Borrower or the Guarantors.

Hydrocarbons ” means, collectively, oil, gas, casinghead gas, drip gasoline, natural gasoline, condensate, distillate and all other liquid or gaseous hydrocarbons and related minerals and all products therefrom, in each case whether in a natural or a processed state.

Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding those incurred in the ordinary course of business which are not greater than 60 days past the due date or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed by such Person, but limited to the lesser of (i) the amount of such Indebtedness and (ii) the fair market value of the property securing such Indebtedness, (f) all Guarantees by such Person of Indebtedness of others to the extent of the lesser of the amount of such Indebtedness and the maximum stated amount of such Guarantee, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (j) attributable Indebtedness in respect of Sale and Leaseback Transactions and (k) all obligations of such Person relating to any Production Payment. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.

Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Loan Document and (b) to the extent not otherwise described in (a) hereof, Other Taxes.

Indemnitee ” has the meaning assigned to such term in Section 10.03.

Ineligible Institution ” has the meaning assigned to it in Section 10.04(b).

Information ” has the meaning assigned to such term in Section 10.12.

 

Page 12


Initial Swap ISDA Counterparty ” means, with respect to any Initial Swap Party ISDA, any Swap Counterparty (as defined in the Swap Intercreditor Agreement) to an Initial Swap Party ISDA (a) that is a party to the Swap Intercreditor Agreement on the Effective Date or (b) (i) that is acceptable to the Majority Lenders as evidenced by their written consent and (ii) becomes a party to the Swap Intercreditor Agreement.

Initial Swap Party ISDAs ” has the meaning assigned to such term in the Swap Intercreditor Agreement.

Intercreditor Agreement ” means that certain intercreditor agreement, dated as of the Effective Date, between the Administrative Agent and the trustee under the Convertible Indenture, as amended, supplemented or otherwise modified from time to time, which shall be substantially in the form of Exhibit  D .

Interest Payment Date ” means each March 31st, June 30th, September 30 th and December 31st of each fiscal year, or if such day is not a Business Day, the immediately following Business Day thereafter.

Investment ” means all direct or indirect investments by such Person in other Persons (including, without limitation, Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Capital Stock or other securities (excluding any interest in an oil or natural gas leasehold to the extent constituting a security under applicable law), together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP.

IRS ” means the United States Internal Revenue Service.

Lead Lender ” means Ares.

Lenders ” means the Persons listed on Schedule  2.01 and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.

Lien ” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

Loan Documents ” means this Agreement, any promissory notes executed in connection herewith, the Security Documents, the Fee Letter, the Master Assignment and any other agreements executed by any Credit Party in connection with this Agreement and designated as a Loan Document therein.

Loans ” means the loans made by the Lenders to the Borrower pursuant to this Agreement.

Majority Lenders ” means (i) at any time prior to the Effective Date, Lenders having Commitments representing more than 50% of the Aggregate Commitment at such time and (ii) at any time on and after the Effective Date, Lenders having Credit Exposures representing more than 50% of the Aggregate Credit Exposure at such time.

Master Assignment ” has the meaning assigned to such term in the recitals hereto.

Make-Whole Amount ” shall be a cash amount equal to the greater of:

(a)    1.0% of the principal amount repaid, prepaid or accelerated; and

 

Page 13


(b)    the excess of:

(i)    the present value at such repayment, prepayment or acceleration date or the date the Obligations otherwise become due and payable in full of (1) the sum of (A) the principal amount repaid, prepaid or accelerated plus (B) the Applicable Premium on such principal amount on September 1, 2019 plus (2) the interest accruing on such principal amount from the date of such repayment, prepayment or acceleration through September 1, 2019 (excluding accrued but unpaid interest to the date of such repayment, prepayment or acceleration), such present value to be computed using a discount rate equal to the Treasury Rate plus 50 basis points discounted to the repayment, prepayment or acceleration date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months), over

(ii)    the principal amount of the Loans repaid, prepaid or accelerated.

Material Adverse Effect ” means a material adverse effect on (a) the business, assets, operations, financial condition or results of operations of the Borrower and its Subsidiaries taken as a whole, (b) the ability of any Credit Party to perform any of its obligations under this Agreement and the other Loan Documents or (c) the validity or enforceability of any Loan Document against any Credit Party which is a party thereto or the rights of or benefits available to the Lenders under this Agreement and the other Loan Documents.

Material Indebtedness ” means Indebtedness (other than the Loans) and obligations in respect of one or more Swap Agreements of the Borrower or any one or more of the Subsidiaries in an aggregate principal amount exceeding $15,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Subsidiary in respect of any Swap Agreement at any time shall be the Swap Termination Value.

Maturity Date ” means March 3, 2022.

Maximum Liability ” has the meaning assigned to such term in Section 7.10.

Maximum Rate ” has the meaning assigned to such term in Section 10.15.

Moody’s ” means Moody’s Investors Service, Inc.

Mortgaged Properties ” means the Oil and Gas Properties listed on Schedule 1.01(a) , together with any additional Oil and Gas Properties of the Borrower or any Subsidiary over which a Mortgage may hereafter be granted to Administrative Agent for the benefit of the Secured Parties pursuant to Section 5.10.

Mortgages ” means all mortgages, deeds of trust, amendments to mortgages, security agreements, assignments of production, pledge agreements, collateral mortgages, collateral chattel mortgages, collateral assignments, financing statements and other documents, instruments and agreements evidencing, creating, perfecting or otherwise establishing the Liens on the Mortgaged Properties as required by Section 5.10, which shall be substantially in the form of Exhibit  E (with such changes thereto as may be reasonably requested by the Administrative Agent).

Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which any Credit Party or any ERISA Affiliate contributed or has any obligations (current or contingent).

Natural Gas ” means all natural gas, distillate or sulphur, natural gas liquids and all products recovered in the processing of natural gas (other than condensate) including, without limitation, natural gasoline, coalbed methane gas, casinghead gas, iso-butane, normal butane, propane and ethane (including such methane allowable in commercial ethane).

 

Page 14


Net Cash Proceeds ” means, (A) with respect to any Disposition or series of related Dispositions of any assets (including any Oil and Gas Property and Capital Stock of any Subsidiary) by the Borrower or any Subsidiary, the excess, if any, of (a) the sum of cash and Cash Equivalents received in connection with such Disposition or Dispositions, but only as and when so received, over (b) the sum of (i) the principal amount of any Indebtedness that is secured by such asset or assets and that is required to be repaid in connection with such Disposition or Dispositions (other than the Loans) and (ii) the reasonable and documented out-of-pocket expenses (including Taxes) incurred by the Borrower or such Subsidiary in connection with such Disposition or Dispositions and (B) with respect to any Hedge Modification by the Borrower or any Subsidiary, the excess, if any, of (a) the sum of cash and Cash Equivalents received in connection with such Hedge Modification (after giving effect to any netting arrangements), over (b) the out-of-pocket expenses (including Taxes) incurred by the Borrower or such Subsidiary in connection with such Hedge Modification.

Non-Core Assets ” means the Oil and Gas Properties of the Borrower or any Subsidiary within (i) the WEHLU field in Oklahoma and (ii) the undeveloped acreage to the East of WEHLU located in 15N 4W and 14N 4W in Oklahoma County, Oklahoma.

Non-DrillCo Assets ” means any Property located in the DrillCo Contract Area and owned or acquired by the Borrower or any Subsidiary thereof but not necessary or desirable for the Borrower to produce, operate, maintain, and plug and abandon the DrillCo Joint Wells described in the Development Plans (as defined in the DrillCo Agreement).

NYMEX ” means the New York Mercantile Exchange.

Obligations ” means all obligations, liabilities and indebtedness (monetary (including post-petition interest, whether or not allowed) or otherwise) of each Credit Party from time to time owed to the Administrative Agent or any Lender under any Loan Document, including any make-whole amounts (including the Make-Whole Amount), any repayment or prepayment premiums (including the Applicable Premium) and any accrued and unpaid interest, in each case howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due. For the avoidance of doubt, it is understood and agreed that any Make-Whole Amount or Applicable Premium shall be presumed to be the liquidated damages sustained by each Lender as a result of the early termination of the Loans and the Credit Parties agree that such amounts shall constitute Obligations under this Agreement.

Off-Balance Sheet Liability ” of a Person means (i) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (ii) any liability under any Sale and Leaseback Transaction which is not a Capital Lease Obligation, (iii) any liability under any so-called “synthetic lease” transaction entered into by such Person, or (iv) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheets of such Person, but excluding from the foregoing clauses, operating leases and usual and customary oil, gas and mineral leases.

Offer ” has the meaning assigned to such term in Section 2.08(b)

Oil and Gas Properties ” means Hydrocarbon Interests; the properties now or hereafter pooled or unitized with Hydrocarbon Interests; all presently existing or future unitization, pooling agreements and declarations of pooled units and the units created thereby (including all units created under orders, regulations and rules of any Governmental Authority having jurisdiction) which may affect all or any portion of the Hydrocarbon Interests; all operating agreements, contracts and other agreements which relate to any of the Hydrocarbon Interests or the production, sale, purchase, exchange or processing of Hydrocarbons from or

 

Page 15


attributable to such Hydrocarbon Interests; all Hydrocarbons in and under and which may be produced and saved or attributable to the Hydrocarbon Interests, the lands covered thereby and all oil in tanks and all rents, issues, profits, proceeds, products, revenues and other incomes from or attributable to the Hydrocarbon Interests; all tenements, hereditaments, appurtenances and properties in anywise appertaining, belonging, affixed or incidental to the Hydrocarbon Interests, properties, rights, titles, interests and estates described or referred to above, including any and all Property, real or personal, now owned or hereafter acquired and situated upon, used, held for use or useful in connection with the operating, working or development of any of such Hydrocarbon Interests or Property (excluding drilling rigs, automotive equipment or other personal property which may be on such premises for the purpose of drilling a well or for other similar temporary uses) and including any and all oil wells, gas wells, injection wells or other wells, buildings, structures, fuel separators, liquid extraction plants, plant compressors, pumps, pumping units, field gathering systems, tanks and tank batteries, fixtures, valves, fittings, machinery and parts, engines, boilers, meters, apparatus, equipment, appliances, tools, implements, cables, wires, towers, casing, tubing and rods, surface leases, rights-of-way, easements and servitudes together with all additions, substitutions, replacements, accessions and attachments to any and all of the foregoing. Unless otherwise qualified, all references to an Oil and Gas Property or to Oil and Gas Properties in this Agreement shall refer to an Oil and Gas Property or Oil and Gas Properties of Borrower or its Subsidiaries.

Organizational Documents ” means (a) with respect to any corporation, its certificate or articles of incorporation, organization or formation, as amended, and its by-laws, as amended, (b) with respect to any limited partnership, its certificate of limited partnership or formation, as amended, and its partnership agreement, as amended, (c) with respect to any general partnership, its partnership agreement, as amended, and (d) with respect to any limited liability company, its certificate of formation or articles of organization, as amended, and its limited liability company agreement or operating agreement, as amended.

Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.

Participant ” has the meaning assigned to such term in Section 10.04(a).

Participant Register ” has the meaning assigned to such term in Section 10.04.

Payment Currency ” has the meaning assigned to such term in Section 7.07.

PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

Permitted Encumbrances ” means:

(a)    Liens imposed by law for Taxes, assessments or other governmental charges or levies which are not yet delinquent or which (i) are being contested in good faith by appropriate proceedings diligently conducted, (ii) the Borrower or such Subsidiary, as applicable, has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (iii) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect;

 

Page 16


(b)    carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, and contractual Liens granted to operators and non-operators under oil and gas operating agreements, in each case, arising in the ordinary course of business or incident to the exploration, development, operation and maintenance of Oil and Gas Property and securing obligations that are not overdue by more than 60 days or which (i) are being contested in good faith by appropriate proceedings, (ii) the Borrower or such Subsidiary, as applicable, has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (iii) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect;

(c)    contractual Liens which arise in the ordinary course of business under oil and gas leases, division orders, contracts for the sale, transportation or exchange of oil and natural gas, unitization and pooling declarations and agreements, area of mutual interest agreements, marketing agreements, processing agreements, development agreements, gas balancing agreements, injection, repressuring and recycling agreements, salt water or other disposal agreements and seismic or other geophysical permits or agreements, which Liens are limited to the Oil and Gas Property and related property that is the subject of such agreement, arising out of or pertaining to the operation or the production or sale of Hydrocarbons produced from the Oil and Gas Property, provided that any such Lien referred to in this clause does not materially impair the use of the property covered by such Lien for the purposes for which such property is held by the Borrower or any Subsidiary or materially impair the value of such property subject thereto;

(d)    pledges and deposits in connection with workers’ compensation, unemployment insurance and other social security laws or regulations;

(e)    Liens on cash and securities and deposits to secure the performance of bids, trade contracts, leases, statutory obligations (excluding Liens arising under ERISA), surety and appeal bonds, performance bonds and other obligations of a like nature, in each case, which are in the ordinary course of business and which are in respect of obligations that are not delinquent or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP;

(f)    Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies, or under general depositary agreements, and burdening only deposit accounts or other funds maintained with a creditor depository institution, provided that no such deposit account is a dedicated cash collateral account or is subject to restrictions against access by the depositor in excess of those set forth by regulations promulgated by the Board and no such deposit account is intended by Borrower or any of its Subsidiaries to provide collateral to the depository institution;

(g)    judgment liens in respect of judgments that do not constitute an Event of Default under clause (k) of Article VIII;

(h)    easements, zoning restrictions, rights-of-way, servitudes, permits, surface leases, and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and that, in the aggregate, do not materially detract from the value of the affected property or materially impair the use of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;

(i)    royalties, overriding royalties, reversionary interests and similar burdens granted by the Borrower or any Subsidiary with respect to the Oil and Gas Property owned by the Borrower or such Subsidiary, as the case may be, if the net cumulative effect of such burdens does not operate to deprive the Borrower or any Subsidiary of any material right in respect of its assets or properties (except for rights customarily granted with respect to such interests) and the net cumulative effect is deducted in the calculation of PV10;

 

Page 17


(j)    Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by the Borrower or any Subsidiary in the ordinary course of business covering the property under the lease;

(k)    unperfected Liens reserved in leases (other than oil and gas leases) or arising by operation of law for rent or compliance with the lease in the case of leasehold estates; and

(l)    defects in or irregularities of title (other than defects or irregularities of title to Oil and Gas Property), if such defects or irregularities do not deprive the Borrower or any Subsidiary of any material right in respect of its assets or properties;

provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.

Permitted Junior Liens ” means a Lien that is junior in priority to the Liens securing the Obligations (pursuant to the Intercreditor Agreement, an intercreditor substantially identical to the Intercreditor Agreement or an intercreditor agreement in form and substance satisfactory to the Administrative Agent and the Majority Lenders in their sole discretion), granted by the Borrower or any Guarantor in favor of the holders of Permitted Junior Lien Debt (or any collateral agent, trustee or representative in connection therewith).

Permitted Junior Lien Debt ” means any Indebtedness of the Borrower and the Guarantors constituting Permitted Refinancing Indebtedness of the Convertible Notes to the extent permitted by Section 6.02(l) and Section 6.09 that is secured by a Permitted Junior Lien; provided that on or before the date such Indebtedness is incurred, the agent or trustee for such Indebtedness, on behalf of itself and each holder of Permitted Junior Lien Debt, becomes a party to the Intercreditor Agreement or an intercreditor agreement substantially identical thereto or executes and delivers an intercreditor agreement in form and substance satisfactory to the Administrative Agent and the Majority Lenders in their sole discretion.

Permitted Junior Lien Obligations ” means Permitted Junior Lien Debt and all other obligations in respect thereof.

Permitted Prior Liens ” means Liens described in Section 6.03(a) and in clauses (b), (d), (e), (f), (h) and (i) of Section 6.03 that, by operation of law, have priority over the Liens securing the Obligations.

Permitted Refinancing Indebtedness ” means any Indebtedness of the Borrower or any Subsidiary, and Indebtedness constituting Guarantees thereof by the Borrower or any Subsidiary, incurred or issued solely in exchange for, renewing or extending, or the Net Cash Proceeds of which are used solely to extend, refinance, renew, replace, defease or refund, Convertible Notes, in whole or in part, from time to time; provided that:

(a)    the principal amount of such Permitted Refinancing Indebtedness does not exceed the principal amount of the Indebtedness being so refinanced plus the amount of any accrued interest, premiums, fees and expenses incurred in connection with such Permitted Refinancing Indebtedness; provided that (i) if the principal amount of the Indebtedness being so refinanced is reduced in connection with a debt exchange or similar transaction, then the principal amount of such Permitted Refinancing Indebtedness shall not exceed the principal amount of the Indebtedness being so refinanced after taking into account any discount or reduction that may have resulted from such exchange or similar transaction and (ii) such Permitted Refinancing Indebtedness shall not consist of additional borrowings or issuances of Indebtedness above what is required to refinance the Indebtedness being so refinanced;

 

Page 18


(b)    such Permitted Refinancing Indebtedness does not provide for any scheduled repayment, mandatory redemption or payment of a sinking fund obligation prior to the date that is 180 days after the fifth anniversary of the Effective Date (except for any customary offer to repurchase such Indebtedness as a result of asset sales or the occurrence of a “Change of Control” under and as defined in the Convertible Indenture);

(c)    the covenants, default and remedy provisions, mandatory prepayment, repurchase and redemption provisions of such Permitted Refinancing Indebtedness, taken as a whole, are not materially more restrictive to the Borrower and its Subsidiaries than those imposed by the Convertible Notes being refinanced;

(d)    the cash interest rate, the overall effective interest cost and the weighted average yield (with the comparative determinations to be made by the Majority Lenders in a manner consistent with generally accepted finance practices) applicable to such Permitted Refinancing Indebtedness does not exceed the greater of (i) the cash interest rate, the overall effective interest cost and the weighted average yield (as calculated above) of the Convertible Notes being refinanced and (ii) the prevailing market cash interest rate, overall effective interest cost and weighted average yield (as calculated above) then in effect for similarly situated credits at the time such Permitted Refinancing Indebtedness is incurred (provided that such cash interest rate, the overall effective interest cost and the weighted average yield (as calculated above) shall not in any event exceed 15.0 %);

(e)    (i) the default interest rate shall not exceed 2.0% and (ii) any make-whole premiums, non-call protections or other premiums must be on prevailing market terms;

(f)    the aggregate cash interest payments do not exceed $15,000,000 in any fiscal year;

(g)    such Permitted Refinancing Indebtedness is unsecured or secured solely by Permitted Junior Liens; and

(h)    no Subsidiary of the Borrower is required to Guarantee such Permitted Refinancing Indebtedness unless such Subsidiary is (or concurrently with any such Guarantee becomes) a Guarantor hereunder.

Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

Petroleum Industry Standards ” means Definitions for Oil and Gas Reserves promulgated by the Society of Petroleum Engineers (or any generally recognized successor) as in effect at the time in question.

Plan ” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which any Credit Party or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

Production Payment ” means the grant or transfer by the Borrower or any of its Subsidiaries to any Person of a royalty, overriding royalty, net profits interest, production payment, partnership or other interest in Oil and Gas Property, reserves or the right to receive all or a portion of the production or the proceeds from the sale of production attributable to such properties, in which the holder of such interests is entitled to receive a specified volume or value of production and in which the holder of such interest has recourse solely to such production or proceeds of production, subject to the obligation of the grantor or transferor to operate and maintain, or cause the subject interests to be operated and maintained, in a reasonably prudent manner or other customary standard or subject to the obligation of the grantor or transferor to indemnify for environmental, title or other matters customary in the oil and gas business.

 

Page 19


Projected Oil and Gas Production ” means (a) the projected production of oil or natural gas (measured by volume unit or BTU equivalent, not sales price) from Oil and Gas Properties owned by the Borrower and the Guarantors which have attributable to them Proved Developed Producing Reserves, as such production is projected in the most recent Reserve Report delivered pursuant to this Agreement, after deducting projected production from any Oil and Gas Properties or Hydrocarbon Interests sold or under contract for sale that had been included in such report and after adding projected production from any Oil and Gas Properties or Hydrocarbon Interests that had not been reflected in such report but that are reflected in a separate or supplemental report meeting the requirements of Section 5.01(g) and otherwise are satisfactory to the Majority Lenders plus (b) the projected production of oil or natural gas (measured by volume unit or BTU equivalent, not sales price) from Oil and Gas Properties owned by the Borrower and the Guarantors which are projected to have Proved Developed Producing Reserves attributed to them within the following 12 month period based on the planned capital expenditures set forth in the Projections.

Projections ” means the Borrower’s forecasted (a) profit and loss statements and (b) cash flow statements, all prepared on a basis consistent with the historical financial statements described in Section 3.04 and after giving effect to the Transactions, together with appropriate supporting details and a statement of underlying assumptions, in each case in form and substance satisfactory to the Lenders and for the period from the Effective Date through December 31, 2017.

Property ” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible. Unless otherwise qualified, all references to Property in this Agreement shall refer to a Property or Properties of the Borrower or its Subsidiaries.

Proved Developed Producing Reserves ” shall mean oil and gas reserves that, in accordance with Petroleum Industry Standards, are classified as both “Proved Reserves” and “Developed Producing Reserves.”

Proved Reserves ” shall mean oil and gas reserves that, in accordance with Petroleum Industry Standards, are classified as both “Proved Reserves” and one of the following: (a) “Developed Producing Reserves”, (b) “Developed Non-Producing Reserves” or (c) “Undeveloped Reserves”.

Public- Sider ” means a Lender or any representative of such Lender that does not want to receive material non-public information within the meaning of the federal and state securities laws.

PV10 ” means, in respect of the Proved Reserves of any Credit Parties’ Oil and Gas Property set forth in the most recently delivered Reserve Report, the aggregate net present value (discounted at 10% per annum) of such Oil and Gas Properties calculated before income taxes, but after reduction for royalties, lease operating expenses, severance and ad valorem taxes, capital expenditures and abandonment costs and with no escalation of capital expenditures or abandonment costs (a) calculated in accordance with SEC guidelines but using Strip Price for crude oil and natural gas liquids (WTI Cushing) and natural gas (Henry Hub), (b) calculated by (i) in the case of a Reserve Report prepared as of December 31 of any year, an Approved Petroleum Engineer and (ii) in the case of each other Reserve Report or as otherwise required under this Agreement, at the Borrower’s option, a petroleum engineer employed by the Borrower or an Approved Petroleum Engineer, in each case, in such person’s reasonable judgment after having reviewed the information from the most recently delivered Reserve Report, (c) as set forth in the Reserve Report most recently delivered under Section 5.01(g), (d) as adjusted to give effect to Swap Agreements permitted by this Agreement as in effect on the date of such determination and (e) as adjusted to give pro forma effect to all Dispositions or Acquisitions completed since the date of the Reserve Report.

Qualified Counterparty ” means, with respect to any Swap Agreement, any counterparty to a Swap Agreement (a) that is a party to the Swap Intercreditor Agreement on the Effective Date or (b) (i) that is acceptable to the Majority Lenders as evidenced by their written consent and (ii) becomes a party to the Swap Intercreditor Agreement.

 

Page 20


Qualified ECP Guarantor ” means, in respect of any obligations under Swap Agreements that constitute Secured Obligations hereunder, each Guarantor that has total assets exceeding $10,000,000 at the time the relevant guarantee provided by such Guarantor or grant of the relevant security interest becomes effective with respect to such obligations or such other person as constitutes an Eligible Contract Participant and can cause another person to qualify as Eligible Contract Participant at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

Qualified Preferred Shares ” means shares of any series of the Borrower’s preferred stock (other than Disqualified Stock), the proceeds of which are used to redeem or repurchase all or any number of the then outstanding Series A Preferred Shares or Series B Preferred Shares (or any previously issued shares of Qualified Preferred Shares); provided such preferred stock (a) is not materially more restricted on Gastar and its Subsidiaries than the Series A Preferred Stock and the Series B Preferred Stock, as in effect on the date hereof, (b) does not have a weighted average yield in excess of the weighted average yield (with the comparative determinations to be made by the Majority Lenders in a manner consistent with generally accepted finance practices) of the Indebtedness being refinanced or repaid with the proceeds of the Qualified Preferred Shares and (c) for which cash distributions do not exceed $15,000,000 per annum.

Recipient ” means (a) the Administrative Agent, (b) the Majority Lenders and (b) any other Lender, as applicable.

Register ” has the meaning assigned to such term in Section 10.04.

Rejection Notice ” has the meaning assigned to such term in Section 2.08(b).

Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, managers, members, partners, employees, agents and advisors of such Person and such Person’s Affiliates.

Removal Effective Date ” has the meaning assigned to such term in Article IX.

Requirements of Law ” means, as to any Person, any order, law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

Reserve Report ” means an unsuperseded engineering analysis of the Credit Parties’ Oil and Gas Property, in form and substance reasonably acceptable to the Majority Lenders, which shall include (i) pricing assumptions based upon the Strip Price and (ii) projections of revenues attributable to all undrilled locations on the Credit Parties’ Oil and Gas Property based on a development plan for a period no greater than 10 years from the date of such Reserve Report reasonably acceptable to the Majority Lenders; provided that, for the avoidance of doubt, such projections need not be based on historical capital expenditures in such locations nor take into account potential financings of projected capital expenditures.

Reserve Report Certificate ” means, with respect to any Reserve Report, a certificate from a Responsible Officer certifying that in all material respects: (a) such Reserve Report is based on information reasonably available to the Borrower; (b) the Borrower or its Subsidiaries owns good and defensible title to the Oil and Gas Property evaluated in such Reserve Report (except any such Oil and Gas Property that has been Disposed of since the date of such Reserve Report as permitted by this Agreement) and such properties are free and clear of all Liens except for Liens permitted by Section 6.03; (c) except as set forth on an exhibit to the Reserve Report Certificate, on a net basis there are no gas imbalances, take-or-pay or other

 

Page 21


prepayments with respect to its Oil and Gas Property evaluated in such Reserve Report which would require the Borrower or any Subsidiary to deliver Hydrocarbons either generally or produced from Oil and Gas Property at some future time without then or thereafter receiving full payment therefor other than those which do not result in any Credit Party or any Subsidiary having net aggregate liability in excess of $1,000,000; (d) except as set forth on an exhibit to the Reserve Report Certificate, none of the Borrower’s or its Subsidiaries’ Oil and Gas Property have been Disposed of since the last delivery of the corresponding Reserve Report, which exhibit shall describe in reasonable detail such Dispositions; (e) the Borrower is in compliance with Section 5.10(a); and (f) except as set forth on an exhibit to the Reserve Report Certificate, all such properties are owned by the Borrower or a Guarantor.

Resignation Effective Date ” has the meaning assigned to such term in Article IX.

Responsible Officer ” means the chief executive officer, president, vice president, chief financial officer, principal accounting officer, treasurer or assistant treasurer of a Credit Party. Any document delivered hereunder that is signed by a Responsible Officer of a Credit Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Credit Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Credit Party.

Restricted Payment ” means:

(a)    any dividend or other distribution or other payment (whether in cash, securities or other property) with respect to any Capital Stock in the Borrower or any Subsidiary, to any Person (in each case, solely in such Person’s capacity as holder of such Capital Stock or, in the case of any payment, to the direct or indirect holders of the Borrower’s or any of its Subsidiaries’ Capital Stock), including any dividend or distribution payable or payment made in connection with any merger, amalgamation or consolidation;

(b)    any purchase, redemption, defeasance or other acquisition or retirement for value of any Capital Stock of the Borrower (including in connection with any merger, amalgamation or consolidation); and

(c)    any principal payment on, or redemption, purchase, repurchase, defeasance or other acquisition or retirement for value, in each case, prior to any scheduled repayment, sinking fund payment or scheduled maturity, of any Indebtedness secured by Liens junior in priority to the Liens securing the Obligations hereunder or unsecured Indebtedness, of the Borrower or any Subsidiary (excluding any intercompany Indebtedness between or among Borrower and any Guarantor), except a payment of interest or principal at the stated maturity date thereof.

S&P ” means Standard & Poor’s.

Sale and Leaseback Transaction ” means any sale or other transfer of any property by any Person with the intent to lease such property as lessee.

Sanctioned Country ” means, at any time, a country or territory which is the subject or target of any Sanctions (at the time of this Agreement, Cuba, Crimea, Iran, North Korea, Sudan and Syria).

Sanctioned Person ” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person controlled by any such Person.

 

Page 22


Sanctions ” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, the United Nations Security Council and the European Union, each as amended, supplemented or substituted from time to time.

SCOOP and STACK play ” means those geographic areas of the state of Oklahoma prospective for Hydrocarbons and generally known in the industry as the South Central Oklahoma Oil Province or “SCOOP” and Sooner Trend Anadarko Basin Canadian and Kingfisher Counties or “STACK”.

SEC ” means the Securities and Exchange Commission of the United States of America.

Second Offer ” has the meaning assigned to such term in Section 2.08(b).

Secured Obligations ” means (a) the Obligations, (b) all obligations in respect of Swap Agreements entered into with a counterparty that is a Qualified Counterparty at the time such Swap Agreement is entered into and (c) all obligations in respect of Initial Swap Party ISDAs entered into with an Initial Swap ISDA Counterparty thereto. The term “Secured Obligations” excludes any Excluded Swap Obligations with respect to any applicable Guarantor.

Secured Party ” means each of the Administrative Agent, each Lender, any Qualified Counterparty (to the extent, and for so long as, the obligations in respect of Swap Agreements with such Qualified Counterparty constitute “Secured Obligations” hereunder), any Initial Swap ISDA Counterparty (to the extent, and for so long as, the obligations in respect of Initial Swap Party ISDAs with such Initial Swap ISDA Counterparty constitute “Secured Obligations” hereunder) and the “Collateral Agent”, as defined in the Swap Intercreditor Agreement.

Securities Purchase Agreement ” has the meaning set forth in the recitals.

Security Agreement ” means that certain Pledge and Security Agreement executed and delivered by each Credit Party on the Effective Date in favor of the Administrative Agent, for the benefit of the Secured Parties, which shall be substantially in the form of Exhibit  F (with such changes thereto as may be reasonably requested by the Administrative Agent).

Security Documents ” means collectively the Security Agreement, all Control Agreements, the Intercreditor Agreement, the Swap Intercreditor Agreement and all Mortgages, deeds of trust, security agreements, pledge agreements, guaranty agreements (including Article VII of this Agreement but otherwise excluding this Agreement), collateral assignments and all other collateral documents, now or hereafter executed and delivered by the Borrower or any other Person as security for the payment or performance of the Secured Obligations, all such documents to be in form and substance reasonably satisfactory to the Administrative Agent and the Majority Lenders.

Solvent ” means, with respect to any Person as of the date of any determination, that on such date (a) the fair value of the Property of such Person (both at fair valuation and at present fair saleable value) is greater than the total liabilities, including contingent liabilities, of such Person, (b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations, and other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature, and (e) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s Property would constitute unreasonably small capital after giving due consideration to current and anticipated future capital requirements and current and anticipated future business conduct and

 

Page 23


the prevailing practice in the industry in which such Person is engaged. In computing the amount of contingent liabilities at any time, such liabilities shall be computed at the amount which, in light of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

Strip Price ” shall mean, as of any date of determination, the forward month prices as of such date, for the most comparable hydrocarbon commodity applicable to such future production month for a five-year period (or such shorter period if forward month prices are not quoted for a reasonably comparable hydrocarbon commodity for the full five-year period), with such prices escalated at 2% each year thereafter based on the last quoted forward month price of such period, as such prices are (i) quoted on the NYMEX as of the determination date and (ii) adjusted by appropriate management adjustments for additions to reserves and depletion or sale of reserves since the date of such Reserve Report, adjusted for any basis differential as of the date of determination.

Subsidiary ” means, with respect to any Person (the “ parent ”) at any date, any other Person the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other Person (a) of which Capital Stock representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless the context otherwise clearly requires, references herein to a “Subsidiary” refer to a Subsidiary of the Borrower.

Subject Lease ” means the Oil and Gas Property set forth on Schedule  1.01(c) or at any time hereafter held or acquired by any Credit Party, in each case, that is subject to a right of a third party existing on the date hereof under an area of mutual interest agreement, joint venture agreement, participation agreement or other similar agreement customary in the oil and gas industry to acquire an interest in such lease from such Credit Party; provided , in each case, that such right has not been exercised and the time for exercise thereof has not expired.

Swap Agreement ” means (a) any Initial Swap Party ISDA or (b) any agreement or arrangement, or any combination thereof, (i) consisting of interest rate or currency swaps, caps or collar agreements, foreign exchange agreements, commodity contracts or similar arrangements entered into by such Person providing for protection against fluctuations in interest rates, currency exchange rates or the exchange of nominal interest obligations, either generally or under specific contingencies or (ii) relating to oil and gas or other hydrocarbon prices or basis costs or differentials or other similar financial factors.

Swap Intercreditor Agreement ” means that certain Swap Intercreditor Agreement entered into by and among the Administrative Agent, the Collateral Agent, the Borrower and the Qualified Counterparties from time to time party thereto, as the same may be amended or otherwise modified from time to time.

Swap Termination Value ” means, in respect of any one or more Swap Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Agreements, (a) for any date on or after the date such Swap Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s) and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Agreements, as determined by the counterparties to such Swap Agreements.

Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

Page 24


Transactions ” means (a) the execution, delivery and performance by the Credit Parties of this Agreement and the other Loan Documents, (b) the borrowing of Loans, and (c) the use of the proceeds thereof.

Treasury Rate ” means the yield to maturity at a time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two Business Days prior to the prepayment date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the applicable prepayment date to September 1, 2019, provided , however , that if the period from the applicable prepayment date to September 1, 2019 is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest 1/12th of a year) from the weekly average yields of United States Treasury securities for which such yields are given having maturities as close as possible to September 1, 2019, except that if the period from the applicable prepayment date to September 1, 2019 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.

U.S. Government Securities ” means direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency or instrumentality thereof to the extent such obligations are entitled to the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof.

U.S. Person ” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.

U.S. Tax Compliance Certificate ” has the meaning assigned to such term in Section 2.12(f)(ii)(B)(3).

Wellbore Lien ” means, with respect to any DrillCo PDP Reserves of a Credit Party attributable to a particular well, a Lien (including a real property mortgage on and a locally, and, if applicable, centrally, filed financing statement covering fixtures and as-extracted collateral) on (i) the interest of the relevant Credit Party in and to such well, the associated wellbore and the associated fixtures and as-extracted collateral, and (ii) the interest of such Credit Party in and to the Leases or other Oil and Gas Properties attributable to such DrillCo PDP Reserves, but only insofar as such Leases or other Oil and Gas Properties are necessary to produce, operate, maintain, and plug and abandon such well.

Withdrawal Liability ” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

Withholding Agent ” means any Credit Party and the Administrative Agent.

Section 1.02     Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to

 

Page 25


refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

ARTICLE II.

THE CREDITS

Section 2.01     Accounting Terms; GAAP . Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Borrower notifies the Administrative Agent in writing that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Majority Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Financial Accounting Standards Board Accounting Standards Codification 825 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein.

Section 2.02     Loans and Commitments

(a)    The Credit Parties and the Lenders acknowledge and agree that as of the date hereof (i) the aggregate principal amount of loans outstanding under the Existing Credit Agreement equals $69,228,791.92, (ii) the aggregate principal amount of loans outstanding under the Existing Credit Agreement owing to each Lender equals the amount set forth opposite such Lender’s name on Schedule I hereto under the column entitled “Prior Loans” and (iii) all outstanding loans under the Existing Credit Agreement are hereby converted into and continued as Loans hereunder (the “ Existing Loans ”) such that, immediately after giving effect to such conversion, the outstanding principal amount of Loans owing to each Lender hereunder shall be in the amount set forth opposite such Lender’s name on Schedule I under the column entitled “Loans”. Notwithstanding anything set forth herein to the contrary, in order to effect the continuation of the Existing Loans contemplated by the preceding sentence (A) the amount to be funded on or at any time after the Effective Date by each Lender hereunder in respect of its Commitments shall be reduced by the principal amount of such Lender’s Existing Loans under the Existing Credit Agreement outstanding on the Effective Date and (B) the Borrower shall pay or cause to be paid, on the Effective Date, to each Lender the interest that accrued on the Existing Loans to the Effective Date that was unpaid by the Borrower (it being agreed that such accrued and unpaid interest shall be paid by or on behalf of the Borrower to the Existing Administrative Agent, for distribution to the Lenders, and the Administrative Agent may conclusively assume for purposes of maintaining the Register that all such accrued and unpaid interest has been paid on the Effective Date).

(b)    Subject to the terms and conditions set forth herein, each Lender agrees to make a Loan to the Borrower on the Effective Date in an aggregate principal amount equal to such Lender’s Commitment at such time. The Commitments are not revolving and amounts repaid or prepaid may not be re-borrowed under any circumstance. Any portion of the Commitments not drawn by the Borrower on or before 1:00 p.m., New York City time, on the Effective Date shall terminate immediately and without further action.

 

Page 26


(c)    Once borrowed or repaid, the Loans may not be reborrowed, and any Commitment, once terminated or reduced, may not be reinstated. Each Lender’s Commitment shall automatically and without notice be reduced to zero immediately after the funding of the Loans on the Effective Date.

Section 2.03     Request for Loans .

(a)    To request Loans to be made on the Effective Date, the Borrower shall deliver in writing to the Administrative Agent a duly completed Borrowing Request, not later than 12:00 noon, New York City time, 15 calendar days prior to the Effective Date (or such shorter period as agreed to by the Lead Lender in its sole discretion, but in any event not later than 12:00 noon, New York City time, one Business Day prior to the Effective Date). Such Borrowing Request shall be irrevocable and shall be delivered by telecopy or email to the Administrative Agent and Majority Lenders and shall be signed by the Borrower. Each such written Borrowing Request shall specify the following information:

(i)    the aggregate amount of the Loans to be made;

(ii)    the Effective Date, which shall be a Business Day; and

(iii)    the wiring information of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.04.

Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made.

Section 2.04     Funding of Loans .

(a)    Each Lender shall make its Loan on the Effective Date by wire transfer of immediately available funds by 12:00 noon, New York City time, to the account of the Administrative Agent designated by it for such purpose by notice to the Lenders. The Administrative Agent will make such Loans available to the Borrower by promptly disbursing the amounts so received, in like funds, to a deposit account of the Borrower designated by the Borrower in the applicable Borrowing Request.

(b)    Unless the Administrative Agent shall have received written notice from a Lender prior to the proposed time its Loan is required to be made by such Lender in accordance with paragraph (a) of this Section that such Lender will not make available to the Administrative Agent such Lender’s Loan, the Administrative Agent may assume that such Lender has made its Loan available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its Loan available to the Administrative Agent, then such Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to the Loans. If such Lender pays such amount to the Administrative Agent, then the principal portion of such payment shall constitute such Lender’s Loan.

Section 2.05     Repayment of Loans; Evidence of Debt .

(a)    The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid principal amount of the Loans on the Maturity Date.

 

Page 27


(b)    Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from the Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(c)    The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s Applicable Percentage thereof.

(d)    The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement; and provided further that to the extent there is any conflict between the accounts maintained pursuant to paragraph (b) or (c) of this Section and the Register maintained pursuant to Section 10.04, the Register shall control.

(e)    Any Lender may request that the Loan made by it be evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to such Lender or its registered assigns and in the form attached hereto as Exhibit G . Thereafter, the Loan evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 10.04) be represented by a promissory note in such form.

Section 2.06     Optional Prepayment of Loans .

(a)    The Borrower shall have the right at any time and from time to time to prepay the Loans, in whole or in part, in an aggregate minimum amount equal to (i) if being paid in whole, the Obligations and (ii) if being paid in part, $5,000,000 and integral multiples of $1,000,000 in excess of that amount.

(b)    The Borrower shall notify the Administrative Agent and the Lead Lender in writing of any prepayment hereunder not later than 2:00 p.m., New York City time, three Business Days before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of the Loans to be prepaid. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment shall be applied ratably to the Loans to be prepaid.

(c)    Each prepayment pursuant to this Section 2.06 shall be accompanied by a cash amount equal to the accrued but unpaid interest through the date of such prepayment, together with the Applicable Premium required under Section 2.09.

Section 2.07     Mandatory Prepayment of Loans .

(a)    Unless the Majority Lenders shall otherwise agree in writing, if any Credit Party shall consummate any Asset Sale or incur any Indebtedness (other than Indebtedness permitted under Section 6.02), then, not later than two Business Days after receipt of the Net Cash Proceeds therefrom, the Borrower shall (i) apply all or any portion of such Net Cash Proceeds to the repayment of Loans and the payment of accrued and unpaid interest and the Applicable Premium payable under Section 2.09, and/or in the case of any Asset Sale (ii) elect (by written notice to the Administrative Agent) to reinvest all or any portion of such Net Cash Proceeds in Additional Assets; provided that, in the case of Asset Sales of Properties other than Non-Core Assets, the aggregate Net Cash Proceeds from all such Asset Sales which may be reinvested does not exceed $25.0 million in the aggregate; provided further that if all or any portion of such Net Cash

 

Page 28


Proceeds are not so used to reinvest in Additional Assets within 360 days (or such earlier date, if any, as the applicable Credit Party determines not to reinvest such Net Cash Proceeds as set forth above), such remaining portion shall be applied on the last date of such period (or such earlier date, as the case may be) to the prepayment of Loans. The provisions of this Section 2.07(a) do not constitute a consent to any Disposition or the incurrence of any Indebtedness by any Credit Party.

(b)    Each payment of Net Cash Proceeds pursuant to this Section 2.07 shall be allocated to principal prepayment and the payment of the accrued but unpaid interest on the amount of prepaid principal through the date of such prepayment and the Applicable Premium on the amount of prepaid principal required under Section 2.09.

(c)    The Borrower shall notify the Administrative Agent of any mandatory prepayment pursuant to Section 2.07(a) or (b) in writing, not later than 12:00 noon, New York City time, two (2) Business Days before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Loan or portion thereof to be prepaid and a reasonably detailed calculation of the amount of such prepayment. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof.

Section 2.08     Offer of Prepayment Upon any Change of Control .

(a)    On the occurrence of any Change of Control, the Borrower shall provide written notice of such event to the Administrative Agent and the Majority Lenders (a “ Change of Control Notice ”). Each Change of Control Notice will describe the transaction or transactions that constitute the Change of Control and will contain an offering to prepay all, or any portion elected by each Lender, of the outstanding Loans as provided in Section 2.08(b) below.

(b)    Notwithstanding anything in this Agreement to the contrary, each Lender, in its sole discretion, may, but is not obligated to, waive the Borrower’s requirement to make any prepayments pursuant to this Section 2.08 with respect to such Lender’s Applicable Percentage of such prepayment and such waiver shall not require a separate waiver and/or consent to this Agreement. Upon the dates set forth in this Section 2.08 for any such prepayment, the Borrower shall notify the Administrative Agent in writing of the amount that is available to prepay the Loans. Promptly after the date of receipt of such notice, the Administrative Agent shall provide written notice (the “ Offer ”) to the Lenders of the amount available to prepay the Loans. Any Lender declining such prepayment (a “ Declining Lender ”) shall give written notice (each, a “ Rejection Notice ”) thereof to the Administrative Agent by 2:00 p.m., New York City time, no later than three Business Days after the date of such notice from the Administrative Agent; provided , that, if a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above, such failure will be deemed an acceptance of such Lender’s pro rata share of the Offer. The Borrower shall prepay the Loans within one Business Day after its receipt of notice from the Administrative Agent of the aggregate amount of such prepayment. On such date, the Administrative Agent shall then provide written notice (the “ Second Offer ”) to the Lenders other than the Declining Lenders (such Lenders, the “ Accepting Lenders ”) of the additional amount available (due to such Declining Lenders’ declining such prepayment) to prepay Loans owing to such Accepting Lenders, with such available amount to be allocated on a pro rata basis among the Accepting Lenders that accept the Second Offer. Any Lenders declining prepayment pursuant to such Second Offer shall give written notice thereof to the Administrative Agent by 2:00 p.m., New York City time, no later than three Business Days after the date of such notice of a Second Offer; provided , that, if a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above, such failure will be deemed an acceptance of such Lender’s pro rata share of the Second Offer. The Borrower shall prepay the Loans within one Business Day after its receipt of notice from the Administrative Agent of the aggregate amount of such prepayment. Amounts remaining after the allocation of accepted amounts with respect to the Second Offer to Accepting Lenders shall be retained by the Borrower.

 

Page 29


(c)    Each prepayment pursuant to Section 2.08(b) shall be accompanied by an amount equal to the accrued but unpaid interest through the date of such prepayment, together with the amount required under Section 2.09(c).

Section 2.09     Payment of Applicable Premium .

(a)    Whether voluntary or mandatory, and with respect to each repayment or prepayment of Loans under Section 2.06 or 2.07 or any acceleration of the Loans and other Obligations pursuant to Article VIII (including for the avoidance of doubt, as a result of clauses (g), (h) or (i) of Article VIII), the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders, with respect to the amount of the Loans repaid, prepaid or accelerated, in each case, concurrently with such repayment or prepayment the following amount (the “ Applicable Premium ”):

(i)    if made prior to September 1, 2019, the Make-Whole Amount (as calculated by the Borrower and confirmed by the Majority Lenders);

(ii)    if made on or after September 1, 2019 and before March 1, 2020, a cash amount equal to the product of the principal amount of the Loans prepaid times 8.500%;

(iii)    if made on or after March 1, 2020 and before March 1, 2021, a cash amount equal to the product of the principal amount of the Loans prepaid times 4.250%;

(iv)    if made on or after March 1, 2021 and before March 1, 2022, a cash amount equal to the product of the principal amount of the Loans prepaid times 2.125%; and

(v)    if made on or after March 1, 2022, $0.

(b)    Any Applicable Premium payable pursuant to this Section 2.09 shall be presumed to be the liquidated damages sustained by each Lender as the result of the early redemption and/or acceleration of its Loans and the Borrower agrees that it is reasonable under the circumstances in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof.

(c)    With respect to each prepayment of Loans pursuant to Section 2.08, the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders, with respect to the amount of the Loans prepaid, concurrently with such prepayment, a cash amount equal to 1% of the principal amount of the Loans to be prepaid.

Section 2.10     Interest and Fees .

(a)    Each Loan shall bear interest for each day on which it is outstanding at the Applicable Rate.

(b)    Interest shall be payable in cash in arrears on each Interest Payment Date, on the Maturity Date and in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable in cash on the date of such repayment or prepayment, provided that interest accruing pursuant to Section 2.10(c) shall be payable from time to time on demand.

(c)    Notwithstanding the foregoing, upon the occurrence and during the continuance of an Event of Default, the principal amount of all Loans and, to the extent permitted by applicable law, other Obligations outstanding shall thereafter bear interest, after as well as before judgment, at a rate per annum equal to 2% plus the Applicable Rate.

 

Page 30


(d)    All interest hereunder shall be computed on the basis of a year of 365 or 366 days, as applicable, and shall be payable for the actual number of days elapsed (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable.

(e)    If any payment hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. In the case of any extension of any payment of principal pursuant to the preceding sentence, interest thereon shall be payable at the rate applicable during such extension period.

(f)    The Borrower agrees to pay to the Administrative Agent, for its own account, the fees set forth in the Fee Letter at the times and in the amounts specified therein. The fees payable to the Administrative Agent under the Fee Letter (i) will be in addition to reimbursement of the Administrative Agent’s out-of-pocket expenses in accordance with Section 10.03(a) and (ii) shall be fully earned when due and shall not be refundable for any reason whatsoever.

Section 2.11     Increased Costs .

(a)    If any Change in Law shall subject any Recipient to any Taxes (other than (i) Indemnified Taxes, (ii) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (iii) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto and the result shall be to increase the cost to such Recipient of making, converting to, continuing or maintaining any Loan or maintaining its obligations to make any such Loan or to reduce the amount of any sum received or receivable by such Recipient hereunder (whether of principal, interest or any other amount), then the Borrower will pay to such Recipient such additional amount or amounts as will compensate such Recipient for such additional costs incurred or reduction suffered.

(b)    If any Lender determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy and liquidity), then from time to time the Borrower will pay to such Lender, as the case may be, such additional amount or amounts as will compensate such Lender such Lender’s holding company for any such reduction suffered.

(c)    A certificate of a Recipient setting forth the amount or amounts necessary to compensate such Recipient or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower (with a copy to the Administrative Agent) and shall be conclusive absent manifest error. The Borrower shall pay such Recipient the amount shown as due on any such certificate within 10 Business Days after receipt thereof.

(d)    Failure or delay on the part of any Recipient to demand compensation pursuant to this Section shall not constitute a waiver of such Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Recipient pursuant to this Section for any increased costs or reductions incurred more than 270 days prior to the date that such Recipient notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Recipient’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof.

 

Page 31


Section 2.12     Taxes .

(a)     Payments Free of Taxes . Any and all payments by or on account of any obligation of any Credit Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings of Indemnified Taxes applicable to additional sums payable under this Section 2.12) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(b)     Payment of Other Taxes by the Borrower . The Credit Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(c)     Evidence of Payments . As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 2.12, such Credit Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(d)     Indemnification by the Borrower . The Credit Parties shall jointly and severally indemnify each Recipient, within 10 Business Days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(e)     Indemnification by the Lenders . Each Lender shall severally indemnify the Administrative Agent, within 10 Business Days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.04(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).

(f)     Status of Lenders .

(i)    Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the

 

Page 32


Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.12(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii)    Without limiting the generality of the foregoing,

(A)    any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding Tax;

(B)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

(1)    in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E (or applicable successor form) establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E (or applicable successor form) establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(2)    executed copies of IRS Form W-8ECI;

(3)    in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E (or applicable successor form); or

(4)    to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E (or applicable successor form), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3 , IRS Form W-9, and/or other

 

Page 33


certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;

(C)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. Federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

(D)    if a payment made to a Recipient under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Recipient shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

(g)     Status of Administrative Agent . On or before the date on which Wilmington Trust, National Association (and any successor or replacement Administrative Agent) becomes the Administrative Agent hereunder, it shall deliver to the Borrower two executed copies of either (i) IRS Form W-9, or (ii) IRS Form W-8ECI (with respect to any payments to be received on its own behalf) and IRS Form W-8IMY (for all other payments), establishing that the Borrower can make payments to the Administrative Agent without deduction or withholding of any Taxes imposed by the United States, including Taxes imposed under FATCA.

(h)     Treatment of Certain Refunds . If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.12 (including by the payment of additional amounts pursuant to this Section 2.12), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.12 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental

 

Page 34


Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(i)     FATCA . For purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) each Loan as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).

(j)     Survival . Each party’s obligations under this Section 2.12 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

Section 2.13     Payments Generally; Pro Rata Treatment; Sharing of Set-offs .

(a)    The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees, or of amounts payable under Section 2.11 or Section 2.12, or otherwise) prior to 2:00 p.m. New York City Time on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at such account as may be specified by the Administrative Agent, except that payments pursuant to Section 2.11, Section 2.12 and Section 10.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars.

(b)    If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest, premiums and fees then due hereunder, such funds shall be applied (i) first, towards payment of fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of fees then due to such parties, (ii) second, towards payment of interest and premiums then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and premiums then due to such parties and (iii) third, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.

(c)    If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be

 

Page 35


rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

(d)    Unless the Administrative Agent shall have received written notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Federal Funds Effective Rate.

(e)    If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(b), Section 2.12(d) or Section 10.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.

ARTICLE III.

REPRESENTATIONS AND WARRANTIES

The Borrower represents and warrants to the Administrative Agent and the Lenders that:

Section 3.01     Organization; Powers . Each Credit Party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.

Section 3.02     Authorization; Enforceability . The Transactions are within each Credit Party’s corporate, limited liability company or partnership powers and have been duly authorized by all necessary corporate, limited liability company or partnership and, if required, actions by equity holders. This Agreement has been duly executed and delivered by each Credit Party and constitutes a legal, valid and binding obligation of each Credit Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

Section 3.03     Governmental Approvals; No Conflicts . The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority,

 

Page 36


except such as have been obtained or made and are in full force and effect or have been made or to be made in connection with the filing of any Security Documents, financing statements, or other registrations or filings to secure the Obligations, (b) will not violate any Requirement of Law applicable to the Borrower or any Subsidiary, (c) will not violate or result in a default under any indenture, agreement or other instrument evidencing Material Indebtedness, or give rise to a right thereunder to require any payment to be made by the Borrower or any Subsidiary, and (d) will not result in the creation or imposition of any Lien on any asset of the Borrower or any Subsidiary not otherwise permitted under Section 6.03.

Section 3.04     Financial Condition; No Material Adverse Change .

(a)    The Borrower has heretofore furnished to the Administrative Agent and the Lenders (i) the audited consolidated balance sheet and related statements of income, stockholders equity and cash flows of the Borrower and its Consolidated Subsidiaries as of and for the fiscal year ended December 31, 2015, reported on by BDO USA, LLP, independent public accountants and (ii) the unaudited consolidated balance sheet and related statements of income, stockholders equity and cash flows of the Borrower and its Consolidated Subsidiaries as of and for the fiscal quarter ended September 30, 2016. Such financial statements, together with any notes and management discussions related to such financials appearing in the Borrower’s Form 10-K filed with the SEC on March 10, 2016 and the Borrower’s Form 10-Q filed with the SEC on November 3, 2016 present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its Consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP and, except as set forth on Schedule 3.04 , show all material indebtedness and other liabilities, direct or contingent, of the Borrower and its Consolidated Subsidiaries as of the date thereof, including material commitments and Indebtedness.

(b)    Since September 30, 2016, no event or circumstance which has had or could reasonably be expected to have a Material Adverse Effect has occurred.

Section 3.05     Properties .

(a)    Except as otherwise provided in 3.05(c) with respect to Oil and Gas Property the Borrower and each Subsidiary has good title to, or valid leasehold interests in, all its real and personal property material to its business, except for (i) minor defects in title that do not, in the aggregate, interfere with its ability to conduct its business as currently conducted and (ii) Liens permitted under Section 6.03.

(b)    The Borrower and each Subsidiary owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Borrower and such Subsidiaries, as the case may be, does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

(c)    Each Credit Party has good and defensible title to all Proved Reserves included in the Oil and Gas Property described in the most recent Reserve Report provided to the Administrative Agent and the Majority Lenders (other than such Proved Reserves that have been subsequently disposed of and disclosed on Schedule 3.19 ), free and clear of all Liens except Liens permitted under Section 6.03. All such proved Oil and Gas Property are valid, subsisting, and in full force and effect in all material respects, and all rentals, royalties, and other amounts due and payable in respect thereof have been duly paid except for such rentals, royalties and other amounts that are amounts being contested in good faith by appropriate proceedings and for which the Borrower or the applicable Subsidiary has set aside on its books adequate reserves, or except to the extent such rentals, royalties and other amounts due, if left unpaid, would not result in the loss or forfeiture of Oil and Gas Property having an aggregate fair market value in excess of $5,000,000. Without regard to any consent or non-consent provisions of any joint operating agreement covering any Credit Party’s proved Oil and Gas Property, such Credit Party’s share of (a) the costs for the proved Oil and Gas Property

 

Page 37


described in the Reserve Report (other than for such proved Oil and Gas Property that have been subsequently disposed of and disclosed on Schedule 3.19 ) is not materially greater than the decimal fraction set forth in the Reserve Report, before and after payout, as the case may be, and described therein by the respective designations “working interests,” “WI,” “gross working interest,” “GWI,” or similar terms (except in such cases where there is a corresponding increase in the net revenue interest), and (b) production from, allocated to, or attributed to such proved Oil and Gas Property is not materially less than the decimal fraction set forth in the Reserve Report, before and after payout, as the case may be, and described therein by the designations “net revenue interest,” “NRI,” or similar terms. The wells drilled in respect of proved producing Oil and Gas Property described in the Reserve Report (other than wells drilled in respect of such proved producing Oil and Gas Property that have been subsequently disposed of and disclosed on Schedule 3.19 ) (1) are capable of, and are presently, either producing Hydrocarbons in commercially profitable quantities or in the process of being worked over or enhanced, and the Credit Party that owns such proved producing Oil and Gas Property is currently receiving payments for its share of production, with no funds in respect of any thereof being presently held in suspense, other than any such funds being held in suspense pending delivery of appropriate division orders, (2) have been drilled, bottomed, completed, and operated in compliance with all applicable laws, and (3) are not subject to any penalty in production by reason of such well having produced in excess of its allowable production; except where any failure to comply with clauses (2) or (3) would not have a Material Adverse Effect.

(d)    No Credit Party has knowledge that a default exists under any of the terms or provisions, express or implied, of any of the leases and term mineral interests in the Oil and Gas Properties evaluated in the most recently delivered Reserve Report (other than any thereof Disposed of in a Disposition permitted by this Agreement) or under any agreement to which the same are subject that would materially and adversely affect the rights of the Credit Parties with respect to the Oil and Gas Properties to which such lease, interest, or agreement relates.

(e)    Except as otherwise permitted hereunder, there are no obligations under any Oil and Gas Property or contract or agreement which require the drilling of additional wells or operations to earn or to continue to hold any of the Oil and Gas Properties in force and effect, except leases in the primary term and those under customary continuous operations provisions that may be found in one or more of the Borrower’s or any Subsidiaries oil and gas and/or oil, gas and mineral leases.

(f)    To the extent required hereunder, all material necessary regulatory filings have been properly made in connection with the drilling, completion and operation of the wells on or attributable to the Oil and Gas Properties and all other operations related thereto.

(g)    To the extent required hereunder, all production and sales of Hydrocarbons produced or sold from the Oil and Gas Properties have been made materially in accordance with any applicable allowables (plus permitted tolerances) imposed by any Governmental Authorities except for where the failure to so comply could not reasonably be expected to result in a Material Adverse Effect.

(h)    No Credit Party has collected any proceeds from the sale of Hydrocarbons produced from the Oil and Gas Properties which are subject to any material refund obligation except for where the failure to so comply could not reasonably be expected to result in a Material Adverse Effect.

(i)    The Mortgaged Properties, together with any Drillco Excluded Property listed on Schedule 1.01(b) and the Subject Leases listed on Schedule 1.01(c) constitute all of the Hydrocarbon Interests owned by the Credit Parties as of the Effective Date.

 

Page 38


Section 3.06     Litigation and Environmental Matters .

(a)    There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened against or affecting the Borrower or any Subsidiary, (i) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect after taking into account insurance proceeds or other recoveries from third parties actually received (other than the Disclosed Matters) or (ii) that involve this Agreement or the Transactions.

(b)    Except for the Disclosed Matters and except with respect to any other matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect after taking into account insurance proceeds or other recoveries from third parties actually received, neither the Borrower nor any Subsidiary, to the Borrower’s knowledge, (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received written notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any claim with respect to any Environmental Liability.

Section 3.07     Compliance with Laws and Agreements . The Borrower and each Subsidiary is in compliance with all Requirements of Law applicable to it or its property, its Organizational Documents and all indentures, agreements and other instruments binding upon it or its property, except in each case where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No Default has occurred and is continuing.

Section 3.08     Investment Company Status . Neither the Borrower nor any Subsidiary is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

Section 3.09     Taxes . The Borrower and each Subsidiary has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.

Section 3.10     ERISA . No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. The present value of all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of FASB Statement 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of such Plan by an amount that could reasonably be expected to result in Material Adverse Effect, and the present value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of FASB Statement 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of all such underfunded Plans by an amount that could reasonably be expected to result in Material Adverse Effect.

Section 3.11     Disclosure . The Borrower has disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it or any Subsidiary is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the other reports, financial statements, certificates or other information furnished by or on behalf of the Borrower or any Subsidiary to the Administrative Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) when taken as a whole contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading as of the date made or deemed made; provided

 

Page 39


that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based on assumptions believed to be reasonable at the time and, if such projected financial information was delivered prior to the Effective Date, as of the Effective Date.

Section 3.12     Labor Matters . There are no strikes, lockouts or slowdowns against the Borrower or any of its Subsidiaries pending or, to the knowledge of the Borrower, threatened that could reasonably be expected to have a Material Adverse Effect. The hours worked by and payments made to employees of the Borrower and, to the knowledge of the Borrower, to employees of its Subsidiaries have not been in violation of the Fair Labor Standards Act or any other Law dealing with such matters to the extent that such violation could reasonably be expected to have a Material Adverse Effect.

Section 3.13     Capitalization . Schedule 3.13 lists as of the Effective Date, (a) for the Borrower and each Subsidiary, its full legal name and its jurisdiction of organization and (b) for each Subsidiary, the number of shares of capital stock or other Capital Stock outstanding and the owner(s) of such shares or Capital Stock.

Section 3.14     Margin Stock . Neither the Borrower nor any Subsidiary is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board), and no part of the proceeds of the Loans will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.

Section 3.15     Bank Accounts . Schedule 3.15 lists all accounts maintained by or for the benefit of any Credit Party with any bank or financial institution.

Section 3.16     Insurance . Customary insurance certificates have been furnished by the Borrower to the Administrative Agent and the Lenders as of the Effective Date demonstrating the Borrower’s and the Subsidiaries’ compliance with Section 5.05(b).

Section 3.17     Material Contracts . Schedule 3.17 contains a complete and accurate list of each contract, agreement or commitment, whether oral or written, to which any Credit Party is a party or by which it is bound, and which are currently effective, that are: (i) non-competition agreements or other agreements or obligations that purport to limit in any material respect the manner in which, or the localities in which, all or any material portion of any Credit Party’s business is conducted; (ii) contracts with one year or greater remaining duration, or that cannot be canceled on 90 days’ notice or less; (iii) agreements for the borrowing of money; (iv) employment agreements, consulting agreements or other contract for services involving a payment of more than $500,000 annually; (v) leases with respect to any property, real or personal (other than leases constituting Mortgaged Properties); (vi) Production Payments or Advance Payment Contracts; (vii) agreements for a purchase or sale of assets, securities or a business, or otherwise obligating any Credit Party to pay any consideration of more than $500,000; (viii) agreements with any agent, dealer or distributor, including all such agreements relating to the gathering and/or marketing of Hydrocarbons; (ix) stand-by letters of credit, guarantee or performance bond; (x) agreements not made in the ordinary course of business; and (xi) material contracts to which any Credit Party is a party that would terminate or become terminable, require any Credit Party to take any action, cause any Credit Party to lose any material benefits or give to others any rights of amendment, acceleration, suspension, revocation or cancellation, under any such contract as a result of the transactions contemplated in this Agreement (each of the foregoing, a “ Material Contract ”).

Section 3.18     Gas Imbalances . Except as set forth in Schedule 3.18 , on a net basis there are no Gas Imbalances, take or pay or other prepayments with respect to any Oil and Gas Properties which would require any Credit Party to deliver Hydrocarbons produced from such Oil and Gas Properties at some future time without then or thereafter receiving full payment therefor other than that which do not result in any Credit Party or any Subsidiary having net aggregate liability in excess of $5,000,000.

 

Page 40


Section 3.19     Reserve Reports . To Borrower’s knowledge, (i) the assumptions stated or used in the preparation of each Reserve Report are reasonable (it being understood by Administrative Agent and the Lenders that assumptions as to future results are subject to uncertainty and that no assurance can be given that any particular projections will be realized to the extent beyond any Credit Party’s control), (ii) all information furnished by any Credit Party to the Petroleum Engineers for use in the preparation of each Reserve Report was accurate in all material respects at the time furnished or was subsequently corrected, (iii) except as set forth on Schedule 3.19 , there has been no decrease in the amount of the estimated Proved Reserves shown in any Reserve Report since the date thereof, except for changes which have occurred as a result of production in the ordinary course of business, and (iv) at the time furnished, no Reserve Report omitted any statement or information necessary to cause the same not to be misleading to Administrative Agent and the Lenders in any material respect.

Section 3.20     Sale of Production . No Oil and Gas Property is subject to any Advance Payment Contract or any contract whereby payments are made to any Credit Party other than by checks, drafts, wire transfer advices or other similar writings, instruments or communications for the immediate payment of money. Except for production sales contracts, processing agreements, transportation agreements and other agreements relating to the marketing of production that are listed on Schedule 3.20 in connection with the Oil and Gas Properties to which such contract or agreement relates: (i) no Oil and Gas Property is subject to any contractual or other arrangement for the sale, processing or transportation of production (or otherwise related to the marketing of production) which cannot be canceled on one year’s (or fewer) notice, other than as consented to by the Majority Lenders, and (ii) all contractual or other arrangements for the sale, processing or transportation of production (or otherwise related to the marketing of production) are bona fide arm’s length transactions made on the best terms available with third parties not affiliated with any Credit Party. Each Credit Party is presently receiving a price for all production from (or attributable to) each Oil and Gas Property covered by a production sales contract or marketing contract listed on Schedule 3.20 that is computed in accordance with the terms of such contract, and no Credit Party is having deliveries of production from such Oil and Gas Property curtailed substantially below such Property’s delivery capacity.

Section 3.21     Anti-Corruption Laws and Sanctions . The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and to the knowledge of the Borrower its directors and agents insofar as the same are acting on behalf of the Borrower or its Subsidiaries, (i) are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects and (ii) have not and will not do business, enter into transactions or store with, purchase or receive money from, transport from, to or with, sell goods or give money to, a Sanctioned Person. None of (a) the Borrower, any Subsidiary or any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. The making of the Loans, use of proceeds thereof or other transaction contemplated by the Credit Agreement will not violate Anti-Corruption Laws or applicable Sanctions.

Section 3.22     No Foreign Operations . The Borrower and its Subsidiaries do not operate their business outside the geographical boundaries of the United States.

Section 3.23     Solvency . Before and after giving effect to the making of Loans and the application of the proceeds hereof, the Credit Parties, taken as a whole, are Solvent.

 

Page 41


ARTICLE IV.

CONDITIONS

Section 4.01     Effective Date . This Agreement shall become effective on the date on which each of the following conditions is satisfied or waived in accordance with Section 10.02 (such date, the “ Effective Date ”):

(a)    The Collateral Agent and the Lead Lender shall have received the Master Assignment, duly executed and delivered by the Existing Administrative Agent and the Existing Lenders, which assignment shall be in form and substance acceptable to the Lead Lender (with such changes thereto as may be reasonably requested by the Collateral Agent).

(b)    The Administrative Agent and the Majority Lenders shall have received from each party hereto either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to the Administrative Agent and the Majority Lenders (which may include electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.

(c)    The Administrative Agent and the Majority Lenders shall have received (i) schedules to this Agreement in form and substance satisfactory to the Administrative Agent and the Majority Lenders, (ii) the Security Agreement, together with such other assignments, conveyances, amendments, agreements and other writings, including, without limitation, UCC-1 financing statements, necessary to create first priority Liens, subject in priority only to Permitted Prior Liens, in all of the Collateral in which a security interest is required to be granted in favor of the Administrative Agent pursuant to the Security Documents, including all of the Capital Stock of each Subsidiary now or hereafter owned by Borrower or any Subsidiary and (iii) a Mortgage covering each of the Mortgaged Properties.

(d)    The Administrative Agent and the Majority Lenders shall have received (i) a certificate of each Credit Party, dated the Effective Date and executed by its Secretary or Assistant Secretary or a Responsible Officer of such Credit Party, which shall (A) certify the resolutions of its board of directors, members or other body authorizing the execution, delivery and performance of the Loan Documents to which it is a party, (B) identify by name and title and bear the signatures of the officers of such Credit Party authorized to sign the Loan Documents to which it is a party, and (C) contain appropriate attachments, including the certificate of formation or articles of incorporation or organization of such Credit Party certified by the relevant authority of the jurisdiction of organization of such Credit Party and a true and correct copy of its by-laws or operating, management or partnership agreement and (ii) a good standing certificate for each Credit Party from its jurisdiction of organization,

(e)    The Administrative Agent and the Majority Lenders shall have received, and the Borrower shall have requested, a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of each of Vinson & Elkins, LLP, counsel for the Credit Parties, and Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., special Oklahoma counsel for the Credit Parties, in each covering such matters relating to the Credit Parties, this Agreement or the Transactions as the Majority Lenders shall reasonably request.

(f)     The Administrative Agent and the Majority Lenders shall have received (i) a certificate, dated the Effective Date and signed by a Responsible Officer of the Borrower, confirming that the Credit Parties have (A) complied with the conditions set forth in paragraphs (h), (i), (o) and (p) of this Section 4.01 and (B) complied with the requirements of Section 5.10 and Section 5.11 and (ii) customary insurance certificates issued by the insurance agent or broker of the Borrower demonstrating compliance with Section 5.50(b).

 

Page 42


(g)    The Administrative Agent and the Majority Lenders shall have received such financing statements (including, without limitation, the financing statements referenced in clause (f) above) as the Majority Lenders shall specify to fully evidence and perfect all Liens contemplated by the Loan Documents, all of which shall be filed of record by Majority Lenders in such jurisdictions as the Majority Lenders shall require in its sole discretion.

(h)    Each Credit Party shall have obtained all approvals required from any Governmental Authority and all consents of other Persons, in each case that are necessary or, in the reasonable discretion of the Majority Lenders, advisable in connection with the Transactions and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to the Majority Lenders. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents or the financing thereof and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired.

(i)    There shall not exist any action, suit, investigation, litigation or proceeding or other legal or regulatory developments, pending or threatened in any court or before any arbitrator or Governmental Authority that, in the reasonable opinion of the Majority Lenders, singly or in the aggregate, materially impairs the Transactions, the financing thereof or any of the other transactions contemplated by the Loan Documents or that could reasonably be expected to result in a Material Adverse Effect.

(j)    All partnership, corporate and other proceedings taken or to be taken in connection with the Transactions and all documents incidental thereto shall be reasonably satisfactory in form and substance to the Majority Lenders and their counsel, and Majority Lenders and such counsel shall have received all such certified copies of such documents as Majority Lenders may reasonably request.

(k)    The Administrative Agent and the Lenders shall have received the Projections, the operating budget for fiscal year 2017 and all of the financial statements described in Section 3.04(a).

(l)    The Administrative Agent and the Lead Lender shall have received a true and correct copies of each of the Securities Purchase Agreement and the Convertible Indenture, in each case duly executed by the Borrower and the Subsidiaries party thereto; and all other conditions precedent under the Securities Purchase Agreement to the issuance and sale of the Common Stock and the Convertible Notes on the Effective Date (other than the execution and delivery of this Agreement and the concurrent advancement of Loans hereunder) shall have been satisfied or waived in accordance with the terms of the Securities Purchase Agreement.

(m)    The Administrative Agent and the Majority Lenders shall have received a true and complete copy of the Reserve Report most recently delivered to the Existing Administrative Agent.

(n)    The Administrative Agent and the Majority Lenders shall have received such other instruments and documents incidental and appropriate to the transactions provided for herein as the Majority Lenders or their special counsel may reasonably request prior to the Effective Date, and all such documents shall be in form and substance satisfactory to the Majority Lenders.

(o)    The representations and warranties of each Credit Party set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the Effective Date (other than those representations and warranties that are subject to a materiality qualifier, in which case such representations and warranties shall be true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (other than those representations and warranties that are subject to a materiality qualifier, in which case such representations and warranties are true and correct in all respects as of such earlier date).

 

Page 43


(p)    No Default shall have occurred and be continuing.

(q)    The Administrative Agent shall have received, at least five Business Days prior to the Effective Date (or such shorter period as agreed to by the Administrative Agent in its sole discretion), all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Act, that is requested by the Administrative Agent or any Lender in writing at least five Business Days prior to the Effective Date.

(r)    The Administrative Agent and the Majority Lenders shall have received a Borrowing Request acceptable to the Administrative Agent and the Majority Lenders and in accordance with Section 2.03 setting forth the amount of the Loans requested by the Borrower on the Effective Date and the accounts to which such Loans are to be funded.

(s)    The Majority Lenders shall have received evidence that arrangements have been made for two directors, officers or other representatives designated by Ares reasonably acceptable to the Majority Lenders to be appointed as members of the board of directors of the Borrower.

(t)    The Administrative Agent and the Lenders shall have received all fees and other amounts due and payable on the Effective Date under this Agreement, and reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder, including all reasonable fees, expenses and disbursements of counsel for the Administrative Agent and Majority Lenders to the extent invoiced on or prior to the Effective Date, together with such additional amounts as shall constitute such counsel’s reasonable estimate of expenses and disbursements to be incurred by such counsel in connection with the recording and filing of Mortgages (and/or Mortgage amendments) and financing statements; provided , that , such estimate shall not thereafter preclude further settling of accounts between the Borrower and the Administrative Agent. The Administrative Agent shall have received a fully executed copy of the Fee Letter.

(u)    Each Lender that has requested the delivery of a promissory note pursuant to and in accordance with Section 2.05(e) shall have received promissory notes duly executed by the Borrower.

The Majority Lenders shall notify the Administrative Agent of the Effective Date and such notice shall be conclusive and binding. Notwithstanding the foregoing, at the option of the Lenders, their respective obligations to make Loans hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.02) at or prior to 2:00 p.m., New York City time, on March 15, 2017 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time). Without limiting the generality of the provisions of Article IX, for purposes of determining compliance with the conditions specified in this Article IV, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Effective Date specifying its objection thereto.

 

Page 44


ARTICLE V.

AFFIRMATIVE COVENANTS

Until the Obligations (other than contingent indemnification obligations for which no claim has been asserted) shall have been paid in full, the Borrower covenants and agrees with the Administrative Agent and the Lenders that:

Section 5.01     Financial Statements; Other Information . The Borrower will furnish to the Administrative Agent for distribution to each Lender:

(a)    within 90 days after the end of each fiscal year of the Borrower, the audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows of the Borrower and its Consolidated Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by BDO USA, LLP or other independent public accountants reasonably acceptable to the Majority Lenders (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit other than a “going concern” qualification solely as to the Maturity Date occurring within the 12-month period following the date of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;

(b)    within 60 days after the end of each fiscal quarter of the Borrower, the consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows of the Borrower and its Consolidated Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;

(c)    within three Business Days following the delivery of any financial statements under clause (a) or (b) above, a certificate in a form reasonably acceptable to Majority Lenders signed by a Financial Officer of the Borrower certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto;

(d)    concurrently with the delivery of financial statements under clause (a) or (b) above, notice of the date and time of a conference call with Lenders to discuss financial information, which conference calls the Borrower shall host not later than five Business Days after such distribution; provided that any conference call hosted by the Borrower which is generally available to holders of its debt and/or equity securities shall satisfy this condition;

(e)    within 60 days after the conclusion of each fiscal year, the Borrower’s annual operating and capital expenditure budgets, and financial forecasts, including cash flow projections covering proposed fundings, repayments, additional advances, investments and other cash receipts and disbursements, each for the following fiscal year in a format reasonably consistent with projections, budgets and forecasts theretofore provided to the Administrative Agent and the Lenders, and promptly following the preparation thereof, material updates to any of the foregoing from time to time prepared by management of the Borrower;

(f)    promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;

 

Page 45


(g)    within 45 days following June 30 th of each year and within 90 days following December 31 st of each year, the Borrower shall furnish or make available to the Administrative Agent and each Lender (i) a Reserve Report in form and substance satisfactory to the Majority Lenders in their reasonable discretion and prepared as of the immediately preceding June 30 th or December 31 st , as applicable, which Reserve Report, in the case of each December 31 report shall be prepared or audited by an Approved Petroleum Engineer and in the case of each other Reserve Report shall be prepared by one or more petroleum engineers employed by the Borrower or, at the Borrower’s election, by an Approved Petroleum Engineer; said Reserve Report to utilize economic and pricing parameters consistent with those set forth in the definition of Reserve Report, together with a Reserve Report Certificate;

(h)    together with each Reserve Report required to be delivered under Section 5.01(g), a report, in reasonable detail, setting forth (i) the Swap Agreements then in effect, the notional volumes of and prices for, on a monthly basis and in the aggregate, the Hydrocarbons for each such Swap Agreement and the term of each such Swap Agreement, (ii) the notional volumes of Hydrocarbons for each such Swap Agreement and (iii) a list of the customers comprising 80% of the Hydrocarbons (by value) being purchased from the Borrower or any Subsidiary in the six month period prior to the “as of” date of the most recently delivered Reserve Report or Reserve Report, as applicable; and

(i)    together with each Reserve Report delivered under Section 5.01(g) for the period ending June 30 th and December 31 st of each year, (i) any updated production history of the Proved Reserves of the Credit Parties as of such date, (ii) the lease operating expenses attributable to the Oil and Gas Properties of the Credit Parties for the prior 12-month period ending on the effective date of the applicable Reserve Report, and (iii) any other information as to the operations of Borrower and its Subsidiaries as reasonably requested by Administrative Agent;

(j)    promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.

Documents required to be delivered pursuant to this Section 5.01 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (1) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s website on the Internet at www.gastar.com, or (2) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) upon request, the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent (by electronic mail) and, upon request, each Lender (by electronic mail) of the posting of any such documents and, upon request, provide to the Administrative Agent by electronic mail electronic versions ( i.e. , soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

 

Page 46


Section 5.02     Notices of Material Events . The Borrower will furnish to the Administrative Agent and each Lender prompt written notice of the following:

(a)    as soon as possible, but in any event within 5 days of obtaining knowledge thereof, (i) the occurrence of any Default, (ii) the occurrence of any “default” or “event of default” under any Material Indebtedness or (iii) the occurrence of any default under the DrillCo Operating Agreement;

(b)    as soon as possible, but in any event within 20 days after obtaining knowledge of the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting any Credit Party or any Affiliate thereof that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;

(c)    as soon as possible, but in any event within 20 days after the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;

(d)    as soon as possible, but in any event within 20 days after obtaining knowledge of any release by any Credit Party, or any other Person of any Hazardous Material into the environment, which could reasonably be expected to have a Material Adverse Effect;

(e)    as soon as possible, but in any event within 20 days after any notice alleging any violation of any Environmental Law by any Credit Party or any other Environmental Liability, which could reasonably be expected to have a Material Adverse Effect;

(f)    as soon as possible, but in any event within 20 days after the occurrence of any breach or default under, or repudiation or termination of, any Material Sales Contract, which could reasonably be expected to have a Material Adverse Effect; and

(g)    as soon as possible, but in any event within five days after becoming aware of any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.

(h)    within three days after the date on which any Credit Party provides written notice to the DrillCo Investor that an Initial Reversion Date (as defined in the DrillCo Agreement) or Final Reversion Date (as defined in the DrillCo Agreement) has occurred, the Borrower shall provide a copy of such notice to the Administrative Agent and the Lenders. Within three Business Days of any Credit Party receiving a Wellbore Assignment from the DrillCo Investor covering an Initial Reversionary Share (as defined in the DrillCo Agreement) or a Final Reversionary Share (as defined in the DrillCo Agreement), the Borrower shall notify the Administrative Agent of the same.

To the extent applicable, each notice delivered under this Section shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.

Section 5.03     Existence; Conduct of Business . The Borrower will, and will cause each Subsidiary to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of its business; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.04 or any Disposition permitted under Section 6.05 nor shall the Borrower or any Subsidiary be required to preserve any right or franchise unrelated to the Oil and Gas Property if the Borrower or such Subsidiary determines that the preservation thereof is no longer desirable in the conduct of its business and that the loss thereof is not adverse in any material respect to the Administrative Agent or any Lender.

Section 5.04     Payment of Obligations . The Borrower will, and will cause each Subsidiary to, pay its obligations, including Tax liabilities, before the same shall become delinquent or in default, except

 

Page 47


where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings and the Borrower or such Subsidiary, as applicable, has set aside on its books adequate reserves with respect thereto in accordance with GAAP, or (b) the failure to make such payment could not reasonably be expected to result in a Material Adverse Effect.

Section 5.05     Maintenance of Properties; Insurance . The Borrower will, and will cause each Subsidiary and use commercially reasonable efforts to cause each operator of Oil and Gas Property:

(a)    keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted, and

(b)    maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations. Upon request of the Administrative Agent, the Borrower will furnish or cause to be furnished to the Administrative Agent from time to time a summary of the respective insurance coverage of the Borrower and its Subsidiaries in form and substance reasonably satisfactory to the Majority Lenders, and, if requested, will furnish the Administrative Agent copies of the applicable policies. Upon demand by the Administrative Agent, the Borrower will cause any insurance policies covering any such property to be endorsed (a) to provide that such policies may not be cancelled, reduced or affected in any manner for any reason without 30 days’ prior notice to the Administrative Agent, (b) to include the Administrative Agent as loss payee with respect to all property/casualty policies and additional insured with respect to all liability policies and (c) to provide for such other matters as the Lenders may reasonably require.

Section 5.06     Books and Records; Inspection Rights . The Borrower will, and will cause each Subsidiary to, keep proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities. The Borrower will, and will cause each Subsidiary to, permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested.

Section 5.07     Compliance with Laws . The Borrower will, and will cause each Subsidiary to, comply with all Requirements of Law (including Environmental Laws) applicable to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

Section 5.08     Environmental Matters . If an Event of Default is continuing or if the Administrative Agent at any time has a reasonable basis to believe that there exists a violation of any Environmental Law by the Borrower or any Subsidiary or that there exists any other Environmental Liabilities that would in either case reasonably be expected to result in a Material Adverse Effect, then Borrower and each relevant Subsidiary shall, promptly upon the receipt of a request from the Administrative Agent, cause the performance of, or allow the Administrative Agent (or its designee) access to the real property for the purpose of conducting, an environmental assessment, including subsurface sampling of soil and groundwater, and cause the preparation of a report. Such assessments and reports, to the extent not conducted by the Administrative Agent (or its designee), shall be conducted and prepared by a reputable environmental consulting firm acceptable to the Majority Lenders and shall be in form and substance acceptable to the Majority Lenders. Borrower shall be responsible for (and reimburse the Administrative Agent for) all costs associated with any such assessments and reports.

Section 5.09     Use of Proceeds . The proceeds of the Loans will be used only to (a) pay the fees, expenses and transaction costs of the Transactions, (b) repay Indebtedness outstanding under the Existing

 

Page 48


Credit Agreement, (c) redeem the Existing Notes and (d) finance the working capital needs of the Borrower, including capital expenditures, and for general corporate purposes of the Borrower and the Guarantors, in the ordinary course of business, including the exploration, acquisition and development of Oil and Gas Property. No part of the proceeds of the Loans will be used, whether directly or indirectly, to purchase or carry any margin stock (as defined in Regulation U issued by the Board). The Borrower shall not use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of the Loans (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto. The Borrower will not fund all or part of any repayment of the Obligations out of proceeds derived from transactions which would be prohibited by Sanctions or would otherwise cause any Person to be in breach of Sanctions.

Section 5.10     Collateral Matters .

(a)    The Borrower will, and will cause each Guarantor to, at all times maintain an Acceptable Security Interest in Mortgaged Properties constituting at least (i) 90% of the PV10 of the Credit Parties’ Proved Reserves attributable to the Oil and Gas Property evaluated in the most recent Reserve Report provided to the Administrative Agent pursuant to Section 5.01(g) (other than any DrillCo Excluded Property and the Proved Reserves attributable thereto) and (ii) 90% of the net acres of Oil and Gas Properties (other than Proved Reserves and any DrillCo Excluded Property) as of the most recently ended fiscal quarter (including the fiscal year end) for which financial statements are available; provided that each Subject Lease shall be excluded from the calculation set forth in clause (ii) of this Section 5.10(a) until the earlier of (1) the 90th day after such Subject Lease is acquired by a Credit Party (or, in the case of Subject Leases held on the Effective which were not subject to a mortgage under the Existing Credit Agreement, until the 90 th day after the Effective Date), and (2) the earliest to occur of (A) the date that the third party having a right to acquire an interest in such Subject Lease has acquired and paid for such interest, (B) the date that such third party has declined the offer to acquire such interest and (C) the date that such third party’s right to acquire such interest has expired.

(b)    With respect to any Oil and Gas Property acquired (including any interest of a Credit Party in Oil and Gas Properties acquired as the result of the formation of any pool or unit or acquired with the proceeds of any Disposition, but excluding DrillCo Excluded Properties) after the Effective Date by any Credit Party as to which the Administrative Agent, for the benefit of the Secured Parties, does not have an Acceptable Security Interest (other than any Real Property not constituting an Oil and Gas Property), such Credit Party shall:

(i)    with respect to Oil and Gas Properties with any associated Proved Reserves, promptly, (1) and in any event within 30 days, execute and deliver to the Administrative Agent such Security Documents or amendments to Security Documents and take all actions, including without limitation, the filing of any financing statements or Mortgages, as the Majority Lenders deem reasonably necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, an Acceptable Security Interest in such Property, and (2) deliver to the Administrative Agent such legal opinions relating to the matters described in clause (1) immediately preceding as the Administrative Agent may reasonably request, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Majority Lenders; provided , that, unless a Property is acquired for a purchase price or other consideration in excess of $250,000, the Borrower will not be required to take the actions specified in this Section 5.10(b)(i) prior to the end of the fiscal quarter in which the acquisition occurs, or if earlier, the date at which the cumulative amount of purchase price or other consideration for all Property acquired in such quarter equals or exceeds $250,000, at which time all Property theretofore acquired and not previously made subject to a Lien in favor of the Administrative Agent will be made so subject; and

 

Page 49


(ii)    with respect to Oil and Gas Properties without any associated Proved Reserves, execute and deliver to the Administrative Agent such Security Documents or amendments to Security Documents and take all actions, including the filing of any financing statements or Mortgages, as the Majority Lenders deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, an Acceptable Security Interest in such Property promptly, and in any event within 30 days following the earlier of (1) the end of the calendar month in which the recorded lease with respect to such Oil and Gas Property is received by the Borrower and (2) the date such Oil and Gas Property is acquired if the purchase price of such Oil and Gas Property, together with all other such property acquired for which no Mortgage has been filed, equals or exceeds $5,000,000 in the aggregate; provided , that the Borrower shall not be required to take the actions specified in this Section 5.10(b)(ii) with respect to any Subject Lease until the earlier of (a) the 90th day after such Subject Lease is acquired by a Credit Party (or, in the case of Subject Leases held on the Effective Date which were not subject to a mortgage under the Existing Credit Agreement, the 90th day after the Effective Date), and (b) the 30th day after the earlier to occur of (A) the date that the third party having a right to acquire an interest in such Subject Lease has acquired and paid for such interest, (B) the date that such third party has declined the offer to acquire such interest and (C) the date that such third party’s right to acquire such interest has expired.

(c)    So long as no Event of Default has occurred, the Credit Parties may continue to receive from the purchasers of production all proceeds of the sale of production, subject, however, to the Liens created under the Security Documents, which Liens are hereby affirmed and ratified. Upon the occurrence and during the continuation of an Event of Default, the Administrative Agent and Lenders may exercise all rights and remedies granted under the Loan Documents subject to the terms thereof, including the right to obtain possession of all proceeds of production from such Mortgaged Properties then held by such Credit Parties or to receive directly from the purchasers of production all other proceeds of production. In no case shall any failure, whether intentioned or inadvertent, by the Administrative Agent or Lenders to collect directly any such proceeds of production from the Mortgaged Properties constitute in any way a waiver, remission or release of any of their rights under the Security Documents, nor shall any release of any proceeds of production from any Oil and Gas Properties by the Administrative Agent or Lenders to any Credit Parties constitute a waiver, remission, or release of any other proceeds of production from any Oil and Gas Properties or of any rights of the Administrative Agent or Lenders to collect other proceeds of production from the Oil and Gas Properties thereafter.

(d)    If requested by the Administrative Agent, the Borrower shall (i) obtain an affidavit of Initial Reversion (as defined in the DrillCo Agreement) or Final Reversion (as defined in the DrillCo Agreement) or release of Liens covering the Oil and Gas Properties subject to such reversion, in each case, from the DrillCo Investor in accordance with the terms of the DrillCo Agreement and (ii) grant to the Administrative Agent an Acceptable Security Interest in the reversionary interest of the Credit Parties arising from such Reversion (as defined in the DrillCo Agreement).

Section 5.11     Title Data . The Borrower will, and will cause each Subsidiary to, by the Effective Date (or a later date acceptable to the Majority Lenders in their sole discretion) and from time to time thereafter at the request of the Majority Lenders, deliver to the Administrative Agent title information in form and substance reasonably acceptable to the Majority Lenders with respect to that portion of the Oil and Gas Property set forth in the most recent Reserve Report provided to the Administrative Agent and the Lead Lender as the Lead Lender shall deem reasonably necessary or appropriate to verify the title of the Credit Parties to not less than (i) 90% of the PV10 of the Oil and Gas Property (other than any Drillco Excluded Properties) set forth in such Reserve Report that are required to be subject to a Mortgage pursuant to Section 5.10 and (ii) 90% of the net acres of Oil and Gas Properties (other than any DrillCo Excluded Property).

 

Page 50


Section 5.12     Swap Agreements . Upon the request of the Majority Lenders, the Borrower shall, within 30 days of such request, provide to the Administrative Agent and the Majority Lenders copies of all agreements, documents and instruments evidencing the Swap Agreements not previously delivered to the Administrative Agent, certified as true and correct by a Responsible Officer of the Borrower, and such other information regarding such Swap Agreements as the Majority Lenders may reasonably request.

Section 5.13     Operation of Oil and Gas Property .

(a)    The Borrower will, and will cause each Subsidiary to, maintain, develop and operate its Oil and Gas Property in a good and workmanlike manner, and observe and comply with all of the terms and provisions, express or implied, of all oil and gas leases relating to such Oil and Gas Property so long as such Oil and Gas Property are capable of producing Hydrocarbons and accompanying elements in paying quantities, except where such failure to comply could not reasonably be expected to have a Material Adverse Effect.

(b)    Borrower will, and will cause each Subsidiary to, comply in all respects with all contracts and agreements applicable to or relating to its Oil and Gas Property or the production and sale of Hydrocarbons and accompanying elements therefrom, except to the extent a failure to so comply could not reasonably be expected to have a Material Adverse Effect.

Section 5.14     Subsidiaries . At the time hereafter that any Subsidiary of the Borrower is created or acquired, Borrower will (a) promptly take all action necessary to comply with Section 5.15, (b) promptly take all such action and execute and deliver, or cause to be executed and delivered, to the Administrative Agent all such opinions, documents, instruments, agreements, and certificates similar to those described in Section 4.01(b) and Section 4.01(d) that the Administrative Agent or the Majority Lenders may reasonably request, and (c) promptly cause such Subsidiary to (i) become a party to this Agreement and Guarantee the Obligations by executing and delivering to the Administrative Agent a Counterpart Agreement in the form of Exhibit C , (ii) to the extent required to comply with Section 5.10, execute and deliver Mortgages and other Security Documents creating first priority Liens in favor of the Administrative Agent, subject in priority only to Permitted Prior Liens, in such Subsidiary’s Oil and Gas Property and substantially all of such Subsidiary’s personal property, and (iii) to the extent required to comply with Section 5.11, all title opinions and other information. Upon delivery of any such Counterpart Agreement to the Administrative Agent, notice of which is hereby waived by each Credit Party, such Subsidiary shall be a Guarantor and shall be as fully a party hereto as if such Subsidiary were an original signatory hereto. Each Credit Party expressly agrees that its obligations arising hereunder shall not be affected or diminished by the addition or release of any other Credit Party hereunder. This Agreement shall be fully effective as to any Credit Party that is or becomes a party hereto regardless of whether any other Person becomes or fails to become or ceases to be a Credit Party hereunder. With respect to each such Subsidiary, the Borrower shall promptly send to the Administrative Agent written notice setting forth with respect to such Person the date on which such Person became a Subsidiary of the Borrower, and supplement the data required to be set forth in the Schedules to this Agreement as a result of the acquisition or creation of such Subsidiary; provided that such supplemental data must be reasonably acceptable to the Majority Lenders.

Section 5.15     Pledged Capital Stock . On the Effective Date and at the time hereafter that any Subsidiary of the Borrower is created or acquired, the Borrower and the Subsidiaries (as applicable) shall execute and deliver to the Administrative Agent for the benefit of the Secured Parties, the Security Agreement (or an amendment or supplement to, or amendment and restatement of, the Security Agreement), in form and substance reasonably acceptable to the Administrative Agent and the Majority Lenders, from the Borrower and/or the Subsidiaries (as applicable) covering all Capital Stock owned by the Borrower or the Subsidiaries in such Subsidiary, together with all certificates (or other evidence acceptable to the Majority Lenders) evidencing the issued and outstanding Capital Stock of each such Subsidiary of every class owned by such Credit Party (as applicable) which, if certificated, shall be duly endorsed or accompanied by stock

 

Page 51


powers executed in blank to the Administrative Agent, as the Administrative Agent or the Majority Lenders shall deem necessary or appropriate to grant, evidence and perfect a first priority security interest in the issued and outstanding Capital Stock owned by Borrower or any Subsidiary in each Subsidiary.

Section 5.16     Accounts . Subject to Section 5.19, no Credit Party shall establish or maintain a deposit account, securities account or commodities account, without executing and delivering to Majority Lenders and the Administrative Agent a Control Agreement covering the applicable deposit account, securities account or commodities account, other than with respect to Excluded Accounts; provided , however , that in the case of any a deposit account, securities account or commodities account acquired pursuant to an acquisition permitted under Section 6.07 (and which was not formed in contemplation of such acquisition), so long as such acquiring Credit Party provides the Majority Lenders and the Administrative Agent with written notice of the existence of such deposit account, securities account or commodities account within five Business Days following the date of such acquisition (or such later date as the Majority Lenders may agree in their sole discretion), such Credit Party will have 30 days (or such later date as the Majority Lenders may agree in their sole discretion) to subject such deposit account, securities account or commodities account to a Control Agreement. Once a control agreement has been so executed and delivered, none of the Credit Parties will deposit or maintain Collateral (including the proceeds thereof) in a deposit account, securities account or commodities account that is not subject to a control agreement.

Section 5.17     Further Assurances .

(a)    From time to time execute and deliver, or cause to be executed and delivered, such additional instruments, certificates or documents, and take all such actions, as Administrative Agent may reasonably request for the purposes of implementing or effectuating the provisions of this Agreement and the other Loan Documents, or of more fully perfecting or renewing the rights of Administrative Agent and the Lenders with respect to the Collateral (or with respect to any additions thereto or replacements or proceeds or products thereof or with respect to any other Property hereafter acquired by any Credit Party, which may be deemed to be part of the Collateral) pursuant hereto or thereto.

(b)    Upon the exercise by the Administrative Agent or any Lender of any power, right, privilege or remedy pursuant to this Agreement or the other Loan Documents which requires any consent, approval, recording, qualification or authorization of any Governmental Authority, execute and deliver, or cause the execution and delivery of, all applications, certifications, instruments and other documents and papers that the Administrative Agent or such Lender may be required to obtain from Borrower or any of its Subsidiaries for such governmental consent, approval, recording, qualification or authorization.

Section 5.18     Redemption of Existing Notes . On the Effective Date, the Borrower shall deliver a notice of redemption with respect to the Existing Notes in accordance with the Existing Indenture, and shall redeem all of the outstanding Existing Notes and will pay to the holders thereof all of the accrued but unpaid interest thereon, in each case in accordance with the procedures therefor set forth in the Existing Indenture.

Section 5.19     Post-Closing Matters . Prior to the date 30 days after the Effective Date, the Administrative Agent and the Majority Lenders shall have received Control Agreements duly executed and delivered by each of the parties thereto with respect to all of the Credit Parties’ deposit accounts, securities accounts and commodity accounts (other than the Excluded Accounts).

 

Page 52


ARTICLE VI.

NEGATIVE COVENANTS

Until the Obligations (other than contingent indemnification obligations for which no claim has been asserted) shall have been paid in full, the Borrower covenants and agrees with the Administrative Agent and the Lenders that:

Section 6.01    [Reserved] .

Section 6.02     Indebtedness . The Borrower will not, nor will it permit any of its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, except:

(a)    the Obligations and Guarantees of the Obligations;

(b)    letters of credit not exceeding $7,500,000 in aggregate face amount at any time outstanding;

(c)    Indebtedness (other than Existing Notes) existing on the Effective Date and set forth in Schedule 6.02 and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (except by an amount equal to the reasonable premium paid and fees and expenses reasonably incurred therewith);

(d)    intercompany Indebtedness between the Borrower and any Subsidiary or between Subsidiaries to the extent permitted by Section 6.07(c); provided that any such Indebtedness owed by either the Borrower or a Guarantor shall be subordinated to the Indebtedness on terms set forth in Article VII or on such terms as are reasonably acceptable to the Majority Lenders; provided , further , that upon the request of the Administrative Agent or the Majority Lenders at any time, such Indebtedness shall be evidenced by promissory notes having terms reasonably satisfactory to the Majority Lenders, and the sole originally executed counterparts of which shall be pledged and delivered to the Administrative Agent, for the benefit of the Secured Parties, as security for the Obligations;

(e)    (i) Indebtedness of the Borrower and the Subsidiaries incurred to finance the acquisition, construction or improvement of any fixed or capital assets (including office equipment, data processing equipment and motor vehicles), including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any assets or secured by a Lien on any assets prior to the acquisition thereof or (ii) any Indebtedness of any Subsidiary issued and outstanding on or prior to the date on which such Subsidiary was acquired by the Borrower or any Subsidiary, and not incurred in contemplation thereof, in a transaction permitted hereunder, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (A) with respect to the Indebtedness incurred pursuant to clause (i) of this Section 6.02(e), such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this Section 6.02(e) at any time outstanding shall not exceed $5.0 million;

(f)    Indebtedness (other than Indebtedness for borrowed money) incurred or deposits made by the Borrower or any Subsidiary (i) under worker’s compensation laws, unemployment insurance laws or similar legislation, (ii) in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which the Borrower or any Subsidiary is a party, (iii) to secure public or statutory obligations of the Borrower or any Subsidiary, and (iv) of cash or U.S. Government Securities made to secure the performance of statutory obligations, surety, stay, customs and appeal bonds to which the Borrower or any Subsidiary is party in connection with the operation of the Oil and Gas Property, in each case in the ordinary course of business;

 

Page 53


(g)    provided the Borrower complies with Section 5.18, Indebtedness under the Existing Notes, including any Indebtedness constituting Guarantees thereof by the Borrower or any Subsidiary;

(h)    Guarantees in respect of Indebtedness otherwise permitted pursuant to this Section 6.02;

(i)    Indebtedness in connection with the endorsement of negotiable instruments and other obligations in respect of cash management services, netting services, overdraft protection and similar arrangements, in each case in the ordinary course of business;

(j)    Indebtedness in respect of insurance premium financing for insurance being acquired or maintained by the Borrower or any Subsidiary under customary terms and conditions;

(k)    the Convertible Notes, any additional Convertible Notes issued under the Convertible Indenture after the date hereof representing Paid-In-Kind Principal (as defined in the Convertible Indenture) and any Permitted Refinancing Indebtedness thereof; provided that at the time of and immediately after giving effect to any Permitted Refinancing Indebtedness thereof, no Default shall have occurred and be continuing; provided , further , that, with respect to any Indebtedness consisting of Permitted Junior Lien Debt, at least three Business Days prior to the incurrence of such Indebtedness, the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer certifying that such Indebtedness is permitted under the Loan Documents;

(l)    Indebtedness consisting of sureties or bonds provided to any Governmental Authority or other Person and assuring payment of contingent liabilities of the Borrower in connection with the operation of the Oil and Gas Properties, including with respect to plugging, facility removal and abandonment of its Oil and Gas Properties; and

(m)    other unsecured Indebtedness in an aggregate amount outstanding at any time not to exceed $1,000,000.

Section 6.03     Liens . The Borrower will not, nor will it permit any of its Subsidiaries to, create, incur, assume or permit to exist any Lien on any Property now owned or hereafter acquired by it, except:

(a)    any Lien securing obligations under Swap Agreements that constitute “Secured Obligations” hereunder and the Obligations created pursuant to this Agreement or the Security Documents;

(b)    Permitted Encumbrances;

(c)    any Lien on any Property of the Borrower or any Subsidiary existing on the Effective Date and set forth in Schedule 6.03 ; provided that (i) such Lien shall not apply to any other Property of the Borrower or any other Subsidiary (other than proceeds and accessions and additions to such property) and (ii) such Lien shall secure only those obligations which it secures on the Effective Date and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;

(d)    any Lien existing on any Property prior to the acquisition thereof by the Borrower or any Subsidiary or existing on any Property of any Person that becomes a Subsidiary after the Effective Date prior to the time such Person becomes a Subsidiary; provided that (i) such Lien secures Indebtedness permitted by Section 6.02(d), (ii) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (iii) such Lien shall not apply to any other Property of the Borrower or any other Subsidiary and (iv) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;

 

Page 54


(e)    Liens on fixed or capital assets (including office equipment, data processing equipment and motor vehicles) acquired, constructed or improved by the Borrower or any Subsidiary; provided that (i) such Liens secure Indebtedness permitted by clause (d) of Section 6.02, (ii) such Liens and the Indebtedness secured thereby are incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (iv) such Liens shall not apply to any other property or assets of the Borrower or any other Subsidiaries (other than proceeds and accessions and additions to such property);

(f)    Liens securing insurance premium financing under customary terms and conditions, provided that no such Lien may extend to or cover any property other than the insurance being acquired with such financing, the proceeds thereof and any unearned or refunded insurance premiums related thereto;

(g)    Permitted Junior Liens securing Permitted Junior Lien Obligations;

(h)    Liens securing reimbursement obligations under letters of credit incurred in accordance with Section 6.02(b); and

(i)    Liens arising under the Drillco Operating Agreements provided (1) such Drillco Operating Agreements do not cover Property located outside of the DrillCo Contract Area, and (2) such Drillco Operating Agreements are entered into pursuant to the DrillCo Agreement.

Section 6.04     Fundamental Changes . The Borrower will not, nor will it permit any of its Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:

(a)    any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity;

(b)    any Subsidiary may merge into any other Subsidiary in a transaction in which the surviving entity is a Subsidiary;

(c)    any Subsidiary may Dispose of its assets to the Borrower or to another Subsidiary; and

(d)    Dispositions permitted by Section 6.05 may be made.

Section 6.05     Disposition of Assets . The Borrower will not, and will not permit any Subsidiary to, Dispose of any property except:

(a)    the sale of Hydrocarbons in the ordinary course of business;

(b)    the Disposition of equipment and other property in the ordinary course of business, that is obsolete or no longer necessary in the business of the Borrower or any of its Subsidiaries or that is being replaced by equipment of comparable value and utility;

(c)    Liens permitted by Section 6.03, Investments permitted by Section 6.07 and Restricted Payments permitted by Section 6.09;

(d)    Dispositions of cash and Cash Equivalents in the ordinary course of business;

(e)    any Credit Party may Dispose of its property to another Credit Party;

 

Page 55


(f)    sales or discounts of overdue accounts receivable in the ordinary course of business, in connection with the compromise or collection thereof, and not in connection with any financing transaction;

(g)    other Dispositions of Oil and Gas Property (other than Hedge Modifications or Production Payments), provided that:

(i)    the consideration received shall be at least equal to the Fair Market Value of the Oil and Gas Property subject to such Disposition (and with respect to Dispositions involving consideration in excess of $2,000,000 individually and $10,000,000 in the aggregate for all Dispositions pursuant to this Section 6.05, the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer certifying that such Disposition was for Fair Market Value);

(ii)    100% of the consideration received by the Borrower or any Subsidiary in respect of such Disposition is cash or Cash Equivalents; and

(iii)    the Net Cash Proceeds of such Disposition are used to prepay the Loans to the extent required pursuant to Section 2.07(a).

(h)    substantially contemporaneous (and in any event occurring within 30 days of each other) Dispositions of Oil and Gas Properties as to which no Proved Reserves are attributable in exchange for other Oil and Gas Properties provided that (i) the Fair Market Value of the Oil and Gas Properties exchanged by the Borrower or its Subsidiary (together with any cash) is reasonably equivalent to the Fair Market Value of the Oil and Gas Properties (together with any cash) to be received by the Borrower or its Subsidiary, and (ii) any cash received must be applied in accordance with Section 2.07;

(i)    Dispositions of seismic, geologic or other data and license rights; and

(j)    Hedge Modifications; provided that the consideration received for such Hedge Modification is at least equal to Fair Market Value.

(k)    a DrillCo Required Disposition so long as the Administrative Agent (or any designee thereof) has received within 30 days of the date on which such DrillCo Required Disposition is effected, a duly executed Mortgage granting an Acceptable Security Interest in the applicable Credit Party’s interest in the DrillCo Joint Well that is the subject of such DrillCo Required Disposition (“ DrillCo Mortgage ”).

(l)    Dispositions pursuant to a decision not to participate in an Oklahoma Corporation Commission Force Pooling Order or any relinquishment of any interests in any oil and gas leases pursuant to a non-consent provision of a standard form of joint operating agreement.

(m)    Any farm-out, drillco or similar arrangement with respect to any Non-Core Assets.

(n)    Dispositions of interests in any Subject Lease pursuant to the exercise by a third party of its right to acquire an interest therein, to the extent and pursuant to the terms of such right as in effect on the date hereof, which Disposition is effected on or before the 90th day after such Subject Lease is acquired by a Credit Party (or, in the case of Subject Leases held on the Effective Date which were not subject to a mortgage under the Existing Credit Agreement, the 90 th day after the Effective Date).

(o)    Other dispositions and sales of Properties (including any midstream assets or gathering systems) not otherwise permitted pursuant to this Section 6.07 having a fair market value not to exceed $5,000,000 in the aggregate for all dispositions and sales of Properties pursuant to this Section 6.05(l) for the term of this Agreement.

 

Page 56


Section 6.06     Nature of Business . The Borrower will not, nor will it permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.

Section 6.07     Investments . The Borrower will not, nor will it permit any of its Subsidiaries to, make any Investment, except:

(a)    Investments in Cash Equivalents;

(b)    Investments (i) made by any Credit Party in or to any Credit Party and (ii) made by any Subsidiary in or to any Credit Party;

(c)    Investments made by the Borrower or any Subsidiary pursuant to the commitments set forth on Schedule 6.07(c) ; provided , that the Borrower’s or any Subsidiary’s commitments set forth on Schedule 6.07(c) shall not be increased or otherwise altered in any manner adverse to the interests of the Borrower or any of its Subsidiaries, on the one hand, and the Lenders, on the other hand, unless otherwise consented to by the Majority Lenders;

(d)    Guarantees constituting Indebtedness permitted by Section 6.02 (other than guarantees in respect of Capital Lease Obligations) and performance guarantees, in each case, incurred in the ordinary course of business;

(e)    Investments by the Borrower and its Subsidiaries that are customary in the oil and gas business and in the ordinary course of the Borrower’s or such Subsidiary’s business, and in the form of, or pursuant to, oil, gas and mineral leases, operating agreements, unitization agreements, joint bidding agreements, services contracts and other similar agreements that a reasonable and prudent oil and gas industry owner or operator would find acceptable;

(f)    Investments consisting of Swap Agreements to the extent permitted under Section 6.08;

(g)    Investments existing as of the Effective Date and set forth on Schedule 6.07(g) ;

(h)    Investments consisting of (i) loans and advances to employees for moving, entertainment, travel and other similar expenses in the ordinary course of business and (ii) other short term loans to employees not to exceed, with respect to the foregoing clauses (i) and (ii) together, $250,000 in the aggregate at any time outstanding;

(i)    demand deposits with financial institutions, prepaid expenses and extensions of trade credit in the ordinary course of business (and any Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss);

(j)    trade and customer accounts receivable which are for goods furnished or services rendered in the ordinary course of business and are payable in accordance with customary trade terms;

(k)    Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business; provided that, the aggregate amount of such investment shall not exceed $1,000,000 (other than by appreciation);

(l)    Investments consisting of any deferred portion of the sales price received by the Borrower or any Subsidiary in connection with any sale of assets permitted hereunder;

 

Page 57


(m)    any Investment by the Company or any Subsidiary of the Company in a Person, if as a result of such Investment (i) such Person becomes a Subsidiary of the Company; or such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its Properties or assets to, or is liquidated into, the Company or a Subsidiary of the Company; and

(n)    other investments not to exceed $1,000,000 in the aggregate.

Section 6.08     Swap Agreements . The Borrower will not, nor will the Borrower permit any of its Subsidiaries to, enter into any Swap Agreement, except Swap Agreements with Qualified Counterparties entered into in the ordinary course of business and not for speculative purposes to:

(a)    hedge or mitigate price risks with respect to Hydrocarbons to which the Borrower or any Subsidiary has actual exposure (whether or not treated as a hedge for accounting purposes under GAAP); provided that at the time the Borrower or any Subsidiary enters into any such Swap Agreement, such Swap Agreement (x) does not have a term greater than 60 months from the date such Swap Agreement is entered into, and (y) when aggregated with all other Swap Agreements then in effect would not cause the aggregate notional volume per month for each of Hydrocarbons, calculated separately, under all Swap Agreements then in effect (other than Excluded Hedges) to exceed, as of the date such Swap Agreement is executed, (A) for any month during the forthcoming five-year period, 100% of the Projected Oil and Gas Production as set forth in clause (a) of such defined term and (B) for any month during the forthcoming 36-month period, 75% of the Projected Oil and Gas Production as set forth in clause (b) of such defined term; and

(b)    effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Subsidiary.

Section 6.09     Restricted Payments . The Borrower will not, nor will it permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment; provided that, so long as at the time of and immediately after giving effect to such Restricted Payment no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof, the Borrower or any Subsidiary may make the following Restricted Payments:

(a)    the declaration and payment of dividends or distributions by the Borrower solely in Capital Stock (other than Disqualified Stock) of the Borrower;

(b)    the declaration and payment of dividends or distributions by any Subsidiary to the Borrower or any Guarantor;

(c)    the redemption of Existing Notes out of the proceeds of the Loans, the Convertible Notes and the Common Stock Purchase;

(d)    the principal payment on, defeasance, redemption, repurchase, exchange or other acquisition or retirement of any Convertible Notes made solely by exchange for, or out of the proceeds of the substantially concurrent sale or incurrence of Permitted Refinancing Indebtedness of the Borrower or any Guarantor incurred pursuant to Section 6.02(l) or Capital Stock (other than Disqualified Stock) of the Borrower;

(e)    cash dividends on (i) the Series A Preferred Shares and Series B Preferred Shares, as required under the terms of such securities as in effect on the date hereof and (ii) any Qualified Preferred Shares; provided that at the time of and immediately after giving effect to such distribution, (y) no Default or Event of Default has occurred and is continuing or would result therefrom and (z) from, and including, August 1, 2018, to, but excluding May 1, 2019, the Fixed Charge Coverage Ratio is not less than 1.0 to 1.0 and from and after May 1, 2019, the Fixed Charge Coverage Ratio is not less than 1.25 to 1.0; and

 

Page 58


(f)    the issuance and delivery of shares of common stock of the Borrower to holders of the Convertible Notes in connection with a conversion by such holders of Convertible Notes, together with the payment of nominal cash consideration for fractional common shares thereof, in each case in accordance with the Convertible Indenture.

Section 6.10     Transactions with Affiliates .

(a)    The Borrower will not, and will not permit any of its Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any Property from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with (or for the benefit of), any Affiliate of the Borrower (each, an “ Affiliate Transaction ”), unless:

(i)    the Affiliate Transaction is on terms that are no less favorable to the Borrower or the relevant Subsidiary than those that would have been obtained in a comparable transaction by the Borrower or such Subsidiary with an unrelated Person or, if in the good faith judgment of the Borrower’s Board of Directors, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Borrower or the relevant Subsidiary from a financial point of view; and

(ii)    the Borrower delivers to the trustee (A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, a resolution of the Board of Directors of the Borrower set forth in an officers’ certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this covenant and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by a majority of the disinterested members of the Board of Directors of the Borrower; and (B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, an opinion as to the fairness to the Borrower or such Subsidiary of such Affiliate Transaction or series of related Affiliate Transactions from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.

(b)    Section 6.10(a) will not apply to:

(i)    transactions between or among Credit Parties;

(ii)    payment of reasonable and customary fees and reimbursements of expenses (pursuant to indemnity arrangements or otherwise) of officers, directors, employees or consultants of the Borrower or any of its Subsidiaries;

(iii)    Restricted Payments permitted by Section 6.09; and

(iv)    any issuance of Capital Stock (other than Disqualified Stock) of the Company to Affiliates of the Borrower and the granting of registration and other customary rights in connection therewith.

Section 6.11     Restrictive Agreements . The Borrower will not, nor will it permit any of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its Property to secure the Obligations, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect to any of its Capital Stock or to make

 

Page 59


or repay loans or advances to the Borrower or any Subsidiary or to Guarantee Indebtedness of the Borrower or any Subsidiary; provided that (i) the foregoing shall not apply to restrictions and conditions imposed by law or by this Agreement or the Convertible Indenture (or any documents evidencing or relating to the issuance of any permitted Senior Notes, any Permitted Refinancing), and (ii) clause (a) of the foregoing shall not apply to (A) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the Property securing such Indebtedness, (B) customary provisions in leases and other contracts restricting the assignment thereof, (C) restrictions with respect to Oil and Gas Property that are not included in the most recent Reserve Report delivered to the Administrative Agent and (D) provisions of the DrillCo Agreement pursuant to which the Credit Parties agree not to grant Liens that can be perfected with recordings in the applicable county records securing the Obligations on any Properties in the DrillCo Contract Area (other than Wellbore Liens permitted hereunder and Liens on Non-DrillCo Assets).

Section 6.12     Disqualified Stock . The Borrower will not, nor will it permit any of its Subsidiaries to, issue any Disqualified Stock.

Section 6.13     Certain Amendments to Organizational Documents and Convertible Notes . The Borrower will not, nor will it permit any of its Subsidiaries to:

(a)    enter into or permit any modification or amendment of, or waive any material right or obligation of any Person under its Organizational Documents if the effect thereof would be materially adverse to the Administrative Agent or any Lender or violate Section 6.11; or

(b)    enter into or permit any modification or amendment of the Convertible Notes the effect of which is to (i) increase the maximum principal amount of the Convertible Notes or the rate of interest on any of the Convertible Notes (other than as a result of the imposition of a default rate of interest in accordance with the terms of the Convertible Notes), (ii) change or add any event of default or any covenant with respect to the Convertible Notes if the effect of such change or addition is to cause any one or more of the Convertible Notes to be more restrictive on the Borrower or any of its Subsidiaries than such Convertible Notes were prior to such change or addition, (iii) shorten the dates upon which scheduled payments of principal or interest on the Convertible Notes are due, (iv) change any redemption or prepayment provisions of the Convertible Notes, (v) grant any Liens in any assets of the Borrower or any of its Subsidiaries except for Permitted Junior Liens, or (vi) permit any Subsidiary to Guarantee the Convertible Notes unless such Subsidiary is (or concurrently with any such Guarantee becomes) a Guarantor hereunder.

Section 6.14     Sale and Leaseback Transactions and other Off-Balance Sheet Liabilities . The Borrower will not, nor will it permit any Subsidiary to, enter into or suffer to exist any Sale and Leaseback Transaction or any other transaction pursuant to which it incurs or has incurred Off-Balance Sheet Liabilities.

Section 6.15     DrillCo Restrictions . Without the prior written consent of the Majority Lenders, no Credit Party shall amend or otherwise modify the DrillCo Agreement in a manner materially adverse to the Lenders, including, without limitation, any amendment or modification which would (a) increases the number of Joint Wells (as defined in the Drillco Agreement) above sixty (60); (b) materially changes the area subject to the Joint Development Agreement; or (c) materially change any economic terms or provision of the Joint Development Agreement, including with respect to the costs to be borne by the Company.

Section 6.16     Lease Restrictions . The Borrower and its Subsidiaries shall not, without the consent of the Majority Lenders, allow more than 10% of the net acreage consisting of Oil and Gas Properties of the Borrower and its Subsidiaries, measured as of the Effective Date, to lapse, expire or otherwise terminate in any manner without such Oil and Gas Properties being replaced by Oil and Gas Properties of similar quantity and value in Township 20 North – Range 8 West, Township 20 North – Range 7 West, Township 19 North – Range 9 West, Township 19 North – Range 8 West, Township 19 North –

 

Page 60


Range 7 West, Township 18 North – Range 8 West, Township 18 North – Range 7 West, and Township 18 North – Range 6 West; provided that, (a) for purposes of calculating such net acreage, all Non-Core Assets shall be excluded from the Oil and Gas Properties of the Borrower and its Subsidiaries and (b) such percentage shall be adjusted following the Effective Date to take into account any disposition or acquisition of Oil and Gas Properties as reasonably determined between the Borrower and the Majority Lenders (it being understood and agreed that such adjustment referred to in this proviso shall not in and of itself result in a Default or an Event of Default).

ARTICLE VII.

GUARANTEE OF OBLIGATIONS

Section 7.01     Guarantee of Payment . Each Guarantor unconditionally and irrevocably guarantees to the Collateral Agent for the benefit of the Secured Parties, the punctual payment of all Secured Obligations now or which may in the future be owing by any Credit Party (the “ Guaranteed Liabilities ”). This Guarantee is a guaranty of payment and not of collection only. The Collateral Agent shall not be required to exhaust any right or remedy or take any action against the Borrower or any other Person or any collateral. The Guaranteed Liabilities include interest accruing after the commencement of a proceeding under bankruptcy, insolvency or similar laws of any jurisdiction at the rate or rates provided in the Loan Documents. Each Guarantor agrees that, as between the Guarantor and the Collateral Agent, the Guaranteed Liabilities may be declared to be due and payable for the purposes of this Guarantee notwithstanding any stay, injunction or other prohibition which may prevent, delay or vitiate any declaration as regards the Borrower or any other Guarantor and that in the event of a declaration or attempted declaration, the Guaranteed Liabilities shall immediately become due and payable by each Guarantor for the purposes of this Guarantee.

Section 7.02     Guarantee Absolute . Each Guarantor guarantees that the Guaranteed Liabilities shall be paid strictly in accordance with the terms of this Agreement. The liability of each Guarantor hereunder is absolute and unconditional irrespective of: (a) any change in the time, manner or place of payment of, or in any other term of, all or any of the Loan Documents or the Guaranteed Liabilities, or any other amendment or waiver of or any consent to departure from any of the terms of any Loan Document or Guaranteed Liability, including any increase or decrease in the rate of interest thereon; (b) any release or amendment or waiver of, or consent to departure from, any other guaranty or support document, or any exchange, release or non-perfection of any collateral, for all or any of the Loan Documents or Guaranteed Liabilities; (c) any present or future law, regulation or order of any jurisdiction (whether of right or in fact) or of any agency thereof purporting to reduce, amend, restructure or otherwise affect any term of any Loan Document or Guaranteed Liability; (d) without being limited by the foregoing, any lack of validity or enforceability of any Loan Document or Guaranteed Liability; and (e) any other setoff, defense or counterclaim whatsoever (in any case, whether based on contract, tort or any other theory) with respect to the Loan Documents or the transactions contemplated thereby which might constitute a legal or equitable defense available to, or discharge of, the Borrower or a Guarantor (other than the defense of payment or performance).

Section 7.03     Guarantee Irrevocable . This Guarantee is a continuing guaranty of the payment of all Guaranteed Liabilities now or hereafter existing under this Agreement, and shall remain in full force and effect until payment in full of all Guaranteed Liabilities and other amounts payable hereunder.

Section 7.04     Reinstatement . This Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Liabilities is rescinded or must otherwise be returned by the Collateral Agent or any Secured Party on the insolvency, bankruptcy or reorganization of the Borrower, or any other Credit Party, or otherwise, all as though the payment had not been made.

 

Page 61


Section 7.05     Subrogation . No Guarantor shall exercise any rights which it may acquire by way of subrogation, by any payment made under this Guarantee or otherwise, until all the Guaranteed Liabilities have been paid in full and this Agreement. If any amount is paid to the Guarantor on account of subrogation rights under this Guarantee at any time when all the Guaranteed Liabilities have not been paid in full, the amount shall be held in trust for the benefit of the Secured Parties and shall be promptly paid to the Collateral Agent to be credited and applied to the Guaranteed Liabilities, whether matured or unmatured or absolute or contingent, in accordance with the terms of this Agreement and the Swap Agreements. If any Guarantor makes payment to any Secured Party of all or any part of the Guaranteed Liabilities and all the Guaranteed Liabilities are paid in full and this Agreement, the Collateral Agent and the Secured Parties shall, at such Guarantor’s request, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed Liabilities resulting from the payment.

Section 7.06     Subordination . Without limiting the rights of the Collateral Agent and the Secured Parties under any other agreement, any liabilities owed by the Borrower to any Guarantor in connection with any extension of credit or financial accommodation by any Guarantor to or for the account of the Borrower, including but not limited to interest accruing at the agreed contract rate after the commencement of a bankruptcy or similar proceeding, are hereby subordinated to the Guaranteed Liabilities, and such liabilities of the Borrower to such Guarantor, if the Collateral Agent so requests after the occurrence and during the continuation of a Default or event of default or termination event (howsoever defined) under any Swap Agreement constituting a Secured Obligation hereunder, shall be collected, enforced and received by any Guarantor as trustee for the Collateral Agent and shall be paid over to the Collateral Agent on account of the Guaranteed Liabilities but without reducing or affecting in any manner the liability of the Guarantor under the other provisions of this Guarantee.

Section 7.07     Payments Generally . All payments by the Guarantors shall be made in the manner, at the place and in the currency (the “ Payment Currency ”) required by the Loan Documents and in accordance with the Swap Intercreditor Agreement; provided , however , that if the Payment Currency is other than Dollars any Guarantor may, at its option (or, if for any reason whatsoever any Guarantor is unable to effect payments in the foregoing manner, such Guarantor shall be obligated to) pay to the Collateral Agent at its principal office the equivalent amount in Dollars computed at the selling rate of the Collateral Agent or a selling rate chosen by the Collateral Agent, most recently in effect on or prior to the date the Guaranteed Liability becomes due, for cable transfers of the Payment Currency to the place where the Guaranteed Liability is payable. In any case in which any Guarantor makes or is obligated to make payment in Dollars, the Guarantor shall hold the Collateral Agent and the Secured Parties harmless from any loss incurred by the Collateral Agent and any Secured Party arising from any change in the value of Dollars in relation to the Payment Currency between the date the Guaranteed Liability becomes due and the date the Collateral Agent or such Secured Party is actually able, following the conversion of the Dollars paid by such Guarantor into the Payment Currency and remittance of such Payment Currency to the place where such Guaranteed Liability is payable, to apply such Payment Currency to such Guaranteed Liability.

Section 7.08     Setoff . Each Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim the Collateral Agent or any Secured Party may otherwise have, the Collateral Agent or such Secured Party shall be entitled, at its option, to offset balances (general or special, time or demand, provisional or final) held by it for the account of any Guarantor at any office of the Collateral Agent or such Secured Party, in Dollars or in any other currency, against any amount payable by such Guarantor under this Guarantee which is not paid when due (regardless of whether such balances are then due to such Guarantor), in which case it shall promptly notify such Guarantor thereof; provided that the failure of the Collateral Agent or such Secured Party to give such notice shall not affect the validity thereof.

 

Page 62


Section 7.09     Formalities . Each Guarantor waives presentment, notice of dishonor, protest, notice of acceptance of this Guarantee or incurrence of any Guaranteed Liability and any other formality with respect to any of the Guaranteed Liabilities or this Guarantee.

Section 7.10     Limitations on Guarantee . The provisions of the Guarantee under this Article VII are severable, and in any action or proceeding involving any state corporate law, or any state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Guarantor under this Guarantee would otherwise be held or determined to be avoidable, invalid or unenforceable on account of the amount of such Guarantor’s liability under this Guarantee, then, notwithstanding any other provision of this Guarantee to the contrary, the amount of such liability shall, without any further action by the Guarantors, the Collateral Agent or any Secured Party, be automatically limited and reduced to the highest amount that is valid and enforceable as determined in such action or proceeding (such highest amount determined hereunder being the relevant Guarantor’s “ Maximum Liability ”). This Section 7.10 with respect to the Maximum Liability of the Guarantors is intended solely to preserve the rights of the Collateral Agent and the Secured Parties hereunder to the maximum extent not subject to avoidance under applicable law, and no Guarantor nor any other Person shall have any right or claim under this Section 7.10 with respect to the Maximum Liability, except to the extent necessary so that none of the obligations of any Guarantor hereunder shall not be rendered voidable under applicable law.

Section 7.11     Keepwell . Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Guarantor to honor all of its obligations under this Article VII in respect of all obligations in respect of Swap Agreements that constitute Secured Obligations hereunder ( provided, however , that each Qualified ECP Guarantor shall only be liable under this Section 7.11 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 7.11 or otherwise under this Article VII voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Article VII shall remain in full force and effect until a discharge of the Guaranteed Liabilities. Each Qualified ECP Guarantor intends that this Section 7.11 constitute, and this Section 7.11 shall be deemed to constitute, a “keepwell, support or other agreement” for the benefit of each other Guarantor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

Section 7.12     Survival . The agreements and other provisions in this Article VII shall survive, and remain in full force and effect regardless of, the resignation or removal of the Collateral Agent or the Collateral Agent, the replacement of any Lender, the expiration or termination of this Agreement and the Aggregate Commitments, and the repayment, satisfaction or discharge of the Obligations.

ARTICLE VIII.

EVENTS OF DEFAULT

If any of the following events (“ Events of Default ”) shall occur:

(a)    the Borrower shall fail to pay any principal of, or premium on, any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;

(b)    the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or the Fee Letter, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;

 

Page 63


(c)    any representation or warranty made or deemed made by or on behalf of the Borrower or any Subsidiary in or in connection with this Agreement or any amendment or modification hereof or waiver hereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any amendment or modification hereof or waiver hereunder or in any Loan Document furnished pursuant to or in connection with this Agreement or any amendment or modification thereof or waiver hereunder, shall prove to have been incorrect in any material respect when made or deemed made and such materiality is continuing;

(d)    the Borrower or any Subsidiary shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02, Section 5.03 (with respect to the Borrower’s or any Subsidiary’s existence), Section 5.09, Section 5.10, Section 5.18, Section 5.19 or in Article VI;

(e)    the Borrower or any Subsidiary shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Article) or any Loan Document, and such failure shall continue unremedied for a period of 30 days after receipt of written notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender);

(f)    the Borrower or any Subsidiary shall fail to make any payment required under the DrillCo Agreement within 30 days of the date such payment is due under the DrillCo Agreement, unless such payment is being disputed in good faith and the Company has established adequate reserves therefor;

(g)    the Borrower or any Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable and such failure shall continue beyond the applicable grace period, if any, or any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to (i) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the Property securing such Indebtedness and (ii) Indebtedness that becomes due as a result of a change in law, tax regulation or accounting treatment so long as such Indebtedness is paid when due;

(h)    an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;

(i)    the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;

 

Page 64


(j)    the Borrower or any Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;

(k)    one or more judgments for the payment of money in an aggregate amount in excess of $2,500,000 shall be rendered against the Borrower or any Subsidiary or any combination thereof and either the same shall remain undischarged or unsatisfied for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment;

(l)    an ERISA Event shall have occurred that, in the opinion of the Majority Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;

(m)    the delivery by any Guarantor to the Administrative Agent of written notice that a Guarantee under Article VII has been revoked;

(n)    any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be valid and enforceable as against any Credit Party; or any Credit Party or any other Person contests in any manner the validity or enforceability of any provision of any Loan Document; or any Credit Party denies that it has any or further liability or obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document;

(o)    any Security Instrument after delivery thereof shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first priority Lien (subject in priority only to Permitted Prior Liens) on the Collateral purported to be covered thereby;

(p)    any Lien granted to a Credit Party by the DrillCo Investor under or related to the DrillCo Operating Agreement fails to be senior to all other Liens granted by the DrillCo Investor in the Property encumbered thereby (other than (i) the Liens granted under the memorandum of DrillCo Operating Agreement to the other Persons party thereto and (ii) Liens of the type described in clause (a) of “Permitted Encumbrances” definition), and such failure shall remain unremedied for 30 days after the earlier to occur of a Credit Party becoming aware of the occurrence of such failure and notice from the Administrative Agent to the Borrower of such failure; or

(q)    an “Event of Default” under the Convertible Indenture shall have occurred;

then, and in every such event (other than an event with respect to the Borrower or any Subsidiary described in clause (h) or (i) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the written request of the Majority Lenders shall, by notice to the Borrower, take either or both of the following actions, at the same or different times: (i) terminate the Aggregate Commitment, and thereupon the Aggregate Commitment shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees, premiums and other obligations of the Borrower accrued or payable hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower described in clause (h) or (i) of this Article, the Aggregate Commitment shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees, premiums and other obligations of the Borrower accrued or payable hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower. Without

 

Page 65


limiting the foregoing, upon the occurrence and during the continuance of an Event of Default, the Administrative Agent and each Lender may, subject to the Swap Intercreditor Agreement, protect and enforce its rights under this Agreement and the other Loan Documents by any appropriate proceedings, including proceedings for specific performance of any covenant or agreement contained in this Agreement or any other Loan Document, and the Administrative Agent and each Lender may, subject to the Swap Intercreditor Agreement, enforce payment of any Obligations due and payable hereunder or enforce any other legal or equitable right and remedies which it may have under this Agreement, any other Loan Document, or under applicable law or in equity.

Without limiting the generality of the foregoing, it is understood and agreed that if the maturity of the Loans shall be accelerated or the Loans otherwise become due prior to the Maturity Date (under any provision of this Article VIII or otherwise) a premium equal to the Make-Whole Amount or Applicable Premium (in each case, determined as if the Loans were repaid at the time of such acceleration at the option of the Borrower pursuant to Section 2.08 and as calculated by the Majority Lenders which, absent manifest error, shall be deemed conclusive) shall also become immediately due and payable and shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s lost profits as a result thereof. Any premium payable above shall be presumed to be the liquidated damages sustained by each Lender as the result of the early redemption and the Borrower agrees that it is reasonable under the circumstances currently existing. Without limiting the foregoing, any redemption, prepayment, repayment, or payment of the Obligations in or in connection with a Bankruptcy Event shall constitute an optional prepayment thereof under the terms of Section 2.06 and require the immediate payment of the Make-Whole Amount and Applicable Premium. Any premium payable pursuant to this Article VIII shall be presumed to be the liquidated damages sustained by each Lender as a result of the early redemption and the Credit Parties agree that it is reasonable under the circumstances currently existing. The premium shall also be payable in the event the Obligations are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means. THE BORROWER EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. The Borrower expressly agrees (to the fullest extent it may lawfully do so) that: (A) the premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between the Lenders and the Borrower giving specific consideration in this transaction for such agreement to pay the premium; and (D) the Borrower shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Borrower expressly acknowledges that its agreement to pay the premium to Lenders as herein described is a material inducement to Lenders to enter into this Agreement.

Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence and during the continuance of an Event of Default, the Borrower irrevocably waives the right to direct the application of any and all payments at any time or times thereafter received by Administrative Agent from or on behalf of Borrower or any Guarantor of all or any part of the Obligations, and, as between Borrower on the one hand and Administrative Agent and Lenders on the other, Administrative Agent shall, subject to the Swap Intercreditor Agreement, have the continuing and exclusive right to apply and to reapply any and all payments received against the Obligations in such manner as Administrative Agent may deem advisable notwithstanding any previous application by Administrative Agent.

Following the occurrence and during the continuance of an Event of Default, Administrative Agent shall, subject to the Swap Intercreditor Agreement, apply any and all payments received by Administrative Agent in respect of the Obligations, and any and all proceeds of Collateral received by Administrative Agent, in the following order: first , to all fees, costs, indemnities, liabilities, obligations and expenses incurred by or

 

Page 66


owing to Administrative Agent with respect to this Agreement, the other Loan Documents or the Collateral, second , to all fees, costs, indemnities and expenses incurred by or owing to any Lender with respect to this Agreement, the other Loan Documents or the Collateral, third , to accrued and unpaid interest on the Obligations, fourth , to the principal amount of the Obligations outstanding, and fifth , to any other indebtedness or obligations of Borrower owing to Administrative Agent or any Lender under the Loan Documents. Any balance remaining after giving effect to the applications set forth above shall be delivered to the Borrower or to whoever may be lawfully entitled to receive such balance or as a court of competent jurisdiction may direct. In carrying out any of the applications set forth herein, amounts received shall be applied in the numerical order provided until exhausted prior to the application to the next succeeding category.

ARTICLE IX.

THE ADMINISTRATIVE AGENT

Section 9.01     Appointment and Authority .

(a)    Each of the Lenders hereby irrevocably appoints Wilmington Trust, National Association, to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto.

(b)    The Administrative Agent shall also act as the “Collateral Agent” or “collateral agent” under the Loan Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Credit Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. All protections, exculpations, indemnifications, expense reimbursements, rights, powers and privileges provided to the Administrative Agent under this Agreement and the other Loan Documents shall also apply to the Administrative Agent acting in its capacity as “Collateral Agent” (or “collateral agent” as applicable) under the Loan Documents. In this connection, the Administrative Agent acting in its capacity as “Collateral Agent” (or “collateral agent” as applicable) and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent (in it capacity as “Collateral Agent” or “collateral agent”) pursuant to this Article IX for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Loan Documents, or for exercising any rights and remedies thereunder, shall be entitled to the benefits of all provisions of this Article IX and Article X (including, without limitation, Section 10.03 as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” or “Collateral Agent” under the Loan Documents) as if set forth in full herein with respect thereto.

Section 9.02     Rights as a Lender . The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity, if applicable, as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Credit Party or other Affiliate thereof as if it were not the Administrative Agent hereunder.

Section 9.03     Exculpatory Provisions . The duties of Administrative Agent shall be mechanical and administrative in nature. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein or in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing:

(a)    the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing,

 

Page 67


(b)    the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise as directed in writing by the Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02); provided that Administrative Agent shall not be required to take any action that, in its judgment or the judgment of its counsel, may expose Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and

(c)    except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Credit Party or any of their Affiliates that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity.

The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence of its own gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction.

The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, or any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Security Documents, (v) the value or the sufficiency of any Collateral or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall not be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Lender to whom payment was due but not made, shall be to recover from other Lenders any payment in excess of the amount to which they are determined to be entitled (and such other Lenders hereby agree to return to such Lender any such erroneous payments received by them).

Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term us used merely as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties. Each party to this Agreement acknowledges and agrees that the Administrative Agent and the Majority Lenders or the Majority Lenders may use an outside service provider for the tracking of all UCC financing statements or similar statements under the laws of any other jurisdiction required to be filed pursuant to the Loan Documents and notification to the Administrative Agent, the Majority Lenders or the Majority Lenders, as the case may be, of, among other things, the upcoming lapse or expiration thereof.

 

Page 68


Section 9.04     Reliance by Administrative Agent . The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received written notice to the contrary from such Lender prior to the making of such Loan.

The Administrative Agent may at any time request instructions from Lenders with respect to any actions or approvals which by the terms of this Agreement or of any of the Loan Documents the Administrative Agent is permitted or desires to take or to grant, and if such instructions are promptly requested, the Administrative Agent shall be absolutely entitled to refrain from taking any action or to withhold any approval and shall not be under any liability whatsoever to any Person for refraining from any action or withholding any approval under any of the Loan Documents until it shall have received such instructions from Majority Lenders or all or such other portion of Lenders as shall be prescribed by this Agreement. Without limiting the foregoing, no Lender shall have any right of action whatsoever against the Administrative Agent as a result of Administrative Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of the Majority Lenders (or all or such other portion of Lenders as shall be prescribed by this Agreement) and, notwithstanding the instructions of the Majority Lenders (or such other applicable portion of Lenders), the Administrative Agent shall have no obligation to take any action if it believes, in good faith, that such action would violate applicable law or exposes the Administrative Agent to any liability for which it has not received satisfactory indemnification in accordance with the provisions of Section  10.03 of this Agreement.

Section 9.05     Delegation of Duties . The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs, including those indemnification and expense reimbursement provisions in Section 10.03 of this Agreement, shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Administrative Agent shall not incur any liability for any action or inaction taken by a sub-agent except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.

Section 9.06     Collateral and Guaranty Matters . Subject to the Swap Intercreditor Agreement, each Lender hereby authorizes the Administrative Agent to release (or instruct the Collateral Agent to release) any Collateral that it is permitted to be sold or released pursuant to the terms of the Loan Documents (it being understood and agreed that the Administrative Agent may conclusively rely without further inquiry on a certificate of a Responsible Officer as to the sale or other disposition of property being made in full compliance with the provisions of the Loan Documents). Each Lender hereby authorizes the Administrative Agent to execute and deliver (or instruct the Collateral Agent to execute and deliver) to the Borrower, at the Borrower’s sole cost and expense, any and all releases of Liens, termination statements, assignments or other documents reasonably requested by the Borrower in connection with any Disposition of Collateral to the extent such Disposition is permitted by the terms of this Agreement or is otherwise authorized by the terms of the Loan Documents. Upon request by the Administrative Agent at any time, the Lenders will confirm the Administrative Agent’s authority to release and/or subordinate particular types or items of Collateral pursuant to this Article IX.

 

Page 69


The Administrative Agent shall have no obligation whatsoever to any Lender or any other person to investigate, confirm or assure that the Collateral exists or is owned by any Credit Party or is cared for, protected or insured or has been encumbered, or that any particular items of Collateral meet the eligibility criteria applicable in respect of the Loans hereunder, or that the liens and security interests granted to the Administrative Agent pursuant hereto or any of the Loan Documents or otherwise have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Administrative Agent in this Agreement or in any of the other Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the other terms and conditions contained herein, the Administrative Agent shall have no duty or liability whatsoever to any other Lender.

The Administrative Agent and each Lender hereby appoint each other as agent for the purpose of perfecting the Administrative Agent’s security interest in assets which, in accordance with the Uniform Commercial Code in any applicable jurisdiction, can be perfected by possession or control. Should any Lender (other than the Administrative Agent) obtain possession or control of any such assets, such Lender shall notify the Administrative Agent thereof, and, promptly upon the Administrative Agent’s request therefor, shall deliver such assets to the Administrative Agent or in accordance with the Administrative Agent’s instructions or transfer control to the Administrative Agent in accordance with the Administrative Agent’s instructions. Each Lender agrees that it will not have any right individually to enforce or seek to enforce any Security Instrument or to realize upon any Collateral for the Loans unless instructed to do so by the Administrative Agent (or consented to by Administrative Agent, as provided in Section 7.08), it being understood and agreed that such rights and remedies may be exercised only by Administrative Agent.

Section 9.07     Resignation and Removal of Administrative Agent .

(a)    The Administrative Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Majority Lenders shall have the right, with the consent of the Borrower (which consent shall not be unreasonably withheld or delayed), to appoint a successor; provided that no consent of the Borrower shall be required if any Event of Default has occurred and is continuing. If no successor shall have been so appointed by the Majority Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier date as shall be agreed by the Majority Lenders) (the “ Resignation Effective Date ”), then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank with an office in Chicago, Illinois or New York, New York, or an Affiliate of any such bank that is a financial institution. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor which shall include execution by such successor Administrative Agent of a Joinder Supplement (as defined in the Swap Intercreditor Agreement), such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent. If no successor administrative agent has accepted appointment as Administrative Agent by the date which is thirty (30) days following a retiring Administrative Agents notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective. For the avoidance of doubt, any resignation of the Administrative Agent shall also constitute a resignation of the Administrative Agent in its capacity as “Collateral Agent” or “collateral agent” under the Loan Documents.

(b)    The Majority Lenders may by notice to the Borrower remove the Administrative Agent and, in consultation with the Borrower, appoint a successor. If no successor administrative agent shall have been appointed by the Majority Lenders and shall have accepted such appointment within twenty (20) days (or such earlier date as shall be agreed by the Majority Lenders (the “ Removal Effective Date ”)) which acceptance shall include execution by such successor Administrative Agent of a Joinder Supplement (as

 

Page 70


defined in the Swap Intercreditor Agreement), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. For the avoidance of doubt, any removal of the Administrative Agent shall also constitute a removal of the Administrative Agent in its capacity as “Collateral Agent” or “collateral agent” under the Loan Documents, subject to the terms of the Swap Intercreditor Agreement.

(c)    With the effect of the Resignation Effective Date or the Removal Effective Date, the Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly and the Majority Lenders shall perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Majority Lenders appoint a successor as provided for above. After the Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section 10.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent.

Section 9.08     Non-Reliance on Administrative Agent and Other Lenders . Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and not investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder and in deciding whether or to the extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder.

Section 9.09     Administrative Agent May File Proofs of Claim . In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Borrower or any Subsidiary, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:

(a)    to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Indebtedness that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Section 10.03 of this Agreement allowed in such judicial proceeding); and

(b)    to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the

 

Page 71


Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and their agents and counsel, and any other amounts due the Administrative Agent under Section  10.03 .

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Indebtedness or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

Anything contained in any of the Loan Documents to the contrary notwithstanding, Borrower, Administrative Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Loan Documents may be exercised solely by Administrative Agent, for the benefit of the Secured Parties in accordance with the terms hereof and thereof and all powers, rights and remedies under the Security Documents may be exercised solely by the Administrative Agent for the benefit of the Secured Parties in accordance with the terms thereof, and (ii) in the event of a foreclosure or similar enforcement action by Administrative Agent on any of the Collateral pursuant to a public or private sale or other disposition (including, without limitation, pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), Administrative Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code,) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and Administrative Agent, as agent for and representative of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Majority Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by Administrative Agent at such sale or other disposition. The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Majority Lenders, to credit bid all or any portion of the Secured Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Secured Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 thereof, or any similar laws in any other jurisdictions to which a Credit Party is subject, (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Secured Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Secured Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Capital Stock or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Capital Stock thereof shall be governed, directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Majority Lenders contained in Section  10.02 ), (iii) the Administrative Agent shall be authorized to assign the relevant Secured Obligations to any such acquisition vehicle pro rata by the Lenders, as a result of which each of the Lenders shall be deemed to have received a pro rata portion of any Capital Stock and/or debt instruments issued by such an acquisition vehicle on account of the assignment of the Secured Obligations to be credit bid, all without the need for any Secured Party or acquisition vehicle to take any further action, and (iv) to the extent

 

Page 72


that Secured Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Secured Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Secured Obligations shall automatically be reassigned to the Lenders pro rata and the Capital Stock and/or debt instruments issued by any acquisition vehicle on account of the Secured Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.

ARTICLE X.

MISCELLANEOUS

Section 10.01     Notices .

(a)    Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy or email, as follows:

(i)    if to the Borrower, to Gastar Exploration Inc., 1331 Lamar, Suite 650, Houston, Texas 77010, Attention: Michael A. Gerlich, Senior Vice President and Chief Financial Officer, Facsimile No. (713) 739-0458, email: mgerlich@gastar.com and Trent Determann, Vice-President Finance, Facsimile No. (713) 739-0458, email: tdetermann@gastar.com ;

(ii)    if to the Administrative Agent, to Wilmington Trust, National Association, Rodney Square, 1100 North Market Street, Wilmington, DE 19890, Attention: Jennifer K. Anderson, Facsimile No. (302) 636-4145, email: JKAnderson@wilmingtontrust.com, with a copy to Arnold & Porter Kaye Scholer LLP, 250 West 55 th Street, New York, NY 10019, Attention: Alan Glantz, Facsimile No, (212) 836-6763, email: Alan.Glantz@APKS.com; and

(iii)    if to any other Lender, to its address (or telecopy number) set forth in its Administrative Questionnaire.

(b)    Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in their discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.

(c)    Any party hereto may change its address or telecopy number or email address for notices and other communications hereunder by written notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if received during the recipient’s normal business hours.

(d)    Borrower hereby acknowledges that (i) the Administrative Agent may make available to the Lenders materials and/or information provided by or on behalf of Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on SyndTrak, Intralinks or another similar electronic system (the “Platform”), (ii) the Administrative Agent may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or

 

Page 73


communications, and (iii) certain of the Lenders may be “public-side” Lenders (i.e., Lenders, or representatives thereof, that do not wish to receive material nonpublic information with respect to Borrower or its securities) (each, a “Public Lender”). Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC”, Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Borrower or its securities for purposes of United States Federal and state securities laws ( provided , however , that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.12); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor”; and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor”. Notwithstanding the foregoing, the following Borrower Materials shall be marked “PUBLIC”, unless Borrower notifies the Administrative Agent in writing promptly (after being given a reasonable opportunity to review such Borrower Materials) that any such document contains material non-public information: (1) the Loan Documents and (2) notification of changes in the terms of the Loan Documents.

(e)    THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY CREDIT PARTY, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY CREDIT PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL AND NON-APPEALABLE RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

Section 10.02     Waivers; Amendments .

(a)    No failure or delay by the Administrative Agent or any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of the Loans shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent or any Lender may have had notice or knowledge of such Default at the time.

 

Page 74


(b)    None of this Agreement, any other Loan Document or any provision hereof or thereof may be waived, amended or modified, and no consent to any departure by the Borrower or any other Credit Party therefrom shall be effective, except pursuant to an agreement or agreements in writing entered into by the Credit Parties and the Majority Lenders, and acknowledged by the Administrative Agent or Collateral Agent (as applicable), or by the Credit Parties and the Administrative Agent or Collateral Agent (as applicable) in each case with the consent of the Majority Lenders; provided that no such agreement shall:

(i)    increase the Commitment of any Lender without the written consent of such Lender;

(ii)    reduce the principal amount of any Loan or reduce the rate of interest thereon, or reduce any fees or premium payable hereunder, without the written consent of each Lender affected thereby;

(iii)    postpone the scheduled date of payment of the principal amount of any Loan, or any interest thereon, or any fees or premium payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any of the Aggregate Commitment, without the written consent of each Lender affected thereby (it being understood that any waiver of a mandatory prepayment of the Loans shall not constitute a postponement or waiver of a scheduled payment or date of expiration);

(iv)    change Section 2.13(b) or Section 2.13(c) in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender;

(v)    except in connection with any Dispositions permitted in Section 6.05, release any Guarantor from its obligations under Article VII or release any of the Collateral without the written consent of each Lender;

(vi)    change any of the provisions of this Section or the definition of “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; or

(vii)     change (x) the definition of “Qualified Counterparty”, “Secured Obligations”, “Secured Party” or “Swap Intercreditor Agreement” in any manner adverse to the Qualified Counterparties, (y) Section 6.08, or (z) Section 9.07 in any manner that would eliminate or waive the requirements for a successor administrative agent hereunder to execute and deliver a Joinder Supplement (as defined in the Swap Intercreditor Agreement), in either case, without the written consent of each Qualified Counterparty;

provided further that (i) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder without the prior written consent of the Administrative Agent and (ii) the Fee Letter may only be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto.

(c)    Notwithstanding anything to the contrary contained in this Section 10.02, the Administrative Agent may, with the consent of the Borrower only, amend, modify or supplement this Agreement or any of the other Loan Documents to correct any clerical errors or cure any ambiguity, omission, mistake, defect or inconsistency.

 

Page 75


Section 10.03     Expenses; Indemnity; Damage Waiver .

(a)    The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Majority Lenders and each of their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent and the Majority Lenders, in connection with the preparation and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof (whether or not the transactions contemplated hereby or thereby shall be consummated); provided that the Borrower’s obligation to pay such costs of the Majority Lenders (and not the Administrative Agent) incurred through the Effective Date is subject to, and included within, the cap set forth in Section 10.7 of the Securities Purchase Agreement, and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Majority Lenders or any other Lender, including the reasonable fees, charges and disbursements of any counsel for the Administrative Agent, the Majority Lenders or any other Lender, in connection with the enforcement or protection of its rights in connection with this Agreement, including its rights under this Section, or in connection with the Loans made hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans.

(b)    THE CREDIT PARTIES SHALL INDEMNIFY THE ADMINISTRATIVE AGENT, THE LEAD LENDER AND EACH OTHER LENDER, AND EACH RELATED PARTY OF ANY OF THE FOREGOING PERSONS (EACH SUCH PERSON BEING CALLED AN “ INDEMNITEE ”) AGAINST, AND HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND RELATED EXPENSES, INCLUDING THE FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR ANY INDEMNITEE, INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF (I) THE EXECUTION OR DELIVERY OF THIS AGREEMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE PERFORMANCE BY THE PARTIES HERETO OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS OR ANY OTHER TRANSACTIONS CONTEMPLATED HEREBY, (II) ANY LOAN OR THE USE OF THE PROCEEDS THEREFROM, (III) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED BY THE BORROWER OR ANY SUBSIDIARY, OR ANY OTHER ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO THE BORROWER OR ANY SUBSIDIARY, OR (IV) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER OR NOT SUCH CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING IS BROUGHT BY A CREDIT PARTY, ANY EQUITY HOLDERS OF A CREDIT PARTY, ANY AFFILIATES OF A CREDIT PARTY, ANY CREDITORS OF A CREDIT PARTY OR ANY OTHER THIRD PERSON AND WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO; PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR, SOLELY IN THE CASE OF A LENDER, FROM A CLAIM BROUGHT BY A CREDIT PARTY AGAINST SUCH LENDER FOR MATERIAL BREACH IN BAD FAITH OF SUCH LENDER’S OBLIGATIONS UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS. FOR THE AVOIDANCE OF DOUBT, WITH RESPECT TO THE FOREGOING PROVISO “ANY INDEMNITEE” MEANS ONLY THE INDEMNITEE OR INDEMNITEES, AS THE CASE MAY BE, THAT ARE DETERMINED BY SUCH COURT IN SUCH JUDGMENT TO HAVE BEEN GROSSLY NEGLIGENT OR TO HAVE ENGAGED IN WILLFUL MISCONDUCT OR, SOLELY IN THE CASE OF A LENDER, MATERIALLY BREACHED THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN BAD FAITH AND NOT ANY OTHER INDEMNITEE. THIS SECTION 10.03(b) SHALL NOT APPLY WITH RESPECT TO TAXES (WHICH ARE SUBJECT TO SECTION 2.12 HEREOF) OTHER THAN ANY TAXES THAT REPRESENT LOSSES, CLAIMS OR DAMAGES ARISING FROM ANY NON-TAX CLAIM.

 

Page 76


(c)    To the extent that any Credit Party fails to pay any amount required to be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party thereof under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent thereof) or such Related Party of the Administrative Agent, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought (or if such unreimbursed amount or indemnity payment is sought after the date on which the Loans have been paid in full, in accordance with such Lender’s Applicable Percentage immediately prior to the date on which the Loans are paid in full)) of such unpaid amount. If any indemnity furnished to Administrative Agent for any purpose shall, in the opinion of the Administrative Agent, be insufficient or become impaired, the Administrative Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against even if so directed by Majority Lenders, until such additional indemnity is furnished. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any source against any amount due to the Administrative Agent under this paragraph (c).

(d)    To the extent permitted by applicable law, no party hereto shall assert, and each such party hereby waives, any claim against any other party hereto on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, the Loans or the use of the proceeds thereof; provided that, nothing in this clause (d) shall relieve the Borrower of any obligation it may have to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party.

(e)    The Lenders acknowledge and agree that all indemnification obligations of the “Administrative Agent” to the “Collateral Agent” or any sub-agent thereof or any Related Party of the “Collateral Agent” or any sub-agent thereof under Section 19(b) of the Swap Intercreditor Agreement shall (i) notwithstanding anything to the contrary provided in the Swap Intercreditor Agreement, be obligations of the Lenders (and not the Administrative Agent) to the “Collateral Agent” and such other Persons (payable by the Lenders in accordance with their respective Applicable Percentages (determined as of the time that the indemnity payment is sought (or if such indemnity payment is sought after the date on which the Loans have been paid in full, in accordance with each Lender’s Applicable Percentage immediately prior to the date on which the Loans are paid in full)) and (ii) the Administrative Agent and the “Collateral Agent” under the Swap Intercreditor Agreement may directly enforce such indemnification obligations against the Lenders (and each Lender hereby authorizes the Administrative Agent and the “Collateral Agent” to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent or the “Collateral Agent” to the Lender from any source against any amount due to the “Collateral Agent” under this paragraph (e).

(f)    All amounts due under this Section shall be payable not later than 10 days after written demand therefor.

(g)    The agreements in this Section 10.03 shall survive the resignation or removal of the Administrative Agent, the replacement of any Lender, the termination of this Agreement and the repayment, satisfaction or discharge of the Secured Obligations.

Section 10.04     Successors and Assigns .

(a)    The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) no Credit Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender and the Administrative Agent (and any attempted assignment or transfer by such Credit Party without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or

 

Page 77


obligations hereunder except in accordance with this Section. Except as set forth in Section 10.22 below, nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b)    

(i)    Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Persons (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of (A) the Administrative Agent and (B) if no Event of Default has occurred and is continuing, the Borrower.

(ii)    Assignments shall be subject to the following additional conditions:

(A)    except in the case of an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;

(B)    each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of such Lender’s Commitment and such Lender’s Loans under this Agreement;

(C)    the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; and

(D)    the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and any tax forms required under Section 2.12.

For the purposes of this Section 10.04(b), the term “ Approved Fund ” and “ Ineligible Institution ” have the following meanings:

Approved Fund ” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Ineligible Institution ” means a (a) natural person, (b) company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof or (c) or the Borrower or any of its Affiliates.

 

Page 78


(iii)    Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 2.11, Section 2.12 and Section 10.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section except that any attempted assignment or transfer by any Lender that does not comply with clause (C) of Section 10.04(b)(ii) shall be null and void.

(iv)    The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment and the Applicable Percentage of, and principal amount (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”). The entries in the Register shall be conclusive, and the Credit Parties, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Credit Parties and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

(v)    Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and any applicable tax forms (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section, and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.04, Section 2.13(d) or Section 10.03(c), the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.

(c)    

(i)    Any Lender may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more banks or other entities (a “ Participant ”), other than an Ineligible Institution, in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent, and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to

 

Page 79


any amendment, modification or waiver described in the first proviso to Section 10.02(b) that affects such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Section 2.11 and Section 2.12 (subject to the requirements and limitations therein, including the requirements under Section 2.12(f) (it being understood, however, that the documentation required under Section 2.12(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant shall not be entitled to receive any greater payment under Section 2.11 or Section 2.12, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided that such Participant agrees to be subject to Section 2.13(c) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(d)    Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank or other central banking authority, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(e)    The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Ineligible Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is an Ineligible Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Ineligible Institution.

Section 10.05     Survival . All covenants, agreements, representations and warranties made by the Credit Parties herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee, premium or any other amount payable under this Agreement is outstanding and so long as the Aggregate Commitment has not expired or terminated. The provisions of Section 2.11, Section 2.12, Section 10.03, Section 10.22, Article VII and Article IX shall survive and remain

 

Page 80


in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Aggregate Commitment or the termination of this Agreement or any provision hereof.

Section 10.06      Counterparts; Integration; Effectiveness; Electronic Execution .

(a)    This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES . This Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.

(b)    Delivery of an executed counterpart of a signature page of this Agreement by telecopy, emailed pdf. or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

Section 10.07      Severability . Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

Section 10.08      Right of Setoff . If an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against any of and all the obligations of any Credit Party now or hereafter existing under this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement and although such obligations may be unmatured. The rights of each Lender under this Section and Section 7.08 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.

 

Page 81


Section 10.09     GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS .

(a)    THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.

(b)    EACH CREDIT PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY, BOROUGH OF MANHATTAN, AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AGAINST ANY CREDIT PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(c)    EACH CREDIT PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

(d)    EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.01. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

Section 10.10      WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

Section 10.11      Headings . Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

 

Page 82


Section 10.12      Confidentiality . Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by Requirements of Law or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Credit Parties and their obligations, (g) with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from a source other than a Credit Party. For the purposes of this Section, “ Information ” means all information received from any Credit Party relating to any Credit Party or its business, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by any Credit Party; provided that, in the case of information received from any Credit Party after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

Section 10.13      Material Non-Public Information .

(a)    EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 10.12 FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.

(b)    ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER, THE CREDIT PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.

Section 10.14      Authorization to Distribute Certain Materials to Public-Siders .

(a)    If the Borrower does not file this Agreement with the SEC, then the Borrower hereby authorizes the Administrative Agent to distribute the execution version of this Agreement and the Loan Documents to all Lenders, including their Public-Siders. The Borrower acknowledges its understanding that Public-Siders and their firms may be trading in any of the Parties’ respective securities while in possession of the Loan Documents.

 

Page 83


(b)    The Borrower represents and warrants that none of the information in the Loan Documents constitutes or contains material non-public information within the meaning of the federal and state securities laws. To the extent that any of the executed Loan Documents constitutes at any time a material non-public information within the meaning of the federal and state securities laws after the date hereof, the Borrower agrees that it will promptly make such information publicly available by press release or public filing with the SEC.

Section 10.15      Interest Rate Limitation . Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the “ Charges ”), shall exceed the maximum lawful rate (the “ Maximum Rate ”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender. In the event that, notwithstanding Section 10.09, applicable law is the law of the State of Texas and such applicable law provides for an interest ceiling under Chapter 303 of the Texas Finance Code (the “ Texas Finance Code ”) as amended, for each day, the ceiling shall be the “weekly ceiling” as defined in the Texas Finance Code and shall be used in this Note and the other Loan Documents for calculating the Maximum Rate and for all other purposes. Chapter 346 of the Texas Finance Code (which regulates certain revolving credit accounts (formerly Tex. Rev. Civ. Stat. Ann. Art. 5069, Ch. 15)) shall not apply to this Agreement or to any Loan, nor shall this Agreement or any Loan be governed by or be subject to the provisions of such Chapter 346 in any manner whatsoever.

Section 10.16      USA PATRIOT Act . Each Lender that is subject to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”) and the Administrative Agent hereby notifies each Credit Party that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies each Credit Party, which information includes the name and address of each Credit Party and other information that will allow such Lender or the Administrative Agent to identify each Credit Party in accordance with the Act.

Section 10.17      Release of Guarantees and Liens .

(a)    At such time as the Loans and the other obligations under the Loan Documents (other than contingent indemnification obligations) shall have been paid in full and the Aggregate Commitment has been terminated, the Collateral shall, subject to the Swap Intercreditor Agreement, be released from the Liens created by the Security Documents, and the Security Documents and all obligations (other than those expressly stated to survive such termination) of each Credit Party under the Security Documents shall terminate, all without delivery of any instrument or performance of any act by any Person; and

(b)    If any of the Collateral shall be sold, transferred or otherwise disposed of by the Borrower or any Subsidiary in a transaction permitted by this Agreement, then the Administrative Agent, at the request and sole expense of the Borrower or any Subsidiary, shall, subject to the Swap Intercreditor Agreement, execute and deliver to the Borrower or any Subsidiary all releases or other documents reasonably necessary or desirable for the release of the Liens created by the Security Documents on such Collateral. At the request and sole expense of the Borrower, a Guarantor shall be released from its obligations hereunder and, subject

 

Page 84


to the Swap Intercreditor Agreement, under the other Security Documents in the event that all the Capital Stock of such Guarantor shall be Disposed of in a transaction permitted by this Agreement; provided that, in the case of this sentence and the immediately prior sentence, the Borrower shall have delivered to the Administrative Agent, at least five (5) Business Days prior to the date of the proposed release, a written request for release identifying the relevant Guarantor and the terms of the Disposition in reasonable detail, including the price thereof and any anticipated expenses in connection therewith, together with a certification by the Borrower stating that such transaction is in compliance with this Agreement and the other Loan Documents (and the Lenders hereby authorize and direct the Administrative Agent to conclusively rely on such certifications in performing its obligations under this Section 10.17).

Section 10.18      Amendment and Restatement .

(a)    On the Effective Date, the Existing Credit Agreement shall be amended and restated in its entirety by this Agreement, and the Existing Credit Agreement shall thereafter be of no further force and effect, except that the Borrower, the Guarantors, the Administrative Agent and the Lenders agree that (i) the incurrence by the Borrower of “Obligations” under and as defined in the Existing Credit Agreement (whether or not such “Obligations” are contingent as of the Effective Date) shall continue to exist under and be evidenced by this Agreement and the other Loan Documents and (ii) except as expressly stated herein or otherwise amended, the other Loan Documents are ratified and confirmed as remaining unmodified and in full force and effect with respect to all Obligations. This Agreement is not in any way intended to constitute a novation of the obligations and liabilities existing under the Existing Credit Agreement or evidence payment of all or any portion of such obligations and liabilities. Each Lender, by delivering its signature page hereto and funding its Loans on the Effective Date, shall be deemed hereby to accept an assignment and assumption of its Applicable Percentage of the “Obligations” under and as defined in the Existing Credit Agreement which, for the avoidance of doubt, is a part of and not in addition to such Lender’s Commitment as reflected on Schedule 2.01 hereto.

(b)    The terms and conditions of this Agreement and the Administrative Agent’s and the Lenders’ rights and remedies under this Agreement and the other Loan Documents shall apply to all of the Indebtedness incurred under the Existing Credit Agreement.

(c)    On and after the Effective Date, (i) all references to the Existing Credit Agreement (or to any amendment or any amendment and restatement thereof) in the Loan Documents (other than this Agreement) shall be deemed to refer to the Existing Credit Agreement, as amended and restated hereby (as it may be further amended, modified or restated) and (ii) all references to any section (or subsection) of the Existing Credit Agreement or in any Loan Document (but not herein) shall be amended to become, mutatis mutandis , references to the corresponding provisions of this Agreement.

(d)    Except as expressly provided herein or in any other Loan Document, all terms and conditions of the Loan Documents remain in full force and effect unless specifically amended hereby or by any other Loan Document.

Section 10.19      Swap Intercreditor Agreement . In the event of a conflict between the provisions of any of the Loan Documents and the provisions of the Swap Intercreditor Agreement, the provisions of the Swap Intercreditor Agreement shall govern and control.

Section 10.20      INTERCREDITOR AGREEMENTS . REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT AND THE SWAP INTERCREDITOR AGREEMENT. EACH LENDER HEREUNDER (a) CONSENTS TO THE TERMS OF THE INTERCREDITOR AGREEMENT AND THE SWAP INTERCREDITOR AGREEMENT, (b) AGREES THAT IT WILL BE BOUND BY AND WILL TAKE NO ACTIONS CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND THE SWAP INTERCREDITOR AGREEMENT AND (c) AUTHORIZES AND

 

Page 85


DIRECTS THE ADMINISTRATIVE AGENT (IN ITS CAPACITY AS “PRIORITY LIEN AGENT” UNDER THE INTERCREDITOR AGREEMENT AND IN ITS CAPACITIES AS “ADMINISTRATIVE AGENT” AND “COLLATERAL AGENT” UNDER THE SWAP INTERCREDITOR AGREEMENT) TO ENTER INTO THE INTERCREDITOR AGREEMENT AND THE SWAP INTERCREDITOR AGREEMENT ON BEHALF OF SUCH LENDER. THE PROVISIONS OF THIS SECTION 10.20 ARE NOT INTENDED TO SUMMARIZE ALL RELEVANT PROVISIONS OF THE INTERCREDITOR AGREEMENT AND THE SWAP INTERCREDITOR AGREEMENT. REFERENCE MUST BE MADE TO EACH OF THE INTERCREDITOR AGREEMENT AND THE SWAP INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF. EACH LENDER IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE INTERCREDITOR AGREEMENT AND THE SWAP INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION TO ANY LENDER AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR AGREEMENT OR THE SWAP INTERCREDITOR AGREEMENT.

Section 10.21      Master Assignment . Each of the Lenders party hereto hereby (a) ratifies the appointment of Wilmington Trust as “Mortgagee,” “Secured Party” or “Grantee”, as applicable, under each of the Mortgages, and as “Administrative Agent,” the “Collateral Agent,” and a “Secured Party” under the Security Instruments and in any other equivalent capacity under each other Loan Document and Security Instrument (with terms defined in this clause (a) having the meanings provided in the Master Assignment), (b) acknowledges and agrees to the terms and provisions of the Master Assignment (including the collateral release and assignment provisions set forth in Section 14 of the Master Assignment) and (c) agrees to be bound by the release provisions of Section 14 of the Master Assignment.

Section 10.22      Limited Third Party Beneficiaries . The parties hereto acknowledge and agree that each Secured Party not party to this Agreement (including, for the avoidance of doubt, the Collateral Agent and each Qualified Counterparty and each Initial Swap ISDA Counterparty satisfying the definition of “Secured Party” hereunder) shall be an express third party beneficiary under Article VII and Section 10.20 of this Agreement and, as such, Article VII and Section 10.20 of this Agreement will inure to the benefit of each such Secured Party and be enforceable by each such Secured Party and its respective successors and assigns.

[Signature Page Follows]

 

Page 86


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

 

BORROWER :
GASTAR EXPLORATION INC.
By:  

/s/ J. Russell Porter

Name:   J. Russell Porter
Title:   President and Chief Executive Officer
GUARANTORS :
NORTHWEST PROPERTY VENTURES LLC
By:  

/s/ J. Russell Porter

Name:   J. Russell Porter
Title:   President and Chief Executive Officer

 

Signature Page to

Gastar Exploration Inc. Credit Agreement


WILMINGTON TRUST, NATIONAL ASSOCIATION , as Administrative Agent
By:  

/s/ Jennifer Anderson

Name:   Jennifer Anderson
Title:   Assistant Vice President

 

Signature Page to

Gastar Exploration Inc. Credit Agreement


AF V Energy I Holdings, L.P . , as a Lender
By:  

/s/ Jesse Yanocha

Name:   Jesse Yanocha
Title:   Authorized Signatory

 

Signature Page to

Gastar Exploration Inc. Credit Agreement


EXHIBIT A

ASSIGNMENT AND ASSUMPTION

This Assignment and Assumption (the “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “ Assignor ”) and [Insert name of Assignee] (the “ Assignee ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the Credit Agreement (including any guarantees included in the Credit Agreement) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “ Assigned Interest ”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.

 

1.   Assignor:                                                                
2.   Assignee:                                                                
    [and is an Affiliate/Approved Fund of [identify Lender]]
3.   Borrower:   Gastar Exploration Inc.
4.   Administrative Agent:   Wilmington Trust, National Association, as the administrative agent under the Credit Agreement
5.   Credit Agreement:   Third Amended and Restated Credit Agreement, dated as of March 3, 2017 among Gastar Exploration Inc., as Borrower, certain Subsidiaries of Borrower, as Guarantors, the Lenders party thereto, and Wilmington Trust, National Association, as Administrative Agent
6.   Assigned Interest:  

 

Aggregate Commitment/Loans for

all Lenders

   Amount of Commitment/Loans
Assigned
     Applicable Percentage of
Commitment/Loans

$            

   $                       %

$            

   $                       %

$            

   $                       %

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT A – PAGE 1


Effective Date:                  , 20    

The terms set forth in this Assignment and Assumption are hereby agreed to:

 

ASSIGNOR
[NAME OF ASSIGNOR]
By:  

 

Title:  
ASSIGNEE
[NAME OF ASSIGNEE]
By:  

 

Title:  

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT A – PAGE 2


[Consented to and] Accepted:
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Administrative Agent
By:  

 

Title:  
[Consented to:]
GASTAR EXPLORATION INC.
By:  

 

Title:  

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT A – PAGE 3


ANNEX 1

Third Amended and Restated Credit Agreement dated as of March 3, 2017 among Gastar Exploration Inc., as Borrower, certain Subsidiaries of Borrower, as Guarantors, the Lenders party thereto and Wilmington Trust, National Association, as Administrative Agent.

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION

1.    Representations and Warranties.

1.1     Assignor . The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any Collateral thereunder, (iii) the financial condition of the Borrower, any Subsidiary or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any Subsidiary or Affiliates or any other Person of any of their respective obligations under any Loan Document.

1.2     Assignee . The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it is not an Ineligible Institution and satisfies all other requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, and (v) if it is a Foreign Lender, attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

2.     Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.

3.     General Provisions . This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Acceptance and

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – ANNEX 1 OF EXHIBIT A – PAGE 1


adoption of the terms of this Assignment and Assumption by the Assignee and the Assignor by Electronic Signature or delivery of an executed counterpart of a signature page of this Assignment and Assumption by any Electronic System shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – ANNEX 1 OF EXHIBIT A – PAGE 2


EXHIBIT B

FORM OF BORROWING REQUEST

Wilmington Trust, National Association, as Administrative Agent

1100 North Market Street

Wilmington, DE 19890

Attn: Jennifer K. Anderson

Fax No.: (302) 636-4145

Email address: jkanderson@wilmingtontrust.com

[Date]                     

Ladies and Gentlemen:

The undersigned, GASTAR EXPLORATION INC., a Delaware corporation (the “ Borrower ”), refers to that certain Credit Agreement, dated as of March 3, 2017 (as may be amended, restated, amended and restated, replaced, refinanced, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among the Borrower, the Guarantors from time to time party thereto, the Lenders from time to time party thereto, and Wilmington Trust, National Association, as administrative agent for the Lenders (in such capacity, including any successor thereto, the “ Administrative Agent ”). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.

The Borrower hereby gives you notice pursuant to Section 2.03 of the Credit Agreement that it requests a borrowing of Loans under the Credit Agreement, and in connection therewith sets forth below the terms on which such borrowing is requested to be made:

 

(A)   Date of Borrowing
  (which is a Business Day)                                                                          
(B)   Principal Amount of Borrowing                                         
(C)  

Fundsare requested to be disbursed to the following account of Borrower:

 

 

  
 

 

  
 

 

  

[Remainder of page intentionally left blank]

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT B – PAGE 1


GASTAR EXPLORATION INC.
By:  

 

Name:  
Title:  

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT B – PAGE 2


EXHIBIT C

COUNTERPART AGREEMENT

This COUNTERPART AGREEMENT, dated [                    ] (this Counterpart Agreement ) is delivered pursuant to that certain Third Amended and Restated Credit Agreement, dated as of March 3, 2017 (as it may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Gastar Exploration Inc., as Borrower, certain Subsidiaries of Borrower, as Guarantors, the Lenders party thereto, and Wilmington Trust, National Association, as Administrative Agent (the “ Administrative Agent ”).

Section  1. Pursuant to Section 5.14 of the Credit Agreement, the undersigned hereby:

(a)     agrees that this Counterpart Agreement may be attached to the Credit Agreement and that by the execution and delivery hereof, the undersigned becomes a Guarantor under the Credit Agreement and agrees to be bound by all of the terms thereof;

(b)    represents and warrants that each of the representations and warranties set forth in the Credit Agreement and each other Loan Document and applicable to the undersigned is true and correct in all material respects both before and after giving effect to this Counterpart Agreement (other than those representations and warranties that are subject to a materiality qualifier, in which case such representations and warranties shall be true and correct in all respects), except to the extent that any such representation and warranty relates solely to any earlier date, in which case such representation and warranty is true and correct in all material respect as of such earlier date (other than those representations and warranties that are subject to a materiality qualifier, in which case such representations and warranties shall be true and correct in all respects as of such earlier date), if applicable to the undersigned;

(c)    certifies that no Default has occurred or is continuing as of the Effective Date, or will result from the transactions contemplated hereby;

(d)    agrees to irrevocably and unconditionally guaranty the due and punctual payment in full of all Obligations when the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)) and in accordance with Article VII of the Credit Agreement; and

(e)    (i) agrees that this counterpart may also be attached to the Security Agreement, (ii) agrees that the undersigned will comply with all the terms and conditions of the Security Agreement as if it were an original signatory thereto, (iii) grants to the Administrative Agent a security interest in all of the undersigned’s right, title and interest in and to all “Collateral” (as such term is defined in the Security Agreement) of the undersigned, in each case whether now or hereafter existing or in which the undersigned now has or hereafter acquires an interest and wherever the same may be located and (iv) delivers to the Administrative Agent supplements to all schedules attached to the Security Agreement. All such Collateral shall be deemed to be part of the “Collateral” and hereafter subject to each of the terms and conditions of the Security Agreement.

Section  2. The undersigned agrees from time to time, upon request of the Administrative Agent, to take such additional actions and to execute and deliver such additional documents and instruments as the Administrative Agent may reasonably request to effect the transactions contemplated by, and to carry out the intent of, this Counterpart Agreement. Neither this Counterpart Agreement nor any term hereof may be changed, waived, discharged or terminated, except by an instrument in writing signed by the party (including, if applicable, any party required to evidence its consent to or acceptance of this Counterpart Agreement) against whom

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT C – PAGE 1


enforcement of such change, waiver, discharge or termination is sought. Any notice or other communication herein required or permitted to be given shall be given pursuant to Section 11.01 of the Credit Agreement, and for all purposes thereof, the notice address of the undersigned shall be the address as set forth on the signature page hereof. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT C – PAGE 2


IN WITNESS WHEREOF , the undersigned has caused this Counterpart Agreement to be duly executed and delivered by its duly authorized officer as of the date above first written.

 

[NAME OF SUBSIDIARY]
By:  

 

Name:  
Title:  

Address for Notices:

 

                    

                    

                    

Attention:                     

Telecopier:                     

with a copy to:

 

                    

                    

                    

Attention:                     

Telecopier:                     

 

ACKNOWLEDGED AND ACCEPTED,

as of the date above first written:

WILMINGTON TRUST, NATIONAL ASSOCIATION ,

as Administrative Agent

By:  

 

Name:  
Title:  

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT C – PAGE 3


EXHIBIT D

FORM OF INTERCREDITOR AGREEMENT

(See Attached)

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT D – PAGE 1


EXHIBIT E

FORM OF MORTGAGE

(See Attached)

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT E – PAGE 1


EXHIBIT F

FORM OF SECURITY AGREEMENT

(See Attached)

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT F – PAGE 1


EXHIBIT G

NOTE

 

New York, New York                ,         

FOR VALUE RECEIVED, the undersigned GASTAR EXPLORATION INC., a Delaware corporation (“ Borrower ”) hereby unconditionally promises to pay to                      (the “ Lender ”) or its registered assigns the principal sum equal to its Commitment as set forth in the Credit Agreement (as hereinafter defined), or, if greater or less, the aggregate unpaid principal amount of the Loans advanced by Lender to Borrower pursuant to the terms of the Credit Agreement, together with interest on the unpaid principal balance thereof as set forth in the Credit Agreement, both principal and interest payable as therein provided in lawful money of the United States of America at the offices of Administrative Agent provided in Section 11.01 of the Credit Agreement, or at such other place, as from time to time may be designated by Administrative Agent in accordance with the Credit Agreement.

The principal and all accrued interest on this Note shall be due and payable in accordance with the terms and provisions of the Credit Agreement. This Note is executed pursuant to that certain Third Amended and Restated Credit Agreement dated as of March 3, 2017, among Borrower, certain Subsidiaries of Borrower, as Guarantors, the Administrative Agent and the Lenders party thereto (as amended, modified, supplemented or restated from time to time, the “ Credit Agreement ”; the terms defined therein and not otherwise defined herein being used herein as therein defined), is one of the promissory notes referred to in Section 2.05(e) therein and is secured by the Security Documents. Reference is made to the Credit Agreement and the Loan Documents for a statement of prepayment rights and obligations of Borrower, for a statement of the terms and conditions under which the due date of this Note may be accelerated and for statements regarding other matters affecting this Note (including without limitation principal and interest payment due dates, voluntary and mandatory prepayments, exercise of rights and remedies, payment of attorneys’ fees, court costs and other costs of collection and certain waivers by Borrower and others now or hereafter obligated for payment of any sums due hereunder). Upon the occurrence of an Event of Default, the Administrative Agent may declare forthwith to be entirely and immediately due and payable the principal balance hereof and the interest accrued hereon, and the Lender shall have all rights and remedies of the Lender under the Credit Agreement and the other Loan Documents. This Note may be prepaid in accordance with the terms and provisions of the Credit Agreement.

Regardless of any provision contained in this Note, the holder hereof shall never be entitled to receive, collect or apply, as interest on this Note, any amount in excess of the Maximum Rate, and, if the holder hereof ever receives, collects, or applies as interest, any such amount which would be excessive interest, it shall be deemed a partial prepayment of principal and treated hereunder as such; and, if the indebtedness evidenced hereby is paid in full, any remaining excess shall forthwith be paid to Borrower. In determining whether or not the interest paid or payable, under any specific contingency, exceeds the Maximum Rate, Borrower and the holder hereof shall, to the maximum extent permitted under applicable law (i) characterize any non-principal payment as an expense, fee or premium rather than as interest, (ii) exclude voluntary prepayments and the effects thereof, and (iii) spread the total amount of interest throughout the entire contemplated term of the obligations evidenced by this Note and/or referred to in the Credit Agreement so that the interest rate is uniform throughout the entire term of this Note; provided that, if this Note is paid and performed in full prior to the end of the full contemplated term thereof; and if the interest received for the actual period of existence thereof exceeds the Maximum Rate, the holder hereof shall refund to Borrower the amount of such excess or credit the amount of such excess against the indebtedness evidenced hereby, and, in such event, the holder hereof shall not be subject to any penalties provided by any laws for contracting for, charging, taking, reserving or receiving interest in excess of the Maximum Rate.

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT G – PAGE 1


If any payment of principal or interest on this Note shall become due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall in such case be included in computing interest in connection with such payment.

If this Note is placed in the hands of an attorney for collection, or if it is collected through any legal proceeding at law or in equity or in bankruptcy, receivership or other court proceedings, Borrower agrees to pay all costs of collection, including, but not limited to, court costs and reasonable attorneys’ fees.

Borrower and each surety, endorser, guarantor and other party ever liable for payment of any sums of money payable on this Note, jointly and severally waive presentment and demand for payment, notice of intention to accelerate the maturity, protest, notice of protest and nonpayment, as to this Note and as to each and all installments hereof, and agree that their liability under this Note shall not be affected by any renewal or extension in the time of payment hereof, or in any indulgences, or by any release or change in any security for the payment of this Note, and hereby consent to any and all such renewals, extensions, indulgences, releases or changes.

This Note shall be governed by and construed in accordance with the applicable laws of the United States of America and the laws of the State of New York.

THIS NOTE, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENTS AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT G – PAGE 2


EXECUTED as of the date and year first above written.

 

BORROWER :
GASTAR EXPLORATION INC.
By:  

 

Name:  
Title:  

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT G – PAGE 3


EXHIBIT H-1

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is made to the Third Amended and Restated Credit Agreement, dated as of March 3, 2017 (as it may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”), by and among Gastar Exploration Inc., as Borrower, certain Subsidiaries of Borrower, as Guarantors, the Lenders party thereto, and Wilmington Trust, National Association, as Administrative Agent.

Pursuant to the provisions of Section 2.12 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any promissory note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E (or applicable successor form). By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement

 

[NAME OF LENDER]
By:  

 

Name:  
Title:  
Date:                  , 20[    ]

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT H-1 – PAGE 1


EXHIBIT H-2

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is made to the Third Amended and Restated Credit Agreement, dated as of March 3, 2017 (as it may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”), by and among Gastar Exploration Inc., as Borrower, certain Subsidiaries of Borrower, as Guarantors, the Lenders party thereto, and Wilmington Trust, National Association, as Administrative Agent.

Pursuant to the provisions of Section 2.12 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E (or applicable successor form). By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF PARTICIPANT]
By:  

 

Name:  
Title:  
Date:                  , 20[    ]

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT H-2 – PAGE 1


EXHIBIT H-3

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is made to the Third Amended and Restated Credit Agreement, dated as of March 3, 2017 (as it may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”), by and among Gastar Exploration Inc., as Borrower, certain Subsidiaries of Borrower, as Guarantors, the Lenders party thereto, and Wilmington Trust, National Association, as Administrative Agent.

Pursuant to the provisions of Section 2.12 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Lender with IRS Form W-8IMY (or applicable successor form) accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E (or applicable successor form) or (ii) an IRS Form W-8IMY (or applicable successor form) accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E (or applicable successor form) from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF LENDER]
By:  

 

Name:  
Title:  
Date:                  , 20[    ]

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT H-3 – PAGE 1


EXHIBIT H-4

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is made to the Third Amended and Restated Credit Agreement, dated as of March 3, 2017 (as it may be amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”), by and among Gastar Exploration Inc., as Borrower, certain Subsidiaries of Borrower, as Guarantors, the Lenders party thereto, and Wilmington Trust, National Association, as Administrative Agent.

Pursuant to the provisions of Section 2.12 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any promissory note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any promissory note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY (or applicable successor form) accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E (or applicable successor form) or (ii) an IRS Form W-8IMY (or applicable successor form) accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E (or applicable successor form) from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF LENDER]
By:  

 

Name:  
Title:  
Date:                  , 20[    ]

 

GASTAR EXPLORATION INC. CREDIT AGREEMENT – EXHIBIT H-4 – PAGE 1


SCHEDULE 2.01

COMMITMENTS

 

Lender

   Commitment      Percent of Aggregate
Commitment
 

AF V Energy I Holdings, L.P.

   $ 250,000,000.00        100
  

 

 

    

 

 

 

TOTAL:

   $ 250,000,000.00        100
  

 

 

    

 

 

 

Exhibit 10.4

 

 

 

INTERCREDITOR AGREEMENT

dated as of March 3, 2017 between

Wilmington Trust, National Association ,

as Priority Lien Agent,

and

Wilmington Trust, National Association ,

as Second Lien Agent

 

 

THIS IS THE INTERCREDITOR AGREEMENT REFERRED TO IN (A) THE INDENTURE DATED AS OF MARCH 3, 2017, AMONG GASTAR EXPLORATION INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY THERETO AND WILMINGTON TRUST, NATIONAL ASSOCIATION, AS TRUSTEE AND COLLATERAL TRUSTEE, (B) THE THIRD AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF MARCH 3, 2017, AS AMENDED, SUPPLEMENTED, RESTATED OR OTHERWISE MODIFIED FROM TIME TO TIME, AMONG GASTAR EXPLORATION INC., THE LENDERS FROM TIME TO TIME PARTY THERETO AND WILMINGTON TRUST, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT, (C) THE OTHER LOAN DOCUMENTS REFERRED TO IN SUCH CREDIT AGREEMENT AND (D) THE OTHER COLLATERAL AGREEMENTS REFERRED TO IN SUCH INDENTURE.

 

 

 


TABLE OF CONTENTS

 

         Page  
ARTICLE I DEFINITIONS  

SECTION 1.01

 

Construction; Certain Defined Terms

     1  
ARTICLE II LIEN PRIORITIES  

SECTION 2.01

 

Relative Priorities

     10  

SECTION 2.02

 

Prohibition on Marshalling, Etc.

     11  

SECTION 2.03

 

No New Liens

     11  

SECTION 2.04

 

Similar Collateral and Agreements

     11  
ARTICLE III ENFORCEMENT RIGHTS; PURCHASE OPTION  

SECTION 3.01

 

Limitation on Enforcement Action

     12  

SECTION 3.02

 

Standstill Periods; Permitted Enforcement Action

     12  

SECTION 3.03

 

Insurance

     14  

SECTION 3.04

 

Notification of Release of Collateral, Enforcement Action and Default

     14  

SECTION 3.05

 

No Interference; Payment Over

     15  

SECTION 3.06

 

Purchase Option

     16  
ARTICLE IV OTHER AGREEMENTS  

SECTION 4.01

 

Release of Liens; Automatic Release of Second Liens

     19  

SECTION 4.02

 

Certain Agreements With Respect to Insolvency or Liquidation Proceedings

     20  

SECTION 4.03

 

Reinstatement

     22  

SECTION 4.04

 

Refinancings

     23  

SECTION 4.05

 

Amendments to Priority Lien Documents and Second Lien Documents

     23  

SECTION 4.06

 

Legends

     25  

SECTION 4.07

 

Second Lien Secured Parties Rights as Unsecured Creditors; Judgment Lien Creditor

     25  

SECTION 4.08

 

Postponement of Subrogation

     25  

SECTION 4.09

 

Acknowledgment by the Secured Debt Representatives

     25  
ARTICLE V GRATUITOUS BAILMENT FOR PERFECTION OF CERTAIN SECURITY INTERESTS  

SECTION 5.01

 

General

     26  

SECTION 5.02

 

Deposit Accounts

     26  
ARTICLE VI APPLICATION OF PROCEEDS; DETERMINATION OF AMOUNTS  

SECTION 6.01

 

Application of Proceeds

     27  

SECTION 6.02

 

Determination of Amounts

     27  

 

i


ARTICLE VII NO RELIANCE; NO LIABILITY; OBLIGATIONS ABSOLUTE;  
CONSENT OF GRANTORS; ETC.  

SECTION 7.01

 

No Reliance; Information

     28  

SECTION 7.02

 

No Warranties or Liability

     28  

SECTION 7.03

 

Obligations Absolute

     29  

SECTION 7.04

 

Grantors Consent

     29  
ARTICLE VIII REPRESENTATIONS AND WARRANTIES  

SECTION 8.01

 

Representations and Warranties of Each Party

     30  

SECTION 8.02

 

Representations and Warranties of Each Representative

     30  
ARTICLE IX MISCELLANEOUS  

SECTION 9.01

 

Notices

     30  

SECTION 9.02

 

Waivers; Amendment

     31  

SECTION 9.03

 

Actions Upon Breach; Specific Performance

     31  

SECTION 9.04

 

Parties in Interest

     32  

SECTION 9.05

 

Survival of Agreement

     32  

SECTION 9.06

 

Counterparts

     32  

SECTION 9.07

 

Severability

     32  

SECTION 9.08

 

Governing Law; Jurisdiction; Consent to Service of Process

     32  

SECTION 9.09

 

WAIVER OF JURY TRIAL

     33  

SECTION 9.10

 

Headings

     33  

SECTION 9.11

 

Conflicts

     33  

SECTION 9.12

 

Provisions Solely to Define Relative Rights

     33  

SECTION 9.13

 

Certain Terms Concerning the Second Lien Agent

     34  

SECTION 9.14

 

Certain Terms Concerning the Priority Lien Agent and the Second Lien Agent

     34  

SECTION 9.15

 

Authorization of Secured Agents

     34  

SECTION 9.16

 

Further Assurances

     34  

SECTION 9.17

 

Relationship of Secured Parties

     35  

SECTION 9.18

 

Reciprocal Rights (Excess Priority Lien Obligations)

     35  
Annex and Exhibits       
Annex I       

Exhibit A - Priority Confirmation Joinder

  

 

ii


INTERCREDITOR AGREEMENT , dated as of March 3, 2017 (as amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, this “ Agreement ”), between Wilmington Trust, National Association, as administrative agent for the Priority Lien Secured Parties referred to herein (in such capacity, and together with its successors and assigns (including under any Priority Refinancing Credit Facility) in such capacity, the “ Priority Lien Agent ”) and Wilmington Trust, National Association, as collateral trustee for the Second Lien Secured Parties referred to herein (in such capacity, and together with its successors in such capacity, the “ Second Lien Agent ”).

Reference is made to the Priority Credit Agreement (defined below) and the Second Lien Indenture (defined below).

In consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Priority Lien Agent (for itself and on behalf of the Priority Lien Secured Parties) and the Second Lien Agent (for itself and on behalf of the Second Lien Secured Parties) agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.01     Construction; Certain Defined Terms . (a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any reference herein to any agreement, instrument, other document, statute or regulation shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to time amended, supplemented or otherwise modified in accordance with the terms of each applicable Secured Debt Document (including, for the avoidance of doubt, this Agreement), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, but shall not be deemed to include the subsidiaries of such Person unless express reference is made to such subsidiaries, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) all references herein to Articles, Sections and Annexes shall be construed to refer to Articles, Sections and Annexes of this Agreement, (v) unless otherwise expressly qualified herein, the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights and (vi) the term “or” is not exclusive.

(b)    All terms used in this Agreement that are defined in Article 1, 8 or 9 of the New York UCC (whether capitalized herein or not) and not otherwise defined herein have the meanings assigned to them in Article 1, 8 or 9 of the New York UCC. If a term is defined in Article 9 of the New York UCC and another Article of the UCC, such term shall have the meaning assigned to it in Article 9 of the New York UCC.

(c)    As used in this Agreement, the following terms have the meanings specified below:

Accounts ” has the meaning assigned to such term in Section  3.01 .

 

1


Affiliate ” of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.

Bankruptcy Code ” means Title 11 of the United States Code.

Bankruptcy Law ” means the Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors.

Borrowing Base ” means the maximum amount in dollars determined or redetermined by Commercial Lenders under the Priority Credit Agreement or any Priority Refinancing Credit Facility, as applicable, as the aggregate lending value to be ascribed to the oil and gas properties of the Company and the Grantors against which such lenders are prepared to provide loans or other Indebtedness to the Company and the Grantors under the Priority Credit Agreement, using their customary practices and standards for determining reserve based loans and which are generally applied by lenders to borrowers in the oil and gas business, as determined semi-annually during each year and/or on such other occasions as may be provided for by the Priority Credit Agreement, and which is based upon, inter alia, the review by such lenders of the Hydrocarbon reserves, royalty interests and assets and liabilities of the Company and its Subsidiaries.

Business Day ” means any day excluding Saturday, Sunday and any other day on which banking institutions are not required to be open in the State of New York City, or the principal place of payment.

Capital Stock ” of any Person means any and all shares, interests (including partnership interests), rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity.

Cash Management Obligations ” means any obligations of the Company or a Grantor owed to any lender (or any Affiliate of any such lender) as permitted under the Priority Credit Agreement in respect of treasury management arrangements or depositary or other cash management services, including commercial credit card and merchant card services.

Collateral ” means all of the assets and property of any Grantor, whether real, personal or mixed, constituting the Priority Lien Collateral and/or the Second Lien Collateral.

Commercial Lenders ” means commercial banks customarily engaged in oil and gas reserves-based lending in the ordinary course of their respective businesses.

Company ” means Gastar Exploration Inc., a Delaware corporation.

DIP Financing ” has the meaning assigned to such term in Section  4.02(b) .

DIP Financing Liens ” has the meaning assigned to such term in Section  4.02(b) .

DIP Lenders ” has the meaning assigned to such term in Section  4.02(b) .

 

2


Discharge of Priority Lien Obligations ” means the occurrence of all of the following:

(a)    termination or expiration of all commitments to extend credit that would constitute Priority Lien Debt;

(b)    payment in full in cash of the principal of (to the extent such principal does not constitute Excess Priority Lien Obligations) and interest and premium (if any) on all Priority Lien Debt (other than any undrawn letters of credit);

(c)    discharge or cash collateralization (at the lower of (i) 105% of the aggregate undrawn amount and (ii) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable Priority Lien Document) of all outstanding letters of credit constituting Priority Lien Debt that are not Excess Priority Lien Obligations;

(d)    payment in full in cash of obligations in respect of Hedging Obligations that are secured by the Priority Liens (and, with respect to any particular Swap Agreement, termination of such agreement and payment in full in cash of all obligations thereunder or entry into such other arrangements    satisfactory to the Swap Counterparty (as defined in the Priority Lien Intercreditor Agreement) party thereto (and communicated by the Swap Counterparty (as defined in the Priority Lien Intercreditor Agreement) party thereto to the Priority Lien Agent)) other than such Hedging Obligations that have been novated or collateralized to the extent expressly required by the terms thereof; and

(e)    payment in full in cash of all other Priority Lien Obligations that are outstanding and unpaid at the time the Priority Lien Debt is paid in full in cash (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at or prior to such time);

provided that, if, at any time after the Discharge of Priority Lien Obligations has occurred, the Company, any Grantor or any other guarantor enters into any Priority Lien Document evidencing a Priority Lien Debt which incurrence is not prohibited by the applicable Secured Debt Documents, then such Discharge of Priority Lien Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement with respect to such new Priority Lien Debt (other than with respect to any actions taken as a result of the occurrence of such first Discharge of Priority Lien Obligations), and, from and after the date on which the Company designates such Indebtedness as Priority Lien Debt in accordance with this Agreement, the obligations under such Priority Lien Document shall automatically and without any further action be treated as Priority Lien Obligations for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth in this Agreement and any Second Lien Obligations shall be deemed to have been at all times Second Lien Obligations and at no time Priority Lien Obligations. For the avoidance of doubt, a Replacement as contemplated by Section  4.04(a) shall not be deemed to cause a Discharge of Priority Lien Obligations.

Discharge of Second Lien Obligations ” means the occurrence of all of the following:

(a)    payment in full in cash of the principal of and interest and premium (if any) on all Second Lien Debt;

(b)    payment in full in cash of all other Second Lien Obligations that are outstanding and unpaid at the time the Second Lien Debt is paid in full in cash (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at or prior to such time);

 

3


provided that, if at any time after the Discharge of Second Lien Obligations has occurred, the Company, any Grantor or any other guarantor enters into any Second Lien Document evidencing a Second Lien Obligation which incurrence is not prohibited by the applicable Secured Debt Documents, then such Discharge of Second Lien Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement with respect to such new Second Lien Obligations (other than with respect to any actions taken as a result of the occurrence of such first Discharge of Second Lien Obligations), and, from and after the date on which the Company designates such Indebtedness as Second Lien Debt in accordance with this Agreement, the obligations under such Second Lien Document shall automatically and without any further action be treated as Second Lien Obligations for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth in this Agreement. For the avoidance of doubt, a Replacement as contemplated by Section  4.04(a) shall not be deemed to cause a Discharge of Second Lien Obligations.

Disposition ” means any sale, lease, exchange, assignment, license, contribution, transfer or other disposition. “ Dispose ” shall have a correlative meaning.

Excess Priority Lien Obligations ” means Obligations constituting Priority Lien Obligations for the principal amount of loans and letters of credit under the Priority Credit Agreement and/or any other Credit Facility pursuant to which Priority Lien Debt has been incurred to the extent that such Obligations for principal and letters of credit are in excess of the amount in clause  (a) of the definition of “Priority Lien Cap.”

Financial Officer ” of any Person means the Chief Financial Officer, Chief Accounting Officer, principal accounting officer, Controller, Treasurer or Assistant Treasurer of such Person.

Governmental Authority ” means the government of the United States or any other nation, or any political subdivision thereof, whether state, provincial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other Person exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

Grantor ” means the Company, and each other subsidiary of the Company that shall have granted any Lien in favor of any of the Priority Lien Agent or the Second Lien Agent on any of its assets or properties to secure any of the Secured Obligations.

Hedging Obligations ” means, with respect to any Grantor, the obligations of such Grantor under any Swap Agreement that are “Secured Obligations”, as defined in the Priority Lien Credit Agreement, including:

(i)    interest rate swap agreements, interest rate cap agreements and interest rate collar agreements entered into with one of more financial institutions and designed to protect such Grantor or any subsidiary thereof entering into the agreement against fluctuations in interest rates with respect to Indebtedness incurred;

(ii)    foreign exchange contracts and currency protection agreements entered into with one or more financial institutions and designed to protect such Grantor or any subsidiary thereof entering into the agreement against fluctuations in currency exchanges rates with respect to Indebtedness incurred;

(iii)    any commodity futures contract, commodity option or other similar agreement or arrangement designed to protect against fluctuations in the price of oil, natural gas or other commodities used, produced, processed or sold by that Grantor or any subsidiary thereof at the time; and

 

4


(iv)     other agreements or arrangements designed to protect such Grantor or any subsidiary thereof against fluctuations in interest rates, commodity prices or currency exchange rates.

Hydrocarbons ” means oil, gas, casinghead gas, drip gasoline, natural gasoline, condensate, distillate, liquid hydrocarbons, gaseous hydrocarbons and all products refined or separated therefrom.

Indebtedness ” has the meaning assigned to such term in the Priority Credit Agreement (as in effect on the date hereof).

Insolvency or Liquidation Proceeding ” means:

(a)    any case commenced by or against the Company or any other Grantor under the Bankruptcy Code or any other Bankruptcy Law, any other proceeding for the reorganization, arrangement, recapitalization or adjustment or marshalling of the assets or liabilities of the Company or any other Grantor, any receivership or assignment for the benefit of creditors relating to the Company or any other Grantor or any similar case or proceeding relative to the Company or any other Grantor or its creditors, as such, in each case whether or not voluntary;

(b)    any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to the Company or any other Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or

(c)    any other proceeding of any type or nature in which substantially all claims of creditors of the Company or any other Grantor are determined and any payment or distribution is or may be made on account of such claims.

Lien ” means any mortgage, pledge, security interest or encumbrance, Lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).

New York UCC ” means the Uniform Commercial Code as from time to time in effect in the State of New York.

Obligations ” means, with respect to any Indebtedness, all obligations for principal, premium, interest, penalties, fees, indemnifications, reimbursements, and other amounts payable pursuant to the documentation governing such Indebtedness.

Officers’ Certificate ” means a certificate signed by two officers of the Company, one of whom must be either the principal executive officer or a Financial Officer of the Company.

Priority Lien Agent ” has the meaning assigned to such term in the preamble hereto.

Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, government or any agency or political subdivision thereof or other entity.

Preferred Stock ” as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person.

 

5


Priority Credit Agreement ” means the Third Amended and Restated Credit Agreement, dated as of March 3, 2017, among the Company, as borrower, certain subsidiaries of the Company from time to time party thereto, as guarantors, the Priority Lien Agent, and the lenders party thereto from time to time, as amended, restated, adjusted, waived, renewed, extended, supplemented or otherwise modified from time to time to the extent not otherwise prohibited by the terms hereof with the same and/or different lenders and/or agents and any credit agreement, loan agreement, note agreement, promissory note, indenture or any other agreement or instrument evidencing or governing the terms of any Priority Refinancing Credit Facility.

Priority Lien ” means a Lien granted by the Company or any other Grantor in favor of the Priority Lien Agent, at any time, upon any Property of the Company or such other Grantor to secure Priority Lien Obligations.

Priority Lien Cap ” means, as of any date, the sum of

(a)    the aggregate principal amount of all Indebtedness (including any interest paid-in-kind) outstanding at any time under the Priority Credit Agreement (with outstanding letters of credit being deemed to have a principal amount equal to the stated amount thereof) not in excess of the lesser of (i) the greater of $250,000,000 and the Borrowing Base in effect at the time of incurrence of such Indebtedness and (ii) $300,000,000, in either case, plus

(b)    Priority Lien Protective Advances, plus

(c)    the amount of all Hedging Obligations, to the extent such Hedging Obligations are secured by the Priority Liens, plus

(d)    the amount of all Cash Management Obligations, to the extent such Cash Management Obligations are secured by the Priority Liens, plus

(e)    the amount of accrued and unpaid interest (whether incurred before or after commencement of an Insolvency or Liquidation Proceeding, and whether or not allowable in an Insolvency or Liquidation Proceeding but excluding any interest paid-in-kind) and outstanding fees, expenses (including legal fees) and indemnities, to the extent such Obligations are secured by the Priority Liens.

Priority Lien Collateral ” means all “Collateral”, as defined in the Priority Credit Agreement or any other Priority Lien Document, and any other assets of any Grantor now or at any time hereafter subject to Liens which secure, but only to the extent securing, any Priority Lien Obligation.

Priority Lien Debt ” means the Indebtedness under the Priority Credit Agreement (including letters of credit and reimbursement obligations with respect thereto (with outstanding letters of credit being deemed to have a principal amount equal to the stated amount thereof)) that was permitted to be incurred and secured under the Priority Credit Agreement and the Second Lien Indenture (or as to which the lenders under the Priority Credit Agreement obtained an Officers’ Certificate at the time of incurrence to the effect that such Indebtedness was permitted to be incurred and secured by all applicable Secured Debt Documents) and additional Indebtedness under any Priority Refinancing Credit Facility.

Priority Lien Documents ” means the Priority Credit Agreement, the Priority Lien Security Documents, the other “Loan Documents” (as defined in the Priority Credit Agreement), all other loan documents, notes, guarantees, instruments and agreements governing or evidencing, or executed or delivered in connection with, any Priority Refinancing Credit Facility and the “Swap Documents” (as defined in the Priority Lien Intercreditor Agreement).

 

6


Priority Lien Intercreditor Agreement ” has the meaning given to the term “Swap Intercreditor Agreement” in the Priority Lien Credit Agreement. For the avoidance of doubt, the Second Lien Agent is not party to the Priority Lien Intercreditor Agreement.

Priority Lien Obligations ” means the Priority Lien Debt and all other Obligations in respect of or in connection with Priority Lien Debt together with Hedging Obligations and Cash Management Obligations, in each case, to the extent that such Obligations are secured by Priority Liens. For the avoidance of doubt, Hedging Obligations shall only constitute Priority Lien Obligations to the extent that such Hedging Obligations are secured pursuant to the terms of the Priority Lien Intercreditor Agreement and Priority Lien Security Documents. Notwithstanding any other provision hereof, the term “Priority Lien Obligations” will include accrued interest, fees, costs, and other charges incurred under the Priority Credit Agreement and the other Priority Lien Documents, whether incurred before or after commencement of an Insolvency or Liquidation Proceeding, and whether or not allowable in an Insolvency or Liquidation Proceeding. To the extent that any payment with respect to the Priority Lien Obligations (whether by or on behalf of any Grantor, as proceeds of security, enforcement of any right of set-off, or otherwise) is declared to be fraudulent or preferential in any respect, set aside, or required to be paid to a debtor in possession, trustee, receiver, or similar Person, then the obligation or part thereof originally intended to be satisfied will be deemed to be reinstated and outstanding as if such payment had not occurred.

Priority Lien Protective Advances ” means any advance made by one or more Priority Lien Secured Parties for the purpose of (a) maintaining, protecting or preserving the Collateral and/or the Priority Lien Secured Parties’ rights under the Priority Lien Documents or which is otherwise made for the benefit of the Priority Lien Secured Parties, (b) enhancing the likelihood of, or maximizing the amount of, repayment of any Priority Lien Obligation and/or (c) paying any other amount chargeable to, or required to be paid by, any Grantor hereunder or under any other Priority Lien Document as a result of the actions described under clauses (a)  or (b) above; provided that in no event shall the aggregate amount of any such advances exceed $5,000,000.

Priority Lien Release Notice ” has the meaning assigned to such term in Section  4.01 .

Priority Lien Secured Parties ” means, at any time, the Priority Lien Agent, each lender or issuing bank under the Priority Credit Agreement, each holder, provider or obligee of any Hedging Obligations and Cash Management Obligations and, in each case, that is a secured party (or a party entitled to the benefits of the security) under any Priority Lien Document, the beneficiaries of each indemnification obligation undertaken by any Grantor under any Priority Lien Document, each other Person that provides letters of credit, guarantees or other credit support related thereto under any Priority Lien Document and each other holder of, or obligee in respect of, any Priority Lien Obligations (including pursuant to a Priority Refinancing Credit Facility), in each case to the extent designated as a secured party (or a party entitled to the benefits of the security) under any Priority Lien Document outstanding at such time.

Priority Lien Security Documents ” means the Priority Credit Agreement (insofar as the same grants a Lien on the Collateral), each agreement listed in Part A of Exhibit  B hereto, and any other security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust, control agreements, or grants or transfers for security, now existing or entered into after the date hereof, executed and delivered by the Company or any other Grantor creating (or purporting to create) a Lien upon Collateral in favor of the Priority Lien Agent (including any such agreements, assignments, mortgages, deeds of trust and other documents or instruments associated with any Priority Refinancing Credit Facility).

 

7


Priority Refinancing Credit Facility ” means any conforming oil and gas reserves-based revolving credit facility, the majority of the commitments under which are held by Commercial Lenders, that (i) refunds, refinances or replaces the Priority Credit Agreement or any other Priority Refinancing Credit Facility, in each case, in whole and with all commitments thereunder terminated, (ii) Indebtedness under which is permitted to be incurred under the Second Lien Indenture, and (iii) the Priority Liens securing such Priority Refinancing Credit Facility are subject to the terms of this Agreement for all purposes (including the Lien priorities as set forth herein as of the date hereof) and (iv) with respect to which the Priority Lien Agent thereunder has complied with Section 4.04(a) .

Property ” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible, including, without limitation, cash, securities, accounts and contract rights.

Replaces ” means, (a) in respect of any agreement with reference to the Priority Credit Agreement or the Priority Lien Obligations or any Priority Refinancing Credit Facility, that such agreement refunds, refinances or replaces the Priority Credit Agreement, the Priority Lien Obligations or any Priority Refinancing Credit Facility in full (in a transaction that is in compliance with Section  4.04(a) ) and that all commitments thereunder are terminated or (b) in respect of any agreement with reference to the Second Lien Documents, the Second Lien Obligations that such Indebtedness refunds, refinances or replaces the Second Lien Documents, the Second Lien Obligations in whole (in a transaction that is in compliance with Section  4.04(a) ) and that all commitments thereunder are terminated, or, to the extent permitted by the terms of the Second Lien Documents, the Second Lien Obligations, in part. “ Replace ,” “ Replaced ” and “ Replacement ” shall have correlative meanings.

Second Lien ” means a Lien granted by a Second Lien Document to the Second Lien Agent, at any time, upon any Collateral by any Grantor to secure Second Lien Obligations.

Second Lien Agent ” has the meaning assigned to such term in the preamble hereto.

Second Lien Collateral ” means all “Collateral”, as defined in any Second Lien Document, and any other assets of any Grantor now or at any time hereafter subject to Liens which secure, but only to the extent securing, any Second Lien Obligations.

Second Lien Debt ” means the Indebtedness under the Second Lien Indenture and guarantees thereof that was permitted to be incurred and secured in accordance with the Secured Debt Documents and with respect to which the requirements of Section  4.04(b) have been (or are deemed) satisfied.

Second Lien Documents ” means the Second Lien Indenture, the Second Lien Security Documents and all other note documents (including the Indenture Documents (as defined in the Second Lien Indenture)), notes, guarantees, instruments and agreements governing or evidencing the Second Lien Obligations.

Second Lien Indenture ” means that certain Indenture, dated as of March 3, 2017, among the Company, certain of its subsidiaries from time to time party thereto and Wilmington Trust, National Association, as trustee and collateral trustee, as amended, restated, adjusted, waived, renewed, extended, supplemented or otherwise modified from time to time in accordance with the terms hereof.

 

8


Second Lien Obligations ” means Second Lien Debt and all other Obligations (as defined in the Second Lien Indenture) in respect thereof. Notwithstanding any other provision hereof, the term “Second Lien Obligations” will include accrued interest, fees, costs, and other charges incurred under the Second Lien Indenture and the other Second Lien Documents, whether incurred before or after commencement of an Insolvency or Liquidation Proceeding and whether or not allowable in an Insolvency or Liquidation Proceeding. To the extent that any payment with respect to the Second Lien Obligations (whether by or on behalf of any Grantor, as proceeds of security, enforcement of any right of set-off, or otherwise) is declared to be fraudulent or preferential in any respect, set aside, or required to be paid to a debtor in possession, trustee, receiver, or similar Person, then the obligation or part thereof originally intended to be satisfied will be deemed to be reinstated and outstanding as if such payment had not occurred.

Second Lien Purchasers ” has the meaning assigned to such term in Section  3.06 .

Second Lien Secured Parties ” means, at any time, the Second Lien Agent, the trustees, agents and other representatives of the holders of the Notes (as defined in the Second Lien Indenture), the beneficiaries of each indemnification obligation undertaken by any Grantor under any Second Lien Document and each other holder of, or obligee in respect of, any Second Lien Obligations, any holder or lender pursuant to any Second Lien Document outstanding at such time.

Second Lien Security Documents ” means the Second Lien Indenture (insofar as the same grants a Lien on the Collateral), each agreement listed in Part B of Exhibit  B hereto, the Collateral Agreements (as defined in the Second Lien Indenture) and any other security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust, collateral agency agreements, control agreements, or grants or transfers for security, now existing or entered into after the date hereof, executed and delivered by the Company or any other Grantor creating (or purporting to create) a Lien upon Collateral in favor of the Second Lien Agent.

Section  363 Event ” has the meaning assigned to such term in Section  4.02(d) .

Section  363 Notice ” has the meaning assigned to such term in Section  4.02(d) .

Section  363 Objections ” has the meaning assigned to such term in Section  4.02(d) .

Secured Debt Documents ” means the Priority Lien Documents and the Second Lien Documents.

Secured Debt Representative ” means the Priority Lien Agent or the Second Lien Agent, as applicable.

Secured Obligations ” means the Priority Lien Obligations and the Second Lien Obligations.

Secured Parties ” means the Priority Lien Secured Parties and the Second Lien Secured Parties.

Security Documents ” means the Priority Lien Security Documents and the Second Lien Security Documents.

Standstill Period ” has the meaning assigned to such term in Section  3.02 .

 

9


subsidiary ” means, with respect to any Person, any corporation, limited liability company, association, partnership or other business entity of which more than 50% of the total voting power of shares of Voting Stock is at the time owned or controlled, directly or indirectly, by (a) such Person; (b) such Person and one or more subsidiaries of such Person; or (c) one or more subsidiaries of such Person.

Swap Agreement ” has the meaning assigned to such term in the Priority Lien Credit Agreement.

Voting Stock ” of a Person means all classes of Capital Stock of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.

ARTICLE II

LIEN PRIORITIES

SECTION 2.01     Relative Priorities . (a) The grant of the Priority Liens pursuant to the Priority Lien Documents and the grant of the Second Liens pursuant to the Second Lien Documents create two separate and distinct Liens on the Collateral.

(b)    Notwithstanding anything contained in this Agreement, the Priority Lien Documents, the Second Lien Documents, or any other agreement or instrument or operation of law to the contrary, or any other circumstance whatsoever and irrespective of (i) how a Lien was acquired (whether by grant, possession, statute, operation of law, subrogation, or otherwise), (ii) the time, manner, or order of the grant, attachment or perfection of a Lien, (iii) any conflicting provision of the New York UCC or other applicable law, (iv) any defect in, or non-perfection, setting aside, or avoidance of, a Lien or a Priority Lien Document or a Second Lien Document, (v) the modification of a Priority Lien Obligation or a Second Lien Obligation, and (vi) the subordination of a Lien on Collateral securing a Priority Lien Obligation to a Lien securing another obligation of the Company or other Person that is permitted under the Priority Lien Documents as in effect on the date hereof or securing a DIP Financing, or the subordination of a Lien on Collateral securing a Second Lien Obligation to a Lien securing another obligation of the Company or other Person (other than a Priority Lien Obligation) that is permitted under the Second Lien Documents as in effect on the date hereof, the Second Lien Agent, on behalf of itself and the other Second Lien Secured Parties, hereby agrees that (i) any Priority Lien on any Collateral now or hereafter held by or for the benefit of any Priority Lien Secured Party shall be senior in right, priority, operation, effect and all other respects to any and all Second Liens on any Collateral, in any case, subject to the Priority Lien Cap as provided herein, and (ii) any Second Lien on any Collateral now or hereafter held by or for the benefit of any Second Lien Secured Party shall be junior and subordinate in right, priority, operation, effect and all other respects to any and all Priority Liens on any Collateral, in any case, subject to the Priority Lien Cap as provided herein.

(c)    It is acknowledged that, subject to the Priority Lien Cap (as provided herein), (i) the aggregate amount of the Priority Lien Obligations may be increased from time to time pursuant to the terms of the Priority Lien Documents, (ii) a portion of the Priority Lien Obligations consists or may consist of Indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed, and (iii) (A) the Priority Lien Documents may be replaced, restated, supplemented, restructured or otherwise amended or modified from time to time and (B) the Priority Lien Obligations may be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, refinanced or otherwise amended or modified from time to time, in the case of the foregoing (A) and (B) all without affecting the

 

10


subordination of the Second Liens or the provisions of this Agreement defining the relative rights of the Priority Lien Secured Parties and the Second Lien Secured Parties. The Lien priorities provided for herein shall not be altered or otherwise affected by any amendment, modification, supplement, extension, increase, renewal, restatement or Replacement of either the Priority Lien Obligations (or any part thereof) or the Second Lien Obligations (or any part thereof), by the release of any Collateral or of any guarantees for any Priority Lien Obligations or by any action that any Secured Debt Representative or Secured Party may take or fail to take in respect of any Collateral.

SECTION 2.02     Prohibition on Marshalling, Etc. . Until the Discharge of Priority Lien Obligations, the Second Lien Agent will not assert any marshalling, appraisal, valuation, or other similar right that may otherwise be available to a junior secured creditor.

SECTION 2.03     No New Liens . The parties hereto agree that, (a) so long as the Discharge of Priority Lien Obligations has not occurred, none of the Grantors shall, nor shall any Grantor permit any of its subsidiaries to, (i) grant or permit any additional Liens on any asset of a Grantor to secure any Second Lien Obligation, or take any action to perfect any additional Liens, unless it has granted, or substantially concurrently therewith grants (or offers to grant), a Lien on such asset of such Grantor to secure (A) the Priority Lien Obligations and has taken all actions required to perfect such Liens and (B) the Second Lien Obligations and has taken all actions required to perfect such Liens; provided , however , the refusal or inability of the Priority Lien Agent to accept such Lien will not prevent the Second Lien Agent from taking the Lien or (ii) grant or permit any additional Liens on any asset of a Grantor to secure any Priority Lien Obligation, or take any action to perfect any additional Liens, unless it has granted, or substantially concurrently therewith grants (or offers to grant), a Lien on such asset of such Grantor to secure the Second Lien Obligations and has taken all actions required to perfect such Liens. To the extent that the provisions of the immediately preceding sentence are not complied with for any reason, without limiting any other right or remedy available to the Priority Lien Agent, the other Priority Lien Secured Parties, the Second Lien Agent or the other Second Lien Secured Parties, the Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, agrees that any amounts received by or distributed to any Second Lien Secured Party pursuant to or as a result of any Lien granted in contravention of this Section  2.03 shall be subject to Section  3.05(b) .

SECTION 2.04     Similar Collateral and Agreements . The parties hereto acknowledge and agree that it is their intention that the Priority Lien Collateral and the Second Lien Collateral be identical. In furtherance of the foregoing, the parties hereto agree (a) to cooperate in good faith in order to determine, upon any reasonable request by the Priority Lien Agent or the Second Lien Agent, the specific assets included in the Priority Lien Collateral and the Second Lien Collateral, the steps taken to perfect the Priority Liens and the Second Liens, and the identity of the respective parties obligated under the Priority Lien Documents and the Second Lien Documents in respect of the Priority Lien Obligations and the Second Lien Obligations, respectively, (b) that the Second Lien Security Documents creating Liens on the Collateral shall be in all material respects the same forms of documents as the respective Priority Lien Security Documents creating Liens on the Collateral other than (i) with respect to the priority nature of the Liens created thereunder in such Collateral, (ii) such other modifications to such Second Lien Security Documents which are less restrictive than the corresponding Priority Lien Security Documents, (iii) provisions in the Second Lien Security Documents which are solely applicable to the rights and duties of the Second Lien Agent or the other Second Lien Secured Parties, and (iv) with such deletions or modifications of representations, warranties and covenants as are customary with respect to security documents establishing Liens securing debt securities sold in similar private transactions that are not subject to the registration requirements of the Securities Act and (c) that at no time shall there be any Grantor that is an obligor in respect of the Second Lien Obligations that is not also an obligor in respect of the Priority Lien Obligations.

 

11


ARTICLE III

ENFORCEMENT RIGHTS; PURCHASE OPTION

SECTION 3.01     Limitation on Enforcement Action . Prior to the Discharge of Priority Lien Obligations, the Second Lien Agent, for itself and on behalf of each Second Lien Secured Party, hereby agrees that, subject to Section  3.02 , Section  3.05(b) and Section  4.07 , none of the Second Lien Agent or any other Second Lien Secured Party shall commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its interest in or realize upon, or take any other action available to it in respect of, any Collateral under any Second Lien Security Document, applicable law or otherwise (including but not limited to any right of setoff), it being agreed that only the Priority Lien Agent, acting in accordance with the applicable Priority Lien Documents, shall have the exclusive right (and whether or not any Insolvency or Liquidation Proceeding has been commenced), to take any such actions or exercise any such remedies, in each case, without any consultation with or the consent of the Second Lien Agent or any other Second Lien Secured Party. In exercising rights and remedies with respect to the Collateral, the Priority Lien Agent and the other Priority Lien Secured Parties may enforce the provisions of the Priority Lien Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in their sole discretion and regardless of whether such exercise and enforcement is adverse to the interest of any Second Lien Secured Party. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Collateral upon foreclosure, to incur expenses in connection with any such Disposition and to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, the Bankruptcy Code or any other Bankruptcy Law. Without limiting the generality of the foregoing, prior to the Discharge of Priority Lien Obligations, the Priority Lien Agent will have the exclusive right to deal with that portion of the Collateral consisting of deposit accounts and securities accounts (collectively “ Accounts ”), including exercising rights under control agreements with respect to such Accounts. The Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second Lien Security Document or any other Second Lien Document other than this Agreement, shall be deemed to restrict in any way the rights and remedies of the Priority Lien Agent or the other Priority Lien Secured Parties with respect to the Collateral as set forth in this Agreement. Notwithstanding the foregoing, subject to Section  3.05 , the Second Lien Agent, on behalf of the Second Lien Secured Parties, may, but will have no obligation to, take all such actions (not adverse to the Priority Liens or the rights of the Priority Lien Agent and the Priority Lien Secured Parties) it deems necessary to perfect or continue the perfection of the Second Liens in the Collateral. Nothing herein shall limit the right or ability of the Second Lien Secured Parties to (i) purchase (by credit bid or otherwise) all or any portion of the Collateral in connection with any enforcement of remedies by the Priority Lien Agent to the extent that, and so long as, the Priority Lien Secured Parties receive payment in full in cash of all Priority Lien Obligations (other than the Excess Priority Lien Obligations, except as provided in Section  6.01 ) after giving effect thereto or (ii) file a proof of claim with respect to the Second Lien Obligations.

SECTION 3.02     Standstill Periods; Permitted Enforcement Action . (a) Prior to the Discharge of Priority Lien Obligations and notwithstanding the foregoing Section  3.01 , both before and during an Insolvency or Liquidation Proceeding after a period of 180 days has elapsed (which period will be tolled during any period in which the Priority Lien Agent is not entitled, on behalf of the Priority Lien Secured Parties, to enforce or exercise any rights or remedies with respect to any Collateral as a result of (A) any injunction issued by a court of competent jurisdiction or (B) the automatic stay or any other stay in any Insolvency or Liquidation Proceeding) since the date on which the Second Lien Agent has delivered to the Priority Lien Agent written notice of an Event of Default under any Second Lien Document arising from the failure to pay any Second Lien Obligations or the acceleration of any Second

 

12


Lien Debt (the “ Standstill Period ”), the Second Lien Agent and the other Second Lien Secured Parties may enforce or exercise any rights or remedies with respect to any Collateral; provided , however that notwithstanding the expiration of the Standstill Period, in no event may the Second Lien Agent or any other Second Lien Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the Priority Lien Agent on behalf of the Priority Lien Secured Parties or any other Priority Lien Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Lien Agent by the Priority Lien Agent); provided , further , that, at any time after the expiration of the Standstill Period, if neither the Priority Lien Agent nor any other Priority Lien Secured Party shall have commenced and be diligently pursuing (or shall have sought or requested relief from, or modification of, the automatic stay or any other stay or other prohibition in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof) the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, and the Second Lien Agent shall have commenced the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding, then for so long as the Second Lien Agent is diligently pursuing such rights or remedies, none of any Priority Lien Secured Party or the Priority Lien Agent shall take any action of a similar nature with respect to such Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding.

(b)     Second Lien Permitted Actions . Anything to the contrary in this Article III or in any other provision of this Agreement notwithstanding, Second Lien Agent and /or any Second Lien Secured Party may:

(i)    if an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, file a claim or statement of interest with respect to the Second Lien Debt;

(ii)    take any action (not adverse to the priority status of the Liens on the Collateral securing the Priority Lien Debt, or the rights of Priority Lien Agent or any other Priority Lien Secured Party to undertake enforcement actions with respect to the Collateral or otherwise) in order to create or perfect its Lien in and to the Collateral;

(iii)    file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding, or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Second Lien Secured Parties, including any claims secured by the Collateral, if any;

(iv)    file any pleadings, objections, motions or agreements which assert rights or interests available to, or exercise rights as (to the extent not prohibited by Section  4.07 ), unsecured creditors of the Grantors arising under any Insolvency or Liquidation Proceeding or applicable non-Bankruptcy Law, in each case not inconsistent with the terms of this Agreement;

(v)    vote on any plan of reorganization and make any filings (including proofs of claim) and arguments and motions that are, in each case, not in contravention of the provisions of this Agreement, with respect to the Second Lien Debt and the Collateral;

 

13


(vi)    seek to enforce any of the terms of the Second Lien Loan Documents to the extent not expressly prohibited by the other provisions of this Agreement;

(vii)    join (but not exercise any control with respect to) any judicial foreclosure proceeding or other judicial Lien enforcement proceeding with respect to the Collateral initiated by Priority Lien Agent (or any Priority Lien Secured Parties) to the extent that any such action could not reasonably be expected, in any material respect, to restrain, hinder, limit, delay for any material period or otherwise interfere with an enforcement action by Priority Lien Agent (it being understood that neither Second Lien Agent nor any Second Lien Secured Party shall be entitled to receive any proceeds of any Collateral unless otherwise expressly permitted herein);

(viii)    bid for or purchase Collateral at any public, private or judicial foreclosure upon such Collateral initiated by Priority Lien Agent or any Priority Lien Secured Party, or any sale of Collateral during an Insolvency or Liquidation Proceeding; provided that such bid may only include a “credit bid” in respect of any Second Lien Debt to the extent that, and so long as, the Priority Lien Secured Parties receive payment in full in cash of all Priority Lien Obligations (other than the Excess Priority Lien Obligations) after giving effect thereto; and

(ix)    take or otherwise exercise any enforcement actions after the expiration of the Standstill Period to the extent specifically permitted in the second proviso to Section 3.02(a) or with the consent of the Priority Lien Agent or as required by a court of competent jurisdiction.

SECTION 3.03     Insurance . (a) Unless and until the Discharge of Priority Lien Obligations has occurred (subject to the terms of Section  3.02 , including the rights of the Second Lien Secured Parties following expiration of any applicable Standstill Period), the Priority Lien Agent shall have the sole and exclusive right, subject to the rights of the Grantors under the Priority Lien Documents, to adjust and settle claims in respect of Collateral under any insurance policy in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) affecting the Collateral. Unless and until the Discharge of Priority Lien Obligations has occurred, and subject to the rights of the Grantors under the Priority Lien Documents, all proceeds of any such policy and any such award (or any payments with respect to a deed in lieu of condemnation) in respect to the Collateral shall, subject to Section 6.01, be paid to the Priority Lien Agent pursuant to the terms of the Priority Lien Documents (including for purposes of cash collateralization of commitments, letters of credit and Hedging Obligations). If the Second Lien Agent or any Second Lien Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award or payment in contravention of the foregoing, it shall, subject to Section 6.01, pay such proceeds over to the Priority Lien Agent. In addition, if by virtue of being named as an additional insured or loss payee of any insurance policy of any Grantor covering any of the Collateral, the Second Lien Agent or any other Second Lien Secured Party shall have the right to adjust or settle any claim under any such insurance policy, then unless and until the Discharge of Priority Lien Obligations has occurred, the Second Lien Agent or any such Second Lien Secured Party shall, until the Discharge of Priority Lien Obligations has occurred, follow the instructions of the Priority Lien Agent, or of the Grantors under the Priority Lien Documents to the extent the Priority Lien Documents grant such Grantors the right to adjust or settle such claims, with respect to such adjustment or settlement (subject to the terms of Section  3.02 , including the rights of the Second Lien Secured Parties following expiration of any applicable Standstill Period).

SECTION 3.04     Notification of Release of Collateral , Enforcement Action and Default .

(a)    Each of the Priority Lien Agent and the Second Lien Agent shall give the other Secured Debt Representatives prompt written notice of the Disposition by it of, and/or release by it of the

 

14


Lien on, any Collateral. Such notice shall describe in reasonable detail the subject Collateral, the parties involved in such Disposition or release, the place, time, manner and method thereof, and the consideration, if any, received therefor; provided , however , that the failure to give any such notice shall not in and of itself in any way impair the effectiveness of any such Disposition or release or result in any liability to the Priority Lien Agent or the Second Lien Agent, as applicable.

(b)    Priority Lien Agent shall provide reasonable prior notice (and, in all events, no less than five Business Days) to Second Lien Agent, and on a confidential basis, of its initial material enforcement action against the Collateral, other than any notice sent to a depository bank or the exercise of any set off rights. Second Lien Agent shall provide reasonable prior notice (and, in all events, no less than five Business Days) to Priority Lien Agent (prior to the Discharge of Priority Lien Obligations) of its initial material enforcement action against the Collateral. Notwithstanding the foregoing, (i) in no event shall the failure to deliver any notice required pursuant to this clause (b)  affect the validity or enforceability of the applicable enforcement action for which notice should have been provided under this clause (b)  or result in any liability to the Priority Lien Agent or the Second Lien Agent, as applicable and (ii) no party hereto shall object to or challenge (or have any right to object to or challenge), in a proceeding or otherwise, the validity or enforceability of such enforcement action as a result of the failure to deliver such notice.

(c)    Each of the Priority Lien Agent and the Second Lien Agent shall give the other Secured Debt Representatives prompt written notice (and, in all events, within 3 Business Days) of any Event of Default (in each case as defined in the applicable Secured Debt Documents) to the extent that notice of such Event of Default is being provided by such Secured Debt Representative (or any Secured Parties) to any Grantor; provided that, notwithstanding the foregoing, (i) in no event shall the failure to deliver any notice required pursuant to this clause (c)  affect the ability of such Person responsible for delivery of such notice from exercising any rights or remedies available to it hereunder with respect to such Event of Default or the validity or enforceability of any such exercise of rights or remedies or result in any liability to the Priority Lien Agent or the Second Lien Agent, as applicable and (ii) no party hereto shall object to or challenge (or have any right to object to or challenge), in a proceeding or otherwise, the validity or enforceability of such exercise of rights or remedies as a result of the failure to deliver such notice.

SECTION 3.05     No Interference; Payment Over .

(a)     No Interference . The Second Lien Agent, for itself and on behalf of each Second Lien Secured Party, agrees that each Second Lien Secured Party (A) will not take or cause to be taken any action the purpose or effect of which is, or could be, to make any Second Lien pari passu with, or to give such Second Lien Secured Party any preference or priority relative to, any Priority Lien with respect to the Collateral or any part thereof, (B) will not (I) challenge or question in any proceeding the validity or enforceability of any Priority Lien Obligations or Priority Lien Document, or the validity or enforceability of the priorities, rights or duties established by the provisions of this Agreement or (II) initiate a challenge or question in any proceeding the validity, attachment, perfection or priority of any Priority Lien (unless, for the avoidance of doubt, the same or related subject matter has been (I) asserted by any other party in any Insolvency or Liquidation Proceedings or (II) raised or determined, in each case, as a substantive matter by the court in any such Insolvency or Liquidation Proceedings), (C) will not take or cause to be taken any action the purpose or effect of which is to materially interfere, hinder or delay, in any manner, whether by judicial proceedings or otherwise, any sale, transfer or other Disposition of the Collateral by any Priority Lien Secured Party or the Priority Lien Agent acting on their behalf, (D) shall have no right to (I) direct the Priority Lien Agent or any other Priority Lien Secured Party to exercise any right, remedy or power with respect to any Collateral or (II) consent to the exercise by the Priority Lien Agent or any other Priority Lien Secured Party of any right, remedy or power with respect to any Collateral, (E) will

 

15


not institute any suit or assert in any suit or Insolvency or Liquidation Proceeding any claim against the Priority Lien Agent or other Priority Lien Secured Party seeking damages from or other relief by way of specific performance, instructions or otherwise with respect to, and neither the Priority Lien Agent nor any other Priority Lien Secured Party shall be liable for, any action taken or omitted to be taken by the Priority Lien Agent or other Priority Lien Secured Party with respect to any Priority Lien Collateral, (F) will not seek, and hereby waives any right, to have any Collateral or any part thereof marshaled upon any foreclosure or other Disposition of such Collateral, (G) will not attempt, whether by judicial proceedings or otherwise, to invalidate the enforceability of any provision of this Agreement, (H) will not object to forbearance by the Priority Lien Agent or any Priority Lien Secured Party, and (I) will not assert, and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law.

(b)     Payment Over . The Second Lien Agent, for itself and on behalf of each other Second Lien Secured Party, hereby agrees that if any Second Lien Secured Party shall obtain possession of any Collateral or shall realize any proceeds or payment in respect of any Collateral, pursuant to the exercise of any rights or remedies with respect to the Collateral under any Second Lien Security Document or by the exercise of any rights available to it under applicable law or in any Insolvency or Liquidation Proceeding, to the extent permitted hereunder, at any time prior to the Discharge of Priority Lien Obligations secured by such Collateral, then it shall hold such Collateral, proceeds or payment in trust for the Priority Lien Agent and the other Priority Lien Secured Parties and transfer such Collateral, proceeds or payment, as the case may be, to the Priority Lien Agent as promptly as practicable. Furthermore, the Second Lien Agent or such Second Lien Secured Party, as the case may be, shall, at the Grantors’ expense, promptly send written notice to the Priority Lien Agent upon receipt of proceeds or payment in respect to such Collateral and if directed by the Priority Lien Agent within five (5) days after receipt by the Priority Lien Agent of such written notice, shall, to the extent consistent with Section 6.01(a), deliver such Collateral, proceeds or payment to the Priority Lien Agent in the same form as received, with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct. The Priority Lien Agent is hereby authorized to make any such endorsements as agent for the Second Lien Agent or any other Second Lien Secured Party. The Second Lien Agent, for itself and on behalf of each other Second Lien Secured Party, agrees that if, at any time, it obtains written notice from the Priority Lien Agent that all or part of any payment with respect to any Priority Lien Obligations previously made shall be rescinded for any reason whatsoever, it will, to the extent consistent with Section 6.01(a), promptly pay over to the Priority Lien Agent any payment received by it and then in its possession or under its direct control in respect of any such Priority Lien Collateral and shall, to the extent consistent with Section 6.01(a), promptly turn any such Collateral then held by it over to the Priority Lien Agent, and the provisions set forth in this Agreement will be reinstated as if such payment had not been made, until the Discharge of Priority Lien Obligations. All Second Liens will remain attached to and enforceable against all proceeds so held or remitted, subject to the priorities set forth in this Agreement. Anything contained herein to the contrary notwithstanding, this Section  3.05(b) shall not apply to any proceeds of Collateral realized in a transaction not prohibited by this Agreement or the Priority Lien Documents and as to which the possession or receipt thereof by the Second Lien Agent or any other Second Lien Secured Party, is otherwise permitted by this Agreement and the Priority Lien Documents.

SECTION 3.06     Purchase Option .

(a)    Notwithstanding anything in this Agreement to the contrary, on or at any time after (i) the commencement of an Insolvency or Liquidation Proceeding, (ii) the acceleration of the Priority Lien Obligations, (iii) the exercise or undertaking of any enforcement action in respect of any Collateral by any Priority Lien Secured Parties under any Priority Lien Document, (iv) the occurrence of

 

16


any payment event of default under any Priority Lien Document, (v) the delivery of any Priority Lien Release Notice or any failure of the Priority Lien Agent to deliver any required Priority Lien Release Notice in accordance with this Agreement, (vi) the proposal of any DIP Financing or (vii) the delivery of any Section 363 Notice or the occurrence of any Section 363 Event, each of the holders of the Second Lien Debt and each of their respective Affiliates or designees (such holders and their respective Affiliates that make such election, the “ Second Lien Purchasers ”) will have the several right, at their respective sole option and election (but will not be obligated), at any time upon prior written notice from (or on behalf of) the Second Lien Purchasers to the Priority Lien Agent, to purchase from the Priority Lien Secured Parties (A) all (but not less than all) Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (B) if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the date of such purchase. Promptly following the receipt of such notice, the Priority Lien Agent will deliver to the Second Lien Agent a statement of the amount of Priority Lien Debt, other Priority Lien Obligations (other than any Priority Lien Obligations constituting Excess Priority Lien Obligations) and DIP Financing (including interest, fees, expenses and other obligations in respect of such DIP Financing) provided by any of the Priority Lien Secured Parties, if any, then outstanding and the amount of the cash collateral requested by the Priority Lien Agent to be delivered pursuant to Section 3.06(b)(ii) below. The right to purchase provided for in this Section  3.06 will expire unless, within 10 Business Days after the receipt by the Second Lien Agent of such notice from the Priority Lien Agent, the Second Lien Agent delivers to the Priority Lien Agent an irrevocable commitment of the Second Lien Purchasers to purchase (A) all (but not less than all) of the Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (B) if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the Priority Lien Secured Parties in connection with a DIP Financing and to otherwise complete such purchase on the terms set forth under this Section  3.06 .

(b)    On the date specified by the Second Lien Agent (on behalf of the Second Lien Purchasers) in such irrevocable commitment (which shall not be less than five Business Days nor more than 15 Business Days, after the receipt by the Priority Lien Agent of such irrevocable commitment), the Priority Lien Secured Parties shall sell to the Second Lien Purchasers (i) all (but not less than all) Priority Lien Obligations (including unfunded commitments) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (ii) if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the Priority Lien Secured Parties in connection with a DIP Financing that are outstanding on the date of such sale, subject to any required approval of any Governmental Authority then in effect, if any, and only if on the date of such sale, the Priority Lien Agent (or, in the case of clause (ii) below, the issuer of the outstanding letters of credit) receives the following:

(i)    payment, as the purchase price for all Priority Lien Obligations sold in such sale, of an amount equal to the full amount of (i) all Priority Lien Obligations (other than outstanding letters of credit as referred to in clause (ii)  below) other than any Priority Lien Obligations constituting Excess Priority Lien Obligations and (ii) if applicable, all loans (and related obligations, including interest, fees and expenses) provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then outstanding (including principal, interest, fees, reasonable attorneys’ fees and legal expenses, but excluding contingent indemnification obligations for which no claim or demand for payment has been made at or prior to such time); provided that in the case of Hedging Obligations that constitute Priority Lien Obligations the Second Lien Purchasers shall cause the applicable agreements governing such Hedging Obligations to be novated to counterparties acceptable to each applicable Swap Counterparty (as defined in the Priority Lien Intercreditor Agreement) in its sole discretion or, if such agreements have been terminated, such purchase price shall include the net aggregate

 

17


amount owing to each Swap Counterparty (as defined in the Priority Lien Intercreditor Agreement) pursuant to the terms of such agreements, including without limitation all amounts owing to each such Swap Counterparty (as defined in the Priority Lien Intercreditor Agreement) as a result of the termination or early termination thereof;

(ii)    a cash collateral deposit in such amount as the issuer of any outstanding letters of credit constituting Priority Lien Obligations determines is reasonably necessary to secure the payment of such outstanding letters of credit that may become due and payable after such sale (but not in any event in an amount greater than one hundred five percent (105%) of the amount then reasonably estimated by such letter of credit issuer to be the aggregate outstanding amount of such letters of credit at such time), which cash collateral shall be (A) held by such letter of credit issuer as security solely to reimburse itself for such letters of credit that become due and payable after such sale and any fees and expenses incurred in connection with such letters of credit and (B) returned to the party designated by the Second Lien Purchasers (except as may otherwise be required by applicable law or any order of any court or other Governmental Authority) promptly after the expiration or termination from time to time of all payment contingencies affecting such letters of credit (and, in all events, within five Business Days after such letter of credit issuer’s knowledge of such expiration or termination); and

(iii)    any customary agreements, documents or instruments which the Priority Lien Agent or requisite Priority Lien Secured Parties may reasonably request pursuant to which the Second Lien Agent (or any other representative appointed by the holders of a majority in aggregate principal amount of the Second Lien Debt then outstanding) and the Second Lien Purchasers in such sale expressly assume and adopt all of the obligations of the Priority Lien Agent and the Priority Lien Secured Parties under the Priority Lien Documents and in connection with loans (and related obligations, including interest, fees and expenses) provided by any of the Priority Lien Secured Parties in connection with a DIP Financing on and after the date of the purchase and sale and the Second Lien Agent (or any other representative appointed by the holders of a majority in aggregate principal amount of the Second Lien Debt then outstanding) becomes a successor agent thereunder.

(c)    Such purchase of the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing shall be made on a pro rata basis among the Second Lien Purchasers giving notice to the Priority Lien Agent of their interest to exercise the purchase option hereunder according to each such Second Lien Purchaser’s portion of the Second Lien Debt outstanding on the date of purchase or such portion as such Second Lien Purchasers may otherwise agree among themselves. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account of the Priority Lien Agent as the Priority Lien Agent may designate in writing to the Second Lien Agent for such purpose. Interest shall be calculated to but excluding the Business Day on which such sale occurs if the amounts so paid by the Second Lien Purchasers to the bank account designated by the Priority Lien Agent are received in such bank account prior to 12:00 noon, New York City time, and interest shall be calculated to and including such Business Day if the amounts so paid by the Second Lien Purchasers to the bank account designated by the Priority Lien Agent are received in such bank account later than 12:00 noon, New York City time.

(d)    Such sale shall be expressly made without representation or warranty of any kind by the Priority Lien Secured Parties as to the Priority Lien Obligations, the Collateral or otherwise and without recourse to any Priority Lien Secured Party, except that the Priority Lien Secured Parties shall represent and warrant severally as to the Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing then

 

18


owing to it: (i) that such applicable Priority Lien Secured Party own such Priority Lien Obligations (including unfunded commitments) and any loans provided by any of the Priority Lien Secured Parties in connection with a DIP Financing; and (ii) that such applicable Priority Lien Secured Party has the necessary corporate or other governing authority to assign such interests.

(e)    After such sale becomes effective, the outstanding letters of credit will remain enforceable against the issuers thereof and will remain secured by the Priority Liens upon the Collateral in accordance with the applicable provisions of the Priority Lien Documents as in effect at the time of such sale, and the issuers of letters of credit will remain entitled to the benefit of the Priority Liens upon the Collateral and sharing rights in the proceeds thereof in accordance with the provisions of the Priority Lien Documents as in effect at the time of such sale, as fully as if the sale of the Priority Lien Debt had not been made, but only the Person or successor agent to whom the Priority Liens are transferred in such sale will have the right to foreclose upon or otherwise enforce the Priority Liens and only the Second Lien Purchasers in the sale will have the right to direct such Person or successor as to matters relating to the foreclosure or other enforcement of the Priority Liens.

(f)    Each Grantor irrevocably consents to any assignment effected to one or more Second Lien Purchasers pursuant to this Section  3.06 (so long as they meet all eligibility standards contained in all relevant Priority Lien Documents), other than obtaining the consent of any Grantor to an assignment to the extent required by such Priority Lien Documents.

ARTICLE IV

OTHER AGREEMENTS

SECTION 4.01     Release of Liens; Automatic Release of Second Liens . Prior to the Discharge of Priority Lien Obligations, the Second Lien Agent, for itself and on behalf of each other Second Lien Secured Party, agrees that, in the event the Priority Lien Agent or the requisite Priority Lien Secured Parties under the Priority Lien Documents release the Priority Lien on any Collateral, the Second Lien on such Collateral shall terminate and be released (automatically and without further action) to the extent that (i) such release is permitted under the Second Lien Documents, (ii) if the notice required by the penultimate sentence of this Section  4.01 has been provided (subject to the proviso therein), such release is effected in connection with the Priority Lien Agent’s foreclosure upon, or other exercise of rights or remedies with respect to, such Collateral, or (iii) such release is effected in connection with a sale or other Disposition of any Collateral (or any portion thereof) under Section 363 of the Bankruptcy Code or any other provision of the Bankruptcy Code if the requisite Priority Lien Secured Parties under the Priority Lien Documents shall have consented to such sale or Disposition of such Collateral; provided that, in the case of each of clauses  (i) , (ii) and (iii) , the Second Liens on such Collateral shall attach to all proceeds thereof (and shall remain subject and subordinate to all Priority Liens securing Priority Lien Obligations, subject to the Priority Lien Cap as set forth in this Agreement). The Priority Lien Agent agrees to give the Second Lien Agent no less than 10 Business Days advance written notice of any proposed release pursuant to clauses (ii)  or (iii) (other than pursuant to Section 363 of the Bankruptcy Code) of this Section  4.01 ( provided that such notice shall not be required to the extent extraordinary exigent circumstances shall arise that would irrevocably substantially impair the rights of the Priority Lien Secured Parties if such release were to be delayed by such 10 Business Day period) (each such notice, a “ Priority Lien Release Notice ”). Notwithstanding the foregoing in this Section  4.01 , if the Second Lien Purchasers have exercised their purchase option (or have committed to exercise their purchase option) pursuant to Section 3.06(a) , no release pursuant to clauses (ii)  and (iii) of this Section  4.01 shall be permitted under this Section  4.01 to the extent (and only to the extent) that the Second Lien Purchasers shall not have defaulted on their obligations to consummate the purchase of the Priority Lien Debt and other amounts contemplated by Section 3.06(a) .

 

19


SECTION 4.02     Certain Agreements With Respect to Insolvency or Liquidation Proceedings . (a) The parties hereto, which for avoidance of doubt includes the Grantors, acknowledge that this Agreement is a “subordination agreement” under Section 510(a) of the Bankruptcy Code and shall continue in full force and effect, notwithstanding the commencement of any Insolvency or Liquidation Proceeding by or against the Company or any of its subsidiaries. All references in this Agreement to the Company or any of its subsidiaries or any other Grantor will include such Person or Persons as a debtor-in-possession and any receiver or trustee for such Person or Persons in an Insolvency or Liquidation Proceeding. For the purposes of this Section 4.02 , unless otherwise provided herein, clauses  (b) through and including (l)  shall be in full force and effect prior to the Discharge of Priority Lien Obligations.

(b)    If the Company or any of its subsidiaries shall become subject to any Insolvency or Liquidation Proceeding and shall, as debtor(s)-in-possession, or if any receiver or trustee for such Person or Persons shall, move for approval of financing (“ DIP Financing ”) to be provided by one or more lenders (the “ DIP Lenders ”) under Section 364 of the Bankruptcy Code or the use of cash collateral under Section 363 of the Bankruptcy Code, the Second Lien Agent, for itself and on behalf of each Second Lien Secured Party, agrees that neither it nor any other Second Lien Secured Party will raise any objection, contest or oppose, and each Second Lien Secured Party will waive any claim such Person may now or hereafter have, to any such financing or to the Liens on the Collateral securing the same (“ DIP Financing Liens ”), or to any use, sale or lease of cash collateral that constitutes Collateral or to any grant of administrative expense priority under Section 364 of the Bankruptcy Code, unless (A) the Priority Lien Agent or the Priority Lien Secured Parties oppose or object to such DIP Financing or such DIP Financing Liens or such use of cash collateral, (B) the maximum principal amount of Indebtedness permitted under such DIP Financing exceeds the sum of the amount of Priority Lien Obligations refinanced with the proceeds thereof (not including the amount of any Excess Priority Lien Obligations) and that amount equal to 15% of the aggregate principal amount of the Priority Lien Obligations outstanding immediately prior to the commencement of such Insolvency or Liquidation Proceeding (not including any Excess Priority Lien Obligations), (C) the terms of such DIP Financing provide for the sale of a substantial part of the Collateral (unless a Discharge of Priority Lien Obligations shall be effected substantially contemporaneously with such sale) or require the confirmation of a plan of reorganization containing specific terms or provisions (other than repayment in cash of such DIP Financing on the effective date thereof), (D) the proposed effective interest rate of any such DIP Financing is not commercially reasonable under the circumstances (as reasonably determined in the good faith of the Board of Directors of the Company), (E) the Second Lien Secured Parties are not permitted to seek adequate protection to the extent permitted by Section 4.02(f) or (F) such DIP Financing directly or indirectly provides for, or has the effect of providing for, the payment (whether in cash or otherwise) of any Excess Priority Lien Obligations prior to the Discharge of Second Lien Obligations. To the extent such DIP Financing Liens are senior to, or rank pari passu with, the Priority Liens, the Second Lien Agent will, for itself and on behalf of the other Second Lien Secured Parties, subordinate the Second Liens on the Collateral to the Priority Liens and to such DIP Financing Liens, so long as the Second Lien Agent, on behalf of the Second Lien Secured Parties, retains Liens on all the Collateral, including proceeds thereof arising after the commencement of any Insolvency or Liquidation Proceeding, with the same priority relative to the Priority Liens as existed prior to the commencement of the case under the Bankruptcy Code. Notwithstanding the foregoing in this Section  4.02 , the Second Lien Agent and the Second Lien Secured Parties shall have the right to (i) object to any provisions of the DIP Financing provided by the Priority Lien Agent or any Priority Lien Secured Parties relating to any provision or content of a plan of reorganization (other than repayment in cash of such DIP Financing on the effective date thereof) or (ii) object to any DIP Financing to the extent that it permits the Priority Lien Agent or any Priority Lien Secured Parties to be granted adequate protection in the form of additional collateral without the Second Lien Agent and the Second Lien Secured Parties being granted adequate protection in the form of a Lien on such additional collateral that is subordinated to the Liens securing the Priority Lien Debt on the same basis as the other Liens securing the Second Lien Debt are so subordinated to Liens securing the Priority Lien Debt under this Agreement.

 

20


(c)    Prior to the Discharge of Priority Lien Obligations, without the consent of the Priority Lien Agent, in its sole discretion, the Second Lien Agent, for itself and on behalf of each other Second Lien Secured Party, agrees not to propose, support or enter into any DIP Financing.

(d)    The Second Lien Agent, for itself and on behalf of each other Second Lien Secured Party, agrees that it will not object to, oppose or contest (or join with or support any third party objecting to, opposing or contesting) (“ Section 363 Objections” ) a sale or other Disposition, a motion to sell or Dispose or the bidding procedure for such sale or Disposition of any Collateral (or any portion thereof) under Section 363 of the Bankruptcy Code or any other provision of the Bankruptcy Code (any such sale or motion, a “ Section  363 Event ” and any notice or ruling issued by a court of competent jurisdiction in respect of such Section 363 Event, a “ Section  363 Notice ”) if the requisite Priority Lien Secured Parties under the Priority Lien Documents shall have consented to such sale or Disposition and to such motion to sell or Dispose or such bidding procedure for such sale or Disposition of such Collateral, and if all Priority Liens and Second Liens will attach to the proceeds of the sale in the same respective priorities as set forth in this Agreement. Notwithstanding the foregoing in this Section 4.02(d) , if the Second Lien Purchasers have exercised their purchase option (or have committed to exercise their purchase option) pursuant to Section 3.06(a) , Section 363 Objections shall be permitted to be made by the Second Lien Agent or any other Second Lien Secured Party.

(e)    The Second Lien Agent, for itself and on behalf of each other Second Lien Secured Party, waives any claim that may be had against the Priority Lien Agent or any other Priority Lien Secured Party arising out of any DIP Financing Liens (that is granted in a manner that is consistent with this Agreement) or administrative expense priority under Section 364 of the Bankruptcy Code.

(f)    The Second Lien Agent, for itself and on behalf of each other Second Lien Secured Party, agrees that neither the Second Lien Agent nor any other Second Lien Secured Party will file or prosecute in any Insolvency or Liquidation Proceeding any motion for adequate protection (or any comparable request for relief) based upon their interest in the Collateral, nor object to, oppose or contest (or join with or support any third party objecting to, opposing or contesting) (i) any request by the Priority Lien Agent or any other Priority Lien Secured Party for adequate protection or (ii) any objection by the Priority Lien Agent or any other Priority Lien Secured Party to any motion, relief, action or proceeding based on the Priority Lien Agent or Priority Lien Secured Parties claiming a lack of adequate protection, except that the Second Lien Secured Parties may freely seek and obtain: (A) relief granting adequate protection in the form of a replacement Lien co-extensive in all respects with, but subordinated (as set forth in Section  2.01 ) to, and with the same relative priority to the Priority Liens as existed prior to the commencement of the Insolvency or Liquidation Proceeding, all Liens granted in the Insolvency or Liquidation Proceeding to, or for the benefit of, the Priority Lien Secured Parties; and (B) any relief upon a motion for adequate protection (or any comparable relief), without any condition or restriction whatsoever, at any time after the Discharge of Priority Lien Obligations.

(g)    The Second Lien Agent, for itself and on behalf of each other Second Lien Secured Party, agrees that in any Insolvency or Liquidation Proceeding, neither the Second Lien Agent nor any other Second Lien Secured Party shall support or vote to accept any plan of reorganization or disclosure statement of the Company or any other Grantor unless (i) such plan is accepted by the Class of Priority Lien Secured Parties in accordance with Section 1126(c) of the Bankruptcy Code or otherwise provides for the payment in full in cash of all Priority Lien Obligations (including all post-petition interest approved by the bankruptcy court, fees and expenses and cash collateralization of all letters of credit) on the effective date of such plan of reorganization, or (ii) such plan provides on account of the Priority Lien

 

21


Secured Parties for the retention by the Priority Lien Agent, for the benefit of the Priority Lien Secured Parties, of the Liens on the Collateral securing the Priority Lien Obligations, and on all proceeds thereof whenever received, and such plan also provides that any Liens retained by, or granted to, the Second Lien Agent are only on property securing the Priority Lien Obligations and shall have the same relative priority with respect to the Collateral or other property, respectively, as provided in this Agreement with respect to the Collateral. Except as provided herein, each of the Second Lien Secured Parties shall remain entitled to vote their claims in any such Insolvency or Liquidation Proceeding.    

(h)    The Second Lien Agent, for itself and on behalf of each other Second Lien Secured Party, agrees that until the Discharge of Priority Lien Obligations has occurred, subject to the provisions of Section  3.02 , neither the Second Lien Agent nor any other Second Lien Secured Party shall seek relief, pursuant to Section 362(d) of the Bankruptcy Code or otherwise, from the automatic stay of Section 362(a) of the Bankruptcy Code or from any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral if the Priority Lien Agent has not received relief from the automatic stay (or it has not been lifted for the Priority Lien Agent’s benefit), without the prior written consent of the Priority Lien Agent.

(i)    Without the express written consent of the Priority Lien Agent, none of the Second Lien Agent or any other Second Lien Secured Party shall (or shall join with or support any third party in opposing, objecting to or contesting, as the case may be), in any Insolvency or Liquidation Proceeding involving any Grantor, (i) except as contemplated by clause (a)(i)(B)(II) of Section  3.05 , oppose, object to or contest the determination of the extent of any Liens held by any of Priority Lien Secured Party or the value of any claims of any such holder under Section 506(a) of the Bankruptcy Code or (ii) oppose, object to or contest the payment to the Priority Lien Secured Party of interest, fees or expenses under Section 506(b) of the Bankruptcy Code.

(j)    The Second Lien Agent, for itself and on behalf of each other Second Lien Secured Party, hereby agrees that prior to the Discharge of Priority Lien Obligations or the effectiveness of a purchase by Second Lien Purchasers in accordance with Section  3.06 , whichever occurs first, the Priority Lien Agent shall have the exclusive right to credit bid the Priority Lien Obligations and further that none of the Second Lien Agent or any other Second Lien Secured Party shall (or shall join with or support any third party in opposing, objecting to or contesting, as the case may be) oppose, object to or contest such credit bid of the Priority Lien Obligations by the Priority Lien Agent.

(k)    Without the consent of the Priority Lien Agent in its sole discretion, the Second Lien Agent, for itself and on behalf of each other Second Lien Secured Party, agrees it will not file an involuntary bankruptcy claim or seek the appointment of an examiner or a trustee for the Company or any of its subsidiaries.

(l)    The Second Lien Agent, for itself and on behalf of each other Second Lien Secured Party, waives any right to assert or enforce any claim under Sections 506(c) or 552 of the Bankruptcy Code as against any Priority Lien Secured Party or any of the Collateral, except as expressly permitted by this Agreement.

SECTION 4.03     Reinstatement .

(a)    If any Priority Lien Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of any Grantor any amount (a “ Recovery ”) for any reason whatsoever, then the Priority Lien Obligations shall be reinstated to the extent of such Recovery and the Priority Lien Secured Parties shall be entitled to a reinstatement of Priority Lien Obligations with respect to all such recovered amounts. The Second Lien Agent, for itself and on behalf

 

22


of each other Second Lien Secured Party, agrees that if, at any time, a Second Lien Secured Party receives notice of any Recovery, the Second Lien Secured Party shall, to the extent consistent with Section 6.01(a) , promptly pay over to the Priority Lien Agent any payment received by it and then in its possession or under its control in respect of any Collateral subject to any Priority Lien securing such Priority Lien Obligations and shall, to the extent consistent with Section 6.01(a) , promptly turn any Collateral subject to any such Priority Lien then held by it over to the Priority Lien Agent, and the provisions set forth in this Agreement shall be reinstated as if such payment had not been made. If this Agreement shall have been terminated prior to any such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement. Any amounts received by the Second Lien Agent or any other Second Lien Secured Party and then in its possession or under its control on account of the Second Lien Obligations after the termination of this Agreement shall, in the event of a reinstatement of this Agreement pursuant to this Section  4.03 and to the extent consistent with Section 6.01(a) , be held in trust for and paid over to the Priority Lien Agent for the benefit of the Priority Lien Secured Parties for application to the reinstated Priority Lien Obligations until the discharge thereof.

(b)    This Section  4.03 shall survive termination of this Agreement.

SECTION 4.04     Refinancings .

(a)    The Priority Lien Obligations may be Replaced by any Priority Refinancing Credit Facility without notice to, or the consent of any Secured Party, all without affecting the Lien priorities provided for herein or the other provisions hereof; provided , that (i) the Second Lien Agent shall receive on or prior to incurrence of a Priority Refinancing Credit Facility (A) an Officers’ Certificate from the Company stating and certifying that (I) the incurrence thereof and the related Liens are permitted to be incurred by each applicable Secured Debt Document, (II) the requirements of Section  4.06 have been satisfied, and (III) such Priority Refinancing Credit Facility constitutes “Priority Lien Debt” for the purposes of the Secured Debt Documents and this Agreement, (B) a Priority Confirmation Joinder from an authorized agent, trustee or other representative of the holders or lenders of any Indebtedness that Replaces the Priority Lien Obligations and, to the extent necessary or appropriate to facilitate such transaction, a new intercreditor agreement substantially similar to this Agreement, as in effect on the date hereof and (C) evidence that the Company has duly authorized, executed (if applicable) and recorded (or caused to be recorded) in each appropriate governmental office all relevant filings and recordations deemed necessary by the Company and the holder of such Replacement, or its Secured Debt Representative, to ensure that such Replacement is secured by the Collateral in accordance with the applicable Security Documents ( provided that such filings and recordings may be authorized, executed and recorded following any incurrence on a post-closing basis if permitted by the applicable Secured Debt Representative), and (ii) the aggregate outstanding principal amount of the Priority Lien Obligations, after giving effect to such Priority Refinancing Credit Facility, shall not exceed the Priority Lien Cap.

(b)    Notwithstanding anything contained in this Section  4.04 , nothing in this Agreement will be construed to allow the Company or any other Grantor to incur additional Indebtedness (or to incur, assume or otherwise permit or allow to exist any Liens) unless otherwise permitted by the terms of each applicable Secured Debt Document.

SECTION 4.05     Amendments to Priority Lien Documents and Second Lien Documents .

(a)    Prior to the Discharge of Second Lien Obligations, without the prior written consent of the Second Lien Agent, no Priority Lien Document may be amended, supplemented, restated or otherwise modified and/or refinanced or entered into to the extent such amendment, supplement,

 

23


restatement or modification and/or refinancing, or the terms of any new Priority Lien Document would (i) adversely affect the Lien priority rights of the Second Lien Secured Parties or the rights of the Second Lien Secured Parties, as the case may be, to receive required payments that are due and payable (or than are otherwise owed) pursuant to the Second Lien Documents, (ii) except upon compliance with Section 2.03, grant any Liens on any additional Collateral to secure the Obligations under the Priority Lien Security Documents, (iii) contravene the provisions of this Agreement or the Second Lien Documents, (iv) increase the outstanding principal amount of the loans and other extensions of credit and the stated amount of letters of credit under the Priority Credit Agreement and/or any Priority Refinancing Credit Facility and/or any other Priority Lien Documents to an aggregate amount being in excess of the amount set forth in clause (a) of the definition of “Priority Lien Cap”, (v) change any covenants, defaults, or events of default under any Priority Lien Document (including the addition of covenants, defaults, or events of default not contained in the Priority Credit Agreement or other Priority Lien Documents as in effect on the date hereof) to restrict any Grantor from making payments of the Second Lien Debt that would otherwise be permitted under the Priority Lien Documents as in effect on the date hereof, or (vi) except as otherwise contemplated or required by the Priority Lien Documents (as in effect on the date hereof) or any equivalent terms in any Priority Lien Document entered into after the date hereof that are no more extensive than the Priority Lien Documents as in effect on the date hereof, and except in connection with any DIP Financing permitted hereunder, expressly subordinate the Lien on the Collateral under the Priority Lien Documents to Liens on the Collateral securing any other Indebtedness.

(b)    Prior to the Discharge of Priority Lien Obligations, without the prior written consent of the Priority Lien Agent, no Second Lien Document may be amended, supplemented, restated or otherwise modified and/or refinanced or entered into to the extent such amendment, supplement, restatement or modification and/or refinancing, or the terms of any new Second Lien Document would (i) adversely affect the Lien priority rights of the Priority Lien Secured Parties or the rights of the Priority Lien Secured Parties to receive payments owing pursuant to the Priority Lien Documents, (ii) except as otherwise provided for in this Agreement, add any Liens securing the Collateral granted under the Second Lien Security Documents, (iii) confer any additional material rights on the Second Lien Agent or any other Second Lien Secured Party in a manner adverse in any material respect to the Priority Lien Secured Parties (other than for periods following the latest maturity date under the Priority Credit Agreement) unless a similar modification is concurrently made under the Priority Lien Documents, (iv) contravene the provisions of this Agreement or the Priority Lien Documents, (v) change to earlier dates any dates upon which required payments of principal or interest are due thereon (except to the extent that equivalent changes are implemented under the First Lien Documents), (vi) change the mandatory redemption, prepayment, repurchase, tender or defeasance provisions thereof in a manner that would require a redemption, prepayment, repurchase, tender or defeasance not required pursuant to the terms of such Second Lien Document as of the date hereof, or in a manner materially adverse to the interests of the Priority Lien Secured Parties, (vii) change any covenants, defaults, or events of default under the Second Lien Indenture or any other Second Lien Document (including the addition of covenants, defaults, or events of default not contained in the Second Lien Indenture or other Second Lien Documents as in effect on the date hereof) to restrict any Grantor from making payments of the Priority Lien Debt that would otherwise be permitted under the Second Lien Documents as in effect on the date hereof, (viii) change any default or event of default thereunder in a manner materially adverse to Grantors thereunder (it being understood that any waiver of any such default or event of default, in and of itself, shall not be deemed to be materially adverse to Grantors) when taken as a whole, than any corresponding defaults or events of default under the Priority Lien Documents (other than for periods following the Discharge of Priority Lien Obligations) unless a similar amendment or modification is concurrently made under the Priority Lien Documents, or (ix) increase materially the non-monetary obligations of Grantors thereunder or confer any additional material rights on the Second Lien Secured Parties that would be adverse to the interests of the Priority Lien Secured Parties (as in effect from time to time) (other than for periods following the latest maturity date under the Priority Credit Agreement) unless a similar modification is concurrently made under the Priority Lien Documents.

 

24


SECTION 4.06     Legends . Each of:

(a)    the Priority Lien Agent acknowledges and agrees with respect to the Priority Credit Agreement and the Priority Lien Security Documents, and

(b)    the Second Lien Agent acknowledges and agrees with respect to the Second Lien Indenture and the Second Lien Security Documents,

that the Second Lien Indenture, the Second Lien Documents (other than control agreements to which both the Priority Lien Agent and the Second Lien Agent are parties), and each Security Document (other than control agreements to which both the Priority Lien Agent and the Second Lien Agent are parties) granting any security interest in the Collateral will contain the appropriate legend set forth on Annex  I .

SECTION 4.07     Second Lien Secured Parties Rights as Unsecured Creditors; Judgment Lien Creditor . Both before and during an Insolvency or Liquidation Proceeding, any of the Second Lien Secured Parties may take any actions and exercise any and all rights that would be available to a holder of unsecured claims; provided , however , that the Second Lien Secured Parties may not take any of the actions prohibited by Section  3.05(a) or Section  4.02 or any other provisions in this Agreement; provided , further , that in the event that any of the Second Lien Secured Parties becomes a judgment Lien creditor in respect of any Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Second Lien Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the Priority Lien Obligations and the Second Lien Obligations, as applicable) as the Second Liens are subject to this Agreement.

SECTION 4.08     Postponement of Subrogation . The Second Lien Agent, for itself and on behalf of each other Second Lien Secured Party, hereby agrees that no payment or distribution to any Priority Lien Secured Party pursuant to the provisions of this Agreement shall entitle any Second Lien Secured Party to exercise any rights of subrogation in respect thereof until the Discharge of Priority Lien Obligations shall have occurred. Following the Discharge of Priority Lien Obligations, but subject to the reinstatement as provided in Section  4.03 , each Priority Lien Secured Party will execute such documents, agreements, and instruments as any Second Lien Secured Party may reasonably request to evidence the transfer by subrogation to any such Person of an interest in the Priority Lien Obligations resulting from payments or distributions to such Priority Lien Secured Party by such Person, so long as all costs and expenses (including all reasonable legal fees and disbursements) incurred in connection therewith by such Priority Lien Secured Party are paid by such Person upon request for payment thereof.

SECTION 4.09     Acknowledgment by the Secured Debt Representatives . Each of the Priority Lien Agent, for itself and on behalf of the other Priority Lien Secured Parties, and the Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, hereby acknowledges that this Agreement is a material inducement to enter into a business relationship, that each has relied on this Agreement to enter into the Priority Credit Agreement and the Second Lien Indenture, as applicable, and all documentation related thereto, and that each will continue to rely on this Agreement in their related future dealings.

SECTION 4.10     Automatic Amendments to Second Lien Security Documents . In the event the Priority Lien Agent or the other Priority Lien Secured Parties and the relevant Grantors enter into any amendment, waiver or consent in respect of any of the documents evidencing or giving rise the Priority Liens for the purpose of adding to, or deleting from, or waiving or consenting to any departures

 

25


from any provision thereof, such amendment, waiver or consent shall apply automatically (to the extent permitted by law) to any comparable provision of the comparable Second Lien Security Documents evidencing or giving rise to the Second Liens without any action by or consent of the Second Lien Secured Parties, provided, that (other than with respect to amendments, modifications or waivers that secure additional extensions of credit and add additional secured creditors and do not violate the express provisions of the Second Lien Indenture), (A) no such amendment, waiver or consent shall effect the release of Liens on Collateral unless such release is otherwise permitted under this Agreement and the Second Lien Indenture, (B) no such amendment, waiver or consent that materially and adversely affects the rights of the Second Lien Secured Parties but does not so materially and adversely affect the Priority Lien Secured Parties in a like or similar manner shall apply to the Second Lien Security Documents without the consent of the Second Lien Agent (acting with the consent of the majority of the Second Lien Secured Parties in accordance with the Second Lien Indenture), (C) notice of such amendment, waiver or consent shall be given by the Company to the Second Lien Agent no later than five days prior its effectiveness, provided that to the extent permitted by law, the failure to give such notice shall not affect the effectiveness and validity thereof, (D) if any Priority Lien Secured Parties are paid or otherwise receive any fee or other consideration for granting any such amendment, waiver or consent, the holders of the Notes (as defined in the Second Lien Indenture) shall receive an equal fee or consideration and (E) no such amendment, waiver or consent shall affect the rights and duties of the Second Lien Agent without the prior written consent of the Second Lien Agent.

ARTICLE V

GRATUITOUS BAILMENT FOR PERFECTION OF CERTAIN SECURITY INTERESTS

SECTION 5.01     General . Prior to the Discharge of Priority Lien Obligations, the Priority Lien Agent agrees that if it shall at any time hold a Priority Lien on any Collateral that can be perfected by the possession or control of such Collateral or of any Account in which such Collateral is held, and if such Collateral or any such Account is in fact in the possession or under the control of the Priority Lien Agent, the Priority Lien Agent will serve as gratuitous bailee for the Second Lien Agent for the sole purpose of perfecting the Second Lien of the Second Lien Agent on such Collateral. It is agreed that the obligations of the Priority Lien Agent and the rights of the Second Lien Agent and the other Second Lien Secured Parties in connection with any such bailment arrangement will be in all respects subject to the provisions of Article  II . Notwithstanding anything to the contrary herein, the Priority Lien Agent will be deemed to make no representation as to the adequacy of the steps taken by it to perfect the Second Lien on any such Collateral and shall have no responsibility, duty, obligation or liability to the Second Lien Agent, any other Second Lien Secured Party or any other Person for such perfection or failure to perfect, it being understood that the sole purpose of this Article is to enable the Second Lien Secured Parties to obtain a perfected Second Lien in such Collateral to the extent, if any, that such perfection results from the possession or control of such Collateral or any such Account by the Priority Lien Agent. The Priority Lien Agent acting pursuant to this Section  5.01 shall not have by reason of the Priority Lien Security Documents, the Second Lien Security Documents, this Agreement or any other document or theory, a fiduciary relationship in respect of any Priority Lien Secured Party, the Second Lien Agent or any Second Lien Secured Party. Subject to Section  4.03 , from and after the Discharge of Priority Lien Obligations, the Priority Lien Agent shall take all such actions in its power as shall reasonably be requested by the Second Lien Agent (at the sole cost and expense of the Grantors) to transfer possession or control of such Collateral or any such Account (in each case to the extent the Second Lien Agent has a Lien on such Collateral or Account after giving effect to any prior or concurrent releases of Liens) to the Second Lien Agent for the benefit of all Second Lien Secured Parties.

SECTION 5.02     Deposit Accounts . Prior to the Discharge of Priority Lien Obligations, to the extent that any Account is under the control of the Priority Lien Agent at any time, the

 

26


Priority Lien Agent will act as gratuitous bailee for the Second Lien Agent for the purpose of perfecting the Liens of the Second Lien Secured Parties in such Accounts and the cash and other assets therein as provided in Section  3.01 (but will have no duty, responsibility or obligation to the Second Lien Secured Parties (including, without limitation, any duty, responsibility or obligation as to the maintenance of such control, the effect of such arrangement or the establishment of such perfection) except as set forth in the last sentence of this Section  5.02 ). Unless the Second Liens on such Collateral shall have been or concurrently are released, after the occurrence of Discharge of Priority Lien Obligations, the Priority Lien Agent shall, at the request of the Second Lien Agent, cooperate with the Grantors and the Second Lien Agent (at the expense of the Grantors) in permitting control of any other Accounts to be transferred to the Second Lien Agent (or for other arrangements with respect to each such Accounts satisfactory to the Company and the Second Lien Agent to be made).

ARTICLE VI

APPLICATION OF PROCEEDS; DETERMINATION OF AMOUNTS

SECTION 6.01     Application of Proceeds . (a) Prior to the Discharge of Priority Lien Obligations, and regardless of whether an Insolvency or Liquidation Proceeding has been commenced, Collateral or proceeds received in connection with the enforcement or exercise of any rights or remedies with respect to any portion of the Collateral or with respect to the occurrence of any “Change of Control” (or similar term) as such term is defined under any Priority Lien Document or the Second Lien Documents, will be applied:

(i)     first , to the payment in full in cash of all Priority Lien Obligations that are not Excess Priority Lien Obligations, which Collateral or proceeds shall be applied by the Priority Lien Agent pursuant to the Priority Lien Intercreditor Agreement,

(ii)     second , to the payment in full in cash of all Second Lien Obligations,

(iii)     third , to the payment in full in cash of all Excess Priority Lien Obligations, and

(iv)     fourth , to the Company or as otherwise required by applicable law.

For the avoidance of doubt and notwithstanding anything to the contrary contained in this Section 6.01(a), the provisions of this Section 6.01(a) shall not apply to any payments required to be made by the Company or any of its Subsidiaries in connection with any “Change of Control” offer to purchase Indebtedness under any Second Lien Documents which is permitted to be made under the terms of the Priority Lien Documents.

(b)    Following the Discharge of Priority Lien Obligations but prior to the Discharge of Second Lien Obligations, and regardless of whether an Insolvency or Liquidation Proceeding has been commenced, Collateral or proceeds received in connection with the enforcement or exercise of any rights or remedies with respect to any portion of the Collateral will be applied:

(i)     first , to the payment in full in cash of all Second Lien Obligations, and

(ii)     second , to the Company or as otherwise required by applicable law.

SECTION 6.02     Determination of Amounts . Whenever a Secured Debt Representative shall be required, in connection with the exercise of its rights or the performance of its

 

27


obligations hereunder, to determine the existence or amount of any Priority Lien Obligations (or the existence of any commitment to extend credit that would constitute Priority Lien Obligations or that distributions have been made in accordance with the Priority Lien Intercreditor Agreement), Second Lien Obligations, or the existence of any Lien securing any such obligations, or the Collateral subject to any such Lien, it may request that such information be furnished to it in writing by the other Secured Debt Representatives and shall be entitled to make such determination on the basis of the information so furnished; provided , however , that if a Secured Debt Representative shall fail or refuse reasonably promptly to provide the requested information, the requesting Secured Debt Representative shall be entitled to make any such determination by such method as it may, in the exercise of its good faith judgment, determine, including by reliance upon a certificate of the Company. Each Secured Debt Representative may rely conclusively, and shall be fully protected in so relying, on any determination made by it in accordance with the provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to the Company or any of its subsidiaries, any Secured Party or any other Person as a result of such determination.

ARTICLE VII

NO RELIANCE; NO LIABILITY; OBLIGATIONS ABSOLUTE;

CONSENT OF GRANTORS; ETC.

SECTION 7.01     No Reliance; Information . The Priority Lien Secured Parties and the Second Lien Secured Parties shall have no duty to disclose to any Second Lien Secured Party or to any Priority Lien Secured Party, as the case may be, any information relating to the Company or any of the other Grantors, or any other circumstance bearing upon the risk of non-payment of any of the Priority Lien Obligations or the Second Lien Obligations, as the case may be, that is known or becomes known to any of them or any of their Affiliates. In the event any Priority Lien Secured Party or any Second Lien Secured Party, in its sole discretion, undertakes at any time or from time to time to provide any such information to, any Second Lien Secured Party or any Priority Lien Secured Party, as the case may be, it shall be under no obligation (a) to make, and shall not make or be deemed to have made, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of the information so provided, (b) to provide any additional information or to provide any such information on any subsequent occasion or (c) to undertake any investigation.

SECTION 7.02     No Warranties or Liability .

(a)    The Priority Lien Agent, for itself and on behalf of the other Priority Lien Secured Parties, acknowledges and agrees that, except for the representations and warranties set forth in Article  VIII , neither the Second Lien Agent nor any other Second Lien Secured Party has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the Second Lien Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon.

(b)    The Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, acknowledges and agrees that, except for the representations and warranties set forth in Article  VIII , neither the Priority Lien Agent nor any other Priority Lien Secured Party has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the Priority Lien Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon.

(c)    The Priority Lien Agent and the other Priority Lien Secured Parties shall have no express or implied duty to the Second Lien Agent or any other Second Lien Secured Party, and the

 

28


Second Lien Agent and the other Second Lien Secured Parties shall have no express or implied duty to the Priority Lien Agent, any other Priority Lien Secured Party, to act or refrain from acting in a manner which allows, or results in, the occurrence or continuance of a default or an event of default under any Priority Lien Document and any Second Lien Document (other than, in each case, this Agreement), regardless of any knowledge thereof which they may have or be charged with.

(d)    The Second Lien Agent, for itself and on behalf of each other Second Lien Secured Party, hereby waives any claim that may be had against the Priority Lien Agent or any other Priority Lien Secured Party arising out of any actions which the Priority Lien Agent or such Priority Lien Secured Party takes or omits to take (including actions with respect to the creation, perfection or continuation of Liens on any Collateral, actions with respect to the foreclosure upon, sale, release or depreciation of, or failure to realize upon, any Collateral, and actions with respect to the collection of any claim for all or only part of the Priority Lien Obligations from any account debtor, guarantor or any other party) in accordance with this Agreement and the Priority Lien Documents or the valuation, use, protection or release of any security for such Priority Lien Obligations.

SECTION 7.03     Obligations Absolute . The Lien priorities provided for herein and the respective rights, interests, agreements and obligations hereunder of the Priority Lien Agent and the other Priority Lien Secured Parties, the Second Lien Agent and the other Second Lien Secured Parties shall remain in full force and effect irrespective of:

(a)    any lack of validity or enforceability of any Secured Debt Document;

(b)    any change in the time, place or manner of payment of, or in any other term of (including the Replacing of), all or any portion of the Priority Lien Obligations, it being specifically acknowledged that a portion of the Priority Lien Obligations consists or may consist of Indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed;

(c)    any amendment, waiver or other modification, whether by course of conduct or otherwise, of any Secured Debt Document;

(d)    the securing of any Priority Lien Obligations or Second Lien Obligations with any additional collateral or guarantees, or any exchange, release, voiding, avoidance or non-perfection of any security interest in any Collateral or any other collateral or any release of any guarantee securing any Priority Lien Obligations or Second Lien Obligations;

(e)    the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or any other Grantor; or

(f)    any other circumstances that otherwise might constitute a defense available to, or a discharge of, the Company or any other Grantor in respect of the Priority Lien Obligations or the Second Lien Obligations.

SECTION 7.04     Grantors Consent . Each Grantor hereby consents to the provisions of this Agreement and the intercreditor arrangements provided for herein and agrees that the obligations of the Grantors under the Secured Debt Documents will in no way be diminished or otherwise affected by such provisions or arrangements (except as expressly provided herein).

 

29


ARTICLE VIII

REPRESENTATIONS AND WARRANTIES

SECTION 8.01     Representations and Warranties of Each Party . Each party hereto represents and warrants to the other parties hereto as follows:

(a)    Such party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has all requisite power and authority to enter into and perform its obligations under this Agreement.

(b)    This Agreement has been duly executed and delivered by such party.

(c)    The execution, delivery and performance by such party of this Agreement (i) do not require any consent or approval of, registration or filing with or any other action by any Governmental Authority of which the failure to obtain could reasonably be expected to have a Material Adverse Effect (as defined in the Priority Credit Agreement), (ii) will not violate any applicable law or regulation or any order of any Governmental Authority or any indenture, agreement or other instrument binding upon such party which could reasonably be expected to have a Material Adverse Effect and (iii) will not violate the charter, by-laws or other organizational documents of such party.

SECTION 8.02     Representations and Warranties of Each Representative . Each of the Priority Lien Agent and the Second Lien Agent represents and warrants to the other parties hereto that it is authorized under the Priority Credit Agreement and the Second Lien Indenture, as the case may be, to enter into this Agreement.

ARTICLE IX

MISCELLANEOUS

SECTION 9.01     Notices . All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:

 

  (a) if to the Priority Lien Agent, to it at:

Wilmington Trust, National Association

Rodney Square, 1100 North Market Street

Wilmington, DE 19890

Attention: Jennifer K. Anderson

Facsimile No.: (302) 636-4145

email: JKAnderson@wilmingtontrust.com

with a copy to:

Arnold & Porter Kaye Scholer LLP

250 West 55 th Street

New York, NY 10019

Attention: Alan Glantz

Facsimile No.: (212) 836-6763

email: Alan.Glantz@APKS.com

 

30


  (b) if to the Second Lien Agent, to it at:

Wilmington Trust, National Association

Global Capital Markets

15950 N. Dallas Parkway, Suite 550

Dallas, TX 75248

Facsimile: 888-316-6238

Attn: Gastar Exploration Inc. Account Manager

(c)    if to any other Secured Debt Representative, to such address as specified in the Priority Confirmation Joinder.

Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt (if a Business Day) and on the next Business Day thereafter (in all other cases) if delivered by hand or overnight courier service or sent by telecopy or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section  9.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section  9.01 . As agreed to in writing among the Company, the Priority Lien Agent and the Second Lien Agent from time to time, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of the applicable person provided from time to time by such person.

SECTION 9.02     Waivers; Amendment . (a) No failure or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any party therefrom shall in any event be effective unless the same shall be permitted by paragraph  (b) of this Section  9.02 , and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.

(b)    Neither this Agreement nor any provision hereof may be terminated, waived, amended or modified except pursuant to an agreement or agreements in writing entered into by each Secured Debt Representative; provided , however , that this Agreement may be amended from time to time as provided in Section  4.04 ; and provided further , however , that this Agreement may not be amended or modified in a manner that adversely affects the rights or obligations of the Grantors hereunder in any material respects without the consent of the Company. Any amendment of this Agreement that is proposed to be effected without the consent of a Secured Debt Representative as permitted by the proviso to the preceding sentence shall be submitted to such Secured Debt Representative for its review at least 5 Business Days prior to the proposed effectiveness of such amendment.

SECTION 9.03     Actions Upon Breach; Specific Performance . (a) Prior to the Discharge of Priority Lien Obligations, if any Second Lien Secured Party, contrary to this Agreement,

 

31


commences or participates in any action or proceeding against any Grantor or the Collateral, such Grantor, with the prior written consent of the Priority Lien Agent, may interpose as a defense or dilatory plea the making of this Agreement, and any Priority Lien Secured Party may intervene and interpose such defense or plea in its or their name or in the name of such Grantor.

(b)    Prior to the Discharge of Priority Lien Obligations, should any Second Lien Secured Party contrary to this Agreement, in any way take, attempt to or threaten to take any action with respect to the Collateral (including any attempt to realize upon or enforce any remedy with respect to this Agreement), or take any other action in violation of this Agreement or fail to take any action required by this Agreement, the Priority Lien Agent or any other Priority Lien Secured Party (in its own name or in the name of the relevant Grantor) or the relevant Grantor, with the prior written consent of the Priority Lien Agent, may obtain relief against such Second Lien Secured Party by injunction, specific performance and/or other appropriate equitable relief, it being understood and agreed by the Second Lien Agent on behalf of each Second Lien Secured Party that (I) the Priority Lien Secured Parties’ damages from its actions may at that time be difficult to ascertain and may be irreparable, and (II) each Second Lien Secured Party waives any defense that the Grantors and/or the Priority Lien Secured Parties cannot demonstrate damage and/or be made whole by the awarding of damages.

SECTION 9.04     Parties in Interest . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, as well as the other Secured Parties, all of whom are intended to be bound by, and to be third party beneficiaries of, this Agreement.

SECTION 9.05     Survival of Agreement . All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.

SECTION 9.06     Counterparts . This Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.

SECTION 9.07     Severability . Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

SECTION 9.08     Governing Law; Jurisdiction; Consent to Service of Process . (a) THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES (BUT GIVING EFFECT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATION LAW).

(b)    Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such federal court. Each

 

32


of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party hereto may otherwise have to bring any action or proceeding relating to this Agreement in the courts of any jurisdiction.

(c)    Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph  (b) of this Section  9.08 . Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(d)    Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section  9.01 . Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

SECTION 9.09     WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

SECTION 9.10     Headings . Article, Section and Annex headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

SECTION 9.11     Conflicts . In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of any Secured Debt Documents, the provisions of this Agreement shall control.

SECTION 9.12     Provisions Solely to Define Relative Rights . The provisions of this Agreement are and are intended solely for the purpose of defining the distinct and separate relative rights of the Priority Lien Secured Parties and the Second Lien Secured Parties. None of the Company, any other Grantor or any other creditor thereof shall have any rights or obligations hereunder, except as expressly provided in this Agreement ( provided that nothing in this Agreement is intended to or will amend, waive or otherwise modify the provisions of the Priority Credit Agreement or the Second Lien Indenture, as applicable), and except as expressly provided in this Agreement neither the Company nor any other Grantor may rely on the terms hereof (other than Sections  4.01 , 4.02 , 4.04 , or 4.05 , Article  VII and Article  IX ). Nothing in this Agreement is intended to or shall impair the obligations of the Company or any other Grantor, which are absolute and unconditional, to pay the Obligations under the Secured Debt Documents as and when the same shall become due and payable in accordance with their terms. Notwithstanding anything to the contrary herein, the Grantors shall not be required to act or refrain from acting pursuant to this Agreement with respect to any Collateral in any manner that would cause a default under any Priority Lien Document.

 

33


SECTION 9.13     Certain Terms Concerning the Second Lien Agent . The Second Lien Agent is executing and delivering this Agreement solely in its capacity as such and pursuant to direction set forth in the Second Lien Indenture; and in so doing, the Second Lien Agent shall not be responsible for the terms or sufficiency of this Agreement for any purpose. The Second Lien Agent shall have no duties or obligations under or pursuant to this Agreement other than such duties and obligations as may be expressly set forth in this Agreement as duties and obligations on its part to be performed or observed. Notwithstanding anything to the contrary contained in this Agreement, for purposes of clarity and avoidance of doubt, the Second Lien Agent shall have no duties or obligations with respect to covenants and agreements made by or on behalf of any other Second Lien Secured Party in this Agreement .  In entering into this Agreement, or in taking (or forbearing from) any action under or pursuant to the Agreement, the Second Lien Agent shall have and be protected by all of the rights, immunities, indemnities and other protections granted to it under the Second Lien Indenture and the other Second Lien Documents (including, without limitation, Article  12 and Section  10.12 of the Second Lien Indenture).

SECTION 9.14     Certain Terms Concerning the Priority Lien Agent and the Second Lien Agent . Notwithstanding anything to the contrary contained in this Agreement, none of the Priority Lien Agent or the Second Lien Agent shall have any liability or responsibility for the actions or omissions of any other Secured Party, or for any other Secured Party’s compliance with (or failure to comply with) the terms, covenants and agreements set forth in this Agreement. Neither the Priority Lien Agent nor the Second Lien Agent shall have individual liability to any Person if it shall mistakenly pay over or distribute to any Secured Party (or the Company or any other Grantor) any amounts in violation of the terms of this Agreement, so long as the Priority Lien Agent or the Second Lien Agent, as the case may be, is acting in good faith. Each party hereto hereby acknowledges and agrees that each of the Priority Lien Agent and the Second Lien Agent is entering into this Agreement solely in its capacity under the Priority Lien Documents and the Second Lien Documents, respectively, and not in its individual capacity. The Priority Lien Agent shall not be deemed to owe any fiduciary duty to the Second Lien Agent or any other Second Lien Secured Party. The Second Lien Agent shall not be deemed to owe any fiduciary duty to the Priority Lien Agent or any other Priority Lien Secured Party. The Second Lien Agent shall not at any time be deemed or imputed to have any knowledge of or receipt of any notices, information, correspondence or materials in the possession of or given to the Priority Lien Agent, in its capacity as Priority Lien Agent. The Priority Lien Agent shall not at any time be deemed or imputed to have any knowledge of or receipt of any notices, information, correspondence or materials in the possession of or given to the Second Lien Agent, in its capacity as Second Lien Agent or as a trustee or collateral trustee under the Second Lien Indenture.

SECTION 9.15     Authorization of Secured Agents . By accepting the benefits of this Agreement and the other Priority Lien Security Documents, each Priority Lien Secured Party authorizes the Priority Lien Agent to enter into this Agreement and to act on its behalf as collateral agent hereunder and in connection herewith. By accepting the benefits of this Agreement and the other Second Lien Security Documents, each Second Lien Secured Party authorizes the Second Lien Agent to enter into this Agreement and to act on its behalf as collateral agent hereunder and in connection herewith.

SECTION 9.16     Further Assurances . Each of the Priority Lien Agent, for itself and on behalf of the other Priority Lien Secured Party, the Second Lien Agent, for itself and on behalf of the other Second Lien Secured Parties, and each Grantor party hereto, for itself and on behalf of its subsidiaries, agrees that it will execute, or will cause to be executed, any and all further documents, agreements and instruments, and take all such further actions, as may be required under any applicable law, or which the Priority Lien Agent or the Second Lien Agent may reasonably request, to effectuate the terms of this Agreement, including the relative Lien priorities provided for herein.

 

34


SECTION 9.17     Relationship of Secured Parties . Nothing set forth herein shall create or evidence a joint venture, partnership or an agency or fiduciary relationship among the Secured Parties. None of the Secured Parties nor any of their respective directors, officers, agents or employees shall be responsible to any other Secured Party or to any other Person for any Grantor’s solvency, financial condition or ability to repay the Priority Lien Obligations or the Second Lien Obligations, or for statements of any Grantor, oral or written, or for the validity, sufficiency or enforceability of the Priority Lien Documents or the Second Lien Documents, or any security interests granted by any Grantor to any Secured Party in connection therewith. Each Secured Party has entered into its respective financing agreements with the Grantors based upon its own independent investigation, and neither the Priority Lien Agent nor the Second Lien Agent makes any warranty or representation to the other Secured Debt Representatives or the Secured Parties for which it acts as agent nor does it rely upon any representation of the other agents or the Secured Parties for which it acts as agent with respect to matters identified or referred to in this Agreement.

SECTION 9.18     Reciprocal Rights (Excess Priority Lien Obligations ) . The parties agree that the provisions of Articles III , IV and V and Sections 7.02(d) and 9.03 , including, as applicable, the defined terms referenced therein (but only to the extent used therein), which govern the relationship, and certain rights, restrictions, and agreements, between the Priority Lien Agent and the other Priority Lien Secured Parties with respect to the Priority Lien Debt, on the one hand, and the Second Lien Agent and the other Second Lien Secured Parties with respect to the Second Lien Debt, on the other hand, shall, from and after the Discharge of Priority Lien Obligations and until the Discharge of Second Lien Obligations, apply to and govern, mutatis mutandis , the relationship between the Second Lien Agent and the other Second Lien Secured Parties with respect to the Second Lien Debt, on the one hand (which, for purposes of this Section  9.18 shall be treated for all purposes as the Priority Lien Debt as referenced in such aforementioned provisions), and the Priority Lien Agent and the other Priority Lien Secured Parties with respect to the Excess Priority Lien Obligations (which, for purposes of this Section  9.18 shall be treated for all purposes as the Second Lien Debt as referenced in such aforementioned provisions), on the other hand.

[SIGNATURES BEGIN NEXT PAGE]

 

35


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

 

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Priority Lien Agent

By:  

/s/ Jennifer Anderson

Name:   Jennifer Anderson
Title:   Assistant Vice President

 

Signature page

Intercreditor Agreement


WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Second Lien Agent

By:  

/s/ Timothy P. Mowdy

Name:   Timothy P. Mowdy
Title:   Administrative Vice President

 

Signature page

Intercreditor Agreement


ACKNOWLEDGED AND AGREED AS OF THE DATE FIRST ABOVE WRITTEN:
GRANTORS :
GASTAR EXPLORATION INC.
By:  

/s/ J. Russell Porter

Name:   J. Russell Porter
Title:   President and Chief Executive Officer

 

Signature page

Intercreditor Agreement


NORTHWEST PROPERTY VENTURES LLC
By:  

/s/ J. Russell Porter

Name:   J. Russell Porter
Title:   President and Chief Executive Officer

 

Signature page

Intercreditor Agreement


ANNEX I

Provision for all Priority Lien Security Documents and Second Lien Security Documents that Grant a Security Interest in Collateral

Reference is made to the Intercreditor Agreement, dated as of March 3, 2017, between Wilmington Trust, National Association, as Priority Lien Agent (as defined therein), and Wilmington Trust, National Association, as Second Lien Agent (as defined therein) (the “ Intercreditor Agreement ”). Each Person that is secured hereunder, by accepting the benefits of the security provided hereby, [(i) consents (or is deemed to consent), to the subordination of Liens provided for in the Intercreditor Agreement,] 1 [(i)][(ii)] agrees (or is deemed to agree) that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement, [(ii)][(iii)] authorizes (or is deemed to authorize) the [Priority Lien Agent] [Second Lien Agent] on behalf of such Person to enter into, and perform under, the Intercreditor Agreement and [(iii)][(iv)] acknowledges (or is deemed to acknowledge) that a copy of the Intercreditor Agreement was delivered, or made available, to such Person.

Notwithstanding any other provision contained herein, this Agreement, the Liens created hereby and the rights, remedies, duties and obligations provided for herein are subject in all respects to the provisions of the Intercreditor Agreement and, to the extent provided therein, the applicable Security Documents (as defined in the Intercreditor Agreement). In the event of any conflict or inconsistency between the provisions of this Agreement and the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall control.

 

 

1   This bracketed language would not apply to the Priority Lien Security Documents.

 

Annex I - 1


EXHIBIT A

to Intercreditor Agreement

[FORM OF]

PRIORITY CONFIRMATION JOINDER

Reference is made to the Intercreditor Agreement, dated as of March 3, 2017 (as amended, supplemented, amended and restated or otherwise modified and in effect from time to time, the “ Intercreditor Agreement ”) between WILMINGTON TRUST, NATIONAL ASSOCIATION , as Priority Lien Agent for the Priority Lien Secured Parties (as defined therein), and WILMINGTON TRUST, NATIONAL ASSOCIATION , as Second Lien Agent for the Second Lien Secured Parties (as defined therein).

Capitalized terms used but not otherwise defined herein shall have the meaning set forth in the Intercreditor Agreement. This Priority Confirmation Joinder is being executed and delivered pursuant to Section  4.04(a) of the Intercreditor Agreement as a condition precedent to the debt being entitled to the rights and obligations of Priority Lien Obligations under the Intercreditor Agreement, and for which the undersigned is acting representative.

1. Joinder . The undersigned, [                    ], a [                    ], (the “ New Representative ”) as [trustee] [collateral agent] [administrative agent] [collateral agent] under that certain [describe applicable indenture, credit agreement or other document governing the Priority Lien Obligations] hereby:

(a)    represents that the New Representative has been authorized to become a party to the Intercreditor Agreement on behalf of the Priority Lien Secured Parties under a Priority Refinancing Credit Facility for all purposes thereof on the terms set forth therein, and to be bound by the terms of the Intercreditor Agreement as fully as if the undersigned had executed and delivered the Intercreditor Agreement as of the date thereof; and

(b)    agrees that its address for receiving notices pursuant to the Intercreditor Agreement shall be as follows:

[Address]

2.     Priority Confirmation . The undersigned New Representative, on behalf of itself and each Priority Lien Secured Party for which the undersigned is acting as [Administrative Agent] hereby agrees, for the benefit of all Secured Parties and each future Secured Debt Representative, and as a condition to being treated as Priority Lien Obligations under the Intercreditor Agreement, that the New Representative is bound by the provisions of the Intercreditor Agreement, including the provisions relating to the ranking of Priority Liens.

3.     Full Force and Effect of Intercreditor Agreement . Except as expressly supplemented hereby, the Intercreditor Agreement shall remain in full force and effect.

4.     Governing Law and Miscellaneous Provisions . The provisions of Article  IX of the Intercreditor Agreement will apply with like effect to this Priority Confirmation Joinder.

5.     Expenses . The Company agrees to reimburse each Secured Debt Representative for its reasonable out of pocket expenses in connection with this Priority Confirmation Joinder, including the reasonable fees, other charges and disbursements of counsel.

 

Exhibit A - 1


IN WITNESS WHEREOF, the parties hereto have caused this Priority Confirmation Joinder to be executed by their respective officers or representatives as of [            , 20    ].

 

[insert name of New Representative]
By:  

 

Name:  
Title:  
The Second Lien Agent hereby acknowledges receipt of this Priority Confirmation Joinder:

 

as Second Lien Agent
By:  

 

Name:  
Title:  
Acknowledged and Agreed to by:
GASTAR EXPLORATION, INC. , as the Company
By:  

 

Name:  
Title:  

 

Exhibit A - 2


EXHIBIT B

to Intercreditor Agreement

Part A

Third Amended and Restated Pledge and Security Agreement, dated as of March 3, 2017, by and among Gastar Exploration Inc., certain of its subsidiaries party thereto and Wilmington Trust, National Association, as collateral agent.

Amended and Restated First Lien Mortgage, Security Agreement, Fixture Filing, Financing Statement and Assignment of Production, dated as of March 3, 2017, executed and delivered by Gastar Exploration Inc., as mortgagor, to Wilmington Trust, National Association, as mortgagee.

Amended and Restated First Lien Wellbore Mortgage, Security Agreement, Fixture Filing, Financing Statement and Assignment of Production, dated as of March 3, 2017, executed and delivered by Gastar Exploration Inc., as mortgagor, to Wilmington Trust, National Association, as mortgagee.

Master Reaffirmation and Assignment and Assumption of Liens and Security Interests, dated as of March 3, 2017, by and among Gastar Exploration Inc., Wells Fargo Bank National Association, as resigning agent, Wilmington Trust, National Association, as successor administrative agent, and Ares Management, LLC.

Assignment and Assumption of Deposit Account and Sweep Investment Control Agreement, dated as of March 3, 2017, by and among Wells Fargo Bank, National Association, as resigning first lien agent, Wilmington Trust, National Association, as resigning second lien trustee and collateral agent, Wilmington Trust, National Association, as successor first lien agent and successor second lien agent.

Assignment and Assumption of Securities Account Control Agreement, dated as of March 3, 2017, by and among Wells Fargo Bank, National Association, as resigning first lien agent, Wilmington Trust, National Association, as resigning second lien trustee and collateral agent, Wilmington Trust, National Association, as successor first lien agent and successor second lien trustee and collateral agent.

Part B

Pledge and Security Agreement, dated as of March 3, 2017, by and among Gastar Exploration Inc., certain of its subsidiaries party thereto and Wilmington Trust, National Association, as collateral trustee.

Second Lien Mortgage, Security Agreement, Fixture Filing, Financing Statement and Assignment of Production, dated as of March 3, 2017, executed and delivered by Gastar Exploration Inc., as mortgagor, to Wilmington Trust, National Association, as mortgagee.

 

Exhibit B - 1


Second Lien Wellbore Mortgage, Security Agreement, Fixture Filing, Financing Statement and Assignment of Production, dated as of March 3, 2017, executed and delivered by Gastar Exploration Inc., as mortgagor, to Wilmington Trust, National Association, as mortgagee.

Assignment and Assumption of Deposit Account and Sweep Investment Control Agreement, dated as of March 3, 2017, by and among Wells Fargo Bank, National Association, as resigning first lien agent, Wilmington Trust, National Association, as resigning second lien trustee and collateral agent, Wilmington Trust, National Association, as successor first lien agent and successor second lien agent.

Assignment and Assumption of Securities Account Control Agreement, dated as of March 3, 2017, by and among Wells Fargo Bank, National Association, as resigning first lien agent, Wilmington Trust, National Association, as resigning second lien trustee and collateral agent, Wilmington Trust, National Association, as successor first lien agent and successor second lien trustee and collateral agent.

 

Exhibit B - 2

Exhibit 10.5

INTERCREDITOR AGREEMENT

THIS INTERCREDITOR AGREEMENT (this “ Agreement ”) is entered into as of March 3, 2017 by and among MORGAN STANLEY CAPITAL GROUP INC., a Delaware corporation (“ Morgan Stanley ”), NextEra Energy Marketing, LLC, a Delaware limited liability company (“ NextEra ”), Cargill, Incorporated, a Delaware corporation (“ Cargill ”), and Koch Supply & Trading, LP, a Delaware limited partnership (“ Koch ”, and together with Morgan Stanley, NextEra and Cargill, the “ Initial Swap Parties ”), any other Person that hereafter becomes a party to this Agreement as a “ Swap Counterparty ”, as defined below, GASTAR EXPLORATION INC., a Delaware corporation (“ Borrower ”), the Guarantors (as defined below), WILMINGTON TRUST, NATIONAL ASSOCIATION (“ Wilmington Trust ”), as administrative agent (in such capacity, together with its successor and assigns in such capacity, the “ Administrative Agent ”) for the Lenders (as defined below) from time to time party to the Credit Agreement (as defined below), and Wilmington Trust, as collateral agent on behalf of the Secured Parties (as defined below) (in such capacity, together with its successors and assigns in such capacity, the “ Collateral Agent ”).

RECITALS:

Borrower, certain of its affiliates from time to time party thereto as guarantors (the “ Guarantors ”; and together with the Borrower, the “ Loan Parties ”), the lenders from time to time party thereto (the “ Lenders ”) and the Administrative Agent entered into that certain Third Amended and Restated Credit Agreement dated as of the date hereof (as amended, supplemented, restated or otherwise modified from time to time, the “ Credit Agreement ”).

(i) Borrower and Morgan Stanley have entered into that certain ISDA Master Agreement dated as of March 3, 2017, including the schedules, exhibits and annexes thereto and all confirmations and transactions now or hereafter entered into under such ISDA Master Agreement (in each case, as amended, restated, supplemented, or otherwise modified from time to time, collectively, the “ Morgan Stanley ISDA ”), (ii) Borrower and NextEra have entered into that certain ISDA Master Agreement dated as of March 3, 2017, including the schedules, exhibits and annexes thereto and all confirmations and transactions now or hereafter entered into under such ISDA Master Agreement (in each case, as amended, restated, supplemented, or otherwise modified from time to time, collectively, the “ NextEra ISDA ”), (iii) Borrower and Cargill have entered into that certain ISDA Master Agreement dated as of December 10, 2012, including the schedules, exhibits and annexes thereto and all confirmations and transactions now or hereafter entered into under such ISDA Master Agreement (in each case, as amended, restated, supplemented, or otherwise modified from time to time, collectively, the “ Cargill ISDA ”) and (iv) Borrower and Koch have entered into that certain ISDA Master Agreement dated as of January 9, 2014, including the schedules, exhibits and annexes thereto and all confirmations and transactions now or hereafter entered into under such ISDA Master Agreement (in each case, as amended, restated, supplemented, or otherwise modified from time to time, collectively, the “ Koch ISDA ”, and together with the Morgan Stanley ISDA, NextEra ISDA and Cargill ISDA, the “ Initial Swap Party ISDAs ”).

The Loan Parties have granted to the Collateral Agent, for the benefit of the Administrative Agent, the Collateral Agent, the Lenders and the Swap Counterparties (collectively, the “ Secured Parties ”), a Lien (as defined below) on substantially all of their assets, all as more particularly described in the Security Instruments.


The Collateral Agent, the Administrative Agent, the Swap Counterparties and the Loan Parties desire to enter into this Agreement to, among other things, (i) establish the relative priorities of the Lenders and the Swap Counterparties with respect to the Collateral, (ii) agree with respect to which parties can direct the exercise of certain remedies with respect to the Collateral and (iii) have the Secured Parties appoint the Collateral Agent to serve, and have the Collateral Agent agree to serve, as Collateral Agent for the Secured Parties under the Security Instruments (defined below) for the purposes of the holding of and the enforcement of Liens created by and existing under the Security Instruments to secure the Loan Obligations and the Swap Obligations, the apportioning of Proceeds (defined below) between the Administrative Agent (on behalf of itself and the Lenders), on the one hand, and Swap Counterparties, on the other hand, and for the other purposes set forth herein.

AGREEMENTS:

In consideration of the mutual covenants and promises of this Agreement, and for other consideration, the receipt and adequacy of which are hereby acknowledged, Borrower, Swap Counterparties, the Administrative Agent and the Collateral Agent agree as follows:

1.    (a) Definitions . As used in this Agreement,

Approved ISDA means (a) the Initial Swap Party ISDAs and (b) any other ISDA Master Agreement, including any Schedules and Annexes thereto, between Borrower and any other Swap Counterparty that has become a party hereto in accordance with Section 28.

Bankruptcy Code means Title 11 of the United States Code.

Blocking Period has the meaning assigned to such term in Section 4 below.

Business Day means any day other than a Saturday, Sunday or other day in which banking institutions in Houston, Texas or New York, New York are authorized or obligated by law or executive order to close.

Cargill has the meaning assigned to such term in the preamble.

Cargill ISDA has the meaning assigned to such term in the Recitals.

Collateral means, all personal, real and mixed property of the Loan Parties and Rights thereto described in and subject to a Lien under the Security Instruments.

Credit Agreement Secured Parties means the Secured Parties, other than the Swap Counterparties.

Creditors means, collectively, the Administrative Agent (on behalf of the Credit Agreement Secured Parties) and the Swap Counterparties.

 

2


Debtor Relief Law means the Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors.

Discharge of Credit Facility Obligations means the occurrence of all of the following: (i) termination of all commitments to extend credit that would constitute Loan Obligations and (ii) payment in full in cash of all Loan Obligations (other than contingent indemnification obligations for which no claim has been asserted).

Discharge of Swap Obligations means the occurrence of all of the following: (i) termination of all Swap Documents (other than with respect to contingent indemnification obligations for which no claim has been asserted) and (ii) payment in full in cash of all Swap Obligations.

Early Termination Event means, with respect to any Swap Document, the occurrence of an event of default or a termination event that results in the termination of all transactions or all affected transactions under such Swap Document.

Excess Priority Lien Obligations has the meaning assigned to such term in the First Lien/Second Lien Intercreditor Agreement.

First Lien/Second Lien Intercreditor Agreement means that certain Intercreditor Agreement, dated as of the date hereof, between, Wilmington Trust, in its capacity as “First Priority Agent” thereunder, Wilmington Trust, in its capacity as “Second Lien Agent” thereunder, and acknowledged and agreed to by the Loan Parties.

Governmental Authority means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government over any Loan Party or any of its properties.

Hydrocarbons means collectively, oil, gas, casinghead gas, drip gasoline, natural gasoline, condensate, distillate and all other liquid or gaseous hydrocarbons and related minerals and all products therefrom, in each case whether in a natural or a processed state.

Indemnified Liabilities means any and all liabilities (including all environmental liabilities), obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, taxes, expenses or disbursements of any kind or nature whatsoever, whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and environmental laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any Indemnitee, in any manner relating to or arising out of the execution, delivery, performance, administration or enforcement of this Agreement or any Security Instrument, any Loan Document or any Swap Document, including any of the foregoing relating to the violation of, noncompliance with or liability under, any law (including environmental laws) applicable to or enforceable against any Loan Party or any of its affiliates or any of the Collateral and all reasonable costs and expenses (including reasonable fees and expenses of legal counsel selected by any Indemnitee) incurred by any Indemnitee in connection with any claim, action, investigation or proceeding in any respect relating to any of the foregoing, whether or not suit is brought.

 

3


Indemnitee has the meaning assigned to such term in Section 19.

Insolvency or Liquidation Proceeding means:

(a)    any case commenced by or against any Loan Party or any of its subsidiaries under Debtor Relief Law, any other proceeding for the reorganization, arrangement, recapitalization or adjustment or marshalling of the assets or liabilities of any Loan Party or any of its subsidiaries, any receivership or assignment for the benefit of creditors relating to any Loan Party or any of its subsidiaries or any similar case or proceeding relative to any Loan Party or any of its subsidiaries or its creditors, as such, in each case whether or not voluntary;

(b)    any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to any Loan Party or any of its subsidiaries, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or

(c)    any other proceeding of any type or nature in which substantially all claims of creditors of any Loan Party or any of its subsidiaries are determined and any payment or distribution is or may be made on account of such claims.

Joinder Supplement means a supplement to this Agreement in the form of Exhibit A hereto, providing for a Person to become a Swap Counterparty under this Agreement.

Koch has the meaning assigned to such term in the preamble.

Koch ISDA has the meaning assigned to such term in the Recitals.

Lien has the meaning assigned to such term in the Credit Agreement.

Loan Documents has the meaning assigned to such term in the Credit Agreement and includes the Security Instruments.

Loan Obligations means (a) the “Obligations” as defined in the Credit Agreement, and (b) all other amounts due under the Loan Documents, in each case whether now existing or hereafter incurred, whether direct, indirect, fixed, contingent, liquidated, unliquidated, joint, several, or joint and several, now or hereafter existing, due or to become due whether evidenced in writing or not, together with all costs, expenses, and attorneys’ fees incurred in the enforcement or collection thereof, and including, but not limited to, interest thereon after the commencement of any proceedings under any Debtor Relief Laws.

Majority Lenders has the meaning assigned to such term in the Credit Agreement.

Master Assignment means the Master Reaffirmation and Assignment and Assumption and Assumption of Liens and Security Interests, dated as of the date hereof, among Borrower, Wells Fargo Bank National Association, as resigning agent, the Administrative Agent, the Collateral Agent and Ares Management LLC.

 

4


Morgan Stanley has the meaning assigned to such term in the preamble.

Morgan Stanley ISDA has the meaning assigned to such term in the Recitals.

NextEra has the meaning assigned to such term in the preamble.

NextEra ISDA has the meaning assigned to such term in the Recitals.

Officers’ Certificate means a certificate with respect to compliance with a condition or covenant provided for in this Agreement, signed on behalf of the Borrower by two officers of the Borrower, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Borrower, including:

(a)    a statement that the Person making such certificate has read such covenant or condition;

(b)    a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate are based;

(c)    a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and

(d)    a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.

Outstanding Amount means

(a)    with respect to the Loan Obligations, the Loan Obligations due and payable;

(b)    with respect to Swap Obligations, (i) prior to the Discharge of Credit Facility Obligations, the amount of all Swap Obligations then due and owing to each Swap Counterparty under the Swap Documents governing such Swap Obligations, regardless of whether an Early Termination Event under such Swap Documents has occurred, or (ii) after the Discharge of Credit Facility Obligations, (x) at any time prior to the occurrence of an Early Termination Event under such Swap Documents, at the applicable Swap Counterparty’s election, either (A) the amount of all Swap Obligations that would be payable to such Swap Counterparty under such Swap Documents if there occurred at such time an Early Termination Event under such Swap Documents, or (B) the mark-to-market valuation, in either case as determined by such Swap Counterparty, or (y) at any time from and after the occurrence of an Early Termination Event under the Swap Documents governing such Swap Obligations, the amount of all Swap Obligations then due and owing to such Swap Counterparty under such Swap Documents; and

(c)    with respect to the Total Obligations, the sum of clause (a) and clause (b) above.

Person means any individual, general partnership, limited partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, syndicate, Governmental Authority or other entity or organization.

 

5


Principal Agreements means the Loan Documents and the Swap Documents, collectively.

Proceeds includes any and all proceeds from any sale, exchange, destruction, condemnation, foreclosure, liquidation or other disposition of any of the Collateral, including, but not limited to, under any Debtor Relief Law; provided , however , prior to the occurrence of a Triggering Event, such term will not include sales of any Hydrocarbons produced from or attributable to the Collateral in the ordinary course of the Borrower’s business or sales of other Collateral permitted under the Loan Documents.

Ratably or Ratable means, with respect to any amount to be allocated between the Administrative Agent (on behalf of the Credit Agreement Secured Parties) and the Swap Counterparties at any time, the allocation of a portion of such amount to (a) the Administrative Agent such that the ratio that the amount allocated to the Administrative Agent bears to the total amount to be so allocated equals the ratio of the Loan Obligations to the Total Obligations at such time and (b) Swap Counterparties such that the ratio that the amount allocated to Swap Counterparties bears to the total amount to be so allocated equals the ratio of the Swap Obligations to the Total Obligations at such time (and with such amount allocated to each individual Swap Counterparty under this clause (b) being equal to its Swap Counterparty Ratable Share of such amount).

Related Parties means, with respect to any Person, such Person’s affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s affiliates.

Right or Rights means rights, remedies, powers, privileges and benefits.

Security Instruments means the “Security Documents” as defined in the Credit Agreement, the Master Assignment and Article VII of the Credit Agreement, and includes, without limitation, those documents listed in Schedule 1 attached hereto and incorporated herein by this reference.

Swap Counterparties means the Initial Swap Parties and each other Person that (x) is acceptable to the Majority Lenders as a “Qualified Counterparty” under the Credit Agreement as evidenced by their written consent and (y) executes and delivers a Joinder Supplement to the Collateral Agent as provided in Section 28.

Swap Counterparty Ratable Share means, with respect to the portion of the Swap Counterparties’ Ratable share of any amount to be allocated to an individual Swap Counterparty at any time, a percentage equal to a fraction, the numerator of which is the amount of Swap Obligations owing to such Swap Counterparty at such time and the denominator of which is the Total Swap Obligations at such time.

Swap Documents means each Approved ISDA, including, but not limited to, each relevant confirmation of transaction thereunder.

Swap Obligations means, with respect to each Swap Counterparty, all amounts owed or to become owing by Borrower to such Swap Counterparty under any Swap Document, whether

 

6


direct, indirect, fixed, contingent, liquidated, unliquidated, joint, several or joint and several, together with all costs, expenses and attorneys’ fees incurred in the enforcement or collection thereof, and interest thereon after the commencement of any proceedings under any Debtor Relief Laws; provided, that prior to the Discharge of Credit Facility Obligations, Swap Obligations with respect to each Swap Counterparty shall be net of amounts owed by such Swap Counterparty to the Borrower under the applicable Swap Documents to the extent such amounts are permitted to be netted under the applicable Swap Documents or law.

Total Obligations means, as of any date of determination, an amount equal to the sum of (a) the aggregate Loan Obligations at such date plus (b) the aggregate Swap Obligations at such date.

Total Swap Obligations means, as of any date of determination, an amount equal to the aggregate Swap Obligations at such date.

Triggering Event shall mean any of the following:

(a)    The Collateral Agent shall have received from any Swap Counterparty written notice that (i) either an event of default or a termination event has occurred and is continuing under one or more of the Swap Documents to which such Swap Counterparty is a party, (ii) an early termination date has been designated as a result thereof, (iii) specifies the sum of all unpaid amounts and settlement payments then due to such Swap Counterparty as the result of the designation of such early termination date and the amount of interest and other amounts then due and payable by Borrower in respect thereof, and (iv) the amount set forth in clause (iii) has not been paid in full or discharged to the satisfaction of such Swap Counterparty; or

(b)    Each Swap Counterparty or Borrower shall have received from the Administrative Agent written notice that (i) an Event of Default (as defined in the Credit Agreement) has occurred and is continuing and (ii) the unpaid principal amount of the Loans and other Loan Obligations under the Credit Agreement have been declared to be then due and payable.

UCC means the Uniform Commercial Code as adopted and in effect in the State of New York from time to time, or, when the laws of any other jurisdiction govern the perfection or priority of any Lien, the Uniform Commercial Code of such jurisdiction.

(b)     Rules of Interpretation . (i) Unless otherwise indicated, any reference to any agreement or instrument will be deemed to include a reference to that agreement or instrument as assigned, amended, supplemented, amended and restated, or otherwise modified and in effect from time to time or replaced in accordance with the terms of this Agreement.

(ii)    The use in this Agreement of the word “include” or “including,” when following any general statement, term or matter, will not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not nonlimiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but will be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. The word “will” shall be construed to have the same meaning and effect as the word “shall.”

 

7


(iii)    References to “Sections,” “clauses,” “recitals” and the “preamble” will be to Sections, clauses, recitals and the preamble, respectively, of this Agreement unless otherwise specifically provided.

(iv)    This Agreement and the other Security Instruments will be construed without regard to the identity of the party who drafted it and as though the parties participated equally in drafting it. Consequently, each of the parties acknowledges and agrees that any rule of construction that a document is to be construed against the drafting party will not be applicable either to this Agreement or to the other Security Instruments.

2.     Obligations and Liens Pari Passu .

(a)    Subject to the other terms and conditions of this Agreement, the Loan Obligations and the Swap Obligations shall be pari passu and the Loan Obligations and Swap Obligations shall be secured, Ratably, by the Liens granted to or for the benefit of Collateral Agent under the Security Instruments (after giving effect to any applicable amendments to any of the Security Instruments as provided for below in this Section 2).

(b)    Contemporaneously with the execution of this Agreement, the Loan Parties, the Lenders and the Administrative Agent have executed: (i) the Credit Agreement which (A) permits the Loan Parties to grant a first priority Lien on their assets to secure obligations owing to Qualified Counterparties under Swap Agreements and the Loan Obligations, and (B) acknowledges and agrees that any first priority Lien granted to Collateral Agent by any Loan Party to secure the Loan Obligations, shall be held by Collateral Agent for the Ratable benefit of the Swap Counterparties, to secure the Swap Obligations on a pari passu basis with the Loan Obligations; and (ii) Security Instruments causing any Lien granted to or for the benefit of Collateral Agent under such Security Instruments to secure, Ratably, the Loan Obligations and the Swap Obligations.

(c)    Each Swap Counterparty agrees that, without the prior written consent of Administrative Agent, it will not seek or accept credit support for any Swap Obligation other than its Rights under the Security Instruments. Notwithstanding the preceding sentence, to the extent that any Swap Counterparty, with the written consent of the Administrative Agent, hereafter obtains any Lien on assets of any Loan Party to secure all or any portion of the Swap Obligations owing to such Swap Counterparty, the Lien held by the Collateral Agent on such assets to secure the Loan Obligations shall be pari passu with any Lien now or hereafter existing in favor of such Swap Counterparty to secure all or any part of the Swap Obligations, notwithstanding (i) the date, manner or order of any grant, attachment or perfection of any such Lien, (ii) any provision of the UCC, other applicable law, the Loan Documents or the Swap Documents or (iii) any manner of enforcement of any Lien or other Rights. Similarly, the parties hereto agree that to the extent any Lender hereafter obtains any Lien on assets of Loan Parties to secure all or any portion of the Loan Obligations, the Lien held by such Lender on such assets shall secure the Loan Obligations and the Swap Obligations and shall be pari passu with any Lien now or hereafter existing in favor of, or for the benefit of, any Swap Counterparty to secure

 

8


all or any part of the Swap Obligations, notwithstanding (i) the date, manner or order of any grant, attachment or perfection of any such Lien, (ii) any provision of the UCC, other applicable law, the Loan Documents or any Swap Documents or any manner of enforcement of any Lien or other Rights.

(d)    The parties hereto agree that, upon execution of the Credit Agreement, the Security Instruments and this Agreement, (i) any Lien under any Security Instrument securing, Ratably, the Loan Obligations and the Swap Obligations shall be permitted under the Credit Agreement and (ii) Swap Counterparties will become a beneficiary of any Lien granted to Collateral Agent pursuant to any Security Instrument.

(e)    The Administrative Agent (on behalf of the Lenders) consents to Borrower entering into the Approved ISDAs and agrees that each Approved ISDA is a Swap Agreement permitted under the terms of the Credit Agreement, that the Initial Swap Parties are Qualified Counterparties (as defined in the Credit Agreement), and that this Agreement is the Swap Intercreditor Agreement (as defined in the Credit Agreement). Each Swap Counterparty and the Administrative Agent (on behalf of the Lenders) acknowledge and agree that, upon execution of the Credit Agreement, the Security Instruments and this Agreement, such Swap Counterparty will become a secured party under the Security Instruments.

(f)    The amounts payable by the Loan Parties to the Credit Agreement Secured Parties under the Loan Documents and the amounts payable by the Loan Parties to the Swap Counterparties under the Swap Documents shall be separate and independent debts, and each Secured Party shall be entitled to enforce any right arising out of the applicable Principal Agreement to which it is a party, subject to the terms thereof and of this Agreement. Each Secured Party hereby agrees that no Secured Party (whether as the mortgagee or the secured party, as the case may be, under the Security Instruments) other than the Collateral Agent shall have any right individually to realize upon any Liens granted under the Security Instruments, it being understood and agreed that such remedies may be exercised only by Collateral Agent (as the mortgagee or the secured party, as the case may be, under the Security Instruments) for the Ratable benefit of the Secured Parties.

(g)    Each Creditor agrees: (i) to deliver to the other Creditors, at the same time it makes delivery to Borrower, a copy of any notice of default, notice of intent to accelerate or notice of acceleration with respect to any of the Loan Obligations or the Swap Obligations, as applicable, subject to this Agreement and (ii) to deliver to the other Creditors, at the same time it makes delivery to any Loan Party, a copy of any notice of the commencement of any judicial proceeding by such Creditor and a copy of any other notice with respect to the exercise of remedies with respect to any of the Loan Obligations or the Swap Obligations, as applicable, subject to this Agreement. Any failure by a Creditor to furnish a copy under this Section 2(g) shall not limit or affect the rights and obligations of such Creditor hereunder.

(h)    Each of the Swap Counterparties and the Administrative Agent hereby agrees that it shall endeavor to furnish Borrower with a copy of any notice provided or received, as applicable, by it which notice would, pursuant to clause (a) (in the case of the Swap Counterparties) or clause (b) (in the case of the Administrative Agent) of the definition of Triggering Event in Section 1 above, establish a Triggering Event. Each of Borrower and the

 

9


Administrative Agent hereby agrees that it shall endeavor to furnish Swap Counterparties with a copy of any notice received or provided, as applicable, by it which notice would, pursuant to clause (b) of the definition of Triggering Event in Section 1 above, establish a Triggering Event.

(i)    The Administrative Agent, the Collateral Agent and the Lenders may enter into any amendment, modification or supplement to the Credit Agreement or any Loan Document, and termination of any thereof, or any waiver or consent under any thereof, and any such amendment, modification, supplement, termination, waiver or consent shall be deemed accepted by the Swap Counterparties and the Borrower; provided , however , the written consent of the Swap Counterparties (which consent will not be withheld, conditioned or delayed unreasonably) shall be required in connection with any such amendment, modification supplement, termination, waiver, or consent if the effect of such amendment, modification, supplement, termination, waiver, or consent would be to:

(i)     change the definition of “Qualified Counterparty”, “Secured Obligations”, “Secured Parties”, “Security Document” or “Swap Intercreditor Agreement” under the Credit Agreement or change Section 10.02(b)(vii) in any manner adverse to any Swap Counterparty in any material respects or which would reduce or diminish materially the benefits of the security provided for in the Security Instruments;

(ii)    provide for any of the Swap Obligations to cease to be secured by the Security Instruments;

(iii)    cause the Security Instruments to secure obligations other than the Loan Obligations and Swap Obligations;

(iv)    change the priority of or subordinate the Liens created thereby;

(v)    materially reduce or materially limit the Rights of the Collateral Agent or any Swap Counterparty provided for therein in any respects; or

(vi)    cause the Swap Obligations owed under any Swap Document to cease (A) to be secured on a first lien, pari passu basis with the Loan Obligations with respect to the Collateral or (B) to be guaranteed on a pari passu basis with the Loan Obligations

(each of the foregoing, a “ Required Consent ”). Any such amendment made without such consent shall be null and void. The Collateral Agent may not release any Collateral under any of the Security Instruments, except as provided in Section 2(j); provided , further , however , that (i) any amendment or supplement that has the effect solely of adding or maintaining Collateral, or preserving, perfecting or establishing the priority of the Collateral Agent’s Liens or the rights of the Collateral Agent therein will become effective when executed and delivered by the Borrower and the Collateral Agent and (ii) any amendment or supplement to the provisions of the Security Instruments that effects a release of Collateral will be effective only if the release is effective under Section 2(j).

 

10


(j)    The Collateral Agent will not release any Lien of the Collateral Agent or consent to the release of any Lien of the Collateral Agent, except:

(i)    Following its receipt of an Officers’ Certificate to the effect that the release was permitted by each of the Loan Documents and the Swap Documents (it being agreed by each Swap Counterparty and the Administrative Agent that the Collateral Agent may conclusively rely on any such Officer’s Certificate provided by the Borrower to the Collateral Agent as evidence that such release is in fact permitted under the Loan Documents and Swap Documents);

(ii)    upon written consent of the Administrative Agent and each Swap Counterparty, accompanied by an Officers’ Certificate to the effect that (A) a Discharge of Loan Obligations has occurred and a Discharge of Swap Obligations has occurred and (B) the release was permitted by each of the Loan Document and Swap Documents; or

(iii)    as ordered pursuant to applicable law under a final and nonappealable order or judgment of a court of competent jurisdiction.

If in the case of any release of Collateral the value of which exceeds ten percent (10%) of the aggregate value of all the Collateral before giving effect to such proposed release (such calculation to be determined in good faith by Borrower), Borrower shall provide notice to each Swap Counterparty of such release at least 5 Business Days prior to such release; provided, however that Borrower’s failure to provide such notice will not affect the validity of the release.

(k)    The Collateral Agent will not subordinate any Lien of the Collateral Agent or consent to the subordination of any Lien of the Collateral Agent, except:

(i)    as directed in writing by the Administrate Agent and each Swap Counterparty, accompanied by an Officers’ Certificate to the effect that the subordination was permitted by or waived pursuant to each of the Loan Documents and the Swap Documents; or

(ii)    as ordered pursuant to applicable law under a final and nonappealable order or judgment of a court of competent jurisdiction.

(l)    Borrower hereby agrees to provide written notice to Swap Counterparties no less than three days prior to execution of any amendment, modification or supplement to the Credit Agreement or any Security Instrument, any termination of any thereof, or any waiver or consent under any thereof, including with such notice a copy of the proposed amendment, modification, supplement, termination, waiver, or consent, if such amendment, modification, supplement, termination, waiver, or consent constitutes a Required Consent. Borrower hereby agrees to provide written notice to each Swap Counterparty no less than seven days prior to the earliest to occur of (i) the date of (A) signing or (B) closing of any replacement financing or any refinancing of the Credit Agreement, or (ii) the date of any payment in full and retirement of the Credit Agreement, including with such notice a copy of the proposed replacement financing, refinancing or retirement of the Credit Agreement, as applicable.

(m)    Each of the Creditors and Collateral Agent agrees that it shall not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding (including, but not limited to, any proceeding under a Debtor Relief Law), the priority, validity or enforceability of a Lien held by or for the benefit of the Creditors in any Collateral; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any such party to enforce this Agreement as provided herein.

 

11


(n)    Borrower hereby agrees that Swap Counterparties may provide to Administrative Agent and Collateral Agent, and each Swap Counterparty hereby agrees to provide to Administrative Agent and Collateral Agent, within two Business Days following receipt of a written request therefor from Collateral Agent or Administrative Agent, (i) a report of the marked-to-market positions of any or all of the transactions in effect from time to time under the Swap Documents, and (ii) a copy of any trade confirmation pursuant to an applicable Approved ISDA not previously provided to Administrative Agent and Collateral Agent. Any unintentional failure by a party hereto to timely furnish information required by this clause (n) shall not limit or affect the parties’ rights and obligations hereunder.

3.     Appointment of Wilmington Trust as Collateral Agent . The Administrative Agent (on behalf of the Credit Agreement Secured Parties) and each Swap Counterparty hereby each appoints Wilmington Trust to (a) act as Collateral Agent, in its name and on its behalf, in and under the Security Instruments, (b) be the beneficiary of the guarantees provided under Article VII of the Credit Agreement and hold the Liens on the Collateral, with power of sale, in its name for the benefit and security of Credit Agreement Secured Parties and Swap Counterparties, in each case for enforcement and payment of the Loan Obligations and the Swap Obligations, respectively, (c) take such action on behalf of the Credit Agreement Secured Parties and Swap Counterparties under the terms and provisions of the Security Instruments and to exercise such rights and remedies under the Security Instruments as are specifically delegated to or required of the Collateral Agent, under the terms and provisions of this Agreement and (d) to act as its agent under the First Lien/Second Lien Intercreditor Agreement as the “First Priority Agent” thereunder (as such term is defined in the First Lien/Second Intercreditor Agreement).

Subject to the terms hereof, the Collateral Agent agrees to administer and enforce this Agreement and the Security Instruments to which it is a party as Collateral Agent, and to foreclose upon, collect and dispose of the Collateral and to apply the Proceeds therefrom, for the benefit of the Secured Parties, as provided herein, and otherwise to perform its duties and obligations as the Collateral Agent hereunder in accordance with the terms hereof; provided , however , that the Collateral Agent shall have no duties or responsibilities except those expressly set forth herein or in the Security Instruments to which it is a party as Collateral Agent, and no implied covenants or obligations shall be read into any such Security Instruments against the Collateral Agent.

It is understood and agreed that the use of the term “agent” herein or in any other Security Instruments (or any other similar term) with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

4.     Collateral Agent’s Authority .

(a)    Upon the occurrence and during the continuance of any Triggering Event, both before and during an Insolvency or Liquidation Proceeding, Collateral Agent shall act, or

 

12


decline to act, as directed in writing by the Controlling Party, in the exercise and enforcement of the Collateral Agent’s interests, rights, powers and remedies in respect of the Collateral or under the Security Instruments or applicable law and, following the initiation of such exercise of remedies, the Collateral Agent will act, or decline to act, with respect to the manner of such exercise of remedies as directed in writing by the Controlling Party. For purposes hereof, the “ Controlling Party ” shall be (i) the Administrative Agent, if the Loan Obligations constitute a majority of the Total Obligations and (ii) if the Swap Obligations constitute a majority of the Total Obligations, the Swap Counterparties holding the majority of the Swap Obligations; provided that for purposes of determining whether the Loan Obligations or the Swap Obligations constitute a majority of the Total Obligations under this Section 4(a), the Loan Obligations, Swap Obligations and Total Obligations shall be calculated in accordance with their respective Outstanding Amounts.

(b)    [Reserved].

(c)    Notwithstanding anything to the contrary contained in this Agreement, the Collateral Agent will not commence any exercise of remedies or any foreclosure actions or otherwise take any action or proceeding against any of the Collateral (other than actions as necessary to prove, protect or preserve the Liens securing the Total Obligations) unless and until it receives written notice from the Controlling Party stating that a Triggering Event has occurred and is continuing and directing the Collateral Agent to exercise remedies against the Collateral, and thereafter the Collateral Agent will be required to act only if such notice is not withdrawn in writing by the Controlling Party and only in accordance with the other provisions of this Agreement.

(d)    If the Collateral Agent at any time receives from the Controlling Party written notice that a Triggering Event has occurred and is continuing, the Collateral Agent will act, or decline to act, as directed by the Controlling Party, in the exercise and enforcement of the Collateral Agent’s interests, rights, powers and remedies in respect of the Collateral or under the Security Instruments or applicable law and, following the initiation of such exercise of remedies, the Collateral Agent will act, or decline to act, with respect to the manner of such exercise of remedies as directed by the Controlling Party. Unless it has been directed to the contrary in writing by the Controlling Party, the Collateral Agent in any event may (but will not be obligated to) take or refrain from taking such action with respect to any Triggering Event as it may deem advisable and in the best interest of the holders of Total Obligations.

(e)    Notwithstanding anything to the contrary contained herein or in any other Security Instruments, the Collateral Agent shall only comply with written instructions or directions from the Controlling Party with respect to the exercise and enforcement of the Collateral Agent’s interests, rights, powers and remedies in respect of the Collateral or under the Security Instruments and shall not comply with any such instructions or directions received from any other Person (including any other Secured Party or any other actual or alleged third party beneficiary of this Agreement or the Security Instruments).

(f)    Notwithstanding anything to the contrary contained herein or in any Security Instrument, (i) the Collateral Agent shall for all purposes of this Agreement be entitled to rely (without any independent verification) on a certification from the Administrative Agent in

 

13


determining the Outstanding Amount of Loan Obligations and (ii) the Collateral Agent shall for all purposes of this Agreement be entitled to rely (without any independent verification) on a certification from each Swap Counterparty in determining the Outstanding Amount of Swap Obligations owing to such Swap Counterparty. Promptly following the occurrence and during the continuation of any Triggering Event (and in any event prior to Collateral Agent being required to take any action pursuant to Section 4(a)) and at any time promptly following its request therefor, (i) the Administrative Agent shall certify in writing to the Collateral Agent the Outstanding Amount of Loan Obligations and (ii) each Swap Counterparty shall certify in writing to the Collateral Agent the Outstanding Amount of Swap Obligations held by it. In the event the Administrative Agent or a Swap Counterparty fails to provide such certification within ten (10) Business Days after request from the Collateral Agent, the Collateral Agent may conclusively assume that, for purposes of determining the Controlling Party only, the Outstanding Amount of the Loan Obligations or Swap Obligations, as applicable, held by the applicable Creditor failing to provide such certification shall be equal to zero ($0).

(g)    For so long as any Triggering Event is continuing, any payments received by the Administrative Agent or the Lenders under the Credit Agreement and any payments received by Swap Counterparties under any Approved ISDA will be held for the Ratable benefit of the Creditors until such time that such Triggering Event is no longer continuing or that Collateral Agent is exercising remedies under the Security Instruments (including, but not limited to, the foreclosure of Liens) and distributing the Proceeds from such remedies Ratably to the Creditors under Section 5(b) of this Agreement (“ Blocking Period ”). All funds received in any deposit account of Borrower subject to an account control agreement during such Blocking Period for the benefit of the Administrative Agent and the Lenders shall be maintained in such deposit account and held for the Ratable benefit of the Creditors until disbursed in accordance with Section 5 of this Agreement.

(h)    If a Triggering Event of the type referred to in clause (b) of the definition of Triggering Event shall have occurred and is continuing, at the request of the Administrative Agent, Borrower shall (subject to Swap Counterparties’ netting and setoff rights) be deemed to have requested that Swap Counterparties, and Swap Counterparties may, notwithstanding the existence of the Blocking Period, make payments of any amounts due and owing from such Swap Counterparty to Borrower under the Swap Documents to the Collateral Agent to be distributed in accordance with Section 5(b).

5.     Proceeds .

(a)    The Secured Parties hereby agree among themselves that (i) prior to the occurrence and continuance of a Triggering Event, each Secured Party shall be entitled to receive and retain for its own account, and shall never be required to disgorge to the Collateral Agent or any other Secured Party or acquire direct or participating interests in the Loan Obligations or the Swap Obligations owing to such Secured Party, scheduled payments or voluntary prepayments, payments of principal, interest, fees, settlement payments and any other payments in respect of the Principal Agreements, all in compliance with the terms thereof, and (ii) after the occurrence and during the continuance of a Triggering Event (and during the Blocking Period), all such amounts (other than any netting or setoff rights, which are acknowledged to be for the sole benefit of the relevant Swap Counterparty, notwithstanding Sections 4 and 5 hereof) shall be treated as if constituting Proceeds and shall be shared by the Creditors Ratably and in accordance with this Section 5.

 

14


(b)    After the occurrence and during the continuance of a Triggering Event, all Proceeds received by any Secured Party shall be applied in accordance with this Section 5. If any Secured Party (including the Collateral Agent) shall obtain or receive any amount or payment in respect of Total Obligations owed to such Secured Party other than in accordance with this Section 5, such Secured Party shall notify each Creditor and the Collateral Agent thereof and shall promptly pay (in the case of the Collateral Agent, to the extent in its possession) such amount (less any reasonable costs and expenses incurred by such Secured Party in obtaining such amount) to the Collateral Agent for the account of the Secured Parties, to be shared in accordance with Section 5(c).

(c)    After the occurrence and during the continuance of a Triggering Event, all Proceeds received by Collateral Agent shall be applied in the following order (it being agreed that the Collateral Agent shall, within a commercially reasonable time following the receipt thereof, distribute to each of the Administrative Agent and Swap Counterparties its Ratable share of all Proceeds in the following order of priority; provided that such Proceeds shall not be so applied until such time as the amount of the Total Obligations and the applicable breakdown of such Total Obligations owed to the Administrative Agent and each Swap Counterparty has been determined in accordance with the terms hereof and under the terms of the relevant Loan Documents or Swap Documents, as applicable, including and subject to Section 5(d) below):

First , to the payment of all amounts payable under this Agreement, the Fee Letter (as defined in the Credit Agreement) or any of the Security Instruments on account of the Collateral Agent’s fees and any reasonable fees, costs and expenses (including, without limitation, reasonable fees and expenses of counsel to the Collateral Agent) or other liabilities of any kind incurred by, or indemnities in favor of, the Collateral Agent or any co-trustee, custodian or agent of the Collateral Agent in connection with this Agreement or any Security Instrument or the Collateral Agent performing its obligations hereunder or thereunder;

Second , Ratably to the Administrative Agent and each Swap Counterparty (but excluding for purposes of this determination outstanding Loan Obligations constituting Excess Priority Lien Obligations), respectively, until the Total Obligations then owing (other than Loan Obligations constituting Excess Priority Lien Obligations) are fully satisfied;

Third , to the Administrative Agent in satisfaction of any Loan Obligations constituting Excess Priority Lien Obligations and any other indebtedness of the Loan Parties, other than the Loan Obligations or the Swap Obligations, secured by the Security Instruments; and

Fourth , to the extent that any Proceeds remain after the full and indefeasible payment of all of the amounts described in the preceding paragraphs, to Borrower or as a court of competent jurisdiction may direct.

 

15


In connection with the application of Proceeds pursuant to this Section 5(c), except as otherwise directed in writing by the Controlling Party, the Collateral Agent may sell any non-cash proceeds for cash prior to the application of the proceeds thereof in accordance with the UCC.

(d)    Upon receipt of any of the Proceeds referred to in Section 5(c), the Collateral Agent shall promptly provide notice to the Administrative Agent and each Swap Counterparty of the receipt of such Proceeds. As soon as is reasonably practicable after the receipt of such notice, the Administrative Agent and each Swap Counterparty shall give the Collateral Agent a written certification by an authorized officer or representative thereof of the aggregate amount of the Loan Obligations or Swap Obligations (as applicable) then outstanding owed to the Secured Parties represented by such Creditor under the Loan Documents or Swap Documents (as applicable) to be certified to as presently due and owing (and, promptly upon receipt thereof, the Collateral Agent shall provide a copy of each such certification to each other Creditor). Unless otherwise directed by a court of competent jurisdiction, the Collateral Agent may conclusively rely on such certifications and shall use the information provided for in such certifications as the basis for applying the Proceeds in accordance with Section 5(c). If a Creditor fails to provide such certification within thirty (30) days of the date such Creditor receives notice from the Collateral Agent of receipt of Proceeds referred to in Section 5(c), (x) the Collateral Agent shall send a subsequent notice to such Creditor of its receipt of Proceeds, and (y) such Creditor shall have an additional fifteen (15) days from its receipt of such subsequent notice to provide such certification to the Collateral Agent. If no such certification has been provided by the expiration of such additional fifteen (15) day period, the Collateral Agent shall assume the Loan Obligations or Swap Obligations due and owing to such Creditor are zero ($0) for purposes of the application of Proceeds under Section 5(c). Notwithstanding the foregoing, and for the avoidance of doubt, the Collateral Agent may apply Proceeds in accordance with clause “First” of Section 5(c) at any time following its receipt thereof, regardless whether or not the certifications referred to in this clause (d) have been received by the Collateral Agent.

6.     No Implied Duty . The Collateral Agent will not have any fiduciary duties nor will it have responsibilities or obligations other than those responsibilities and obligations expressly assumed by it in this Agreement and the Security Instruments. The Collateral Agent will not be required to take any action that is contrary to applicable law or any provision of this Agreement or the Security Instruments. Without limiting the generality of the foregoing, (a) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Triggering Event has occurred and is continuing, (b) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Collateral Agent is instructed in writing to exercise by the Controlling Party; provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to this Agreement or any Security Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under the Bankruptcy Code, and (c) the Collateral Agent shall not have any duty to disclose, nor shall it be liable for the failure to disclose, any information relating to any Loan Party or affiliate thereof that is communicated to or obtained by the Collateral Agent

7.     Appointment of Agents and Advisors . The Collateral Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents

 

16


appointed by it, and will not be responsible for any misconduct or negligence on the part of any of them. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective affiliates. The exculpatory and indemnification provisions of this Agreement and the Security Instruments shall apply to any such sub-agent and to the affiliates of the Collateral Agent and any such sub-agent. All of the rights, benefits, and privileges (including the exculpatory and indemnification provisions) of this Agreement and the Security Instruments shall apply to any such sub-agent and to the affiliates of any such sub-agent as if such sub-agent and affiliates were named herein. Collateral Agent shall not incur any liability for any action or inaction taken by a sub-agent except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Collateral Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.

8.     Other Agreements . The Collateral Agent has accepted and is bound by the Security Instruments executed by the Collateral Agent as of the date of this Agreement and, as directed by the Controlling Party, the Collateral Agent shall execute additional Security Instruments delivered to it after the date of this Agreement; provided , however , that such additional Security Instruments do not adversely affect the rights, privileges, benefits and immunities of the Collateral Agent.

9.     Solicitation of Instructions .

(a)    The Collateral Agent may at any time solicit written confirmatory instructions from the Administrative Agent or any Swap Counterparty or request an order of a court of competent jurisdiction as to any action that it may be requested or required to take, or that it may propose to take, in the performance of any of its obligations under this Agreement or the Security Instruments and may suspend performance of such obligations as it determines to be appropriate until it receives such instructions or order.

(b)    No written direction given to the Collateral Agent by the Administrative Agent or any Swap Counterparty that in the sole judgment of the Collateral Agent imposes, purports to impose or might reasonably be expected to impose upon the Collateral Agent any obligation or liability not set forth in or arising under this Agreement and the Security Documents will be binding upon the Collateral Agent unless the Collateral Agent elects, at its sole option, to accept such direction.

10.     Documents in Satisfactory Form . The Collateral Agent will be entitled to require that all agreements, certificates, opinions, instruments and other documents at any time submitted to it, including those expressly provided for in this Agreement, be delivered to it in a form and with substantive provisions reasonably satisfactory to it.

11.     Entitled to Rely . The Collateral Agent may seek and rely upon, and will be fully protected in relying upon, any judicial order or judgment, upon any advice, opinion or statement of legal counsel, independent consultants and other experts selected by it in good faith and upon any certification, instruction, notice or other writing delivered to it by the Borrower in compliance with the provisions of this Agreement or delivered to it by the Administrative Agent or any Swap Counterparty, without being required to determine the authenticity thereof or the correctness of any fact stated therein or the propriety or validity of service thereof. The

 

17


Collateral Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or any signature reasonably believed by it to be genuine and may assume that any Person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof or the Security Instruments has been duly authorized to do so. To the extent an Officers’ Certificate or opinion of counsel is required or permitted under this Agreement to be delivered to the Collateral Agent in respect of any matter, the Collateral Agent may rely conclusively on such Officers’ Certificate or opinion of counsel as to such matter and such Officers’ Certificate or opinion of counsel shall be full warranty and protection to the Collateral Agent for any action taken, suffered or omitted by it under the provisions of this Agreement and the Security Instruments.

12.     Triggering Event . The Collateral Agent will not be required to inquire as to the occurrence or absence of any Triggering Event and will not be affected by or required to act upon any notice or knowledge as to the occurrence of any Triggering Event unless and until it receives from the Administrative Agent or any Swap Counterparty, as applicable, written notice stating that a Triggering Event has occurred and is continuing.

13.     Actions by Collateral Agent . The Collateral Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection herewith or any of the Security Instruments or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until the Collateral Agent shall have received written instructions in respect thereof from the Controlling Party and, upon receipt of such instructions from the Controlling Party, the Collateral Agent shall be entitled to act or (where so instructed) refrain from action, or to exercise such power, discretion or authority, in accordance with such instructions.

14.     Security or Indemnity in favor of the Collateral Agent . The Collateral Agent will not be required to advance or expend any funds or otherwise incur any financial liability in the performance of its duties or the exercise of its powers or rights hereunder unless it has been provided with security or indemnity reasonably satisfactory to it against any and all liability or expense which may be incurred by it by reason of taking or continuing to take such action.

15.     Rights of the Collateral Agent; Certain Acknowledgments .

(a)    In the event of any conflict between any terms and provisions set forth in this Agreement and those set forth in any Security Instrument, the terms and provisions of this Agreement shall supersede and control the terms and provisions of such Security Instrument. In the event there is any bona fide, good faith disagreement between the other parties to this Agreement or any of the Security Instruments resulting in adverse claims being made in connection with Collateral held by the Collateral Agent and the terms of this Agreement or any of the Security Instruments do not unambiguously mandate the action the Collateral Agent is to take or not to take in connection therewith under the circumstances then existing, or the Collateral Agent is in doubt as to what action it is required to take or not to take hereunder or under the Security Instruments, it will be entitled to refrain from taking any action (and will incur no liability for doing so) until directed otherwise in writing by a request signed by the Controlling Party or by order of a court of competent jurisdiction.

 

18


(b)    The Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Security Instrument, any Loan Document or any Swap Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any of the Security Instruments or Loan Documents or Swap Documents, (iv) the validity, enforceability, effectiveness or genuineness of any Security instrument or Loan Document or Swap Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in any Security Instrument or Loan Document or Swap Document.

(c)    The Administrative Agent (on behalf of the Lenders) and each Swap Counterparty acknowledges that it has, independently and without reliance upon the Collateral Agent and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and the Swap Documents or the Loan Documents, as applicable. The Administrative Agent (on behalf of the Lenders) and each Swap Counterparty also acknowledges that it will, independently and without reliance upon the Collateral Agent and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Document or Swap Document, any related agreement or any document furnished thereunder. The Collateral Agent shall not have any duty or responsibility, either initially or on a continuing basis, to provide any Credit Agreement Secured Party or any Swap Counterparty with any credit or other information with respect to any Borrower or Affiliate thereof.

(d)    It is acknowledged and agreed by the Administrative Agent (on behalf of the Lenders), each Swap Counterparty and each Loan Party that the Collateral Agent (i) has undertaken no analysis of the Security Instruments or the Collateral and (ii) has made no determination as to (x) the validity, enforceability, effectiveness or priority of any Liens granted or purported to be granted pursuant to the Security Instruments or (y) the accuracy or sufficiency of the documents, filings, recordings and other actions taken, or to be taken, to create, perfect or maintain the existence, perfection or priority of the Liens granted or purported to be granted pursuant to the Security Instruments. The Collateral Agent shall be entitled to assume that all Liens purported to be granted pursuant to the Security Instruments are valid and perfected Liens having the priority intended by the Secured Parties and the Security Instrument.

16.     Limitations on Duty of Collateral Agent in Respect of Collateral .

(a)    Beyond the exercise of reasonable care in the custody of Collateral in its possession, the Collateral Agent will have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon. The Collateral Agent will be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property, and the Collateral Agent will not be liable or responsible for any loss or diminution in the value of any of the Collateral by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Agent in good faith.

 

19


(b)    The Collateral Agent will not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Collateral Agent as determined by a court of competent jurisdiction in a final and non-appealable judgment, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of any Loan Party to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Collateral Agent hereby disclaims any representation or warranty to the present and future holders of the Total Obligations concerning the perfection of the Liens granted hereunder or in the value of any of the Collateral.

17.     Assumption of Rights, Not Assumption of Duties . Notwithstanding anything to the contrary contained herein:

(a)    each of the parties thereto will remain liable under each of the Security Instruments (other than this Agreement) to the extent set forth therein to perform all of their respective duties and obligations thereunder to the same extent as if this Agreement had not be executed;

(b)    the exercise by the Collateral Agent of any of its rights, remedies or powers hereunder will not release such parties from any of their respective duties or obligations under the Swap Instrument; and

(c)    the Collateral Agent will not be obligated to perform any of the obligations or duties of any of the parties thereunder other than the Collateral Agent.

18.     Collateral Expenses . Borrower agrees to pay, promptly upon demand:

(a)    all reasonable, out-of-pocket costs and expenses incurred by the Collateral Agent and its agents in the preparation, execution, delivery, filing, recordation, administration or enforcement of this Agreement or any Security Instrument or any consent, amendment, waiver or other modification relating hereto or thereto;

(b)    all reasonable out-of-pocket fees, expenses and disbursements of legal counsel and any auditors, accountants, consultants or appraisers or other professional advisors and agents engaged by the Collateral Agent incurred in connection with the negotiation, preparation, closing, administration, performance or enforcement of this Agreement and the Security Instruments or any consent, amendment, waiver or other modification relating hereto or thereto and any other document or matter requested by any Borrower;

(c)    all reasonable out-of-pocket costs and expenses incurred by the Collateral Agent and its agents in creating, perfecting, preserving, releasing or enforcing the Collateral Agent’s Liens on the Collateral, including filing and recording fees, expenses and taxes, stamp or documentary taxes and search fees;

 

20


(d)    all other reasonable out-of-pocket costs and expenses incurred by the Collateral Agent and its agents in connection with the negotiation, preparation and execution of the Security Instruments and any consents, amendments, waivers or other modifications thereto and the transactions contemplated thereby or the exercise of rights or performance of obligations by the Collateral Agent thereunder; and

(e)    after the occurrence of any Triggering Event, all reasonable out-of-pocket costs and expenses incurred by the Collateral Agent and its agents in connection with the preservation, collection, foreclosure or enforcement of the Collateral subject to the Security Instruments or any interest, right, power or remedy of the Collateral Agent or in connection with the collection or enforcement of any of the Total Obligations or the proof, protection, administration or resolution of any claim based upon the Total Obligations in any Insolvency or Liquidation Proceeding, including all reasonable out-of-pocket fees and disbursements of attorneys, accountants, auditors, consultants, appraisers and other professionals engaged by the Collateral Agent or its agents.

The Borrower also agrees to pay the fees set forth in the Fee Letter (as defined in the Credit Agreement) at such times as required under the Fee Letter and (y) such other compensation to the Collateral Agent and its agents as the Borrower and the Collateral Agent may agree in writing from time to time. Each of the parties hereto hereby acknowledges and agrees that the Fee Letter shall constitute a Security Instrument, a Swap Document and a Loan Document, and all fees, costs, expenses and compensation payable thereunder shall constitute Total Obligations secured equally and ratably by the Collateral. All of the agreements in this Section 18 will survive repayment of all Total Obligations and the removal or resignation of the Collateral Agent. The Borrower hereby acknowledges and agrees that the fee and expense reimbursements set forth in this Section 18 are in addition to, and not in replacement of, the fee and expense reimbursements provided by the Borrower under the Credit Agreement

19.     Indemnity .

(a)    The Borrower agrees to defend, indemnify, pay and hold harmless the Collateral Agent and each of its Related Parties (each of the foregoing, an “ Indemnitee ”) from and against any and all Indemnified Liabilities, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY, OR SOLE NEGLIGENCE OF SUCH INDEMNITEE ; provided , no Indemnitee will be entitled to indemnification hereunder with respect to any Indemnified Liability to the extent such Indemnified Liability is found by a final order of a court of competent jurisdiction which is no longer subject to appeal to have resulted from the gross negligence or willful misconduct of such Indemnitee. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 19(a) may be unenforceable in whole or in part because they are violative of any law or public policy, the Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them. The Borrower hereby acknowledges and agrees that the indemnities set forth in this Section 19(a) are in addition to, and not in replacement of, the indemnities provided by the Borrower under the Credit Agreement.

 

21


(b)    To the extent that the Borrower fails to pay any amount required to be paid by it to the Collateral Agent (or any sub-agent thereof) or any Related Party thereof under Section 18 or Section 19(a), each of the Administrative Agent (on behalf of the Lenders) and each Swap Counterparty severally agrees to pay to the Collateral Agent (or any such sub-agent thereof) or such Related Party of the Collateral Agent (or any such sub-agent thereof), as the case may be, its Ratable share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought using for purposes of this Section 19(b) the Outstanding Amount of Loan Obligations and Swap Obligations (or if such unreimbursed amount or indemnity payment is sought after the Discharge of Credit Facility Obligations and Discharge of Swap Obligations has occurred, in accordance with its Ratable share (calculated for purposes of this Section 19(b) by using the Outstanding Amount of Loan Obligations and Swap Obligations) immediately prior to the date on which the Discharge of Credit Facility Obligations and Discharge of Swap Obligations has occurred)) of such unpaid amount. By accepting the benefits hereof, each Lender hereby (i) agrees to indemnify the Collateral Agent (or any sub-agent thereof) or any Related Party thereof for any amounts that would be payable by the Administrative Agent under this Section 19(b) in accordance with the provisions of the Credit Agreement (including Section 10.03(e) thereof) and (ii) acknowledges and agrees that the indemnities set forth in this Section 19(b) are in addition to, and not in replacement of, the indemnities provided by the Lenders under the Credit Agreement. Each Lender (by accepting the benefits hereof) and each Swap Counterparty hereby authorizes the Administrative Agent or the Collateral Agent to set off and apply any and all amounts at any time owing to such Lender or Swap Counterparty under this Agreement, any Security Instrument, any Loan Document (if applicable) or otherwise payable by the Administrative Agent or the Collateral Agent to such Lender or Swap Counterparty from any source against any amount due to the Collateral Agent under this paragraph (b).

Upon demand by the Collateral Agent, the Administrative Agent and each Swap Counterparty shall give the Collateral Agent a written certification by an authorized officer or representative thereof of the aggregate amount of the Loan Obligations or Swap Obligations (as applicable) then outstanding owed to the Secured Parties represented by such Creditor under the Loan Documents or Swap Documents (as applicable) to be certified to as presently due and owing (and, promptly upon receipt thereof, the Collateral Agent shall provide a copy of each such certification to each other Creditor). The Collateral Agent may conclusively rely on such certifications and may use the information provided for in such certifications as the basis for determining the amounts owing by each of the individual Creditors to the Collateral Agent under this Section 19(b). For the avoidance of doubt, the failure of any Creditor to provide the Collateral Agent with any certification required hereunder shall not relieve such Creditor of its obligations under this Section 19(b).

(c)    All amounts due under this Section 19 will be payable upon demand.

(d)    No claim shall be made by any party hereto or any Related Party of any party hereto against any other party hereto or any Related Party of any party hereto on any theory of liability for any lost profits or special, indirect, or consequential damages or (to the fullest extent a claim for such damages may lawfully be waived) any punitive damages arising out of, in connection with, or as a result of, this Agreement or any Security Instrument or Loan Document or Swap Document or any agreement or instrument or transaction contemplated hereby or relating in any respect to any Indemnified Liability, and each Loan Party, each Swap

 

22


Counterparty, the Collateral Agent and the Administrative Agent (on behalf of the Lenders) hereby forever waives, releases and agrees not to sue any other party hereto or any Related Party of any party hereto upon any claim for any such lost profits or special, indirect, consequential or (to the fullest extent lawful) punitive damages, whether or not accrued and whether or not known or suspected to exist in its favor.

(e)    The agreements in this Section 19 will survive repayment of the Total Obligations and the removal or resignation of the Collateral Agent.

20.     Limitation of Liability – Collateral Agent . Neither Collateral Agent nor any of its Related Parties shall be liable for any action taken or not taken by it (i) with the consent or at the request of the Controlling Party (or such other Secured Parties as required herein) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment, and then only for direct damages to the extent provided by law. Collateral Agent shall not be responsible in any manner to any other party for the effectiveness, enforceability, genuineness, validity or the due execution of the Security Instruments or for any representation, warranty, document, certificate, report or statement made in or in connection with the Security Instruments or be under any obligation to any other party to ascertain or inquire as to the performance or observation of any of the terms, covenants or conditions of any of the Loan Documents or the Swap Documents on the part of any Loan Party.

21.     Limitation of Liability – Agent and Swap Counterparties . None of any Swap Counterparty, the Administrative Agent, the Collateral Agent or any Related Party of any of the foregoing shall incur any liability to the other except for liabilities arising from its gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable judgment. None of any Swap Counterparty, the Administrative Agent, the Collateral Agent or any Related Party of any of the foregoing shall incur any liability to Borrower or any other Person except for liabilities arising from its gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable judgment.

22.     Term . Subject to Section 24 below, this Agreement shall terminate upon (i) the Discharge of Credit Facility Obligations and the Discharge of Swap Obligations and (ii) the execution and delivery of a written termination notice signed by the Administrative Agent and each of the Swap Counterparties.

23.     Removal and Resignation of Collateral Agent . The Collateral Agent shall not be removed as Collateral Agent except with the prior written consent of each Swap Counterparty and the Majority Lenders under the Credit Agreement. The Administrative Agent and each Swap Counterparty agree to notify Borrower promptly of any removal of Collateral Agent. The Collateral Agent may resign at any time by giving not less than 30 days’ prior written notice of resignation to the Borrower, the Administrative Agent and each Swap Counterparty. Upon any such resignation, the Controlling Party shall have the right to appoint a successor with, so long as no event of default under the Credit Agreement or event of default or termination event under the Swap Documents has occurred and is continuing, the consent of the Borrower (not to be unreasonably withheld, conditioned or delayed). If no successor shall have been so appointed by the Controlling Party and approved by the Borrower (if applicable) and shall have accepted such

 

23


appointment within 30 days after such retiring Collateral Agent gives notice of its resignation (or such earlier day as shall be agreed in writing by the Controlling Party) (the “ Resignation Effective Date ”), then such retiring Collateral Agent or any other Creditor may (but shall not be obligated to), on behalf of the Secured Parties with, so long as no event of default under the Credit Agreement or event of default or termination event under any Swap Document has occurred and is continuing, the consent of the Borrower (not to be unreasonably withheld, conditioned or delayed), appoint a successor Collateral Agent which shall be a bank with an office in New York, New York (or a bank having an Affiliate with such an office) having a combined capital and surplus that is not less than $500,000,000 or an Affiliate of any such bank. Whether or not a successor has been appointed, the resigning Collateral Agent’s resignation shall become effective on the Resignation Effective Date. With effect from the Resignation Effective Date (1) the retiring Collateral Agent shall be discharged from its duties and obligations hereunder and under the Security Instruments (except that in the case of any collateral security held by the Collateral Agent on behalf of the Secured Parties, the retiring Collateral Agent shall continue to hold such collateral security until such time as a successor Collateral Agent is appointed) and (2) except for any indemnity payments or other amounts then owed to the retiring Collateral Agent, all payments, communications, actions and determinations provided to be made or taken by, to or through the Collateral Agent shall instead be made or taken by or to the Controlling Party directly, and except as provided in clause (1), the Controlling Party shall act as Collateral Agent hereunder in accordance with the terms and conditions hereof, until such time, if any, as the Controlling Party, other Creditor or Collateral Agent appoints a successor Collateral Agent as provided for above. Upon or following its resignation, the Collateral Agent agrees to execute and deliver assignments, in form and substance mutually satisfactory to the Collateral Agent and the Creditors, to the successor Collateral Agent of the rights of the mortgagee or the secured party, as the case may be, under the Security Instruments. Such assignments shall be prepared at the expense of Borrower. Borrower hereby consents to such assignments. Upon the acceptance of any appointment as a Collateral Agent hereunder by a successor entity, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of such retiring Collateral Agent (other than any rights to indemnity payments or other amounts owed to the retiring Collateral Agent as of the Resignation Effective Date), and such retiring Collateral Agent shall have no further duties, responsibilities or liabilities under this Agreement or the Security Instruments (if not already discharged therefrom as provided above in this Section), but shall remain entitled to the benefit of the indemnification of the Collateral Agent provided in this Agreement and to reimbursement, in accordance with applicable provisions of this Agreement, of expenses incurred in the discharge of the duties of the Collateral Agent prior to the effective date of such resignation.

24.     Survival of Rights . All of the respective rights and interests of the Administrative Agent, the Collateral Agent and each Swap Counterparty under this Agreement (and the respective obligations and agreements of each Swap Counterparty, the Administrative Agent and the Collateral Agent under this Agreement), shall remain in full force and effect regardless of:

(a)    any lack of validity or enforceability of any of the Loan Documents or the Swap Documents or any other agreement or instrument related thereto; or

 

24


(b)    any other circumstance which might otherwise constitute a defense available to, or discharge of, any Loan Party with respect to the Loan Obligations or the Swap Obligations (other than the defense that such obligations have been fully satisfied).

25.     Representations and Warranties . Each of the Administrative Agent, each Swap Counterparty, Borrower and Collateral Agent represents and warrants to the other parties hereto that:

(a)    neither the execution and delivery of this Agreement nor its performance of or compliance with the terms and provisions hereof will conflict with, or result in a breach of the terms, conditions or provisions of, or constitute a default under, any other agreement to which it is now subject, including, but not limited to, any of the Loan Documents or the Swap Documents;

(b)    it has all requisite authority to execute, deliver and perform its obligations under this Agreement; and

(c)    this Agreement constitutes its legal, valid, and binding obligation, enforceable against it in accordance with its terms, subject only to applicable bankruptcy, insolvency or similar laws and general principles of equity.

26.     Further Assurances . Each of the Administrative Agent, each Swap Counterparty, Borrower and Collateral Agent covenants that, as long as this Agreement remains in effect, it will execute and deliver any and all other documents or instruments reasonably requested by the other to give effect to the terms and conditions of this Agreement.

27.     Assignment; Agreement Binding on Successors and Assigns . As long as this Agreement remains in effect, no Swap Counterparty will sell, assign or otherwise transfer all or any part of the Swap Obligations, unless the assignee is already a party to this Agreement or executes and delivers to the Collateral Agent a Joinder Supplement. This Agreement shall inure to the benefit of, and shall be binding upon and enforceable against, each Loan Party, the Administrative Agent, each Swap Counterparty and Collateral Agent and their respective successors and permitted assigns. Any sale, assignment or transfer to any Person of any Swap Counterparty’s rights or interests in the Swap Obligation made in violation of the provisions of this Section 27 shall be void ab initio .

28.     Additional Swap Counterparties . Each of the parties hereto hereby agrees that, notwithstanding anything to the contrary contained herein, in any Security Instrument, in the Credit Agreement, in any other Loan Document or in any Swap Document, no Person providing any swap or hedge agreement to any Loan Party may become a secured party under any Security Instrument after the date hereof until such Person (i) is determined to be acceptable to the Majority Lenders as evidenced by their written consent (a copy of which shall have been provided to the Collateral Agent), (ii) agrees to be bound by the terms of this Agreement as a “Swap Counterparty” by executing and delivering a Joinder Supplement in the form of Exhibit A hereto to the Collateral Agent and the Borrower and (iii) provides the Collateral Agent with all documentation and other information that the Collateral Agent requests in order to comply with the Collateral Agent’s obligations under applicable “know your customer” and anti-money

 

25


laundering rules and regulations, including the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), and the results of any such “know your customer” or similar investigation conducted by the Collateral Agent shall be satisfactory to the Collateral Agent. In each case, upon execution and delivery of such Joinder Supplement by such Person, Collateral Agent and Borrower, such Person shall be deemed a Swap Counterparty hereunder as if an original signatory. Joinder Supplements executed pursuant to this Section 28 do not require the signatures or consents of all Creditors party to this Agreement. Promptly after execution of any such Joinder Supplement, the Borrower will endeavor to send a copy thereof to each other Swap Counterparty, but failure or delay in doing so will not make such Joinder Supplement void or voidable or otherwise affect the rights and duties of the parties hereto.

29.     Notice . Unless otherwise provided, any consent, request, notice, or other communication under or in connection with this Agreement must be in writing to be effective and shall be deemed to have been given (a) if by mail, on the third Business Day after it is enclosed in an envelope and properly addressed, stamped, sealed, certified return receipt requested, and deposited in the appropriate official postal service, or (b) if by courier, electronic transmissions, or facsimile transmission, when actually delivered; provided, however, that any notice provided to Morgan Stanley under this Agreement must also be sent by facsimile transmission to such Person. Until changed by a subsequent notice delivered in accordance with this Section 29, notices for each party are to be directed to:

For delivery to Morgan Stanley:

Morgan Stanley Capital Group Inc.

c/o MORGAN STANLEY & CO. LLC

1585 Broadway

New York, New York 10036-8293

Attention:             Close-out Notices

With a mandatory copy to:

Facsimile No.:    +1 212 507 4622

For delivery to NextEra:

NextEra Energy Marketing, LLC

700 Universe Blvd.

Juno Beach, FL 33408

Attn: Contracts/Legal Department

Facsimile: (561) 625-7504

For delivery to Cargill:

Cargill, Incorporated

9350 Excelsior Boulevard

Hopkins, Minnesota 55343-9439

Attn: Credit/CRM Administration

Facsimile: (952) 984-3763

 

26


For delivery to Koch:

Koch Supply & Trading, LP

4111 East 37th Street North

Wichita, Kansas 67220

Attention: Koch Supply & Trading Legal

Facsimile No.: 316-828-7979

Email: Trading_Formal_Notices@kochind.com

For delivery to a Swap Party (other than the Initial Swap Party): As set forth in the Joinder Supplement pursuant to which it became a party hereto.

For delivery to any Loan Party:

c/o Gastar Exploration Inc.

1331 Lamar, Suite 650

Houston, Texas 77010

Attention:

Michael A. Gerlich

Senior Vice President and

Chief Financial Officer

Facsimile No. (713) 739-0458

email: mgerlich@gastar.com

Trent Determan, Vice-President Finance

Facsimile No. (713) 739-0458

email: tdeterman@gastar.com

For delivery to Administrative Agent or Collateral Agent:

Wilmington Trust, National Association

Rodney Square, 1100 North Market Street

Wilmington, DE 19890

Attention: Jennifer K. Anderson

Facsimile No. (302) 636-4145

email: JKAnderson@wilmingtontrust.com

with a copy to:

Arnold & Porter Kaye Scholer LLP

250 West 55 th Street

New York, NY 10019

Attention: Alan Glantz

Facsimile No, (212) 836-6763

email: Alan.Glantz@APKS.com

 

27


30.     Amendments . This Agreement may only be waived, amended, modified, or terminated by a written agreement signed by the Administrative Agent, the Collateral Agent and each Swap Counterparty.

31.     Severability . Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

32.     Governing Law; Jurisdiction; Consent to Service of Process .

(a)     THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES (BUT GIVING EFFECT TO SECTION 5 1401 OF THE NEW YORK GENERAL OBLIGATION LAW).

(b)    Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party hereto may otherwise have to bring any action or proceeding relating to this Agreement in the courts of any jurisdiction.

(c)    Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to above. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

28


(d)    Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 29. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

33.     WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY HERETO (A)  CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)  ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

34.     Headings . Article, Section and Annex headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

35.     Conflicts . In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of any Security Instrument, the provisions of this Agreement shall control.

36.     No Liability for Clean Up of Hazardous Materials . In the event that the Collateral Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which the Collateral Agent determines (in its sole discretion) may cause the Collateral Agent to be considered an “owner or operator” under any environmental laws or otherwise cause the Collateral Agent to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, either to resign as Collateral Agent or to arrange for the transfer of the title or control of the asset to a court appointed receiver. The Collateral Agent will not be liable to any Person for any environmental liability or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any hazardous materials into the environment.

37.     Delay and Waiver . No failure to exercise, no course of dealing with respect to the exercise of, and no delay in exercising, any right, power or remedy arising under this Agreement or any of the Security Instruments will impair any such right, power or remedy or operate as a waiver thereof. No single or partial exercise of any such right, power or remedy will preclude any other or future exercise thereof or the exercise of any other right, power or remedy. The remedies herein are cumulative and are not exclusive of any remedies provided by law.

38.     Patriot Act . To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify and record

 

29


information that identifies each person who opens an account. For a non-individual person such as a business entity, a charity, a trust or other legal entity the Collateral Agent will ask for documentation to verify its formation and existence as a legal entity. The Collateral Agent may also ask to see financial statements, licenses, identification and authorization documents from individuals claiming authority to represent the entity or other relevant documentation.

40.     Counterparts . This Agreement may be executed in any number of counterparts (including by facsimile or electronic mail), each of which when so executed and delivered will be deemed an original, but all such counterparts together will constitute but one and the same instrument.

41.     Master Assignment . Each of the Creditors hereby (a) ratifies the appointment of Wilmington Trust as “Mortgagee,” “Secured Party” or “Grantee”, as applicable, under each of the Mortgages, and as “Administrative Agent,” the “Collateral Agent,” and a “Secured Party” under the Security Instruments and in any other equivalent capacity under each other Security Instrument (with terms defined in this clause (a) having the meanings provided in the Master Assignment), (b) acknowledges and agrees to the terms and provisions of the Master Assignment (including the collateral release and assignment provisions set forth in Section 14 of the Master Assignment) and (c) authorizes and directs the Collateral Agent to provide the release set forth in Section 14(b) of the Master Assignment.

( Signatures appear on following pages )

 

30


IN WITNESS WHEREOF, the parties have executed this Intercreditor Agreement as of the date first hereinabove written.

 

MORGAN STANLEY CAPITAL GROUP, INC.:
By:  

/s/ Parker Corbin

Name:   Parker Corbin
Title:   Vice President

 

SIGNATURE PAGE TO SWAP INTERCREDITOR AGREEMENT


IN WITNESS WHEREOF, the parties have executed this Intercreditor Agreement as of the date first hereinabove written.

 

NEXTERA ENERGY MARKETING, LLC:
By:  

/s/ Lawrence Silverstein

Name:   Lawrence Silverstein
Title:   Senior Vice President and Managing Director

 

SIGNATURE PAGE TO SWAP INTERCREDITOR AGREEMENT


IN WITNESS WHEREOF, the parties have executed this Intercreditor Agreement as of the date first hereinabove written.

 

CARGILL, INCORPORATED:
By:  

/s/ Tyler R. Smith

Name:   Tyler R. Smith
Title:   Authorized Signer

 

SIGNATURE PAGE TO SWAP INTERCREDITOR AGREEMENT


IN WITNESS WHEREOF, the parties have executed this Intercreditor Agreement as of the date first hereinabove written.

 

KOCH SUPPLY & TRADING, LP:
By:  

/s/ Roger Lindell

Name:   Roger Lindell
Title:   Vice President

 

SIGNATURE PAGE TO SWAP INTERCREDITOR AGREEMENT


IN WITNESS WHEREOF, the parties have executed this Intercreditor Agreement as of the date first hereinabove written.

 

ADMINISTRATIVE AGENT:
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Administrative Agent
By:  

/s/ Jennifer Anderson

Name:   Jennifer Anderson
Title:   Assistant Vice President
COLLATERAL AGENT:
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent
By:  

/s/ Jennifer Anderson

Name:   Jennifer Anderson
Title:   Assistant Vice President

 

SIGNATURE PAGE TO SWAP INTERCREDITOR AGREEMENT


IN WITNESS WHEREOF, the parties have executed this Intercreditor Agreement as of the date first hereinabove written.

 

BORROWER:
GASTAR EXPLORATION INC.
By:  

/s/ J. Russell Porter

Name:   J. Russell Porter
Title:   President and Chief Executive Officer

 

SIGNATURE PAGE TO SWAP INTERCREDITOR AGREEMENT


IN WITNESS WHEREOF, the parties have executed this Intercreditor Agreement as of the date first hereinabove written.

 

GUARANTORS:
NORTHWEST PROPERTY VENTURES LLC
By:  

/s/ Michael A. Gerlich

Name:   Michael A. Gerlich
Title:   Senior Vice President and Chief Financial Officer

 

SIGNATURE PAGE TO SWAP INTERCREDITOR AGREEMENT


Exhibit A

JOINDER SUPPLEMENT

This Joinder Supplement (this “ Supplement ”), dated as of                     , is executed by                      (“ New Swap Counterparty ”), Gastar Exploration Inc. (“ Borrower ”), and Wilmington Trust, National Association, as Collateral Agent (in such capacity, together with its successors and assigns in such capacity, “ Collateral Agent ”).

All capitalized terms used herein but not defined herein shall have the meanings set forth in the Agreement (as defined below).

W I T N E S S E T H:

WHEREAS, the Loan Parties, Collateral Agent, Wilmington Trust, National Association, as administrative agent for the Lenders and [            ] have heretofore executed and delivered to Collateral Agent that certain Intercreditor Agreement dated as of March 3, 2017 (as from time to time amended, modified, supplemented or restated, the “ Agreement ”), providing for, among other matters, the relative rights and obligations and apportionment of certain collections among Creditors (as defined therein), and the exercise of certain remedies under the Security Instruments (as defined therein);

WHEREAS, the Agreement provides that one or more additional Persons may become Swap Counterparties thereunder if each such Person is acceptable to the Majority Lenders as a “Qualified Counterparty” under the Credit Agreement and executes and delivers a Joinder Supplement as provided in the Agreement; and

WHEREAS, New Swap Counterparty desires to become a Swap Counterparty under the Agreement.

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, New Swap Counterparty, Collateral Agent and Borrower hereby agree as follows:

1.     Recognition . New Swap Counterparty hereby represents and warrants that it is acceptable to the Majority Lenders as a “Qualified Counterparty” under the Credit Agreement as evidenced by their written consent.

2.     Agreement to be Bound . New Swap Counterparty hereby (i) agrees to be bound by all of the terms and provisions of the Agreement as a Swap Counterparty thereunder and (ii) and agrees to perform and observe as a Swap Counterparty each of the covenants, agreements, terms, conditions, obligations, duties, promises and liabilities applicable to a “Swap Counterparty” under the Agreement (including, without limitation, those set forth in Section 19 of the Agreement) as if it were an original signatory thereto. New Swap Counterparty acknowledges and agrees that the terms of the Agreement shall control over the terms of the Principal Agreements to which New Swap Counterparty is a party, to the extent any conflict exists between the Agreement and such Principal Agreements.

 

SIGNATURE PAGE TO SWAP INTERCREDITOR AGREEMENT


3.     Ratification of Agreement; Joinder Supplement Part of Agreement . This Joinder Supplement shall form a part of the Agreement for all purposes. Except as expressly supplemented hereby, the Agreement is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.

4.     Collateral Agent Makes No Representation . Collateral Agent makes no representation as to the validity or sufficiency of the Security Instruments, and New Swap Counterparty acknowledges, consents to, and accepts the disclaimers by, and limitations on the liability of, Collateral Agent that are provided in the Agreement.

5.     Representations and Warranties of New Swap Counterparty . New Swap Counterparty represents and warrants to the other Creditors that:

(a)    neither the execution and delivery of this Supplement or the Agreement nor its performance of or compliance with the terms and provisions hereof or thereof will conflict with, or result in a breach of the terms, conditions or provisions of, or constitute a default under, any other agreement to which it is now subject;

(b)    it has all requisite authority to execute, deliver and perform its obligations under this Supplement and the Agreement; and

(c)    each of this Supplement and the Agreement constitutes its legal, valid, and binding obligation, enforceable against it in accordance with its terms, subject only to applicable bankruptcy, insolvency or similar laws and general principles of equity.

6.     Counterparts . The parties may sign any number of copies of this Joinder Supplement, and different parties may sign on different signature pages. Each signed copy shall be an original, but all of them together shall represent the same supplemental agreement.

7.     Address for Notices . All notices and other communications given to New Swap Counterparty under the Agreement may be given at its address or telecopier number as follows:

[New Swap Counterparty]

[Address]

Attention:

Telecopier No.:

[ remainder of page left blank ]

 

SIGNATURE PAGE TO SWAP INTERCREDITOR AGREEMENT


IN WITNESS WHEREOF, the parties hereto have caused this Joinder Supplement to be duly executed as of the date first above written.

 

NEW SWAP COUNTERPARTY:     [                                                               ]
      By:                                                                                                
      Name:  
      Title:  
BORROWER:       GASTAR EXPLORATION INC.
      By:                                                                                                 
      Name:  
      Title:  
COLLATERAL AGENT:     WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent
      By:                                                                                                
      Name:  
      Title:  


Schedule 1

Listing of Certain Security Instruments

Third Amended and Restated Pledge and Security Agreement, dated as of March 3, 2017, by and among Gastar Exploration Inc., certain of its subsidiaries party thereto and Wilmington Trust, National Association, as collateral agent.

Amended and Restated First Lien Mortgage, Security Agreement, Fixture Filing, Financing Statement and Assignment of Production, dated as of March 3, 2017, executed and delivered by Gastar Exploration Inc., as mortgagor, to Wilmington Trust, National Association, as mortgagee.

Amended and Restated First Lien Wellbore Mortgage, Security Agreement, Fixture Filing, Financing Statement and Assignment of Production, dated as of March 3, 2017, executed and delivered by Gastar Exploration Inc., as mortgagor, to Wilmington Trust, National Association, as mortgagee.

Master Reaffirmation and Assignment and Assumption of Liens and Security Interests, dated as of March 3, 2017, by and among Gastar Exploration Inc., Wells Fargo Bank National Association, as resigning agent, Wilmington Trust, National Association, as successor administrative agent, and Ares Management, LLC.

Assignment and Assumption of Deposit Account and Sweep Investment Control Agreement, dated as of March 3, 2017, by and among Wells Fargo Bank, National Association, as resigning first lien agent, Wilmington Trust, National Association, as resigning second lien trustee and collateral agent, Wilmington Trust, National Association, as successor first lien agent and successor second lien agent.

Assignment and Assumption of Securities Account Control Agreement, dated as of March 3, 2017, by and among Wells Fargo Bank, National Association, as resigning first lien agent, Wilmington Trust, National Association, as resigning second lien trustee and collateral agent, Wilmington Trust, National Association, as successor first lien agent and successor second lien trustee and collateral agent.

 

S1-1

Exhibit 10.6

THIRD AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT

This THIRD AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT is entered into as of March 3, 2017, by and among GASTAR EXPLORATION INC., a Delaware corporation (“ Borrower ”), each subsidiary of the Borrower signatory hereto (together with the Borrower, the “ Grantors ” and individually, each a “ Grantor ”) and Wilmington Trust, National Association, as collateral agent (in such capacity and together with its successors and assigns in such capacity, the “ Collateral Agent ”) for the benefit of itself and the other Secured Parties.

PRELIMINARY STATEMENTS

WHEREAS, Borrower previously entered into that certain Second Amended and Restated Credit Agreement dated as of June 7, 2013 (as it has been amended, supplemented or otherwise modified, the “ Existing Credit Agreement ”), among Borrower, the guarantors party thereto, the lenders party thereto (“ Existing Lenders ”), and Wells Fargo Bank, National Association, as administrative agent (in such capacity, the “ Existing Administrative Agent ”), as collateral agent (in such capacity, the “ Existing Collateral Agent ”), and as issuing bank for letters of credit issued thereunder;

WHEREAS, in order to secure the full and punctual payment and performance of the “Secured Obligations” under and as defined in the Existing Credit Agreement and the other Loan Documents (as defined in the Existing Credit Agreement), the Grantors executed and delivered to the Existing Collateral Agent (a) that certain Second Amended and Restated First Lien Security Agreement dated as of June 7, 2013 (as it has been amended, supplemented or otherwise modified, the “ Existing Security Agreement ”) and (b) that certain Second Amended and Restated First Lien Security Agreement (Pledge) dated as of June 7, 2013 (together with the Existing Security Agreement, the “ Existing Collateral Documents ”);

WHEREAS, pursuant to that certain Master Reaffirmation and Assignment and Assumption of Liens and Security Interests (the “ Assignment ”) of even date herewith, the Existing Administrative Agent and the Existing Lenders have assigned to the Collateral Agent and the Lenders all of their respective right, title and interest in and to the deeds of trust, mortgages, security agreements and other instruments executed or delivered pursuant thereto, including the Existing Collateral Documents;

WHEREAS, after giving effect to the Assignment, Wilmington Trust, National Association, as the Administrative Agent, the Grantors and the Lenders party thereto have agreed to amend and restate the Existing Credit Agreement in its entirety pursuant to, and new lenders have agreed to become lenders under, that certain Third Amended and Restated Credit Agreement dated as of March 3, 2017 (as it may be amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”); and

WHEREAS, in connection with the execution of the Credit Agreement, the parties desire to amend and restate the Existing Collateral Documents in the form of this Agreement in order to, among other things, reflect the foregoing and the execution and delivery of the Credit Agreement. The Collateral Agent is willing to amend and restate the Existing Collateral Documents as set forth herein on the terms and subject to the conditions set forth herein.


NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor and the Collateral Agent, on behalf of the Secured Parties, hereby agree as follows:

ARTICLE I.

DEFINITIONS

Section 1.1.     Definitions of Certain Terms Used Herein. (a) All capitalized terms not otherwise defined herein that are defined in the Credit Agreement shall have the meanings assigned to such terms in the Credit Agreement. Any terms used in this Agreement that are defined in the UCC (as defined below) and not otherwise defined herein or in the Credit Agreement, shall have the meanings assigned to those terms by the UCC. All meanings to defined terms, unless otherwise indicated, are to be equally applicable to both the singular and plural forms of the terms defined. As used in this Agreement, the following terms shall have the following meanings:

Accounts ” shall mean an “account” as defined in the UCC, including, without limitation, all of any Grantor’s rights to payment for goods sold or leased, services performed, or otherwise, whether now in existence or arising from time to time hereafter, including, without limitation, rights arising under any of the Contracts or evidenced by an account, note, contract, security agreement, Chattel Paper (including, without limitation, tangible Chattel Paper and electronic Chattel Paper), or other evidence of indebtedness or security, together with all of the right, title and interest of any Grantor in and to (i) all security pledged, assigned, hypothecated or granted to or held by any Grantor to secure the foregoing, (ii) all of any Grantor’s right, title and interest in and to any goods or services, the sale of which gave rise thereto, (iii) all guarantees, endorsements and indemnifications on, or of, any of the foregoing, (iv) all powers of attorney granted to any Grantor for the execution of any evidence of indebtedness or security or other writing in connection therewith, (v) all books, correspondence, credit files, records, ledger cards, invoices, and other papers relating thereto, including without limitation all similar information stored on a magnetic medium or other similar storage device and other papers and documents in the possession or under the control of any Grantor or any computer bureau from time to time acting for any Grantor, (vi) all evidences of the filing of financing statements and other statements granted to any Grantor and the registration of other instruments in connection therewith and amendments thereto, notices to other creditors or secured parties, and certificates from filing or other registration officers, (vii) all credit information, reports and memoranda relating thereto, and (viii) all other writings related in any way to the foregoing.

Additional Grantors ” shall have the meaning set forth in Section  4.6 .

Agreement ” shall mean this Third Amended and Restated Pledge and Security Agreement, dated as of March 3, 2017, made by each of the Grantors in favor of the Collateral Agent for the benefit of the Secured Parties, as the same may be amended, restated, supplemented or otherwise modified from time to time.

 

2


Assignment ” shall have the meaning set forth in the recitals to this Agreement.

Borrower ” shall have the meaning set forth in the preamble to this Agreement.

Cash Collateral ” shall mean all amounts from time to time held in any checking, savings, deposit or other account of such Grantor, all monies, proceeds or sums due or to become due therefrom or thereon and all documents (including, but not limited to passbooks, certificates and receipts) evidencing all funds and investments held in such accounts.

Certificated Equipment ” shall mean any Vehicle or other equipment the ownership of which is evidenced by, or under applicable law, is required to be evidenced by, a certificate of title.

Chattel Paper ” shall mean all “chattel paper” as defined in Article 9 of the UCC, including “electronic chattel paper” or “tangible chattel paper”, as each term is defined in Article 9 of the UCC.

Collateral ” shall have the meaning assigned in Section  2 of this Agreement and shall not include the Excluded Contracts, other than to the extent such Excluded Contract becomes Collateral as provided in Section  2.2 .

Collateral Records ” shall mean books, records, ledger cards, files, correspondence, customer lists, blueprints, technical specifications, manuals, computer software, computer printouts, tapes, disks and related data processing software and similar items that at any time evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon.

Collateral Support ” shall mean all property (real or personal) assigned, hypothecated or otherwise securing any Collateral and shall include any security agreement or other agreement granting a lien or security interest in such real or personal property.

Contract Documents ” shall mean all Instruments, Chattel Paper, letters of credit, bonds, guarantees or similar documents evidencing, representing, arising from or existing in respect of, relating to, securing or otherwise supporting the payment of, the Contract Rights.

Contract Rights ” shall mean (i) all (A) of any Grantor’s rights to payment under any Contract or Contract Document and (B) payments due and to become due to any Grantor under any Contract or Contract Document, in each case whether as contractual obligations, damages or otherwise; (ii) all of any Grantor’s claims, rights, powers, or privileges and remedies under any Contract or Contract Document; and (iii) all of any Grantor’s rights under any Contract or Contract Document to make determinations, to exercise any election (including, but not limited to, election of remedies) or option or to give or receive any notice, consent, waiver or approval together with full power and authority with respect to any Contract or Contract Document to demand, receive, enforce or collect any of the foregoing rights or any property which is the subject of any Contract or Contract Document, to enforce or execute any checks, or other instruments or orders, to file any claims and to take any action which, in the opinion of the Secured Parties, may be necessary or advisable in connection with any of the foregoing.

 

3


Contracts ” shall mean all contracts to which any Grantor now is, or hereafter will be bound, or to which such Grantor is or hereafter will be a party, beneficiary or assignee, all Insurance Contracts, and all exhibits, schedules and other attachments to such contracts, as the same may be amended, supplemented or otherwise modified or replaced from time to time.

Controlling Party ” shall have the meaning set forth in the Swap Intercreditor Agreement.

Copyright Licenses ” shall mean any and all agreements providing for the granting of any right in or to Copyrights (whether such Grantor is licensee or licensor thereunder).

Copyrights ” shall mean all United States and foreign copyrights, all mask works fixed in semi-conductor chip products (as defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether registered or unregistered, now or hereafter in force throughout the world, all registrations and applications therefor, all rights corresponding thereto throughout the world, all extensions and renewals of any thereof, the right to sue for past, present and future infringements of any of the foregoing, and all proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages, and proceeds of suit.

Documents ” shall mean a bill of lading, dock warrant, dock receipt, warehouse receipt or order for the delivery of goods, and also any other document which in the regular course of business or financing is treated as adequately evidencing that the person in possession of it is entitled to receive, hold and dispose of the document and the goods it covers.

Equipment ” shall mean any equipment now or hereafter owned or leased by any Grantor, or in which any Grantor holds or acquires any other right, title or interest, constituting “equipment” under the UCC, including, without limitation, all surface or subsurface machinery, equipment, facilities, supplies, or other tangible personal property, including tubing, rods, pumps, pumping units and engines, pipe, pipelines, meters, apparatus, boilers, compressors, liquid extractors, connectors, valves, fittings, power plants, poles, lines, cables, wires, transformers, starters and controllers, machine shops, tools, machinery and parts, storage yards and equipment stored therein, buildings and camps, telegraph, telephone, and other communication systems, loading docks, loading racks, and shipping facilities, and any manuals, instructions, blueprints, computer software (including software that is imbedded in and part of the equipment), and similar items which relate to the above, and any and all additions, substitutions and replacements of any of the foregoing, wherever located together with all improvements thereon and all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.

Event of Default ” shall mean the occurrence of either (a) an Event of Default under the terms of the Credit Agreement or (b) at any time that the Swap Counterparties are the Controlling Party, the occurrence of a Triggering Event (as defined in the Swap Intercreditor Agreement).

Excluded Account ” shall mean (a) any Deposit Account that is designated to hold cash as collateral in support of performance bond obligations or other similar obligations and (b) any Deposit Account that is designated solely as an account for, and is used solely for, employee benefits, taxes, payroll funding or petty cash in an amount not to exceed $500,000 in the aggregate.

 

4


Excluded Collateral ” shall mean (a) Excluded Contracts; (b) Excluded Accounts; (c) any United States intent-to-use trademark application until such time, if any, as a statement of use or an amendment to allege use is filed with an accepted by the United States Patent and Trademark Office; (d) those assets as to which the Majority Lenders and the Borrower reasonably determine that the cost of obtaining such a security interest or perfection thereof are excessive in relation to the benefit to the Lenders of the security to be afforded thereby; and (e) any Property subject to a Lien permitted by Section 6.03(h) of the Credit Agreement; provided however, “Excluded Collateral” shall not include any right to receive proceeds from the sale or other disposition of Excluded Collateral or any Proceeds, products, substitutes or replacements of any Excluded Collateral (unless such Proceeds, products, substitutes or replacements independently constitute Excluded Collateral).

Excluded Contracts ” shall mean, other than to the extent set forth in this definition, any General Intangibles, Contract, Contract Document, Government Approvals or other document (and any Contract Rights arising thereunder) to which any of the Grantors is a party to the extent (but only to the extent) that a Grantor is prohibited from granting a security interest in, pledge of, or charge, mortgage or lien upon any such Property by reason of (a) an existing and enforceable negative pledge or anti-assignment provision or (b) applicable law or regulation to which such Grantor is subject (and shall, as applicable, not be included as “Chattel Paper”, “Collateral”, “Contracts”, “Contract Rights”, “Contract Documents”, “General Intangibles”, “Governmental Approval”, “Instruments”, “Insurance Contracts”, “Investment Property”, “Legal Requirements”, or “Pledged Equity” for the purposes hereof); provided however that (x) the exclusion from the lien and security interest granted by such Grantor hereunder of any Contract Rights of any of the Grantors under one or more of the Excluded Contracts shall not limit, restrict or impair the grant by such Grantor of the lien and security interest in any Accounts or receivables arising under any such Excluded Contract or any payments due or to become due thereunder, (y) any Excluded Contract shall automatically cease to be an “Excluded Contract” and excluded from the Collateral (and shall automatically be subject to the lien and security interest granted hereby and to the terms and provisions of this Agreement as “Collateral”), to the extent that (1) either of the prohibitions discussed in clause (a) and (b) above is ineffective or subsequently rendered ineffective under Sections 9.406, 9.407, 9.408 or 9.409 of the UCC or under any other Requirements of Law or is otherwise no longer in effect, or (2) the applicable Grantor has obtained the consent of the other parties to such Excluded Contract to the creation of a lien and security interest in, such Excluded Contract (which consent, upon the reasonable request of the Collateral Agent, such Grantor will use its commercial reasonable efforts to obtain), and (z) any proceeds received by any Grantor from the sale, transfer or other disposition of Excluded Contracts shall constitute Collateral unless any assets or property constituting such proceeds are themselves subject to the exclusions set forth in the definition of “Excluded Collateral”.

Excluded Perfection Collateral ” shall mean, unless otherwise elected by Collateral Agent following a Default, collectively (a) Immaterial Certificated Equipment, and (b) Letter of Credit Rights.

Existing Administrative Agent ” shall have the meaning set forth in the recitals to this Agreement.

 

5


Existing Collateral ” shall have the meaning set forth in Section  9.16 .

Existing Collateral Agent ” shall have the meaning set forth in the recitals to this Agreement.

Existing Collateral Documents ” shall have the meaning set forth in the recitals to this Agreement.

Existing Credit Agreement ” shall have the meaning set forth in the recitals to this Agreement.

Existing Lenders ” shall have the meaning set forth in the recitals to this Agreement.

Existing Security Agreement ” shall have the meaning set forth in the recitals to this Agreement.

Fixtures ” shall mean any fixtures now or hereafter owned or leased by any Grantor, or in which any Grantor holds or acquires any other right, title or interest, constituting “fixtures” under the UCC, including without limitation any and all additions, substitutions and replacements of any of the foregoing, wherever located together with all improvements thereon and all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.

General Intangibles ” shall mean all general intangibles now or hereafter owned by any Grantor, or in which any Grantor holds or acquires any other right, title or interest, constituting “general intangibles” or “payment intangibles” under the UCC, including, but not limited to, all trademarks, trademark applications, trademark registrations, tradenames, fictitious business names, business names, company names, business identifiers, prints, labels, trade styles and service marks (whether or not registered), trade dress, including logos and/or designs, copyrights, patents, patent applications, goodwill of any Grantor’s business symbolized by any of the foregoing, trade secrets, license rights, license agreements, permits, franchises, and any rights to tax refunds to which any Grantor is now or hereafter may be entitled.

Governmental Approvals ” shall mean (i) any authorization, consent, approval, license, waiver or exemption, by or with (ii) any required notice to; (iii) any declaration of or with; or (iv) any required registration by or with, or any other action or deemed action by or on behalf of, any Governmental Authority.

Grantor ” and “ Grantors ” shall have the meaning set forth in the preamble to this Agreement.

Immaterial Certificated Equipment ” shall mean, as of the date of determination, any Certificated Equipment owned by any Grantor that (a) has a fair market value of less than $100,000 individually or (ii) when taken together with all other Immaterial Certificated Equipment, has an aggregate fair market value of less than $2,000,000.

 

6


Instruments ” shall mean an “instrument” as defined in the UCC, including, without limitation, any Negotiable Instrument, or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in the ordinary course of business transferred by delivery with any necessary endorsement or assignment (other than Instruments constituting Chattel Paper).

Insurance ” shall mean all insurance policies covering any or all of the Collateral (regardless of whether Collateral Agent is the loss payee thereof).

Insurance Contracts ” shall mean all contracts and policies of insurance and re-insurance maintained or required to be maintained by or on behalf of any Grantor under the Loan Documents.

Intellectual Property ” shall mean, collectively, the Copyrights, the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, the Trade Secrets, and the Trade Secret Licenses.

Intercompany Note ” shall mean any promissory note evidencing loans made by any Grantor to the Borrower or any of its Subsidiaries.

Intercreditor Agreement ” shall have the meaning set forth in Section  9.18 .

Inventory ” shall mean all of the inventory of any Grantor, or in which any Grantor holds or acquires any right, title or interest, of every type or description, now owned or hereafter acquired and wherever located, whether raw, in process or finished (including oil, gas, or other hydrocarbons and all products and substances derived therefrom), and all materials usable in processing the same and all documents of title covering any inventory, including, without limitation, work in process, materials used or consumed in any Grantor’s business, now owned or hereafter acquired or manufactured by any Grantor and held for sale in the ordinary course of its business, all present and future substitutions therefor, parts and accessories thereof and all additions thereto, all Proceeds thereof and products of such inventory in any form whatsoever, and any other item constituting “inventory” under the UCC.

Investment Accounts ” shall mean the Securities Accounts, Commodities Accounts and Deposit Accounts.

Investment Property ” shall mean “investment property” as defined in the UCC, including, without limitation, all securities (whether certificated or uncertificated), security entitlements, securities accounts, commodity contracts, and commodity accounts.

Investment Related Property ” shall mean: (i) all Investment Property and (ii) all of the following (regardless of whether classified as Investment Property under the UCC): all Pledged Securities, the Investment Accounts, and certificates of deposit.

Negotiable Instrument ” shall mean a “negotiable instrument” as defined in the UCC.

Original Collateral ” shall have the meaning set forth in Section  9.16 .

 

7


Ownership Interests ” shall mean all interests in any limited liability company, general partnership, limited partnership, limited liability partnership or other partnership, and the certificates, if any, representing such interests and any interest of such Grantor on the books and records of such limited liability company, general partnership, limited partnership, limited liability partnership or other partnership and any securities entitlements relating thereto and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such interests and any other warrant, right or option or other agreement to acquire any of the foregoing, all management rights, all voting rights, any interest in any capital account, all rights as and to become a member or partner, all rights of the Grantor under any shareholder or voting trust agreement or similar agreement in respect of such limited liability company, general partnership, limited partnership, limited liability partnership or other partnership, all of the Grantor’s right, title and interest as a member to any and all assets or properties of such limited liability company, general partnership, limited partnership, limited liability partnership or other partnership, and all other rights, powers, privileges, interests, claims and other property in any manner arising out of or relating to any of the foregoing.

Patent Licenses ” shall mean all agreements providing for the granting of any right in or to Patents (whether such Grantor is licensee or licensor thereunder).

Patents ” shall mean all United States and foreign patents and applications for letters patent throughout the world, all reissues, divisions, continuations, continuations in part, extensions, renewals, and reexaminations of any of the foregoing, all rights corresponding thereto throughout the world, and all proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages, and proceeds of suit and the right to sue for past, present and future infringements of any of the foregoing.

Pledged Notes ” shall mean all promissory notes listed on Schedule I (as such schedule may be amended or supplemented from time to time) and all other promissory notes or other instruments issued to or held by any Grantor (other than promissory notes issued in connection with extensions of trade credit by any Grantor in the ordinary course of business) and all Intercompany Notes.

Pledged Securities ” shall mean all Securities and Ownership Interests of any Grantor, including, without limitation, as described on Schedule I attached hereto (as such schedule may be amended or supplemented from time to time), and all Securities and Ownership Interests described in any Pledge Amendment hereafter executed and delivered by any Grantor pursuant to Section  4.5 of this Agreement.

Proceeds ” shall mean all proceeds (as defined in the UCC) of any or all of the Collateral, including without limitation (i) any and all proceeds of, all claims for, and all rights of any Grantor to receive the return of any premiums for, any insurance, indemnity, warranty or guaranty payable from time to time with respect to any of the Collateral, (ii) any and all payments (in any form whatsoever) made or due and payable from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any Governmental Authority (or any Person acting under color of any Governmental Authority), (iii) all proceeds received or receivable when any or all of the Collateral is sold, exchanged or otherwise disposed, whether voluntarily, involuntarily, in

 

8


foreclosure or otherwise, (iv) all claims of any Grantor for damages arising out of, or for breach of or default under, any Collateral, (v) all rights of any Grantor to terminate, amend, supplement, modify or waive performance under any Contracts, to perform thereunder and to compel performance and otherwise exercise all remedies thereunder, and (vi) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral.

Receivables ” shall mean all rights to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services rendered or to be rendered, including all such rights constituting or evidenced by any Account, Chattel Paper, Instrument, General Intangible or Investment Related Property, together with all of Grantor’s rights, if any, in any goods or other property giving rise to such right to payment and all Collateral Support and Supporting Obligations related thereto and all Receivables Records.

Receivables Records ” shall mean (i) all original copies of all documents, instruments or other writings or electronic records or other Records evidencing the Receivables, (ii) all books, correspondence, credit or other files, Records, ledger sheets or cards, invoices, and other papers relating to Receivables, including all tapes, cards, computer tapes, computer discs, computer runs, record keeping systems and other papers and documents relating to the Receivables, whether in the possession or under the control of Grantor or any computer bureau or agent from time to time acting for Grantor or otherwise, (iii) all evidences of the filing of financing statements and the registration of other instruments in connection therewith, and amendments, supplements or other modifications thereto, notices to other creditors or Secured Parties, and certificates, acknowledgments, or other writings, including lien search reports, from filing or other registration officers, (iv) all credit information, reports and memoranda relating thereto and (v) all other written or nonwritten forms of information related in any way to the foregoing or any Receivable.

Released Collateral ” shall have the meaning set forth in Section  9.16 .

Second Lien Collateral Agent ” shall mean Wilmington Trust, National Association and each of its successors and assigns as “Second Lien Agent” under and as defined in the Intercreditor Agreement.

Secured Obligations ” shall mean all Secured Obligations (as defined in the Credit Agreement) now or hereafter existing, including any extensions, modifications, substitutions, amendments and renewals thereof, whether for principal, interest, fees, expenses, indemnification, or otherwise, including any post-petition interest in the event of a bankruptcy, to the extent such interest is enforceable by law. Notwithstanding anything to the contrary contained herein, “Secured Obligations” as used in this Agreement shall not include the Excluded Swap Obligations.

Security Termination ” shall mean subject to Section 6 hereof, at such time at which each of the following events shall have occurred at or prior to such time: (i) the termination of the Commitments, (ii) the termination of all Swap Agreements entered into with the Qualified Counterparties (other than Swap Agreements entered into with any Qualified Counterparty with respect to which other arrangements satisfactory to such Qualified Counterparty and the

 

9


Borrower have been made), and (iii) the indefeasible payment in full in cash of all Secured Obligations (other than (1) Swap Obligations with respect to which other arrangements satisfactory to the Qualified Counterparty and the Borrower have been made and (2) indemnity obligations and similar obligations that survive the termination of this Agreement for which no notice of a claim has been received by any Grantor).

Stock Rights ” shall mean any securities, dividends or other distributions and any other right or property which any Grantor shall receive or shall become entitled to receive for any reason whatsoever with respect to, in substitution for or in exchange for any securities or other ownership interests in a corporation, limited partnership, general partnership, joint venture or limited liability company constituting Collateral and any securities, any right to receive securities and any right to receive earnings, in which any Grantor now has or hereafter acquires any right, issued by an issuer of such securities.

Swap Counterparties ” shall have the meaning set forth in the Swap Intercreditor Agreement.

Trade Secret Licenses ” shall mean any and all agreements providing for the granting of any right in or to Trade Secrets (whether such Grantor is licensee or licensor thereunder).

Trade Secrets ” shall mean all trade secrets and all other confidential or proprietary information and know-how now or hereafter owned or used in, or contemplated at any time for use in, the business of such Grantor (all of the foregoing being collectively called a “ Trade Secret ”), whether or not such Trade Secret has been reduced to a writing or other tangible form, including all documents and things embodying, incorporating, or referring in any way to such Trade Secret, the right to sue for past, present and future infringement of any Trade Secret, and all proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages, and proceeds of suit.

Trademark Licenses ” shall mean any and all agreements providing for the granting of any right in or to Trademarks (whether such Grantor is licensee or licensor thereunder).

Trademarks ” shall mean all United States, state and foreign trademarks, trade names, corporate names, company names, business names, fictitious business names, internet domain names, trade styles, service marks, certification marks, collective marks, logos, other source or business identifiers, designs and general intangibles of a like nature, all registrations and applications for any of the foregoing, all extensions or renewals of any of the foregoing, all of the goodwill of the business connected with the use of and symbolized by the foregoing, the right to sue for past, present and future infringement or dilution of any of the foregoing or for any injury to goodwill, and all proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages, and proceeds of suit.

UCC ” shall mean the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided, however, in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of definitions related to such provisions.

 

10


(b)    Article, Section, Schedule, and Exhibit references are to Articles and Sections of and Schedules and Exhibits to this Agreement, unless otherwise specified. All references to instruments, documents, contracts, and agreements are references to such instruments, documents, contracts, and agreements as the same may be amended, supplemented, and otherwise modified from time to time, unless otherwise specified. The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. As used herein, the term “including” means “including, without limitation”.

ARTICLE II.

GRANT OF SECURITY

INTEREST

Section 2.1.     Grant of Security . As collateral security for the prompt and complete payment and performance when due of all Secured Obligations, each Grantor hereby assigns, pledges, and grants to the Collateral Agent for the benefit of the Secured Parties a lien on and continuing security interest in all of such Grantor’s right, title and interest in, to and under, all items described in this Section 2, whether now owned or hereafter acquired by such Grantor and wherever located and whether now owned or hereafter existing or arising (collectively, the “ Collateral ”):

(a)    all Accounts;

(b)    all cash and cash equivalents;

(c)    all Cash Collateral;

(d)    all Certificated Equipment;

(e)    all Chattel Paper;

(f)    all Commercial Tort Claims;

(g)    all Commodity Accounts;

(h)    all Contracts, all Contract Rights, Contract Documents and Accounts associated with such Contracts and each and every document granting security to such Grantor under any such Contract;

(i)    all Deposit Accounts;

(j)    all Documents;

 

11


(k)    all Equipment;

(l)    all Fixtures;

(m)    all General Intangibles;

(n)    all Goods;

(o)    all Governmental Approvals;

(p)    all Instruments;

(q)    all Insurance;

(r)    all Intellectual Property;

(s)    all Inventory;

(t)    all Investment Property;

(u)    all Letters of Credit and Letter of Credit Rights;

(v)    all Money;

(w)    all Investments;

(x)    all Receivables and Receivable Records;

(y)    all Securities Accounts and Securities Entitlements;

(z)    any right to receive a payment under any Swap Agreement in connection with a termination thereof;

(aa)    all books and records pertaining to the Collateral;

(bb)    without limiting the generality of the foregoing, all other personal property, goods, Accounts, Certificated Securities, Chattel Paper, Commercial Tort Claims, Commodity Accounts, Commodity Contracts, Deposit Accounts, Documents, Equipment, Fixtures, General Intangibles, Goods, Instruments, Inventory, Investment Property, Letter of Credit Rights, Letters of Credit, Money, Payment Intangibles, Proceeds, Securities, Securities Accounts, Security Entitlements, Supporting Obligations, Uncertificated Securities, credits, claims, demands and assets of such Grantor whether now existing or hereafter acquired from time to time;

(cc)    to the extent not otherwise included above, all Collateral Records, Collateral Support and Supporting Obligations relating to any of the foregoing; and

(dd)    to the extent not otherwise included above, all Proceeds, products, accessions, profits, rents, replacements, substations of or in respect of any of the foregoing.

 

12


Section 2.2.     Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the security interest granted under Section  2.1 hereof attach to any Excluded Collateral.

Section 2.3.     Security for Secured Obligations . This Agreement secures, and the Collateral is collateral security for, the prompt and complete payment or performance in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §362(a) (and any successor provision thereof)), of all Secured Obligations; provided , however , that the Secured Obligations shall not include any Excluded Swap Obligations.

Section 2.4.     Continuing Liability Under Collateral . Notwithstanding anything herein to the contrary, (i) each Grantor shall remain liable for all obligations under the Collateral and nothing contained herein is intended to be or shall be a delegation of duties to Collateral Agent or any Secured Party, (ii) each Grantor shall remain liable under each of the agreements included in the Collateral to perform all of the Secured Obligations undertaken by it thereunder all in accordance with and pursuant to the terms and provisions thereof and neither Collateral Agent nor any Secured Party shall have any obligation or liability under any of such agreements by reason of or arising out of this Agreement or any other document related thereto nor shall Collateral Agent nor any Secured Party have any obligation to make any inquiry as to the nature or sufficiency of any payment received by it or have any obligation to take any action to collect or enforce any rights under any agreement included in the Collateral and (iii) the exercise by Collateral Agent of any of its rights hereunder shall not release any Grantor from any of its duties or obligations under the contracts and agreements included in the Collateral.

ARTICLE III.

REPRESENTATIONS AND WARRANTIES

Each Grantor represents and warrants to Collateral Agent and the Secured Parties that:

Section 3.1.     Title, Authorization, Validity and Enforceability . Such Grantor has good and valid rights in or the power to transfer the Collateral to the Collateral Agent with respect to which it has purported to grant a security interest hereunder, free and clear of all Liens (other than Liens expressly permitted by Section 6.03 of the Credit Agreement), and has full power and authority to grant to Collateral Agent the security interest in such Collateral pursuant hereto. The execution and delivery by such Grantor of this Agreement has been duly authorized by proper corporate, partnership or limited liability proceedings, and this Agreement constitutes a legal, valid and binding obligation of such Grantor and creates a security interest which is enforceable against such Grantor in all now owned and hereafter acquired Collateral, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

Section 3.2.     Type and Jurisdiction of Organization. Such Grantor is a corporation, limited partnership or limited liability company duly and properly incorporated or organized, as the case

 

13


may be, validly existing and (to the extent such concept applies to such entity) in good standing under the laws of its jurisdiction of incorporation or organization and has all requisite authority to conduct its business in each jurisdiction wherein failure to have such authorization may result in a Material Adverse Effect. Such Grantor is not now nor has it during the five years prior to the date hereof been incorporated or organized as any other type of entity or under the laws of any other jurisdiction.

Section 3.3.     Principal Location. On the date hereof, such Grantor’s mailing address and the location of its place of business (if it has only one) or its chief executive office (if it has more than one place of business), is disclosed in Exhibit A . During the preceding five-year period, such Grantor has no other places of business except those set forth in Exhibit A .

Section 3.4.     No Other Names. As of the date hereof, during the preceding five-year period, such Grantor has not conducted business under any name except those set forth in Exhibit B . On the date hereof, each Grantor’s name, as set forth on Exhibit B , is the exact name as it appears in such Grantor’s Organizational Documents, as amended, as filed with such Grantor’s jurisdiction of organization. Unless otherwise stated on Exhibit B , such Grantor is not a transmitting utility as defined in Section 9-102(a)(80) of the UCC.

Section 3.5.     Federal Taxpayer Identification Number. Such Grantor’s Federal taxpayer identification number as of the date hereof is set forth on Exhibit C .

Section 3.6.     Grantor’s Location. The jurisdiction in which such Grantor is located for purposes of Sections 9-301 and 9-307 of the UCC as of the date hereof is set forth on Exhibit D .

Section 3.7.     Pledged Securities, Pledged Notes and Other Investment Property. Schedule I sets forth a complete and accurate list of the Pledged Securities, Pledged Notes and other Investment Property delivered to Collateral Agent, for the benefit of the Secured Parties. Such Grantor is the direct and beneficial owner of each Pledged Security, Pledged Note and other type of Investment Property as indicated on Schedule I , free and clear of any Liens, except for the security interest granted to Collateral Agent for the benefit of the Secured Parties hereunder and, subject to the Intercreditor Agreement, the security interest granted to the Second Lien Collateral Agent. Each Grantor further represents and warrants that (i) all such Pledged Securities or other types of Investment Property which are shares of stock in a corporation or ownership interests in a limited partnership or limited liability company have been (to the extent such concepts are relevant with respect to such Pledged Security or other type of Investment Property) duly and validly issued, are fully paid and non-assessable and (ii) with respect to any certificates delivered to Collateral Agent representing an ownership interest in a limited partnership or limited liability company, either such certificates are Securities as defined in Article 8 of the Uniform Commercial Code of the applicable jurisdiction as a result of actions by the issuer or otherwise, or, if such certificates are not Securities, such Grantor has so informed Collateral Agent so that Collateral Agent may take steps to perfect its security interest therein as a General Intangible. Schedule III hereto sets forth under the headings “Securities Accounts,” “Commodities Accounts,” and “Deposit Accounts,” respectively, all of the Securities Accounts, Commodities Accounts and Deposit Accounts in which each Grantor has an interest. Except as set forth on Schedule III hereto, each Grantor is the sole entitlement holder or customer of each such account, and such Grantor has not consented to, and is not otherwise aware of, any Person (other

 

14


than the Collateral Agent pursuant hereto or, subject to the Intercreditor Agreement, the Second Lien Collateral Agent) having “control” (within the meanings of Sections 8-106, 9-106 and 9-104 of the UCC) over, or any other interest in, any such Securities Account, Commodity Account or Deposit Account or any securities, commodities or other property credited thereto.

Section 3.8.     Due Authorization of Pledged Securities. All of the Pledged Securities have been duly authorized and validly issued and are fully paid and non-assessable. The Collateral includes, without limitation, all of the issued and outstanding Equity Interests of each of the Subsidiaries owned by each Grantor and there are no outstanding warrants, options or other rights to purchase, or other agreements (other than the Loan Documents) outstanding with respect to, or property that is now or hereafter convertible into, or that requires the issuance or sale of, any Pledged Securities.

Section 3.9.     Valid, Perfected First Priority Liens . The security interests granted pursuant to this Agreement constitute a legal and valid security interest in favor of the Collateral Agent, for the benefit of the Secured Parties, securing the payment and performance of each Grantor’s Secured Obligations and upon completion of the filings and other actions specified on Exhibit D (all of which, in the case of all filings and other documents referred to on said Exhibit, have been delivered to the Collateral Agent in duly completed and duly executed form, as applicable, and may be filed by the Collateral Agent (or its designee) at any time) and payment of all filing fees, will constitute fully perfected security interests in all of the Collateral, prior to all other Liens on the Collateral except for Permitted Encumbrances and subject to Excluded Perfection Collateral. Without limiting the foregoing, each Grantor has taken all actions necessary or desirable, including without limitation those specified in Sections 4.2 , 4.3 , 4.7 and 4.8 to: (i) establish the Collateral Agent’s “control” (within the meanings of Sections 8-106 and 9-106 of the UCC) over any portion of the Investment Property constituting Certificated Securities, Uncertificated Securities, Securities Accounts, Securities Entitlements or Commodity Accounts, (ii) establish the Collateral Agent’s “control” (within the meaning of Section 9-104 of the UCC) over all Deposit Accounts (other than Deposit Accounts that are Excluded Accounts), and (iii) establish the Collateral Agent’s “control” (within the meaning of Section 9-107 of the UCC) over all Letter of Credit Rights.

Section 3.10.     Authorization; Approvals . No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body is required for either (i) the pledge or grant by any Grantor of the Liens purported to be created in favor of Collateral Agent hereunder or (ii) the exercise by Collateral Agent of any rights or remedies in respect of any Collateral (whether specifically granted or created hereunder or created or provided for by applicable law), except (A) for the filings contemplated by Section  3.9 above and (B) as may be required, in connection with the disposition of any Investment Related Property, by laws generally affecting the offering and sale of Ownership Interests. No consent, approval or authorization of any Person is required for the pledge by such Grantor of the Pledged Securities pursuant to this Agreement or for the execution, delivery or performance of this Agreement by such Grantor, whether under the Organizational Documents of any issuer of any Pledged Securities or otherwise, except such as have been obtained and are in full force and effect.

 

15


Section 3.11.     Receivables . No Receivable is evidenced by, or constitutes, an Instrument or Chattel Paper which has not been delivered to, or otherwise subjected to the Control of, Collateral Agent.

Section 3.12.     Account Debtors . None of the account debtors in respect of any Receivable is the government of the United States, any agency or instrumentality thereof, any state or municipality or any foreign sovereign.

Section 3.13.     Possession of Inventory; Control . Each Grantor has exclusive possession and control, subject to Permitted Encumbrances, of its Equipment and Inventory, except as otherwise required, necessary or customary in the ordinary course of its business. No Grantor has consented to, and is otherwise unaware of, any Person having Control over any Collateral, other than, subject to the Intercreditor Agreement, the Second Lien Collateral Agent.

Section 3.14.     Commercial Tort Claims . Schedule II sets forth all Commercial Tort Claims of each Grantor.

Section 3.15.     Letter of Credit Rights . No Grantor is a beneficiary or assignee under any letter of credit other than the letters of credit described on Schedule IV .

ARTICLE IV.

COVENANTS

From the date of this Agreement, and thereafter until this Agreement is terminated:

Section 4.1.     General .

4.1.1     Inspection. Each Grantor will permit Collateral Agent or any Lender, by its representatives and agents (i) to inspect the Collateral, (ii) to examine and make copies of the records of such Grantor relating to the Collateral and (iii) to discuss the Collateral and the related records of such Grantor with, and to be advised as to the same by, such Grantor’s officers and employees, all at such reasonable times and intervals as Collateral Agent or such Lender may determine, and all at the Grantors’ expense.

4.1.2     Financing Statements and Other Actions; Defense of Title. Each Grantor hereby authorizes Collateral Agent or its designee to file all financing statements and other documents and take such other actions as may from time to time be requested by Collateral Agent or its designee in order to maintain a first priority perfected (other than, as to perfection, Excluded Perfection Collateral) security interest in and, if applicable, “control” (within the meaning of the applicable Uniform Commercial Code) of, the Collateral. Each Grantor hereby authorizes Collateral Agent (or its designee) to file financing statements describing as the collateral covered thereby “all of the debtor’s personal property or assets” or words to that effect, notwithstanding that such wording may be broader in scope than the Collateral described in this Agreement. Each Grantor will take any and all actions necessary to defend title to the Collateral against all persons and to defend the security interest of Collateral Agent in the Collateral and the priority thereof against any Lien not expressly permitted hereunder. Each Grantor shall maintain the security interest in the Collateral created by this Agreement as a

 

16


perfected security interest having at least the priority described in Section  3.9 . At any time and from time to time, upon the written request of the Collateral Agent, and at the sole expense of such Grantor, such Grantor shall promptly and duly authorize, execute and deliver, and have recorded, such further instruments and documents and take such further actions as the Collateral Agent may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, in the case of Investment Property, Deposit Accounts and any other relevant Collateral, taking any actions necessary to enable the Collateral Agent to obtain “control” (within the meaning of the applicable Uniform Commercial Code) with respect thereto to the extent required hereunder, including without limitation, executing and delivering and causing the relevant depositary bank or securities intermediary to execute and deliver a control agreement in form and substance reasonably satisfactory to the Collateral Agent, the Majority Lenders and the Swap Counterparties.

4.1.3     Disposition of Collateral. Except as otherwise permitted under the Credit Agreement, none of the Grantors will sell, lease or otherwise dispose of the Collateral.

4.1.4     Liens. None of the Grantors will create, incur, or suffer to exist any Lien on the Collateral except the security interest created by this Agreement and the Liens expressly permitted by Section 6.03 of the Credit Agreement.

4.1.5     Change in Corporate Existence, Type or Jurisdiction of Organization, Location, Name . Except as otherwise permitted under the Credit Agreement, each Grantor will:

 

  (a) preserve its existence as a corporation, limited partnership or limited liability company and not, in one transaction or a series of related transactions, merge into or consolidate with any other entity, or sell all or substantially all of its assets;

 

  (b) not change its name or its state of organization; and

 

  (c) not maintain its place of business (if it has only one) or its chief executive office (if it has more than one place of business) at a location other than a location specified on Exhibit A ;

unless such Grantor shall have given Collateral Agent not less than five (5) Business Days’ prior written notice of such event or occurrence and taken all action reasonably requested by the Collateral Agent or any other Secured Party for the purpose of maintaining the validity, perfection and priority of Collateral Agent’s security interest in the Collateral.

4.1.6     Other Financing Statements. None of the Grantors will authorize the filing of any financing statement naming it as debtor covering all or any portion of the Collateral, except as permitted by Section  4.1.2 and in respect of Liens expressly permitted by Section 6.03 of the Credit Agreement.

 

17


Section 4.2.     Securities, Pledged Notes and Documents. Each Grantor will (i) deliver to Collateral Agent promptly the originals of all certificated Pledged Securities constituting Collateral (if any then exist) and all Pledged Notes, in each case, to the extent not previously delivered to Collateral Agent, (ii) hold in trust for Collateral Agent upon receipt and promptly thereafter deliver to Collateral Agent any certificated Pledged Securities constituting Collateral and any Pledged Notes, and (iii) upon Collateral Agent’s request, after the occurrence and during the continuance of an Event of Default, deliver to Collateral Agent (and thereafter hold in trust for Collateral Agent upon receipt and immediately deliver to Collateral Agent) (x) any Document evidencing or constituting Collateral, (y) any dividends or distributions declared or paid, in cash or property, upon any of the Pledged Securities, and (z) any payments received, in cash or property, with respect to any Pledged Note or any other Collateral. Each Grantor which is an issuer of a Pledged Security agrees that (i) it will be bound by the terms of this Agreement relating to the Pledged Securities issued by it and will comply with such terms insofar as such terms are applicable to it, (ii) it will notify the Collateral Agent promptly in writing of the occurrence of any of the events described in Section  4.5 with respect to the Pledged Securities issued by it and (iii) the terms of this Section  4.2 shall apply to it with respect to all actions that may be required of it pursuant to this Section  4.2 with respect to the Pledged Securities issued by it. In addition, each Grantor which is either an issuer or an owner of any Pledged Securities hereby consents to the grant by each other Grantor of the security interest hereunder in favor of the Collateral Agent and to the transfer of any Pledged Security to the Collateral Agent or its nominee following an Event of Default and to the substitution of the Collateral Agent or its nominee as a partner, member or shareholder or other equity holder of the issuer of the related Pledged Security. Each Grantor hereby authorizes and instructs each issuer of any Pledged Securities pledged by such Grantor hereunder to (i) comply with any instruction received by it from the Collateral Agent in writing that (x) states that an Event of Default has occurred and is continuing and (y) is otherwise in accordance with the terms of this Agreement, without any other or further instructions from such Grantor, and each Grantor agrees that each issuer shall be fully protected in so complying, and (ii) unless otherwise expressly permitted hereby, pay any dividends or other payments with respect to the Pledged Securities directly to the Collateral Agent.

Section 4.3.     Uncertificated Securities and Certain Other Investment Property. Each Grantor will take any actions reasonably requested by the Collateral Agent to cause (i) the issuers of Uncertificated Securities which are Collateral and which are Securities or other Investment Property and (ii) any financial intermediary which is the holder of any Securities or other Investment Property, to cause Collateral Agent to have and retain “control” (within the meaning of the applicable Uniform Commercial Code) over such Securities or other Investment Property in form and substance reasonably satisfactory to the Collateral Agent.

Section 4.4.     Stock and Other Ownership Interests .

4.4.1     Changes in Capital Structure of Issuers. Except as otherwise permitted under the Credit Agreement, none of the Grantors will vote any of the Securities, Ownership Interests or other Investment Property in favor of, or take any other action to permit or suffer, any issuer of privately held corporate securities or other ownership interests in a corporation, limited partnership, general partnership, joint venture or limited liability company constituting Collateral to dissolve, liquidate, retire any of its capital stock, Ownership Interests or other Securities evidencing ownership, reduce its capital or merge or consolidate with any other entity.

 

18


4.4.2     Registration of Pledged Securities and other Investment Property. Each Grantor will permit any registerable Pledged Securities or any Ownership Interest which become a Security to be registered in the name of Collateral Agent or its nominee at any time an Event of Default has occurred and is continuing at the option of the Collateral Agent and the Majority Lenders, or if the Swap Counterparties are the Controlling Party, the Swap Counterparties holding a majority of the Swap Obligations (as defined in the Swap Intercreditor Agreement).

4.4.3     Exercise of Rights in Pledged Securities and other Investment Property. Each Grantor will permit Collateral Agent or its nominee at any time after the occurrence and during the continuance of an Event of Default, without notice, to exercise all voting and corporate rights relating to the Pledged Securities, including, without limitation, exchange, subscription or any other rights, privileges, or options pertaining to any Pledged Securities and the Stock Rights as if it were the absolute owner thereof.

Section 4.5.     Commercial Tort Claims. Each Grantor further agrees that it will, upon obtaining any additional Commercial Tort Claims that could reasonably be expected to result in a judgment in such Grantor’s favor in excess of $5,000,000, promptly (and in any event within thirty (30) days) deliver to Collateral Agent a Pledge Amendment, duly executed by such Grantor, in substantially the form of Schedule V annexed hereto (a “ Pledge Amendment ”), in respect of such additional Commercial Tort Claims. Each Grantor hereby authorizes Collateral Agent to attach each Pledge Amendment to this Agreement and agrees that all Commercial Tort Claims listed on any Pledge Amendment delivered to Collateral Agent shall for all purposes hereunder be considered Collateral; provided that the failure of such Grantor to execute a Pledge Amendment with respect to any Commercial Tort Claims pledged pursuant to this Agreement shall not impair the security interest of Collateral Agent therein or otherwise adversely affect the rights and remedies of Collateral Agent hereunder with respect thereto.

Section 4.6.     Additional Grantors . From time to time subsequent to the date hereof, additional Persons may become parties hereto as additional Grantors (each, an “ Additional Grantor” ), by executing a Counterpart Agreement. Upon delivery of any such Counterpart Agreement to Collateral Agent, notice of which is hereby waived by each Grantor, each Additional Grantor shall be a Grantor and shall be as fully a party hereto as if such Additional Grantor were an original signatory hereto. Each Grantor expressly agrees that its obligations arising hereunder shall not be affected or diminished by the addition or release of any other Grantor hereunder, nor by any election of Collateral Agent not to cause any Subsidiary of Borrower or any other Grantor to become an Additional Grantor hereunder. This Agreement shall be fully effective as to any Grantor that is or becomes a party hereto regardless of whether any other Person becomes or fails to become or ceases to be a Grantor hereunder.

Section 4.7.    Subject to Section 5.16 of the Credit Agreement, each Grantor shall maintain Securities Entitlements, Securities Accounts and Deposit Accounts (other than Deposit Accounts that are Excluded Accounts) only with financial institutions that have agreed to comply with entitlement orders and instructions issued or originated by the Collateral Agent without further

 

19


consent of such Grantor, such agreement to be in form and substance reasonably satisfactory to the Collateral Agent and the Majority Lenders, or if the Swap Counterparties are the Controlling Party, the Swap Counterparties holding a majority of the Swap Obligations (as defined in the Swap Intercreditor Agreement).

Section 4.8.    If any of the Collateral is or shall become evidenced or represented by a Commodity Contract, such Grantor shall cause the Commodity Intermediary with respect to such Commodity Contract to agree in writing with such Grantor and the Collateral Agent that such Commodity Intermediary will apply any value distributed on account of such Commodity Contract as directed by the Collateral Agent without further consent of such Grantor, such agreement to be in form and substance reasonably satisfactory to the Collateral Agent and the Majority Lenders, or if the Swap Counterparties are the Controlling Party, the Swap Counterparties holding a majority of the Swap Obligations (as defined in the Swap Intercreditor Agreement).

Section 4.9.     Letter of Credit Rights . Within ten (10) days after the date of obtaining any Letter of Credit Rights other than in respect of the letters of credit described on Schedule IV hereto, each Grantor shall provide the Collateral Agent with an amended or supplemented Schedule IV to reflect such additional letters of credit.

Section 4.10.    Without the prior written consent of the Majority Lenders (or if the Swap Counterparties are the Controlling Party, the Swap Counterparties holding a majority of the Swap Obligations (as defined in the Swap Intercreditor Agreement)) no Grantor will (i) vote to enable, or take any other action to permit, any issuer of any Pledged Securities to amend its Organizational Documents in any manner that materially changes the rights of such Grantor with respect to any Pledged Securities or adversely affects the validity, perfection or priority of the Collateral Agent’s security interest therein, (ii) enter into any agreement or undertaking restricting the right or ability of such Grantor or the Collateral Agent to sell, assign or transfer any of the Investment Property or Proceeds thereof or any interest therein or (iii) cause or permit any issuer of any Pledged Securities which are not securities (for purposes of the UCC) on the date hereof to elect or otherwise take any action to cause such Pledged Securities to be treated as securities for purposes of the UCC; provided, however, that notwithstanding the foregoing, if any issuer of any Pledged Securities takes any such action in violation of the foregoing in this clause (iii), such Grantor shall promptly notify the Collateral Agent in writing of any such election or action and, in such event, shall take all steps necessary or advisable to establish the Collateral Agent’s “control” thereof, in form and substance reasonably satisfactory to the Collateral Agent and the Majority Lenders (or if the Swap Counterparties are the Controlling Party, the Swap Counterparties holding a majority of the Swap Obligations (as defined in the Swap Intercreditor Agreement)).

 

20


ARTICLE V.

REMEDIES UPON EVENT OF DEFAULT

Section 5.1.     Acceleration and Remedies. Upon the occurrence and continuance of an Event of Default, Collateral Agent may exercise any or all of the following rights and remedies:

5.1.1    Those rights and remedies provided in this Agreement, the Credit Agreement, or any other Loan Document, provided that this Section  5.1.1 shall not be understood to limit any rights or remedies available to Collateral Agent and the Secured Parties prior to an Event of Default.

5.1.2    Those rights and remedies available to Collateral Agent under the UCC (whether or not the UCC applies to the affected Collateral) or under any other applicable law (including, without limitation, any law governing the exercise of a bank’s right of setoff or bankers’ lien).

5.1.3    Without notice except as specifically provided in Section  9.1 or elsewhere herein, collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or sell, lease, assign, grant an option or options to purchase or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, for cash, on credit or for future delivery, and upon such other terms as Collateral Agent may deem commercially reasonable.

Collateral Agent, on behalf of the Secured Parties, may comply with any applicable state or federal law requirements in connection with a disposition of the Collateral and compliance will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral.

Section 5.2.     Each Grantor’s Obligations Upon an Event of Default. Upon the request of Collateral Agent after the occurrence and during the continuance an Event of Default, each Grantor will, subject to the terms of the Swap Intercreditor Agreement:

5.2.1     Assembly of Collateral. Assemble and make available to Collateral Agent the Collateral and all records relating thereto at any place or places specified by Collateral Agent.

5.2.2     Collateral Agent Access. Permit Collateral Agent, by Collateral Agent’s representatives and agents, to enter any premises where all or any part of the Collateral, or the books and records relating thereto, or both, are located, to take possession of all or any part of the Collateral and to remove all or any part of the Collateral.

ARTICLE VI.

WAIVERS, AMENDMENTS AND

REMEDIES

No delay or omission of Collateral Agent or any Secured Party to exercise any right or remedy granted under this Agreement shall impair such right or remedy or be construed to be a waiver of any Event of Default or an acquiescence therein, and any single or partial exercise of any such right or remedy shall not preclude any other or further exercise thereof or the exercise of any other right or remedy. Except for any Pledge Amendment executed and delivered to Collateral Agent by any Grantor in accordance with the terms of Section  4.5 , no waiver, amendment or other variation of the terms, conditions or provisions of this Agreement whatsoever shall be valid unless in writing signed by Collateral Agent with the concurrence or at

 

21


the direction of the Majority Lenders (or if the Swap Counterparties are the Controlling Party, the Swap Counterparties holding a majority of the Swap Obligations (as defined in the Swap Intercreditor Agreement)) and then only to the extent in such writing specifically set forth. All rights and remedies contained in this Agreement or by law afforded shall be cumulative and all shall be available to Collateral Agent and the Secured Parties until the Secured Obligations have been paid in full.

ARTICLE VII.

PROCEEDS

Section 7.1.     Application of Proceeds. Subject to the terms of the Swap Intercreditor Agreement, the proceeds of the Collateral shall be applied by Collateral Agent to payment of the Secured Obligations in the order and manner contemplated by the Credit Agreement.

ARTICLE VIII.

NOTICES

Section 8.1.     Sending Notices. Any notice required or permitted to be given under this Agreement shall be sent (and deemed received) in the manner and to the addresses set forth in Section 10.01 of the Credit Agreement.

Section 8.2.     Change in Address for Notices. Collateral Agent or any Grantor may change the address for service of notice upon it by a notice in writing to the other parties.

ARTICLE IX.

GENERAL PROVISIONS

Section 9.1.     Notice of Disposition of Collateral; Condition of Collateral. Subject to the terms of the Swap Intercreditor Agreement, each Grantor hereby waives notice of the time and place of any public sale or the time after which any private sale or other disposition of all or any part of the Collateral may be made. To the extent such notice may not be waived under applicable law, any notice made shall be deemed reasonable if sent to a Grantor, addressed as set forth in Article VIII, at least ten (10) days prior to (i) the date of any such public sale or (ii) the time after which any such private sale or other disposition may be made. Collateral Agent shall have no obligation to prepare the Collateral for sale.

Section 9.2.     Collateral Agent Performance of Debtor Obligations . Without having any obligation to do so, and subject to the terms of the Swap Intercreditor Agreement, Collateral Agent or the other Secured Parties may perform or pay any obligation which a Grantor has agreed to perform or pay in this Agreement and such Grantor shall reimburse Collateral Agent or such other Secured Parties for any amounts paid by Collateral Agent or such other Secured Parties pursuant to this Section  9.2 . The Grantors’ obligations to reimburse Collateral Agent and other Secured Parties pursuant to the preceding sentence shall be a Secured Obligation payable on demand.

 

22


Section 9.3.     Authorization for Collateral Agent to Take Certain Action. Each Grantor irrevocably authorizes Collateral Agent at any time and from time to time in the sole discretion of Collateral Agent and appoints Collateral Agent as its attorney in fact (i) to file financing statements, amendments and continuations necessary or desirable in Collateral Agent’s sole discretion to perfect and to maintain the perfection and priority of Collateral Agent’s security interest in the Collateral, (ii) after the occurrence and during the continuance of an Event of Default, to indorse and collect any cash proceeds of the Collateral, (iii) to file a carbon, photographic or other reproduction of this Agreement or any financing statement with respect to the Collateral as a financing statement and to file any other financing statement or amendment of a financing statement (which does not add new collateral or add a debtor) in such offices as Collateral Agent in its sole discretion deems necessary or desirable to perfect and to maintain the perfection and priority of Collateral Agent’s security interest in the Collateral, (iv) to contact and enter into one or more agreements with the issuers of Uncertificated Securities which are Collateral and which are Securities or other Investment Property or with financial intermediaries holding Securities or other Investment Property as may be necessary or advisable to give Collateral Agent Control over such Securities or other Investment Property, (v) after the occurrence and during the continuance of an Event of Default, to apply the proceeds of any Collateral received by Collateral Agent to the Secured Obligations as provided in Article VII, (vi) after the occurrence and during the continuance of an Event of Default, to discharge past due taxes, assessments, charges, fees or Liens on the Collateral (except for such Liens as are specifically permitted hereunder), (vii) after the occurrence and during the continuance of an Event of Default, to take possession of and indorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due with respect to any Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by Collateral Agent for the purpose of collecting any and all such moneys due with respect to any Collateral, and (viii) after the occurrence and during the continuance of an Event of Default, to direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to Collateral Agent or as Collateral Agent shall direct. Grantor agrees to reimburse Collateral Agent on demand for any payment made or any expense incurred by Collateral Agent in connection with any actions taken by Collateral Agent pursuant to clauses (i) through (viii) above, provided that this authorization shall not relieve any Grantor of any of its obligations under this Agreement or under the Credit Agreement. The power of attorney granted hereby is coupled with an interest and shall be irrevocable until Security Termination.

Section 9.4.     Specific Performance of Certain Covenants. Each Grantor acknowledges and agrees that a breach of any of the covenants contained in Sections 4.1.3 , 4.1.4 , 4.2 , 4.3 , 4.7 , 4.8 , 4.10, 5.2 , or 9.5 or in Article VII will cause irreparable injury to Collateral Agent and the Secured Parties, that Collateral Agent and Secured Parties have no adequate remedy at law in respect of such breaches and therefore agrees, without limiting the right of Collateral Agent or the Secured Parties to seek and obtain specific performance of other obligations of Grantor contained in this Agreement, that the covenants of such Grantor contained in the Sections referred to in this Section  9.4 shall be specifically enforceable against such Grantor.

Section 9.5.     Dispositions Not Authorized. Except as otherwise permitted under the Credit Agreement, none of the Grantors is authorized to sell or otherwise dispose of the Collateral and notwithstanding any course of dealing between any Grantor and Collateral Agent or other

 

23


conduct of Collateral Agent, no authorization to sell or otherwise dispose of the Collateral shall be binding upon Collateral Agent or the Secured Parties unless such authorization is in writing signed by Collateral Agent.

Section 9.6.     Benefit of Agreement. The terms and provisions of this Agreement shall be binding upon and inure to the benefit of each Grantor, Collateral Agent and the Secured Parties and their respective successors and assigns (including all persons who become bound as a debtor to this Agreement), except that none of the Grantors shall have the right to assign its rights or delegate its obligations under this Agreement or any interest herein, without the prior written consent of Collateral Agent.

Section 9.7.     Survival of Representations. All representations and warranties of each Grantor contained in this Agreement shall survive the execution and delivery of this Agreement.

Section 9.8.     Headings. The title of and section headings in this Agreement are for convenience of reference only, and shall not govern the interpretation of any of the terms and provisions of this Agreement.

Section 9.9.     Releases .

(a)    Upon the Security Termination, but subject to the terms of the Swap Intercreditor Agreement, the Collateral shall be released from the Liens created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of Collateral Agent and each Grantor hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Grantors. At the request and sole expense of any Grantor following any such termination, and subject to the provisions in Article IX of the Credit Agreement, Collateral Agent shall deliver to such Grantor any Collateral held by Collateral Agent hereunder, and execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence such termination.

(b)    Subject to the terms of the Swap Intercreditor Agreement, if any of the Collateral shall be sold, transferred or otherwise disposed of by any Grantor in a transaction permitted by the Credit Agreement, then Collateral Agent, at the request and sole expense of such Grantor, but subject to the provisions in Article IX of the Credit Agreement, shall promptly execute and deliver to such Grantor all releases or other documents reasonably necessary or desirable for the release of the Liens created hereby on such Collateral. At the request and sole expense of the Borrower, a Grantor shall be released from its obligations hereunder in the event that all the capital stock of such Grantor shall be sold, transferred or otherwise disposed of in a transaction permitted by the Credit Agreement; provided that the Borrower shall have delivered to Collateral Agent, at least five (5) Business Days prior to the date of the proposed release, a request for release identifying the relevant Grantor and the terms of the sale or other disposition in reasonable detail, including the price thereof and any anticipated expenses in connection therewith, together with a certification by the Borrower stating that such transaction is in compliance with the Credit Agreement and the other Loan Documents and the Swap Documents (as defined in the Swap Intercreditor Agreement) (and the Secured Parties, by accepting the benefits hereof, authorize the Collateral Agent to conclusively rely on such certification as evidence that such transaction is in compliance with the Credit Agreement and the other Loan Documents in performing its obligations under this clause (b)).

 

24


Section 9.10.     ENTIRE AGREEMENT . THIS AGREEMENT, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE SWAP DOCUMENTS (AS DEFINED IN THE SWAP INTERCREDITOR AGREEMENT) REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES HERETO.

Section 9.11.     CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK.

Section 9.12.     WAIVER OF JURY TRIAL. EACH GRANTOR AND, BY ACCEPTANCE OF THE BENEFITS HEREOF, COLLATERAL AGENT AND EACH SECURED PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.

Section 9.13.     Expenses; Indemnity; Damage Waiver . Section 10.03 of the Credit Agreement is hereby incorporated by reference mutatis mutandis , as if stated verbatim herein as agreements and obligations of each Grantor.

Section 9.14.     Counterparts; Fax. This Agreement may be separately executed in any number of counterparts, all of which when so executed shall be deemed to constitute one and the same Agreement. This Agreement may be validly executed and delivered by facsimile or other electronic transmission.

Section 9.15.     Consent of Pledge of Pledged Securities. Each Grantor consents to the grant by each other Grantor of a security interest in all Pledged Securities to Collateral Agent, and without limiting the foregoing, consents to the transfer of such Pledged Securities to Collateral Agent or its nominee following an Event of Default and to the substitution of Collateral Agent or its nominee as a partner in any partnership or as a member in any limited liability company with all the rights and powers related thereto.

Section 9.16.     Amendment and Restatement . The parties hereto acknowledge that this Agreement amends and restates each of the Existing Collateral Documents in its entirety. It is the intent of the parties hereto that this Agreement neither constitute a novation of the Secured Obligations and liabilities existing under the Existing Collateral Documents nor evidence the termination of such obligations and liabilities but be, to the fullest extent applicable, a modification, renewal, confirmation and extension of such Existing Collateral Documents. The parties hereto acknowledge that the Liens, security interests and other interests in the collateral covered by the Existing Collateral Agreement (hereinafter the “ Original Collateral ”) granted under the Existing Collateral Documents shall remain legal, valid, binding and enforceable with regard to such Original Collateral, except to the extent of any Original Collateral expressly

 

25


released from such Liens, security interests and other interests by the Existing Collateral Agent prior to the effectiveness of this Agreement (the “ Released Collateral ” and, the Original Collateral excluding the Released Collateral, the “ Existing Collateral ”). Each Grantor hereby acknowledges and confirms the continuing existence and effectiveness of such Liens, security interests, and other interests in the Existing Collateral granted under the Existing Collateral Documents and further agrees that the execution and delivery of this Agreement and the other Loan Documents shall not in any way release, diminish, impair, reduce or otherwise affect such Liens, security interests and other interests in the Existing Collateral granted under the Existing Collateral Documents. The parties hereto acknowledge that the Liens, security interests and other interests in the Existing Collateral shall continue to exist under and be evidenced by this Agreement. On and after the date hereof, all references to any Existing Collateral Document (or to any amendment or any amendment and restatement thereof) in the Credit Agreement or any related document (other than this Agreement) shall be deemed to refer to such Existing Collateral Document, as amended and restated hereby. This amendment and restatement is limited as written and is not a consent to any other amendment, restatement or waiver, whether or not similar.

Section 9.17.     Swap Intercreditor Agreement. In the event of a conflict between the provisions of this Agreement and the provisions of the Swap Intercreditor Agreement, the provisions of the Swap Intercreditor Agreement shall govern and control.

Section 9.18.     Intercreditor Agreement. Reference is made to the Intercreditor Agreement, dated as of March 3, 2017, between Wilmington Trust, National Association, as Priority Lien Agent (as defined therein), and Wilmington Trust, National Association, as Second Lien Agent (as defined therein) (the “ Intercreditor Agreement ”). Each Person that is secured hereunder, by accepting the benefits of the security provided hereby, (i) agrees (or is deemed to agree) that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement, (ii) authorizes (or is deemed to authorize) the Priority Lien Agent on behalf of such Person to enter into, and perform under, the Intercreditor Agreement and (iii) acknowledges (or is deemed to acknowledge) that a copy of the Intercreditor Agreement was delivered, or made available, to such Person.

Notwithstanding any other provision contained herein, this Agreement, the Liens created hereby and the rights, remedies, duties and obligations provided for herein are subject in all respects to the provisions of the Intercreditor Agreement and, to the extent provided therein, the applicable Security Documents (as defined in the Intercreditor Agreement). In the event of any conflict or inconsistency between the provisions of this Agreement and the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall control.

ARTICLE X.

LIEN ABSOLUTE; WAIVER OF SURETYSHIP DEFENSES

Section 10.1.     Lien Absolute, Waivers .

10.1.1    Subject to the terms of the Swap Intercreditor Agreement, all rights of Collateral Agent hereunder, and all obligations of Grantors hereunder, shall be absolute and

 

26


unconditional irrespective of, shall not be affected by, and shall remain in full force and effect without regard to, and each Grantor hereby waives all, rights, claims or defenses that it might otherwise have (now or in the future) with respect to, in each case, each of the following (whether or not such Grantor has knowledge thereof):

 

  (i) the validity or enforceability of the Credit Agreement or any other Loan Document or any Swap Document (as defined in the Swap Intercreditor Agreement), any of the Secured Obligations or any guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;

 

  (ii) any renewal, extension or acceleration of, or any increase in the amount of the Secured Obligations, or any amendment, supplement, modification or waiver of, or any consent to departure from, the Loan Documents or the Swap Documents (as defined in the Swap Intercreditor Agreement);

 

  (iii) any failure or omission to assert or enforce or agreement or election not to assert or enforce, delay in enforcement, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under any Loan Documents, Swap Documents (as defined in the Swap Intercreditor Agreement), at law, in equity or otherwise) with respect to the Secured Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Secured Obligations;

 

  (iv) any change, reorganization or termination of the corporate structure or existence of Borrower or any other Grantor or any of their Subsidiaries and any corresponding restructuring of the Secured Obligations;

 

  (v) any settlement, compromise, release, or discharge of, or acceptance or refusal of any offer of payment or performance with respect to, or any substitutions for, the Secured Obligations or any subordination of the Secured Obligations to any other obligations;

 

  (vi) the validity, perfection, non-perfection or lapse in perfection, priority or avoidance of any security interest or lien, the release of any or all collateral securing, or purporting to secure, the Secured Obligations or any other impairment of such collateral;

 

  (vii)

any exercise of remedies with respect to any security for the Secured Obligations (including, without limitation, any collateral, including the Collateral securing or purporting to secure any of the Secured Obligations) at such time and in such order and in such

 

27


  manner as the Collateral Agent and the Secured Parties may decide and whether or not every aspect thereof is commercially reasonable and whether or not such action constitutes an election of remedies and even if such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy that any Grantor would otherwise have and without limiting the generality of the foregoing or any other provisions hereof, each Grantor hereby expressly waives any and all benefits which might otherwise be available to such Grantor under applicable law; and

 

  (viii) any other circumstance whatsoever which may or might in any manner or to any extent vary the risk of any Grantor as an obligor in respect of the Secured Obligations or which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower or any other Grantor for the Secured Obligations, or of such Grantor under the guarantee contained in the Credit Agreement or of any security interest granted by any Grantor, whether in a bankruptcy proceeding or in any other instance.

10.1.2    Each Grantor waives diligence, presentment, protest, marshaling, demand for payment, notice of dishonor, notice of default and notice of nonpayment to or upon the Borrower or any of the other Grantors with respect to the Secured Obligations. Except for notices provided for herein, each Grantor hereby waives notice (to the extent permitted by applicable law) of any kind in connection with this Agreement or any collateral securing the Secured Obligations, including, without limitation, the Collateral. Subject to the terms of the Swap Intercreditor Agreement, when making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Grantor, Collateral Agent may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have against Borrower, any other Grantor or any other Person or against any collateral security or guarantee for the Secured Obligations or any right of offset with respect thereto, and any failure by Collateral Agent to make any such demand, to pursue such other rights or remedies or to collect any payments from Borrower, any other Grantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of Borrower, any other Grantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Grantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Secured Party against any Grantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.

[Signature Pages Follow]

 

28


IN WITNESS WHEREOF, Grantors and Collateral Agent have executed this Agreement as of the date first above written.

 

GRANTORS:
GASTAR EXPLORATION INC.
By:  

/s/ J. Russell Porter

Name:   J. Russell Porter
Title:   President and Chief Executive Officer

 

Signature Page

Third Amended and Restated Pledge and Security Agreement


NORTHWEST PROPERTY VENTURES LLC
By:  

/s/ J. Russell Porter

Name:   J. Russell Porter
Title:   President and Chief Executive Officer

 

Signature Page

Third Amended and Restated Pledge and Security Agreement


COLLATERAL AGENT:
WILMINGTON TRUST, NATIONAL ASSOCIATION
By:  

/s/ Jennifer Anderson

Name:   Jennifer Anderson
Title:   Assistant Vice President

 

Signature Page

Third Amended and Restated Pledge and Security Agreement


EXHIBIT A

PLACE OF BUSINESS OR CHIEF EXECUTIVE OFFICE

Place of Business (if it has only one) or Chief Executive Office (if more than one place of business) and Mailing Address:

 

Place of Business

 

Mailing Address

Gastar Exploration Inc.   1331 Lamar Street, Suite 650, Houston, TX 77010
Northwest Property Ventures LLC   1331 Lamar Street, Suite 650, Houston, TX 77010


EXHIBIT B

OTHER NAMES

 

Grantor

  

Other Names

  

Transmitting Utility

         

(Yes/No)

Gastar Exploration Inc.    Gastar Exploration USA, Inc.    No

Northwest Property Ventures

LLC

   None    No


EXHIBIT C

FEDERAL TAXPAYER IDENTIFICATION NUMBER

 

Grantor

  

Federal Employer Identification Number

Gastar Exploration Inc.    38-3531640
Northwest Property Ventures LLC    81-5365433


EXHIBIT D

LOCATION FOR PURPOSES OF UCC

 

Grantor

  

Jurisdiction

Gastar Exploration Inc.    Delaware
Northwest Property Ventures LLC    Oklahoma

FILINGS AND OTHER ACTIONS

REQUIRED TO PERFECT SECURITY INTERESTS

Uniform Commercial Code Filings

The filing of a financing statement in each of the jurisdictions listed above.

Copyright, Patent and Trademark Filings

None

Actions with respect to Investment Property

None

Other Actions

None


SCHEDULE I

List of Pledged Securities and Pledged Notes

A. STOCKS:

 

Grantor

  

Issuer

  

Certificate
Number

    

Number of
Shares

    

Ownership
Interest

 

Gastar Exploration Inc.

  

Northwest Property

Ventures LLC

     N/A        N/A        100

B. OTHER SECURITIES, INVESTMENT PROPERTY AND OWNERSHIP INTERESTS

(CERTIFICATED AND UNCERTIFICATED):

None.

C. PLEDGED NOTES:

 

Grantor

   Issuer    Payee    Maturity Date    Principal Amount  

Gastar Exploration Inc.

   SEI Energy, LLC 1    SEI Energy, LLC    December 1, 2016    $ 2,162,789.31  

 

1   SEI has declared bankruptcy.


SCHEDULE II

Commercial Tort Claims

 

1. Eagle Natrium, LLC v. Gastar Exploration USA, Inc., G.D. No. 14-007208 pending in Allegheny County, Pennsylvania.


SCHEDULE III

Securities Accounts, Commodities Accounts and Deposit Accounts

Securities Accounts:

 

Grantor

  

Issuer of

Financial Asset

  

Description of
Financial Asset

  

Securities
Intermediary

(Name and

Address)

  

Securities Account
(Number and
Location)

  

Securities Intermediary’s
Jurisdiction Under UCC
Section 9-305(a)(3)

Gastar Exploration Inc.    N/A    Government Money Market Fund         

Commodities Accounts:

 

Grantor

  

Description of

Commodity Contract

  

Commodity

Intermediary

(Name and Address)

   Commodity Account
(Number and Location)
  

Commodity

Intermediary’s

Jurisdiction Under UCC
Section 9-305(a)(4)

None.    None.    None.    None.    None.


Deposit Accounts:

 

Grantor

  

Name of

Depositary Bank

  

Account Number

  

Account Name

Gastar Exploration Inc.

  

Wells Fargo

     

Gastar Exploration Inc.

  

Wells Fargo

     

Gastar Exploration Inc.

  

Wells Fargo

     

Gastar Exploration Inc.

  

Wells Fargo

     

Gastar Exploration Inc.

  

Wells Fargo

     

Gastar Exploration Inc.

  

Texas Capital Bank

     


SCHEDULE IV

LETTER OF CREDIT RIGHTS

None.


SCHEDULE V

PLEDGE AMENDMENT

This Pledge Amendment, dated [                     ] is delivered pursuant to Section 4.5 of the Agreement referred to below. The undersigned hereby agrees that this Pledge Amendment may be attached to the Third Amended and Restated Pledge and Security Agreement dated as of March 3, 2017, by and among the Grantors party thereto and Wilmington Trust, National Association, as collateral agent for the Secured Parties (as amended, restated, supplemented or otherwise modified from time to time; capitalized terms defined therein being used herein as defined therein) and that the Commercial Tort Claims listed on this Pledge Amendment shall be deemed to be part of the Collateral and shall secure all Secured Obligations.

 

  1. [                    ]

 

  2. [                    ]

 

[                                         ]
By:  
Name:  
Title:  

Exhibit 10.7

PLEDGE AND SECURITY AGREEMENT

This PLEDGE AND SECURITY AGREEMENT is entered into as of March 3, 2017, by and among GASTAR EXPLORATION INC., a Delaware corporation (“ Issuer ”), each subsidiary of the Issuer signatory hereto (together with the Issuer, the “ Grantors ” and individually, each a “ Grantor ”) and Wilmington Trust, National Association, as collateral trustee (in such capacity and together with its successors and assigns in such capacity, the “ Collateral Agent ”) for the benefit of itself and the other Secured Parties.

PRELIMINARY STATEMENTS

WHEREAS, Issuer entered into that certain Securities Purchase Agreement dated as of February 16, 2017 (as may be amended, supplemented or otherwise modified, the “ Purchase Agreement ”), among Issuer and certain purchasers party thereto (each, together with its successors or assigns, a “ Purchaser ”), pursuant to which the Issuer will issue and sell its Convertible Notes due 2022 (“ Notes ”);

WHEREAS, Issuer entered into that certain Indenture dated as of March 3, 2017 (as may be amended, supplemented or otherwise modified, the “ Indenture ”), among Issuer and Wilmington Trust, National Association, as trustee (in such capacity, “Indenture Trustee”) and collateral trustee, pursuant to which the issuance of Notes is authorized in accordance with the terms and conditions therein; and

WHEREAS, in order to secure the full and punctual payment and performance of the Secured Obligations under the Indenture and the other Note Documents, the Grantors desire to execute and deliver this Agreement to the Collateral Agent for the benefit of the Secured Parties.

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor and the Collateral Agent, on behalf of the Secured Parties, hereby agree as follows:

ARTICLE I.

DEFINITIONS

Section 1.1.     Definitions of Certain Terms Used Herein. (a) All capitalized terms not otherwise defined herein that are defined in the Indenture shall have the meanings assigned to such terms in the Indenture. Any terms used in this Agreement that are defined in the UCC (as defined below) and not otherwise defined herein or in the Indenture, shall have the meanings assigned to those terms by the UCC. All meanings to defined terms, unless otherwise indicated, are to be equally applicable to both the singular and plural forms of the terms defined. As used in this Agreement, the following terms shall have the following meanings:

Accounts ” shall mean an “account” as defined in the UCC, including, without limitation, all of any Grantor’s rights to payment for goods sold or leased, services performed, or otherwise, whether now in existence or arising from time to time hereafter, including, without limitation, rights arising under any of the Contracts or evidenced by an account, note, contract, security agreement, Chattel Paper (including, without limitation, tangible Chattel Paper and


electronic Chattel Paper), or other evidence of indebtedness or security, together with all of the right, title and interest of any Grantor in and to (i) all security pledged, assigned, hypothecated or granted to or held by any Grantor to secure the foregoing, (ii) all of any Grantor’s right, title and interest in and to any goods or services, the sale of which gave rise thereto, (iii) all guarantees, endorsements and indemnifications on, or of, any of the foregoing, (iv) all powers of attorney granted to any Grantor for the execution of any evidence of indebtedness or security or other writing in connection therewith, (v) all books, correspondence, credit files, records, ledger cards, invoices, and other papers relating thereto, including without limitation all similar information stored on a magnetic medium or other similar storage device and other papers and documents in the possession or under the control of any Grantor or any computer bureau from time to time acting for any Grantor, (vi) all evidences of the filing of financing statements and other statements granted to any Grantor and the registration of other instruments in connection therewith and amendments thereto, notices to other creditors or secured parties, and certificates from filing or other registration officers, (vii) all credit information, reports and memoranda relating thereto, and (viii) all other writings related in any way to the foregoing.

Additional Grantors ” shall have the meaning set forth in Section  4.6 .

Agreement ” shall mean this Pledge and Security Agreement, dated as of March 3, 2017, made by each of the Grantors in favor of the Collateral Agent for the benefit of the Secured Parties, as the same may be amended, restated, supplemented or otherwise modified from time to time.

Cash Collateral ” shall mean all amounts from time to time held in any checking, savings, deposit or other account of such Grantor, all monies, proceeds or sums due or to become due therefrom or thereon and all documents (including, but not limited to passbooks, certificates and receipts) evidencing all funds and investments held in such accounts.

Certificated Equipment ” shall mean any vehicle or other equipment the ownership of which is evidenced by, or under applicable law, is required to be evidenced by, a certificate of title.

Chattel Paper ” shall mean all “chattel paper” as defined in Article 9 of the UCC, including “electronic chattel paper” or “tangible chattel paper”, as each term is defined in Article 9 of the UCC.

Collateral ” shall have the meaning assigned in Section  2 of this Agreement and shall not include the Excluded Contracts, other than to the extent such Excluded Contract becomes Collateral as provided in the definition of “Excluded Contracts” .

Collateral Records ” shall mean books, records, ledger cards, files, correspondence, customer lists, blueprints, technical specifications, manuals, computer software, computer printouts, tapes, disks and related data processing software and similar items that at any time evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon.

Collateral Support ” shall mean all property (real or personal) assigned, hypothecated or otherwise securing any Collateral and shall include any security agreement or other agreement granting a lien or security interest in such real or personal property.

 

2


Contract Documents ” shall mean all Instruments, Chattel Paper, letters of credit, bonds, guarantees or similar documents evidencing, representing, arising from or existing in respect of, relating to, securing or otherwise supporting the payment of, the Contract Rights.

Contract Rights ” shall mean (i) all (A) of any Grantor’s rights to payment under any Contract or Contract Document and (B) payments due and to become due to any Grantor under any Contract or Contract Document, in each case whether as contractual obligations, damages or otherwise; (ii) all of any Grantor’s claims, rights, powers, or privileges and remedies under any Contract or Contract Document; and (iii) all of any Grantor’s rights under any Contract or Contract Document to make determinations, to exercise any election (including, but not limited to, election of remedies) or option or to give or receive any notice, consent, waiver or approval together with full power and authority with respect to any Contract or Contract Document, to demand, receive, enforce or collect any of the foregoing rights or any property which is the subject of any Contract or Contract Document, to enforce or execute any checks, or other instruments or orders, to file any claims and to take any action which, in the opinion of the Secured Parties, may be necessary or advisable in connection with any of the foregoing.

Contracts ” shall mean all contracts to which any Grantor now is, or hereafter will be bound, or to which such Grantor is or hereafter will be a party, beneficiary or assignee, all Insurance Contracts, and all exhibits, schedules and other attachments to such contracts, as the same may be amended, supplemented or otherwise modified or replaced from time to time.

Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.

Copyright Licenses ” shall mean any and all agreements providing for the granting of any right in or to Copyrights (whether such Grantor is licensee or licensor thereunder).

Copyrights ” shall mean all United States and foreign copyrights, all mask works fixed in semi-conductor chip products (as defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether registered or unregistered, now or hereafter in force throughout the world, all registrations and applications therefor, all rights corresponding thereto throughout the world, all extensions and renewals of any thereof, the right to sue for past, present and future infringements of any of the foregoing, and all proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages, and proceeds of suit.

Documents ” shall mean a bill of lading, dock warrant, dock receipt, warehouse receipt or order for the delivery of goods, and also any other document which in the regular course of business or financing is treated as adequately evidencing that the person in possession of it is entitled to receive, hold and dispose of the document and the goods it covers.

Equipment ” shall mean any equipment now or hereafter owned or leased by any Grantor, or in which any Grantor holds or acquires any other right, title or interest, constituting “equipment” under the UCC, including, without limitation, all surface or subsurface machinery,

 

3


equipment, facilities, supplies, or other tangible personal property, including tubing, rods, pumps, pumping units and engines, pipe, pipelines, meters, apparatus, boilers, compressors, liquid extractors, connectors, valves, fittings, power plants, poles, lines, cables, wires, transformers, starters and controllers, machine shops, tools, machinery and parts, storage yards and equipment stored therein, buildings and camps, telegraph, telephone, and other communication systems, loading docks, loading racks, and shipping facilities, and any manuals, instructions, blueprints, computer software (including software that is imbedded in and part of the equipment), and similar items which relate to the above, and any and all additions, substitutions and replacements of any of the foregoing, wherever located together with all improvements thereon and all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.

Excluded Account ” shall mean (a) any Deposit Account that is designated to hold cash as collateral in support of performance bond obligations or other similar obligations and (b) any Deposit Account that is designated solely as an account for, and is used solely for, employee benefits, taxes, payroll funding or petty cash in an amount not to exceed $500,000 in the aggregate.

Excluded Collateral ” shall mean (a) Excluded Contracts; (b) Excluded Accounts; (c) any United States intent-to-use trademark application until such time, if any, as a statement of use or an amendment to allege use is filed with and accepted by the United States Patent and Trademark Office; (d) those assets as to which the Issuer reasonably determines that the cost of obtaining such a security interest or perfection thereof are excessive in relation to the benefit to the Secured Parties of the security to be afforded thereby; and (e) any Property subject to a Lien to secure the indebtedness permitted by Section 3.13(B) of the Indenture; provided however, “Excluded Collateral” shall not include any right to receive proceeds from the sale or other disposition of Excluded Collateral or any Proceeds, products, substitutes or replacements of any Excluded Collateral (unless such Proceeds, products, substitutes or replacements independently constitute Excluded Collateral).

Excluded Contracts ” shall mean, other than to the extent set forth in this definition, any General Intangibles, Contract, Contract Document, Government Approvals or other document (and any Contract Rights arising thereunder) to which any of the Grantors is a party to the extent (but only to the extent) that a Grantor is prohibited from granting a security interest in, pledge of, or charge, mortgage or lien upon any such Property by reason of (a) an existing and enforceable negative pledge or anti-assignment provision or (b) applicable law or regulation to which such Grantor is subject (and shall, as applicable, not be included as “Chattel Paper”, “Collateral”, “Contracts”, “Contract Rights”, “Contract Documents”, “General Intangibles”, “Governmental Approval”, “Instruments”, “Insurance Contracts”, “Investment Property”, “Legal Requirements,” or “Pledged Securities” for the purposes hereof); provided however that (x) the exclusion from the lien and security interest granted by such Grantor hereunder of any Contract Rights of any of the Grantors under one or more of the Excluded Contracts shall not limit, restrict or impair the grant by such Grantor of the lien and security interest in any Accounts or receivables arising under any such Excluded Contract or any payments due or to become due thereunder, (y) any Excluded Contract shall automatically cease to be an “Excluded Contract” and excluded from the Collateral (and shall automatically be subject to the lien and security interest granted hereby and to the terms and provisions of this Agreement as “Collateral”), to the extent that (1) either of the

 

4


prohibitions discussed in clause (a) and (b) above is ineffective or subsequently rendered ineffective under Sections 9.406, 9.407, 9.408 or 9.409 of the UCC or under any other Legal Requirements or is otherwise no longer in effect, or (2) the applicable Grantor has obtained the consent of the other parties to such Excluded Contract to the creation of a lien and security interest in, such Excluded Contract (which consent, upon the reasonable request of the Collateral Agent, such Grantor will use its commercial reasonable efforts to obtain), and (z) any proceeds received by any Grantor from the sale, transfer or other disposition of Excluded Contracts shall constitute Collateral unless any assets or property constituting such proceeds are themselves subject to the exclusions set forth in the definition of “Excluded Collateral”.

Excluded Perfection Collateral ” shall mean, unless otherwise elected by Collateral Agent following a Default, collectively (a) Immaterial Certificated Equipment, and (b) Letter of Credit Rights.

Fixtures ” shall mean any fixtures now or hereafter owned or leased by any Grantor, or in which any Grantor holds or acquires any other right, title or interest, constituting “fixtures” under the UCC, including without limitation any and all additions, substitutions and replacements of any of the foregoing, wherever located together with all improvements thereon and all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.

General Intangibles ” shall mean all general intangibles now or hereafter owned by any Grantor, or in which any Grantor holds or acquires any other right, title or interest, constituting “general intangibles” or “payment intangibles” under the UCC, including, but not limited to, all trademarks, trademark applications, trademark registrations, tradenames, fictitious business names, business names, company names, business identifiers, prints, labels, trade styles and service marks (whether or not registered), trade dress, including logos and/or designs, copyrights, patents, patent applications, goodwill of any Grantor’s business symbolized by any of the foregoing, trade secrets, license rights, license agreements, permits, franchises, and any rights to tax refunds to which any Grantor is now or hereafter may be entitled.

Governmental Approvals ” shall mean (i) any authorization, consent, approval, license, waiver or exemption, by or with (ii) any required notice to; (iii) any declaration of or with; or (iv) any required registration by or with, or any other action or deemed action by or on behalf of, any Governmental Authority.

Grantor ” and “ Grantors ” shall have the meaning set forth in the preamble to this Agreement.

Immaterial Certificated Equipment ” shall mean, as of the date of determination, any Certificated Equipment owned by any Grantor that (a) has a fair market value of less than $100,000 individually or (ii) when taken together with all other Immaterial Certificated Equipment, has an aggregate fair market value of less than $2,000,000.

Instruments ” shall mean an “instrument” as defined in the UCC, including, without limitation, any Negotiable Instrument, or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in the ordinary course of business transferred by delivery with any necessary endorsement or assignment (other than Instruments constituting Chattel Paper).

 

5


Insurance ” shall mean all insurance policies covering any or all of the Collateral (regardless of whether Collateral Agent is the loss payee thereof).

Insurance Contracts ” shall mean all contracts and policies of insurance and re-insurance maintained or required to be maintained by or on behalf of any Grantor under the Note Documents.

Intellectual Property ” shall mean, collectively, the Copyrights, the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, the Trade Secrets, and the Trade Secret Licenses.

Intercompany Note ” shall mean any promissory note evidencing loans made by any Grantor to the Issuer or any of its Subsidiaries.

Intercreditor Agreement ” shall have the meaning set forth in Section  9.16 .

Inventory ” shall mean all of the inventory of any Grantor, or in which any Grantor holds or acquires any right, title or interest, of every type or description, now owned or hereafter acquired and wherever located, whether raw, in process or finished (including oil, gas, or other hydrocarbons and all products and substances derived therefrom), and all materials usable in processing the same and all documents of title covering any inventory, including, without limitation, work in process, materials used or consumed in any Grantor’s business, now owned or hereafter acquired or manufactured by any Grantor and held for sale in the ordinary course of its business, all present and future substitutions therefor, parts and accessories thereof and all additions thereto, all Proceeds thereof and products of such inventory in any form whatsoever, and any other item constituting “inventory” under the UCC.

Investment Accounts ” shall mean the Securities Accounts, Commodities Accounts and Deposit Accounts.

Investment Property ” shall mean “investment property” as defined in the UCC, including, without limitation, all securities (whether certificated or uncertificated), security entitlements, securities accounts, commodity contracts, and commodity accounts.

Investment Related Property ” shall mean: (i) all Investment Property and (ii) all of the following (regardless of whether classified as Investment Property under the UCC): all Pledged Securities, the Investment Accounts, and certificates of deposit.

Issuer ” shall have the meaning set forth in the preamble to this Agreement.

Legal Requirement ” means, as to any Person, any law, statute, ordinance, decree, requirement, order, judgment, rule, regulation (or official interpretation of any of the foregoing) of, and the terms of any license or permit issued by, any Governmental Authority which is applicable to such Person.

Negotiable Instrument ” shall mean a “negotiable instrument” as defined in the UCC.

 

6


Note Document ” means each Indenture Document, this Agreement, any promissory notes executed in connection herewith, the Indenture, the Intercreditor Agreement, the Purchase Agreement, all Mortgages, deeds of trusts, security agreements, pledge agreements, guaranty agreements, collateral assignments and all other collateral documents and agreements, now or hereafter executed and delivered by the Issuer or any other Person as security for the payment or performance of the Secured Obligations.

Organizational Documents ” means (a) with respect to any corporation, its certificate or articles of incorporation, organization or formation, as amended, and its by-laws, as amended, (b) with respect to any limited partnership, its certificate of limited partnership or formation, as amended, and its partnership agreement, as amended, (c) with respect to any general partnership, its partnership agreement, as amended, and (d) with respect to any limited liability company, its certificate of formation or articles of organization, as amended, and its limited liability company agreement or operating agreement, as amended.

Ownership Interests ” shall mean all interests in any limited liability company, general partnership, limited partnership, limited liability partnership or other partnership, and the certificates, if any, representing such interests and any interest of such Grantor on the books and records of such limited liability company, general partnership, limited partnership, limited liability partnership or other partnership and any securities entitlements relating thereto and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such interests and any other warrant, right or option or other agreement to acquire any of the foregoing, all management rights, all voting rights, any interest in any capital account, all rights as and to become a member or partner, all rights of the Grantor under any shareholder or voting trust agreement or similar agreement in respect of such limited liability company, general partnership, limited partnership, limited liability partnership or other partnership, all of the Grantor’s right, title and interest as a member to any and all assets or properties of such limited liability company, general partnership, limited partnership, limited liability partnership or other partnership, and all other rights, powers, privileges, interests, claims and other property in any manner arising out of or relating to any of the foregoing.

Patent Licenses ” shall mean all agreements providing for the granting of any right in or to Patents (whether such Grantor is licensee or licensor thereunder).

Patents ” shall mean all United States and foreign patents and applications for letters patent throughout the world, all reissues, divisions, continuations, continuations in part, extensions, renewals, and reexaminations of any of the foregoing, all rights corresponding thereto throughout the world, and all proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages, and proceeds of suit and the right to sue for past, present and future infringements of any of the foregoing.

Pledged Notes ” shall mean all promissory notes listed on Schedule I (as such schedule may be amended or supplemented from time to time) and all other promissory notes or other instruments issued to or held by any Grantor (other than promissory notes issued in connection with extensions of trade credit by any Grantor in the ordinary course of business) and all Intercompany Notes.

 

7


Pledged Securities ” shall mean all Equity Interests and Ownership Interests of any Grantor, including, without limitation, as described on Schedule I attached hereto (as such schedule may be amended or supplemented from time to time), and all Equity Interests and Ownership Interests described in any Pledge Amendment hereafter executed and delivered by any Grantor pursuant to Section  4.5 of this Agreement.

Priority Lien Collateral Agent ” shall mean Wilmington Trust, National Association and its successors and assigns as “Priority Lien Agent” under and as defined in the Intercreditor Agreement.

Proceeds ” shall mean all proceeds (as defined in the UCC) of any or all of the Collateral, including without limitation (i) any and all proceeds of, all claims for, and all rights of any Grantor to receive the return of any premiums for, any insurance, indemnity, warranty or guaranty payable from time to time with respect to any of the Collateral, (ii) any and all payments (in any form whatsoever) made or due and payable from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any Governmental Authority (or any Person acting under color of any Governmental Authority), (iii) all proceeds received or receivable when any or all of the Collateral is sold, exchanged or otherwise disposed, whether voluntarily, involuntarily, in foreclosure or otherwise, (iv) all claims of any Grantor for damages arising out of, or for breach of or default under, any Collateral, (v) all rights of any Grantor to terminate, amend, supplement, modify or waive performance under any Contracts, to perform thereunder and to compel performance and otherwise exercise all remedies thereunder, and (vi) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral.

Purchase Agreement ” shall have the meaning set forth in the recitals to this Agreement.

Receivables ” shall mean all rights to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services rendered or to be rendered, including all such rights constituting or evidenced by any Account, Chattel Paper, Instrument, General Intangible or Investment Related Property, together with all of Grantor’s rights, if any, in any goods or other property giving rise to such right to payment and all Collateral Support and Supporting Obligations related thereto and all Receivables Records.

Receivables Records ” shall mean (i) all original copies of all documents, instruments or other writings or electronic records or other Records evidencing the Receivables, (ii) all books, correspondence, credit or other files, Records, ledger sheets or cards, invoices, and other papers relating to Receivables, including all tapes, cards, computer tapes, computer discs, computer runs, record keeping systems and other papers and documents relating to the Receivables, whether in the possession or under the control of Grantor or any computer bureau or agent from time to time acting for Grantor or otherwise, (iii) all evidences of the filing of financing statements and the registration of other instruments in connection therewith, and amendments, supplements or other modifications thereto, notices to other creditors or Secured Parties, and certificates, acknowledgments, or other writings, including lien search reports, from filing or other registration officers, (iv) all credit information, reports and memoranda relating thereto and (v) all other written or nonwritten forms of information related in any way to the foregoing or any Receivable.

 

8


Secured Obligations ” shall mean all Obligations (as defined in the Indenture) now or hereafter existing, including any extensions, modifications, substitutions, amendments and renewals thereof, whether for principal, interest, fees, expenses, indemnification, or otherwise, including any post-petition interest in the event of a bankruptcy, to the extent such interest is enforceable by law.

Secured Party ” means each of the Collateral Agent, the Indenture Trustee and each Purchaser and each of their respective successors or assigns.

Security Termination ” shall mean subject to Section 6 hereof, at such time at which the indefeasible payment in full in cash of all Secured Obligations shall have occurred.

Stock Rights ” shall mean any securities, dividends or other distributions and any other right or property which any Grantor shall receive or shall become entitled to receive for any reason whatsoever with respect to, in substitution for or in exchange for any securities or other ownership interests in a corporation, limited partnership, general partnership, joint venture or limited liability company constituting Collateral and any securities, any right to receive securities and any right to receive earnings, in which any Grantor now has or hereafter acquires any right, issued by an issuer of such securities.

Trade Secret Licenses ” shall mean any and all agreements providing for the granting of any right in or to Trade Secrets (whether such Grantor is licensee or licensor thereunder).

Trade Secrets ” shall mean all trade secrets and all other confidential or proprietary information and know-how now or hereafter owned or used in, or contemplated at any time for use in, the business of such Grantor (all of the foregoing being collectively called a “ Trade Secret ”), whether or not such Trade Secret has been reduced to a writing or other tangible form, including all documents and things embodying, incorporating, or referring in any way to such Trade Secret, the right to sue for past, present and future infringement of any Trade Secret, and all proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages, and proceeds of suit.

Trademark Licenses ” shall mean any and all agreements providing for the granting of any right in or to Trademarks (whether such Grantor is licensee or licensor thereunder).

Trademarks ” shall mean all United States, state and foreign trademarks, trade names, corporate names, company names, business names, fictitious business names, internet domain names, trade styles, service marks, certification marks, collective marks, logos, other source or business identifiers, designs and general intangibles of a like nature, all registrations and applications for any of the foregoing, all extensions or renewals of any of the foregoing, all of the goodwill of the business connected with the use of and symbolized by the foregoing, the right to sue for past, present and future infringement or dilution of any of the foregoing or for any injury to goodwill, and all proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages, and proceeds of suit.

 

9


UCC ” shall mean the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided, however, in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of definitions related to such provisions.

“United States” or “U.S.” means the United States of America.

(b)    Article, Section, Schedule, and Exhibit references are to Articles and Sections of and Schedules and Exhibits to this Agreement, unless otherwise specified. All references to instruments, documents, contracts, and agreements are references to such instruments, documents, contracts, and agreements as the same may be amended, supplemented, and otherwise modified from time to time, unless otherwise specified. The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. As used herein, the term “including” means “including, without limitation”.

ARTICLE II.

GRANT OF SECURITY INTEREST

Section 2.1.     Grant of Security . As collateral security for the prompt and complete payment and performance when due of all Secured Obligations, each Grantor hereby assigns, pledges, and grants to the Collateral Agent for the benefit of the Secured Parties a lien on and continuing security interest in all of such Grantor’s right, title and interest in, to and under, all items described in this Section 2, whether now owned or hereafter acquired by such Grantor and wherever located and whether now owned or hereafter existing or arising (collectively, the “ Collateral ”):

(a)    all Accounts;

(b)    all cash and cash equivalents;

(c)    all Cash Collateral;

(d)    all Certificated Equipment;

(e)    all Chattel Paper;

(f)    all Commercial Tort Claims;

(g)    all Commodity Accounts;

 

10


(h)    all Contracts, all Contract Rights, Contract Documents and Accounts associated with such Contracts and each and every document granting security to such Grantor under any such Contract;

(i)    all Deposit Accounts;

(j)    all Documents;

(k)    all Equipment;

(l)    all Fixtures;

(m)    all General Intangibles;

(n)    all Goods;

(o)    all Governmental Approvals;

(p)    all Instruments;

(q)    all Insurance;

(r)    all Intellectual Property;

(s)    all Inventory;

(t)    all Investment Property;

(u)    all Letters of Credit and Letter of Credit Rights;

(v)    all Money;

(w)    all Investments;

(x)    all Receivables and Receivable Records;

(y)    all Securities Accounts and Securities Entitlements;

(z)    all books and records pertaining to the Collateral;

(aa)    without limiting the generality of the foregoing, all other personal property, goods, Accounts, Certificated Securities, Chattel Paper, Commercial Tort Claims, Commodity Accounts, Commodity Contracts, Deposit Accounts, Documents, Equipment, Fixtures, General Intangibles, Goods, Instruments, Inventory, Investment Property, Letter of Credit Rights, Letters of Credit, Money, Payment Intangibles, Proceeds, Equity Interests, Securities Accounts, Security Entitlements, Supporting Obligations, Uncertificated Securities, credits, claims, demands and assets of such Grantor whether now existing or hereafter acquired from time to time;

 

11


(bb)    to the extent not otherwise included above, all Collateral Records, Collateral Support and Supporting Obligations relating to any of the foregoing; and

(cc)    to the extent not otherwise included above, all Proceeds, products, accessions, profits, rents, replacements, substations of or in respect of any of the foregoing.

Section 2.2.     Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the security interest granted under Section  2.1 hereof attach to any Excluded Collateral.

Section 2.3.     Security for Secured Obligations . This Agreement secures, and the Collateral is collateral security for, the prompt and complete payment or performance in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §362(a) (and any successor provision thereof)), of all Secured Obligations.

Section 2.4.     Continuing Liability Under Collateral . Notwithstanding anything herein to the contrary, (i) each Grantor shall remain liable for all obligations under the Collateral and nothing contained herein is intended to be or shall be a delegation of duties to Collateral Agent or any Secured Party, (ii) each Grantor shall remain liable under each of the agreements included in the Collateral to perform all of the Secured Obligations undertaken by it thereunder all in accordance with and pursuant to the terms and provisions thereof and neither Collateral Agent nor any Secured Party shall have any obligation or liability under any of such agreements by reason of or arising out of this Agreement or any other document related thereto nor shall Collateral Agent nor any Secured Party have any obligation to make any inquiry as to the nature or sufficiency of any payment received by it or have any obligation to take any action to collect or enforce any rights under any agreement included in the Collateral and (iii) the exercise by Collateral Agent of any of its rights hereunder shall not release any Grantor from any of its duties or obligations under the contracts and agreements included in the Collateral.

ARTICLE III.

REPRESENTATIONS AND WARRANTIES

Each Grantor represents and warrants to Collateral Agent and the Secured Parties that:

Section 3.1.     Title, Authorization, Validity and Enforceability . Such Grantor has good and valid rights in or the power to transfer the Collateral to the Collateral Agent with respect to which it has purported to grant a security interest hereunder, free and clear of all Liens (other than Permitted Liens), and has full power and authority to grant to Collateral Agent the security interest in such Collateral pursuant hereto. The execution and delivery by such Grantor of this Agreement has been duly authorized by proper corporate, partnership or limited liability proceedings, and this Agreement constitutes a legal, valid and binding obligation of such Grantor and creates a security interest which is enforceable against such Grantor in all now owned and hereafter acquired Collateral, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

 

12


Section 3.2.     Type and Jurisdiction of Organization. Such Grantor is a corporation, limited partnership or limited liability company duly and properly incorporated or organized, as the case may be, validly existing and (to the extent such concept applies to such entity) in good standing under the laws of its jurisdiction of incorporation or organization and has all requisite authority to conduct its business in each jurisdiction wherein failure to have such authorization may result in a material adverse effect. Such Grantor is not now nor has it during the five years prior to the date hereof been incorporated or organized as any other type of entity or under the laws of any other jurisdiction.

Section 3.3.     Principal Location. On the date hereof, such Grantor’s mailing address and the location of its place of business (if it has only one) or its chief executive office (if it has more than one place of business), is disclosed in Exhibit A . During the preceding five-year period, such Grantor has no other places of business except those set forth in Exhibit A .

Section 3.4.     No Other Names. As of the date hereof, during the preceding five-year period, such Grantor has not conducted business under any name except those set forth in Exhibit B . On the date hereof, each Grantor’s name, as set forth on Exhibit B , is the exact name as it appears in such Grantor’s Organizational Documents, as amended, as filed with such Grantor’s jurisdiction of organization. Unless otherwise stated on Exhibit B , such Grantor is not a transmitting utility as defined in Section 9-102(a)(80) of the UCC.

Section 3.5.     Federal Taxpayer Identification Number. Such Grantor’s Federal taxpayer identification number as of the date hereof is set forth on Exhibit C .

Section 3.6.     Grantor’s Location. The jurisdiction in which such Grantor is located for purposes of Sections 9-301 and 9-307 of the UCC as of the date hereof is set forth on Exhibit D .

Section 3.7.     Pledged Securities, Pledged Notes and Other Investment Property. Schedule I sets forth a complete and accurate list of the Pledged Securities, Pledged Notes and other Investment Property delivered to Collateral Agent, for the benefit of the Secured Parties, or to the Priority Lien Collateral Agent in accordance with the Intercreditor Agreement. Such Grantor is the direct and beneficial owner of each Pledged Security, Pledged Note and other type of Investment Property as indicated on Schedule I , free and clear of any Liens, except for the security interest granted to Collateral Agent for the benefit of the Secured Parties hereunder and, subject to the Intercreditor Agreement, the security interest granted to the Priority Lien Collateral Agent. Each Grantor further represents and warrants that (i) all such Pledged Securities or other types of Investment Property which are shares of stock in a corporation or ownership interests in a limited partnership or limited liability company have been (to the extent such concepts are relevant with respect to such Pledged Security or other type of Investment Property) duly and validly issued, are fully paid and non-assessable and (ii) with respect to any certificates representing an ownership interest in a limited partnership or limited liability company, either such certificates are “securities” as defined in Article 8 of the Uniform Commercial Code of the applicable jurisdiction as a result of actions by the issuer or otherwise, or, if such certificates are not securities, such Grantor has so informed Collateral Agent such Grantor shall take steps to

 

13


perfect the Collateral Agent’s security interest therein as a General Intangible. Schedule III hereto sets forth under the headings “Securities Accounts,” “Commodities Accounts,” and “Deposit Accounts,” respectively, all of the Securities Accounts, Commodities Accounts and Deposit Accounts in which each Grantor has an interest. Except as set forth on Schedule III hereto, each Grantor is the sole entitlement holder or customer of each such account, and such Grantor has not consented to, and is not otherwise aware of, any Person (other than the Collateral Agent pursuant hereto or, subject to the Intercreditor Agreement, the Priority Lien Collateral Agent) having “control” (within the meanings of Sections 8-106, 9-106 and 9-104 of the UCC) over, or any other interest in, any such Securities Account, Commodity Account or Deposit Account or any securities, commodities or other property credited thereto.

Section 3.8.     Due Authorization of Pledged Securities. All of the Pledged Securities have been duly authorized and validly issued and are fully paid and non-assessable. The Collateral includes, without limitation, all of the issued and outstanding Equity Interests of each of the Subsidiaries owned by each Grantor and there are no outstanding warrants, options or other rights to purchase, or other agreements (other than the Note Documents) outstanding with respect to, or property that is now or hereafter convertible into, or that requires the issuance or sale of, any Pledged Securities.

Section 3.9.     Valid, Perfected Second Priority Liens . The security interests granted pursuant to this Agreement constitute a legal and valid security interest in favor of the Collateral Agent, for the benefit of the Secured Parties, securing the payment and performance of each Grantor’s Secured Obligations and upon completion of the filings and other actions specified on Exhibit D (all of which, in the case of all filings and other documents referred to on said Exhibit, have been duly completed in duly executed form, as applicable, and will be filed by each Grantor) and payment of all filing fees, will constitute fully perfected security interests in all of the Collateral, prior to all other Liens on the Collateral except for Permitted Liens and subject to Excluded Perfection Collateral. Without limiting the foregoing, each Grantor has taken all actions necessary or desirable, including without limitation those specified in Sections 4.2 , 4.3 , 4.7 and 4.8 to: (i) establish the Collateral Agent’s “control” (within the meanings of Sections 8-106 and 9-106 of the UCC) over any portion of the Investment Property constituting Certificated Securities, Uncertificated Securities, Securities Accounts, Securities Entitlements or Commodity Accounts, (ii) establish the Collateral Agent’s “control” (within the meaning of Section 9-104 of the UCC) over all Deposit Accounts (other than Deposit Accounts that are Excluded Accounts), and (iii) establish the Collateral Agent’s “control” (within the meaning of Section 9-107 of the UCC) over all Letter of Credit Rights.

Section 3.10.     Authorization; Approvals . No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body is required for either (i) the pledge or grant by any Grantor of the Liens purported to be created in favor of Collateral Agent hereunder or (ii) the exercise by Collateral Agent of any rights or remedies in respect of any Collateral (whether specifically granted or created hereunder or created or provided for by applicable law), except (A) for the filings contemplated by Section  3.9 above and (B) as may be required, in connection with the disposition of any Investment Related Property, by laws generally affecting the offering and sale of Ownership Interests. No consent, approval or authorization of any Person is required for the pledge by such Grantor of the Pledged Securities pursuant to this Agreement or for the execution, delivery or performance of this Agreement by such Grantor, whether under the Organizational Documents of any issuer of any Pledged Securities or otherwise, except such as have been obtained and are in full force and effect.

 

14


Section 3.11.     Receivables . No Receivable is evidenced by, or constitutes, an Instrument or Chattel Paper which has not been delivered to, or otherwise subjected to the Control of, Collateral Agent.

Section 3.12.     Account Debtors . None of the account debtors in respect of any Receivable is the government of the United States, any agency or instrumentality thereof, any state or municipality or any foreign sovereign.

Section 3.13.     Possession of Inventory; Control . Each Grantor has exclusive possession and control, subject to Permitted Liens, of its Equipment and Inventory, except as otherwise required, necessary or customary in the ordinary course of its business. No Grantor has consented to, and is otherwise unaware of, any Person having Control over any Collateral, other than, subject to the Intercreditor Agreement, the Priority Lien Collateral Agent.

Section 3.14.     Commercial Tort Claims . Schedule II sets forth all Commercial Tort Claims of each Grantor.

Section 3.15.     Letter of Credit Rights . No Grantor is a beneficiary or assignee under any letter of credit other than the letters of credit described on Schedule IV .

ARTICLE IV.

COVENANTS

From the date of this Agreement, and thereafter until this Agreement is terminated:

Section 4.1.     General .

4.1.1     Inspection. Each Grantor will permit Collateral Agent or any Purchaser, by its representatives and agents (i) to inspect the Collateral, (ii) to examine and make copies of the records of such Grantor relating to the Collateral and (iii) to discuss the Collateral and the related records of such Grantor with, and to be advised as to the same by, such Grantor’s officers and employees, all at such reasonable times and intervals as Collateral Agent or such Purchaser may determine, and all at the Grantors’ expense.

4.1.2     Financing Statements and Other Actions; Defense of Title. Each Grantor hereby authorizes Collateral Agent or its designee to file all financing statements and other documents and take such other actions as may from time to time be taken by Collateral Agent or its designee in order to maintain a second priority perfected (other than, as to perfection, Excluded Perfection Collateral) security interest in and, if applicable, “control” (within the meaning of the applicable Uniform Commercial Code) of, the Collateral. Each Grantor hereby authorizes Collateral Agent (or its designee) to file financing statements describing as the collateral covered thereby “all of the debtor’s personal property or assets” or words to that effect,

 

15


notwithstanding that such wording may be broader in scope than the Collateral described in this Agreement. Each Grantor will take any and all actions necessary to defend title to the Collateral against all persons and to defend the security interest of Collateral Agent in the Collateral and the priority thereof against any Lien not expressly permitted hereunder. Each Grantor shall maintain the security interest in the Collateral created by this Agreement as a perfected security interest having at least the priority described in Section  3.9 . At any time and from time to time, upon the written request of the Collateral Agent, and at the sole expense of such Grantor, such Grantor shall promptly and duly authorize, execute and deliver, and have recorded, such further instruments and documents and take such further actions for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, any such actions as the Collateral Agent may reasonably request, and in the case of Investment Property, Deposit Accounts and any other relevant Collateral, taking any actions necessary to enable the Collateral Agent to obtain “control” (within the meaning of the applicable Uniform Commercial Code) with respect thereto to the extent required hereunder, including without limitation, executing and delivering and causing the relevant depositary bank or securities intermediary to execute and deliver a control agreement in form and substance reasonably satisfactory to the Collateral Agent.

4.1.3     Disposition of Collateral. Except as otherwise permitted under the Indenture, none of the Grantors will sell, lease or otherwise dispose of the Collateral.

4.1.4     Liens. None of the Grantors will create, incur, or suffer to exist any Lien on the Collateral except the security interest created by this Agreement and the Permitted Liens.

4.1.5     Change in Corporate Existence, Type or Jurisdiction of Organization, Location, Name . Except as otherwise permitted under the Indenture, each Grantor will:

 

  (a) preserve its existence as a corporation, limited partnership or limited liability company and not, in one transaction or a series of related transactions, merge into or consolidate with any other entity, or sell all or substantially all of its assets;

 

  (b) not change its name or its state of organization; and

 

  (c) not maintain its place of business (if it has only one) or its chief executive office (if it has more than one place of business) at a location other than a location specified on Exhibit A ;

unless such Grantor shall have given Collateral Agent not less than five (5) Business Days’ prior written notice of such event or occurrence and taken all action necessary for the purpose of maintaining the validity, perfection and priority of Collateral Agent’s security interest in the Collateral.

 

16


4.1.6     Other Financing Statements. None of the Grantors will authorize the filing of any financing statement naming it as debtor covering all or any portion of the Collateral, except as permitted by Section  4.1.2 and in respect of Permitted Liens.

Section 4.2.     Securities, Pledged Notes and Documents. Each Grantor will (i) deliver to Collateral Agent promptly the originals of all certificated Pledged Securities constituting Collateral (if any then exist) and all Pledged Notes, in each case, to the extent not previously delivered to Collateral Agent, (ii) hold in trust for Collateral Agent upon receipt and promptly thereafter deliver to Collateral Agent any certificated Pledged Securities constituting Collateral and any Pledged Notes, and (iii) upon Collateral Agent’s request, after the occurrence and during the continuance of an Event of Default, deliver to Collateral Agent (and thereafter hold in trust for Collateral Agent upon receipt and immediately deliver to Collateral Agent) (x) any Document evidencing or constituting Collateral, (y) any dividends or distributions declared or paid, in cash or property, upon any of the Pledged Securities, and (z) any payments received, in cash or property, with respect to any Pledged Note or any other Collateral. Each Grantor which is an issuer of a Pledged Security agrees that (i) it will be bound by the terms of this Agreement relating to the Pledged Securities issued by it and will comply with such terms insofar as such terms are applicable to it, (ii) it will notify the Collateral Agent promptly in writing of the occurrence of any of the events described in Section  4.5 with respect to the Pledged Securities issued by it and (iii) the terms of this Section  4.2 shall apply to it with respect to all actions that may be required of it pursuant to this Section  4.2 with respect to the Pledged Securities issued by it. In addition, each Grantor which is either an issuer or an owner of any Pledged Securities hereby consents to the grant by each other Grantor of the security interest hereunder in favor of the Collateral Agent and to the transfer of any Pledged Security to the Collateral Agent or its nominee following an Event of Default and to the substitution of the Collateral Agent or its nominee as a partner, member or shareholder or other equity holder of the issuer of the related Pledged Security. Each Grantor hereby authorizes and instructs each issuer of any Pledged Securities pledged by such Grantor hereunder to (i) comply with any instruction received by it from the Collateral Agent in writing that (x) states that an Event of Default has occurred and is continuing and (y) is otherwise in accordance with the terms of this Agreement, without any other or further instructions from such Grantor, and each Grantor agrees that each issuer shall be fully protected in so complying, and (ii) unless otherwise expressly permitted hereby, pay any dividends or other payments with respect to the Pledged Securities directly to the Collateral Agent.

Section 4.3.     Uncertificated Securities and Certain Other Investment Property. Each Grantor will take any actions reasonably requested by the Collateral Agent to cause (i) the issuers of Uncertificated Securities which are Collateral and which are Equity Interests or other Investment Property and (ii) any financial intermediary which is the holder of any Equity Interests or other Investment Property, to cause Collateral Agent to have and retain “control” (within the meaning of the applicable Uniform Commercial Code) over such Equity Interests or other Investment Property in form and substance reasonably satisfactory to the Collateral Agent.

 

17


Section 4.4.     Stock and Other Ownership Interests .

4.4.1     Changes in Capital Structure of Issuers. Except as otherwise permitted under the Indenture, none of the Grantors will vote any of the Equity Interests, Ownership Interests or other Investment Property in favor of, or take any other action to permit or suffer, any issuer of privately held corporate securities or other ownership interests in a corporation, limited partnership, general partnership, joint venture or limited liability company constituting Collateral to dissolve, liquidate, retire any of its capital stock, Ownership Interests or other Equity Interests evidencing ownership, reduce its capital or merge or consolidate with any other entity.

4.4.2     Registration of Pledged Securities and other Investment Property. Each Grantor will permit any registerable Pledged Securities or any Ownership Interest which become a Security to be registered in the name of Collateral Agent or its nominee at any time an Event of Default has occurred and is continuing at the option of the Collateral Agent.

4.4.3     Exercise of Rights in Pledged Securities and other Investment Property. Each Grantor will permit Collateral Agent or its nominee at any time after the occurrence and during the continuance of an Event of Default, without notice, to exercise all voting and corporate rights relating to the Pledged Securities, including, without limitation, exchange, subscription or any other rights, privileges, or options pertaining to any Pledged Securities and the Stock Rights as if it were the absolute owner thereof.

Section 4.5.     Commercial Tort Claims. Each Grantor further agrees that it will, upon obtaining any additional Commercial Tort Claims that could reasonably be expected to result in a judgment in such Grantor’s favor in excess of $5,000,000, promptly (and in any event within thirty (30) days) deliver to Collateral Agent a Pledge Amendment, duly executed by such Grantor, in substantially the form of Schedule V annexed hereto (a “ Pledge Amendment ”), in respect of such additional Commercial Tort Claims. Each Grantor hereby authorizes Collateral Agent to attach each Pledge Amendment to this Agreement and agrees that all Commercial Tort Claims listed on any Pledge Amendment delivered to Collateral Agent shall for all purposes hereunder be considered Collateral; provided that the failure of such Grantor to execute a Pledge Amendment with respect to any Commercial Tort Claims pledged pursuant to this Agreement shall not impair the security interest of Collateral Agent therein or otherwise adversely affect the rights and remedies of Collateral Agent hereunder with respect thereto.

Section 4.6.     Additional Grantors . From time to time subsequent to the date hereof, additional Persons may become parties hereto as additional Grantors (each, an “ Additional Grantor” ), by executing a counterpart agreement. Upon delivery of any such counterpart agreement to Collateral Agent, notice of which is hereby waived by each Grantor, each Additional Grantor shall be a Grantor and shall be as fully a party hereto as if such Additional Grantor were an original signatory hereto. Each Grantor expressly agrees that its obligations arising hereunder shall not be affected or diminished by the addition or release of any other Grantor hereunder, nor by any election of Collateral Agent not to cause any Subsidiary of Issuer or any other Grantor to become an Additional Grantor hereunder. This Agreement shall be fully effective as to any Grantor that is or becomes a party hereto regardless of whether any other Person becomes or fails to become or ceases to be a Grantor hereunder.

 

18


Section 4.7.    Each Grantor shall maintain Securities Entitlements, Securities Accounts and Deposit Accounts (other than Deposit Accounts that are Excluded Accounts) only with financial institutions that have agreed to comply with entitlement orders and instructions issued or originated by the Collateral Agent without further consent of such Grantor, such agreement to be in form and substance reasonably satisfactory to the Collateral Agent.

Section 4.8.    If any of the Collateral is or shall become evidenced or represented by a Commodity Contract, such Grantor shall cause the Commodity Intermediary with respect to such Commodity Contract to agree in writing with such Grantor and the Collateral Agent that such Commodity Intermediary will apply any value distributed on account of such Commodity Contract as directed by the Collateral Agent without further consent of such Grantor, such agreement to be in form and substance reasonably satisfactory to the Collateral Agent.

Section 4.9.     Letter of Credit Rights . Within ten (10) days after the date of obtaining any Letter of Credit Rights other than in respect of the letters of credit described on Schedule IV hereto, each Grantor shall provide the Collateral Agent with an amended or supplemented Schedule IV to reflect such additional letters of credit.

Section 4.10.    Without the prior written consent of the Purchasers acting in accordance with the Indenture, no Grantor will (i) vote to enable, or take any other action to permit, any issuer of any Pledged Securities to amend its Organizational Documents in any manner that materially changes the rights of such Grantor with respect to any Pledged Securities or adversely affects the validity, perfection or priority of the Collateral Agent’s security interest therein, (ii) enter into any agreement or undertaking restricting the right or ability of such Grantor or the Collateral Agent to sell, assign or transfer any of the Investment Property or Proceeds thereof or any interest therein or (iii) cause or permit any issuer of any Pledged Securities which are not securities (for purposes of the UCC) on the date hereof to elect or otherwise take any action to cause such Pledged Securities to be treated as securities for purposes of the UCC; provided, however, that notwithstanding the foregoing, if any issuer of any Pledged Securities takes any such action in violation of the foregoing in this clause (iii), such Grantor shall promptly notify the Collateral Agent in writing of any such election or action and, in such event, shall take all steps necessary or advisable to establish the Collateral Agent’s “control” thereof, in form and substance reasonably satisfactory to the Collateral Agent.

ARTICLE V.

REMEDIES UPON EVENT OF DEFAULT

Section 5.1.     Acceleration and Remedies. Upon the occurrence and continuance of an Event of Default, Collateral Agent may exercise any or all of the following rights and remedies:

5.1.1    Those rights and remedies provided in this Agreement, the Indenture, or any other Note Document, provided that this Section  5.1.1 shall not be understood to limit any rights or remedies available to Collateral Agent and the Secured Parties prior to an Event of Default.

 

19


5.1.2    Those rights and remedies available to Collateral Agent under the UCC (whether or not the UCC applies to the affected Collateral) or under any other applicable law (including, without limitation, any law governing the exercise of a bank’s right of setoff or bankers’ lien).

5.1.3    Without notice except as specifically provided in Section  9.1 or elsewhere herein, collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or sell, lease, assign, grant an option or options to purchase or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, for cash, on credit or for future delivery, and upon such other terms as Collateral Agent may deem commercially reasonable.

Collateral Agent, on behalf of the Secured Parties, may comply with any applicable state or federal law requirements in connection with a disposition of the Collateral and compliance will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral.

Section 5.2.     Each Grantor’s Obligations Upon an Event of Default. Upon the request of Collateral Agent after the occurrence and during the continuance an Event of Default, each Grantor will:

5.2.1     Assembly of Collateral. Assemble and make available to Collateral Agent the Collateral and all records relating thereto at any place or places specified by Collateral Agent.

5.2.2     Collateral Agent Access. Permit Collateral Agent, by Collateral Agent’s representatives and agents, to enter any premises where all or any part of the Collateral, or the books and records relating thereto, or both, are located, to take possession of all or any part of the Collateral and to remove all or any part of the Collateral.

ARTICLE VI.

WAIVERS, AMENDMENTS AND

REMEDIES

No delay or omission of Collateral Agent or any Purchaser to exercise any right or remedy granted under this Agreement shall impair such right or remedy or be construed to be a waiver of any Event of Default or an acquiescence therein, and any single or partial exercise of any such right or remedy shall not preclude any other or further exercise thereof or the exercise of any other right or remedy. Except for any Pledge Amendment executed and delivered to Collateral Agent by any Grantor in accordance with the terms of Section  4.5 , no waiver, amendment or other variation of the terms, conditions or provisions of this Agreement whatsoever shall be valid unless in writing signed by Collateral Agent with the consent or at the direction of the Purchasers acting in accordance with the Indenture and then only to the extent in such writing specifically set forth. All rights and remedies contained in this Agreement or by law afforded shall be cumulative and all shall be available to Collateral Agent and the Secured Parties until the Secured Obligations have been paid in full.

 

20


ARTICLE VII.

PROCEEDS

Section 7.1.     Application of Proceeds. The proceeds of the Collateral shall be applied by Collateral Agent to payment of the Secured Obligations in the order and manner contemplated by the Indenture.

ARTICLE VIII.

NOTICES

Section 8.1.     Sending Notices. Any notice required or permitted to be given under this Agreement shall be sent (and deemed received) in the manner and to the addresses set forth in Section 13.01 of the Indenture.

Section 8.2.     Change in Address for Notices. Collateral Agent or any Grantor may change the address for service of notice upon it by a notice in writing to the other parties.

ARTICLE IX.

GENERAL PROVISIONS

Section 9.1.     Notice of Disposition of Collateral; Condition of Collateral. Each Grantor hereby waives notice of the time and place of any public sale or the time after which any private sale or other disposition of all or any part of the Collateral may be made. To the extent such notice may not be waived under applicable law, any notice made shall be deemed reasonable if sent to a Grantor, addressed as set forth in Article VIII, at least ten (10) days prior to (i) the date of any such public sale or (ii) the time after which any such private sale or other disposition may be made. Collateral Agent shall have no obligation to prepare the Collateral for sale.

Section 9.2.     Collateral Agent Performance of Debtor Obligations . Without having any obligation to do so, Collateral Agent may perform or pay any obligation which a Grantor has agreed to perform or pay in this Agreement and such Grantor shall reimburse Collateral Agent for any amounts paid by Collateral Agent pursuant to this Section  9.2 . The Grantors’ obligations to reimburse Collateral Agent pursuant to the preceding sentence shall be a Secured Obligation payable on demand.

Section 9.3.     Authorization for Collateral Agent to Take Certain Action. Each Grantor irrevocably authorizes Collateral Agent at any time and from time to time and appoints Collateral Agent as its attorney in fact (i) to file financing statements, amendments and continuations necessary or desirable in Collateral Agent’s sole discretion to perfect and to maintain the perfection and priority of Collateral Agent’s security interest in the Collateral, (ii) after the occurrence and during the continuance of an Event of Default, to indorse and collect any cash proceeds of the Collateral, (iii) to file a carbon, photographic or other reproduction of this

 

21


Agreement or any financing statement with respect to the Collateral as a financing statement and to file any other financing statement or amendment of a financing statement (which does not add new collateral or add a debtor) in such offices as Collateral Agent deems necessary or desirable to perfect and to maintain the perfection and priority of Collateral Agent’s security interest in the Collateral, (iv) to contact and enter into one or more agreements with the issuers of Uncertificated Securities which are Collateral and which are Equity Interests or other Investment Property or with financial intermediaries holding Equity Interests or other Investment Property as may be necessary or advisable to give Collateral Agent Control over such Equity Interests or other Investment Property, (v) after the occurrence and during the continuance of an Event of Default, to apply the proceeds of any Collateral received by Collateral Agent to the Secured Obligations as provided in Article VII, (vi) after the occurrence and during the continuance of an Event of Default, to discharge past due taxes, assessments, charges, fees or Liens on the Collateral (except for such Liens as are specifically permitted hereunder), (vii) after the occurrence and during the continuance of an Event of Default, to take possession of and indorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due with respect to any Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by Collateral Agent for the purpose of collecting any and all such moneys due with respect to any Collateral, and (viii) after the occurrence and during the continuance of an Event of Default, to direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to Collateral Agent. Grantor agrees to reimburse Collateral Agent on demand for any payment made or any expense incurred by Collateral Agent in connection with any actions taken by Collateral Agent pursuant to clauses (i) through (viii) above, provided that this authorization shall not relieve any Grantor of any of its obligations under this Agreement or under the Indenture. The power of attorney granted hereby is coupled with an interest and shall be irrevocable until Security Termination.

Section 9.4.     Specific Performance of Certain Covenants. Each Grantor acknowledges and agrees that a breach of any of the covenants contained in Sections 4.1.3 , 4.1.4 , 4.2 , 4.3 , 4.7 , 4.8 , 4.10, 5.2 , or 9.5 or in Article VII will cause irreparable injury to Collateral Agent and the Secured Parties, that Collateral Agent and Secured Parties have no adequate remedy at law in respect of such breaches and therefore agrees, without limiting the right of Collateral Agent or the Secured Parties to seek and obtain specific performance of other obligations of Grantor contained in this Agreement, that the covenants of such Grantor contained in the Sections referred to in this Section  9.4 shall be specifically enforceable against such Grantor.

Section 9.5.     Dispositions Not Authorized. Except as otherwise permitted under the Indenture, none of the Grantors is authorized to sell or otherwise dispose of the Collateral and notwithstanding any course of dealing between any Grantor and Collateral Agent or other conduct of Collateral Agent, no authorization to sell or otherwise dispose of the Collateral shall be binding upon Collateral Agent or the Secured Parties unless such authorization is in writing signed by Collateral Agent.

Section 9.6.     Benefit of Agreement. The terms and provisions of this Agreement shall be binding upon and inure to the benefit of each Grantor, Collateral Agent and the Secured Parties and their respective successors and assigns (including all persons who become bound as a debtor to this Agreement), except that none of the Grantors shall have the right to assign its rights or delegate its obligations under this Agreement or any interest herein, without the prior written consent of Collateral Agent.

 

22


Section 9.7.     Survival of Representations. All representations and warranties of each Grantor contained in this Agreement shall survive the execution and delivery of this Agreement.

Section 9.8.     Headings. The title of and section headings in this Agreement are for convenience of reference only, and shall not govern the interpretation of any of the terms and provisions of this Agreement.

Section 9.9.     Releases .

(a)    Upon the Security Termination, the Collateral shall be released from the Liens created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of Collateral Agent and each Grantor hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Grantors. At the request and sole expense of any Grantor following any such termination, and subject to the provisions in Article XII of the Indenture, Collateral Agent shall deliver to such Grantor any Collateral held by Collateral Agent hereunder, and execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence such termination.

(b)    If any of the Collateral shall be sold, transferred or otherwise disposed of by any Grantor in a transaction permitted by the Indenture, then Collateral Agent, at the request and sole expense of such Grantor, but subject to the provisions in Article XII of the Indenture, shall promptly execute and deliver to such Grantor all releases or other documents reasonably necessary or desirable for the release of the Liens created hereby on such Collateral. At the request and sole expense of the Issuer, a Grantor shall be released from its obligations hereunder in the event that all the capital stock of such Grantor shall be sold, transferred or otherwise disposed of in a transaction permitted by the Indenture; provided that the Issuer shall have delivered to Collateral Agent, at least five (5) Business Days prior to the date of the proposed release, a request for release identifying the relevant Grantor and the terms of the sale or other disposition in reasonable detail, including the price thereof and any anticipated expenses in connection therewith, together with an Officer’s Certificate from the Issuer and an Opinion of Counsel stating that such transaction is in compliance with the Indenture and the other Note Documents (and the Secured Parties, by accepting the benefits hereof, authorize the Collateral Agent to conclusively rely on such Officer’s Certificate and Opinion of Counsel as evidence that such transaction is in compliance with the Indenture and the other Note Documents in performing its obligations under this clause (b)).

Section 9.10.     ENTIRE AGREEMENT . THIS AGREEMENT, THE INDENTURE AND THE OTHER NOTE DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES HERETO.

 

23


Section 9.11.     CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK.

Section 9.12.     WAIVER OF JURY TRIAL. EACH GRANTOR AND, BY ACCEPTANCE OF THE BENEFITS HEREOF, COLLATERAL AGENT AND EACH SECURED PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER NOTE DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.

Section 9.13.     Expenses; Indemnity; Damage Waiver . Section 12.06 of the Indenture is hereby incorporated by reference mutatis mutandis , as if stated verbatim herein as agreements and obligations of each Grantor.

Section 9.14.     Counterparts; Fax. This Agreement may be separately executed in any number of counterparts, all of which when so executed shall be deemed to constitute one and the same Agreement. This Agreement may be validly executed and delivered by facsimile or other electronic transmission.

Section 9.15.     Consent of Pledge of Pledged Securities. Each Grantor consents to the grant by each other Grantor of a security interest in all Pledged Securities to Collateral Agent, and without limiting the foregoing, consents to the transfer of such Pledged Securities to Collateral Agent or its nominee following an Event of Default and to the substitution of Collateral Agent or its nominee as a partner in any partnership or as a member in any limited liability company with all the rights and powers related thereto.

Section 9.16.     Intercreditor Agreement. Reference is made to the Intercreditor Agreement, dated as of March 3, 2017, between Wilmington Trust, National Association, as Priority Lien Agent (as defined therein), and Wilmington Trust, National Association, as Second Lien Agent (as defined therein) (the “ Intercreditor Agreement ”). Each Person that is secured hereunder, by accepting the benefits of the security provided hereby, (i) consents (or is deemed to consent), to the subordination of Liens provided for in the Intercreditor Agreement, (ii) agrees (or is deemed to agree) that it will be bound by, and will take no actions contrary to, the provisions of the Intercreditor Agreement, (iii) authorizes (or is deemed to authorize) the Second Lien Agent on behalf of such Person to enter into, and perform under, the Intercreditor Agreement and (iv) acknowledges (or is deemed to acknowledge) that a copy of the Intercreditor Agreement was delivered, or made available, to such Person.

Notwithstanding any other provision contained herein, this Agreement, the Liens created hereby and the rights, remedies, duties and obligations provided for herein are subject in all respects to the provisions of the Intercreditor Agreement and, to the extent provided therein, the applicable Security Documents (as defined in the Intercreditor Agreement). In the event of any conflict or inconsistency between the provisions of this Agreement and the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall control.

 

24


Section 9.17.     Collateral Agent Limited Liability and Limited Duty.

(a)    The Collateral Agent shall have no obligation whatsoever to any of the Secured Parties to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s liens or security interests have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or any Grantor’s property constituting collateral intended to be subject to the lien and security interest of this Agreement has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to any Note Document or the Intercreditor Agreement other than pursuant to the instructions given by the Purchasers in accordance with the Indenture, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to any Secured Party as to any of the foregoing.

(b)    No provision of this Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Purchasers unless the Collateral Agent shall have received indemnity satisfactory to the Collateral Agent against potential costs and liabilities incurred by the Collateral Agent relating thereto. In the event the Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the Mortgages or take any such other action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances unless the Collateral Agent has received security or indemnity from the Secured Parties in an amount and in a form all satisfactory to the Collateral Agent in its sole discretion, protecting the Collateral Agent from all such liability. The Collateral Agent shall at any time be entitled to cease taking any action described above if it no longer reasonably deems any indemnity, security or undertaking from the Grantors or the Secured Parties to be sufficient.

(c)    The Collateral Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with any Note Documents or instrument referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Issuer (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law) and (iii) may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.

(d)    In no event shall the Collateral Agent be responsible or liable for any special, indirect, punitive or consequential loss or damage or any kind whatsoever (including, but not limited to, lost profits) irrespective of whether the Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

25


(e)    The Collateral Agent does not assume any responsibility for any failure or delay in performance or any breach by the Grantors under any Note Documents. The Collateral Agent shall not be responsible to the Secured Parties or any other Person for any recitals, statements, information, representations or warranties contained in any Note Documents or in any certificate, report, statement, or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, any Note Document; the execution, validity, genuineness, effectiveness or enforceability of any Note Documents of any other party thereto; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any Secured Obligations; the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any obligor; or for any failure of any obligor to perform its obligations under any Note Documents. The Collateral Agent shall have no obligation to any Secured Party or any other Person to ascertain or inquire into the existence of any Default or Event of Default, the observance or performance by any obligor of any terms of this Agreement, or the satisfaction of any conditions precedent contained in this Agreement. The Collateral Agent shall have the right at any time to seek instructions from the Purchasers in accordance with the Indenture with respect to the administration of the Note Documents.

ARTICLE X.

LIEN ABSOLUTE; WAIVER OF SURETYSHIP DEFENSES

Section 10.1.     Lien Absolute, Waivers .

10.1.1    All rights of Collateral Agent hereunder, and all obligations of Grantors hereunder, shall be absolute and unconditional irrespective of, shall not be affected by, and shall remain in full force and effect without regard to, and each Grantor hereby waives all, rights, claims or defenses that it might otherwise have (now or in the future) with respect to, in each case, each of the following (whether or not such Grantor has knowledge thereof):

 

  (i) the validity or enforceability of the Indenture or any other Note Document, any of the Secured Obligations or any guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party;

 

  (ii) any renewal, extension or acceleration of, or any increase in the amount of the Secured Obligations, or any amendment, supplement, modification or waiver of, or any consent to departure from, the Note Documents;

 

  (iii)

any failure or omission to assert or enforce or agreement or election not to assert or enforce, delay in enforcement, or the stay

 

26


  or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under any Note Documents, at law, in equity or otherwise) with respect to the Secured Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Secured Obligations;

 

  (iv) any change, reorganization or termination of the corporate structure or existence of Issuer or any other Grantor or any of their Subsidiaries and any corresponding restructuring of the Secured Obligations;

 

  (v) any settlement, compromise, release, or discharge of, or acceptance or refusal of any offer of payment or performance with respect to, or any substitutions for, the Secured Obligations or any subordination of the Secured Obligations to any other obligations;

 

  (vi) the validity, perfection, non-perfection or lapse in perfection, priority or avoidance of any security interest or lien, the release of any or all collateral securing, or purporting to secure, the Secured Obligations or any other impairment of such collateral;

 

  (vii) any exercise of remedies with respect to any security for the Secured Obligations (including, without limitation, any collateral, including the Collateral securing or purporting to secure any of the Secured Obligations) at such time and in such order and in such manner as the Collateral Agent and the Secured Parties may decide and whether or not every aspect thereof is commercially reasonable and whether or not such action constitutes an election of remedies and even if such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy that any Grantor would otherwise have and without limiting the generality of the foregoing or any other provisions hereof, each Grantor hereby expressly waives any and all benefits which might otherwise be available to such Grantor under applicable law; and

 

  (viii) any other circumstance whatsoever which may or might in any manner or to any extent vary the risk of any Grantor as an obligor in respect of the Secured Obligations or which constitutes, or might be construed to constitute, an equitable or legal discharge of the Issuer or any other Grantor for the Secured Obligations, or of such Grantor under the guarantee contained in the Indenture or of any security interest granted by any Grantor, whether in a bankruptcy proceeding or in any other instance.

 

27


10.1.2    Each Grantor waives diligence, presentment, protest, marshaling, demand for payment, notice of dishonor, notice of default and notice of nonpayment to or upon the Issuer or any of the other Grantors with respect to the Secured Obligations. Except for notices provided for herein, each Grantor hereby waives notice (to the extent permitted by applicable law) of any kind in connection with this Agreement or any collateral securing the Secured Obligations, including, without limitation, the Collateral. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Grantor, Collateral Agent may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have against Issuer, any other Grantor or any other Person or against any collateral security or guarantee for the Secured Obligations or any right of offset with respect thereto, and any failure by Collateral Agent to make any such demand, to pursue such other rights or remedies or to collect any payments from Issuer, any other Grantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of Issuer, any other Grantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Grantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of Secured Party against any Grantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.

[Signature Pages Follow]

 

28


IN WITNESS WHEREOF, Grantors and Collateral Agent have executed this Agreement as of the date first above written.

 

GRANTORS:
GASTAR EXPLORATION INC.
By:  

/s/ J. Russell Porter

Name:   J. Russell Porter
Title:   President and Chief Executive Officer

 

Signature Page

Pledge and Security Agreement


IN WITNESS WHEREOF, Grantors and Collateral Agent have executed this Agreement as of the date first above written.

 

NORTHWEST PROPERTY VENTURES LLC
By:  

/s/ J. Russell Porter

Name:   J. Russell Porter
Title:   President and Chief Executive Officer

 

Signature Page

Pledge and Security Agreement


COLLATERAL AGENT:
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Trustee
By:  

/s/ Timothy P. Mowdy

Name:   Timothy P. Mowdy
Title:   Administrative Vice President

 

Signature Page

Pledge and Security Agreement


EXHIBIT A

PLACE OF BUSINESS OR CHIEF EXECUTIVE OFFICE

Place of Business (if it has only one) or Chief Executive Office (if more than one place of business) and Mailing Address:

 

Place of Business

 

Mailing Address

Gastar Exploration Inc.   1331 Lamar Street, Suite 650, Houston, TX 77010
Northwest Property Ventures LLC   1331 Lamar Street, Suite 650, Houston, TX 77010


EXHIBIT B

OTHER NAMES

 

Grantor

  

Other Names

  

Transmitting Utility

         

(Yes/No)

Gastar Exploration Inc.    Gastar Exploration USA, Inc.    No

Northwest Property Ventures

LLC

   None    No


EXHIBIT C

FEDERAL TAXPAYER IDENTIFICATION NUMBER

 

Grantor

  

Federal Employer Identification Number

Gastar Exploration Inc.    38-3531640
Northwest Property Ventures LLC    81-5365433


EXHIBIT D

LOCATION FOR PURPOSES OF UCC

 

Grantor

  

Jurisdiction

Gastar Exploration Inc.    Delaware
Northwest Property Ventures LLC    Oklahoma

FILINGS AND OTHER ACTIONS

REQUIRED TO PERFECT SECURITY INTERESTS

Uniform Commercial Code Filings

The filing of a financing statement in each of the jurisdictions listed above.

Copyright, Patent and Trademark Filings

None

Actions with respect to Investment Property

None

Other Actions

None


SCHEDULE I

List of Pledged Securities and Pledged Notes

A. STOCKS:

 

Grantor

  

Issuer

  

Certificate
Number

    

Number of
Shares

    

Ownership
Interest

 

Gastar Exploration Inc.

  

Northwest Property

Ventures LLC

     N/A        N/A        100

B. OTHER SECURITIES, INVESTMENT PROPERTY AND OWNERSHIP INTERESTS

(CERTIFICATED AND UNCERTIFICATED):

None.

C. PLEDGED NOTES:

 

Grantor

   Issuer    Payee    Maturity Date    Principal Amount  

Gastar Exploration Inc.

   SEI Energy, LLC 1    SEI Energy, LLC    December 1, 2016    $ 2,162,789.31  

 

1   SEI has declared bankruptcy.


SCHEDULE II

Commercial Tort Claims

 

1. Eagle Natrium, LLC v. Gastar Exploration USA, Inc., G.D. No. 14-007208 pending in Allegheny County, Pennsylvania.


SCHEDULE III

Securities Accounts, Commodities Accounts and Deposit Accounts

Securities Accounts:

 

Grantor

  

Issuer of
Financial Asset

  

Description of
Financial Asset

  

Securities
Intermediary

(Name and

Address)

  

Securities Account
(Number and
Location)

  

Securities Intermediary’s
Jurisdiction Under UCC
Section 9-305(a)(3)

Gastar Exploration Inc.    N/A    Government Money Market Fund         

Commodities Accounts:

 

Grantor

  

Description of

Commodity Contract

  

Commodity

Intermediary
(Name and Address)

   Commodity Account
(Number and Location)
  

Commodity

Intermediary’s

Jurisdiction Under UCC
Section 9-305(a)(4)

None.    None.    None.    None.    None.


Deposit Accounts:

 

Grantor

  

Name of

Depositary Bank

  

Account Number

  

Account Name

Gastar Exploration Inc.

  

Wells Fargo

     

Gastar Exploration Inc.

  

Wells Fargo

     

Gastar Exploration Inc.

  

Wells Fargo

     

Gastar Exploration Inc.

  

Wells Fargo

     

Gastar Exploration Inc.

  

Wells Fargo

     

Gastar Exploration Inc.

  

Texas Capital Bank

     


SCHEDULE IV

LETTER OF CREDIT RIGHTS

None.


SCHEDULE V

PLEDGE AMENDMENT

This Pledge Amendment, dated [                     ] is delivered pursuant to Section 4.5 of the Agreement referred to below. The undersigned hereby agrees that this Pledge Amendment may be attached to the Pledge and Security Agreement dated as of March 3, 2017, by and among the Grantors party thereto and Wilmington Trust, National Association, as Collateral Agent for the Secured Parties (as amended, restated, supplemented or otherwise modified from time to time; capitalized terms defined therein being used herein as defined therein) and that the Commercial Tort Claims listed on this Pledge Amendment shall be deemed to be part of the Collateral and shall secure all Secured Obligations.

 

  1. [                    ]

 

  2. [                    ]

 

[                                         ]
By:  
Name:  
Title:  

Exhibit 99.1

 

For Immediate Release    NEWS RELEASE   
LOGO    Contacts:   
   Gastar Exploration Inc.   
   J. Russell Porter, Chief Executive Officer   
   713-739-1800 / rporter@gastar.com   
  

 

Investor Relations Counsel:

  
  

Lisa Elliott, Dennard ● Lascar Associates:

713-529-6600 / lelliott@DennardLascar.com

  

Gastar Exploration Completes Capital and Refinancing Transactions with Funds Managed by Ares Management

HOUSTON , March 3, 2017 – Gastar Exploration Inc. (“Gastar” or the “Company”) (NYSE MKT: GST) announced today that it has closed its previously announced capital and refinancing transactions with funds managed by affiliates of Ares Management, L.P. (NYSE: ARES) (“Ares”). The transactions with Ares include $425 million in new financing to the Company in the form of a $250 million secured term loan, the issuance of $125 million secured convertible notes and a $50 million purchase of Gastar common stock (collectively, the “Ares Investment”). Proceeds from the Ares Investment were used to fully repay Gastar’s existing $69.2 million revolving credit facility and to fund the redemption price of its $325 million 8.625% senior secured notes due May 2018, which have been irrevocably called for redemption on March 24, 2017.

The Ares Investment key terms are as follows:

 

    $250 million first lien secured term loan, 8.5% interest, maturing March 2022, which replaced the Company’s prior bank revolving credit facility;

 

    $125 million second lien secured convertible notes, 6.0% interest, convertible, upon receipt of stockholder approval, at an initial conversion price of $2.21 per share at the option of the holder, maturing March 2022; and

 

    29,408,305 common shares issued at $1.7002 per share, the 30-day volume weighted average trading price as of February 15, 2017, representing approximately 15.8% of the Company’s issued and outstanding common stock at March 1, 2017.

If the conversion rights of the convertible notes are not approved by Gastar’s stockholders within four months, the convertible notes will not become convertible and will begin bearing interest at 15.0% as a straight high-yield debt obligation. In connection with the closing of the Ares Investment, Gastar and its priority collateral agent also entered into an intercreditor arrangement with certain hedging counterparties to provide shared collateral coverage for the Company’s existing and future commodities hedging positions.


Ares was granted the right to nominate up to two directors to an expanded board of eight directors subject to certain minimum stock ownership requirements. The Company expects that Nate Walton and Ronnie Scott will be Ares’ designated nominees and added to its Board of Directors in the next few weeks. The Company also granted Ares certain preemptive rights to purchase its proportionate share of additional equity securities in any future offerings by the Company.

About Gastar Exploration

Gastar Exploration Inc. is a pure play Mid-Continent independent energy company engaged in the exploration, development and production of oil, condensate, natural gas and natural gas liquids. Gastar’s principal business activities include the identification, acquisition, and subsequent exploration and development of oil and natural gas properties with an emphasis on unconventional reserves, such as shale resource plays. Gastar holds a concentrated acreage position in what is believed to be the core of the STACK Play, an area of central Oklahoma which is home to multiple oil and natural gas-rich reservoirs including the Meramec, Oswego, Osage, Woodford and Hunton formations. For more information, visit Gastar’s website at www.gastar.com .

Forward Looking Statements

This news release also includes “forward looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Forward looking statements give our current expectations, opinion, belief or forecasts of future events and performance. A statement identified by the use of forward looking words including “may,” “expects,” “projects,” “anticipates,” “plans,” “believes,” “estimate,” “will,” “should,” and certain of the other foregoing statements may be deemed forward-looking statements. Although Gastar believes that the expectations reflected in such forward-looking statements are reasonable, these statements involve risks and uncertainties that may cause actual future activities and results to be materially different from those suggested or described in this news release. These include risks inherent in oil and natural gas drilling and production activities, including risks with respect to continued low or further declining prices for oil and natural gas that could result in further downward revisions to the value of proved reserves or otherwise cause Gastar to further delay or suspend planned drilling and completion operations or reduce production levels, which would adversely impact cash flow; risks relating to the availability of capital to fund drilling operations that can be adversely affected by adverse drilling results, production declines and continued low or further declining prices for oil and natural gas; risks regarding Gastar’s ability to meet financial covenants under its indenture or credit agreement or the ability to obtain amendments or waivers to effect such compliance; risks of fire, explosion, blowouts, pipe failure, casing collapse, unusual or unexpected formation pressures, earthquakes or other environmental hazards, and other operating and production risks, which may temporarily or permanently reduce production or cause initial production


or test results to not be indicative of future well performance or delay the timing of sales or completion of drilling operations; delays in receipt of drilling permits; risks relating to unexpected adverse developments in the status of properties; borrowing base redeterminations by Gastar’s banks; risks relating to the absence or delay in receipt of government approvals or third-party consents; risks relating to Gastar’s ability to realize the anticipated benefits from acquired assets; risks related to the completion of any refinancing; and other risks described in Gastar’s Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and other filings with the SEC, available at the SEC’s website at www.sec.gov. By issuing forward looking statements based on current expectations, opinions, views or beliefs, Gastar has no obligation and, except as required by law, is not undertaking any obligation, to update or revise these statements or provide any other information relating to such statements.

# # #