SECOND AMENDMENT TO AMENDED AND RESTATED SECOND LIEN CREDIT AGREEMENT dated as of April 10, 2017 among TITAN ENERGY OPERATING, LLC, as Borrower, TITAN ENERGY, LLC, as Parent, and THE LENDERS FROM TIME TO TIME PARTY HERETO,

Exhibit 10.2(c)

SECOND AMENDMENT TO

AMENDED AND RESTATED SECOND LIEN CREDIT AGREEMENT

dated as of

April 10, 2017

among

TITAN ENERGY OPERATING, LLC,

as Borrower,

TITAN ENERGY, LLC,

as Parent,

and

THE LENDERS FROM TIME TO TIME PARTY HERETO,

---

SECOND AMENDMENT TO

AMENDED AND RESTATED SECOND LIEN CREDIT AGREEMENT

This SECOND AMENDMENT TO AMENDED AND RESTATED SECOND LIEN CREDIT AGREEMENT (this “Second Amendment”), dated as of April 10, 2017, is among TITAN ENERGY OPERATING, LLC, a limited liability company formed under the laws of the State of Delaware (the “Borrower”), TITAN ENERGY, LLC, a limited liability company formed under the laws of the State of Delaware (the “Parent”), each of the undersigned guarantors (the “Guarantors”, and together with the Borrower, the “Loan Parties”), and each of the Lenders that is a signatory hereto.

Recitals

A. The Borrower, the Parent, Wilmington Trust, N.A., as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) and the Lenders are parties to that certain Amended and Restated Second Lien Credit Agreement, dated as of September 1, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), pursuant to which the Lenders have, subject to the terms and conditions set forth therein, made certain credit available to and on behalf of the Borrower.

B. The Borrower has requested that the Credit Agreement be amended to extend the period in which it can deliver (i) the financial statements required by Sections 8.01(a) and (b) for the fiscal year and fiscal quarter (respectively) in each case ending December 31, 2016 and (ii) the compliance certificates in relation to such financial statements required by Section 8.01(c).

C. The parties hereto desire to enter into this Second Amendment to amend the Credit Agreement in certain respects as set forth herein, to be effective as of the Second Amendment Effective Date.

NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Section 1. Defined Terms. Each capitalized term which is defined in the Credit Agreement, but which is not defined in this Second Amendment, shall have the meaning ascribed such term in the Credit Agreement, as amended hereby. Unless otherwise indicated, all section references in this Second Amendment refer to the Credit Agreement.

Section 2. Amendments. In reliance on the representations, warranties, covenants and agreements contained in this Second Amendment, and subject to the satisfaction of the conditions precedent set forth in Section 5 hereof, the Credit Agreement shall be amended in the manner provided in this Section 2 effective as of the Second Amendment Effective Date.

2.1 Additional Definitions. Section 1.02 of the Credit Agreement is hereby amended to add thereto in alphabetical order the following definitions which shall read in full as follows:

“Second Amendment” means that certain Second Amendment to Amended and Restated Second Lien Credit Agreement, dated as of April 10, 2017, among the Borrower, the Guarantors and the Lenders party thereto.

“Second Amendment Effective Date” means April 10, 2017.

 

1

---

2.2 Restated Definitions. The definition of “Loan Documents” contained in Section 1.02 of the Credit Agreement is hereby amended and restated in its entirety to read in full as follows:

“Loan Documents” means this Agreement, the First Amendment, the Second Amendment, the Notes, if any, the Security Instruments, the Hedge Facility Intercreditor Agreement, the Intercreditor Agreement, the Fee Letter and any and all other material agreements or instruments now or hereafter executed and delivered by any Loan Party or any other Person (other than participation or similar agreements between any Lender and any other lender or creditor with respect to Indebtedness pursuant to this Agreement) in connection with the Indebtedness, this Agreement and the transactions contemplated hereby, as such agreements may be amended, modified, supplemented or restated from time to time.

2.3 Amendments to Section 8.01(a) of the Credit Agreement. Section 8.01(a) of the Credit Agreement is hereby amended and restated in its entirety to read in full as follows:

(a) Annual Financial Statements. As soon as available, but in any event in accordance with then applicable law and (i) not later than 107 days after the end of the fiscal year of the Parent ending on December 31, 2016 and (ii) not later than 100 days after the end of each other fiscal year of the Parent, its audited consolidated balance sheet and related statements of income, partners’ equity and cash flows 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 independent public accountants of recognized national standing (with an unqualified opinion as to “going concern” and without any qualification or exception as to the scope 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 Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied.

2.4 Amendments to Section 8.01(b) of the Credit Agreement. Section 8.01(b) of the Credit Agreement is hereby amended and restated in its entirety to read in full as follows:

(b) Quarterly Financial Statements. As soon as available, but in any event in accordance with then applicable law and (i) not later than 107 days after the end of the fiscal quarter of the Parent ending on December 31, 2016 and (ii) not later than 55 days after the end of each other fiscal quarter of each fiscal year of the Parent, its consolidated balance sheet and

 

2

---

related statements of income, partners’ equity and cash flows 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 Parent 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.

2.5 Amendments to Section 8.01(c) of the Credit Agreement. Section 8.01(c) of the Credit Agreement is hereby amended and restated in its entirety to read in full as follows:

(c) Certificate of Financial Officer – Compliance. (i) Within four days of the delivery of financial statements under Section 8.01(a) and Section 8.01(b) for the fiscal year and fiscal quarter (respectively) of the Parent, in each case ending December 31, 2016, and (ii) otherwise concurrently with any delivery of financial statements under Section 8.01(a) or Section 8.01(b), a compliance certificate of a Financial Officer of the Parent in substantially the form of Exhibit D hereto (i) 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, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 9.01, (iii) setting forth reasonably detailed calculations of the First Lien Leverage Ratio, (iv) certifying whether (x) any Borrowing Base Deficiency exists, (y) the Non-Conforming Tranche is outstanding and (z) any “Default” or “Event of Default” under and as defined in the First Lien Credit Agreement exists (and specifying details thereof and any action taken or proposed to be taken with respect thereto) and (v) certifying a copy of the compliance certificate delivered for such fiscal period under the First Lien Credit Agreement. Each such certificate (including the financial statements and calculations delivered with such certificate) shall include reasonably detailed information regarding (x) any Asset Dispositions consummated during the period covered by such certificate and give effect to such Asset Disposition in the calculation of all financial covenants and other financial metrics required under this Agreement and (y) any cash dividends and distributions received by any Restricted Subsidiary from Persons other than Restricted Subsidiaries which were included in the calculations of the ratios that are the subject of Section 9.01 (which information shall include a reconciliation of the Borrower’s calculation of EBITDA versus the calculation of Consolidated Net Income in accordance with GAAP).

2.6 Amendments to Section 10.01(d) of the Credit Agreement. Section 10.01(d) of the Credit Agreement is hereby amended and restated in its entirety to read in full as follows:

(d) (i) the Parent, the Borrower or any Restricted Subsidiary shall fail to observe or perform any covenant, condition or agreement contained in Section 8.01(a)(i), Section 8.01(b)(i), Section 8.01(c)(i), Section 8.01(i), Section 8.01(m), Section 8.01(t), Section 8.02(a), Section 8.17 or in Article IX or (ii) any provision of the Organizational Documents (including the Parent LLC Agreement and the Borrower LLC Agreement) is amended, supplemented or otherwise modified in any manner that is material and adverse to the interests of the Lenders;

 

3

---

Section 3. Conditions Precedent. The amendments contained in Section 2 hereof shall be effective on the date the following conditions are fulfilled (such date being the “Second Amendment Effective Date”):

3.1 The Required Lenders shall have received duly executed counterparts of this Second Amendment from the Loan Parties.

3.2 The Required Lenders shall have received all fees, expenses and other amounts due and payable on or prior to the Second Amendment Effective Date, including all fees and expenses incurred in connection with the preparation, negotiation, execution and delivery of this Second Amendment due and owing to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and invoiced prior to the Second Amendment Effective Date.

3.3 The Required Lenders shall have received an executed copy of an amendment to the First Lien Credit Agreement in form and substance reasonably satisfactory to them.

3.4 No Loan Party or any of their respective Affiliates shall have entered into any side letter or other agreement with the First Lien Lenders and/or the First Lien Agent with respect to any amendments to the First Lien Credit Agreement other than those contemplated by the amendment referenced in Section 3.3 above.

Section 4. Miscellaneous.

4.1 Confirmation and Effect. The provisions of the Credit Agreement (as amended by this Second Amendment) shall remain in full force and effect in accordance with its terms following the effectiveness of this Second Amendment, and this Second Amendment shall not constitute a waiver of any provision of the Credit Agreement or any other Loan Document, except as expressly provided for herein. Each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof’, “herein”, or words of like import shall mean and be a reference to the Credit Agreement as amended hereby, and each reference to the Credit Agreement in any other document, instrument or agreement executed and/or delivered in connection with the Credit Agreement shall mean and be a reference to the Credit Agreement as amended hereby.

4.2 Ratification and Affirmation of Loan Parties. Each of the Loan Parties hereby expressly (a) acknowledges the terms of this Second Amendment, (b) ratifies and affirms its obligations under the Guaranty Agreement and the other Loan Documents to which it is a party, (c) acknowledges, renews and extends its continued liability under the Guaranty Agreement and the other Loan Documents to which it is a party, (d) agrees that its guarantee under the Guaranty Agreement and the other Loan Documents to which it is a party remains in full force and effect

 

4

---

with respect to the Indebtedness as amended hereby, (e) represents and warrants to the Lenders that each representation and warranty of such Loan Party contained in the Credit Agreement and the other Loan Documents to which it is a party is true and correct in all material respects on and as of the Second Amendment Effective Date (other than (x) representations and warranties that were made as of a specific date, in which case such representations and warranties were true and correct in all material respects when made and (y) representations and warranties that are qualified by materiality or by reference to Material Adverse Effect, in which case such representations and warranties (as so qualified) shall continue to be true and correct in all respects), (f) represents and warrants to the Lenders that the execution, delivery and performance by such Loan Party of this Second Amendment are within such Loan Party’s corporate, limited partnership or limited liability company powers (as applicable), have been duly authorized by all necessary action and that this Second Amendment constitutes the valid and binding obligation of such Loan Party enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditor’s rights generally and (g) represents and warrants to the Lenders that immediately on and as of the Second Amendment Effective Date, no Default or Event of Default exists.

4.3 Counterparts; Integration; Effectiveness; Electronic Execution.

(a) This Second Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Second Amendment and the other Loan Documents, 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. Delivery of an executed counterpart of a signature page of this Second Amendment by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Second Amendment.

(b) The words “execution,” “signed” and “signature” shall be deemed to include electronic signatures 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 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.

4.4 No Oral Agreement. THIS WRITTEN SECOND AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND THEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR UNWRITTEN ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.

4.5 Governing Law. THIS SECOND AMENDMENT AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS SECOND AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

5

---

4.6 Payment of Expenses. The Borrower shall pay all reasonable and documented out-of-pocket expenses incurred by the Required Lenders, including, without limitation, the reasonable fees, charges and disbursements of counsel and other outside consultants for the Required Lenders, the reasonable travel, photocopy, mailing, courier, telephone and other similar expenses, in connection with the preparation, negotiation, execution, delivery and administration (both before and after the execution hereof and including advice of counsel to the Required Lenders as to the rights and duties of the Required Lenders with respect thereto) of this Second Amendment and any amendments, modifications or waivers of or consents related to the provisions hereof or thereof.

4.7 Severability. Any provision of this Second Amendment 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 or thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

4.8 Successors and Assigns. The provisions of this Second Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

4.9 Release. EACH OF THE LOAN PARTIES, ON ITS OWN BEHALF AND ON BEHALF OF ITS PREDECESSORS, SUCCESSORS, LEGAL REPRESENTATIVES AND ASSIGNS (EACH OF THE FOREGOING, COLLECTIVELY, THE “RELEASING PARTIES”), HEREBY ACKNOWLEDGES AND STIPULATES THAT AS OF THE DATE OF THIS SECOND AMENDMENT, NONE OF THE RELEASING PARTIES HAS ANY CLAIMS OR CAUSES OF ACTION OF ANY KIND WHATSOEVER AGAINST, OR ANY GROUNDS OR CAUSE FOR REDUCTION, MODIFICATION, SET ASIDE OR SUBORDINATION OF THE INDEBTEDNESS OR ANY LIENS OR SECURITY INTERESTS OF, THE ADMINISTRATIVE AGENT, THE LENDERS OR ANY OF THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, OR REPRESENTATIVES, OR AGAINST ANY OF THEIR RESPECTIVE PREDECESSORS, SUCCESSORS OR ASSIGNS (EACH OF THE FOREGOING, COLLECTIVELY, THE “RELEASED PARTIES”). IN PARTIAL CONSIDERATION FOR THE AGREEMENT OF THE LENDERS PARTY HERETO TO ENTER INTO THIS SECOND AMENDMENT, EACH OF THE RELEASING PARTIES HEREBY UNCONDITIONALLY WAIVES AND FULLY AND FOREVER RELEASES, REMISES, DISCHARGES AND HOLDS HARMLESS THE RELEASED PARTIES FROM ANY AND ALL CLAIMS, CAUSES OF ACTION, DEMANDS AND LIABILITIES OF ANY KIND WHATSOEVER, WHETHER DIRECT OR INDIRECT, FIXED OR CONTINGENT, LIQUIDATED OR UNLIQUIDATED, DISPUTED OR UNDISPUTED, KNOWN OR UNKNOWN, WHICH ANY OF THE RELEASING PARTIES HAS OR MAY ACQUIRE IN THE FUTURE RELATING IN ANY WAY TO ANY EVENT, CIRCUMSTANCE, ACTION OR FAILURE TO ACT AT ANY TIME ON OR PRIOR TO THE SECOND AMENDMENT EFFECTIVE DATE, SUCH WAIVER, RELEASE AND DISCHARGE BEING MADE WITH FULL KNOWLEDGE AND UNDERSTANDING OF

 

6

---

THE CIRCUMSTANCES AND EFFECTS OF SUCH WAIVER, RELEASE AND DISCHARGE, AND AFTER HAVING CONSULTED LEGAL COUNSEL OF ITS OWN CHOOSING WITH RESPECT THERETO. THIS PARAGRAPH IS IN ADDITION TO ANY OTHER RELEASE OF ANY OF THE RELEASED PARTIES BY THE RELEASING PARTIES AND SHALL NOT IN ANY WAY LIMIT ANY OTHER RELEASE, COVENANT NOT TO ▇▇▇ OR WAIVER BY THE RELEASING PARTIES IN FAVOR OF THE RELEASED PARTIES.

[Signature pages follow]

 

7

---

The parties hereto have caused this Second Amendment to be duly executed as of the day and year first above written.

 

BORROWER:		TITAN ENERGY OPERATING, LLC
		By:		/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
		Name:		▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
		Title:		Chief Financial Officer
PARENT:		TITAN ENERGY OPERATING, LLC
		By:		/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
		Name:		▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
		Title:		Chief Financial Officer

---

---

---

---

---

---