Adjustments to the Unadjusted Purchase Price. The Unadjusted Purchase Price shall be adjusted, without duplication, as follows: (a) increased or decreased with respect to the Effective Time Working Capital as follows: (i) increased, by an amount equal to the Effective Time Working Capital in the event the Effective Time Working Capital is a positive amount; (ii) decreased, by an amount equal to the absolute value of the Effective Time Working Capital in the event the Effective Time Working Capital is a negative amount; (b) increased, by an amount equal to the aggregate amount, if any, of all Cash and Cash Equivalent capital contributions made by or on behalf of Sellers after the Effective Time to the Company Group (but excluding Specified Affiliate, Operating Affiliate and Company); (c) increased or decreased with respect to certain Hedge Losses and/or Hedge Gains as follows: (i) decreased, by an amount equal to the aggregate amount of all Hedge Losses attributable to the Company Hxxxxx paid by any member of the Company Group (excluding Specified Affiliate or Operating Affiliate) on or after the Effective Time, excluding any payments made at the Closing from the proceeds of the Closing Payments; (ii) increased, by an amount equal to the aggregate amount of Hedge Gains attributable to the Company Hxxxxx paid to or received by any member of the Company Group (excluding Specified Affiliate or Operating Affiliate) on or after the Effective Time; (d) increased or decreased with respect to certain Credit Document Indebtedness as follows: (i) decreased by an amount, if any, equal to any Pre-Effective Time Credit Document Indebtedness that is paid or satisfied by Company Group (excluding Specified Affiliate or Operating Affiliate) during the period after the Effective Time and prior to the Closing, excluding any payments made at the Closing from the proceeds of the Closing Payments; (ii) increased by an amount, if any, equal to any Post-Effective Time Credit Document Indebtedness (including any interest accrued thereon), that is paid or satisfied out of the proceeds of the Closing Payment or Closing Distribution under Section 2.6; (e) decreased by the amount, if any, of all Leakage occurring on or after the Effective Time and prior to or at the Closing (including, without duplication, the Closing Distribution); (f) increased or decreased with respect to Defects and Title Benefits as follows: (i) decreased, in accordance with Section 3.2(g)(i) with respect to Defects and/or any Assets excluded pursuant to Section 3.2(g)(ii); (ii) increased, in accordance with Section 3.2(h) with respect to Title Benefits; (g) increased or decreased with respect to Excluded Assets as follows: (i) increased, by an amount equal to the aggregate amounts received by Company Group (excluding Specified Affiliate or Operating Affiliate) attributable to or earned from any Excluded Assets during any period from and after the Effective Time; (ii) decreased, by the amount of all Property Costs paid by Company Group (excluding Specified Affiliate or Operating Affiliate), including all prepaid costs and expenses that are incurred in connection with the ownership or operation of the Excluded Assets, after the Effective Time; (h) decreased, by an amount equal to the Transaction Costs (i) paid by Company Group (excluding Specified Affiliate or Operating Affiliate) after the Effective Time and prior to Closing or (ii) that remain outstanding and the obligation of Company Group (excluding Specified Affiliate or Operating Affiliate) as of the Closing (and that are not satisfied out of the proceeds of the Closing Payment or Closing Distribution under Section 2.6); (i) increased or decreased with respect to Company Taxes as follows: (i) increased, by (A) the amount of all Post-Effective Time Company Taxes that are paid or otherwise economically borne by any Seller, its Affiliates (other than the Company Group (excluding Specified Affiliate or Operating Affiliate)) or any Seller’s direct or indirect owners, and (B) the amount of all Post-Effective Time Company Taxes that are paid or otherwise economically borne by the Company Group (excluding Specified Affiliate or Operating Affiliate) prior to the Effective Time, but only to the extent that the amount so paid or otherwise economically borne by the Company Group (excluding Specified Affiliate or Operating Affiliate) resulted in a reduction in Effective Time Working Capital as compared to what Effective Time Working Capital would have been had such Post-Effective Time Company Taxes not been paid or otherwise economically borne by the Company Group (excluding Specified Affiliate or Operating Affiliate); (ii) decreased, by (A) the amount of all Pre-Effective Time Company Taxes that are paid or otherwise economically borne by Purchaser, and (B) the amount of all Pre-Effective Time Company Taxes that are (1) paid or otherwise economically borne by the Company Group (excluding Specified Affiliate or Operating Affiliate) after the Effective Time but prior to the Closing Date or (2) unpaid as of the Closing Date (other than Pre-Effective Time Company Taxes required to be paid (or caused to be paid) by Sellers or an Affiliate thereof (other than a member of the Acquired Company Group) pursuant to Section 11.3(a)); (j) with respect to Operating Affiliate: (i) adjusted for Imbalances, Hydrocarbon inventory and Hydrocarbons in storage of Operating Affiliate with respect to the Assets, in each case, as of the Effective Time as follows: (A) decreased by the aggregate amount owed by Operating Affiliate to Third Parties for Imbalances attributable to the ownership or operation of the Assets for periods prior to the Effective Time (on the basis of the applicable Settlement Price); (B) increased by the aggregate amount owed to Operating Affiliate by Third Parties for Imbalances attributable to the ownership or operation of the Assets for periods prior to the Effective Time (on the basis of the applicable Settlement Price); and (C) (x) increased by the aggregate amount equal to Operating Affiliate’s, Sellers’ or any of their Affiliates’ (other than the Company Group, excluding Company and Operating Affiliate) entitlement of any Hydrocarbons in tanks or storage facilities produced from or credited to the Assets at the Effective Time based upon the quantities in tanks or storage facilities as of the Effective Time multiplied by the applicable Settlement Price; (ii) without prejudice to any Party’s rights under Article 13, adjusted for proceeds and other income, receivables, Property Costs, and other costs (other than Taxes) attributable to the Assets as follows: (A) decreased by an amount equal to the aggregate amount of the following proceeds to the extent actually received by Operating Affiliate but not delivered or disbursed to any member of the Company Group (other than Operating Affiliate or Specified Affiliate): (1) amounts earned from the sale of Hydrocarbons produced from or attributable to the Assets during any period from and after the Effective Time (net of any Burdens paid by or paid on behalf of Sellers, Operating Affiliate (other than any members of the Company Group excluding Operating Affiliate or Specified Affiliate)); and (2) other income earned with respect to the Assets that is attributable to periods from and after the Effective Time; (B) increased by an amount equal to the amount of all Property Costs which are incurred by Operating Affiliate or Specified Affiliate in connection with the ownership or operation of the Assets between the Effective Time and the Closing to the extent Operating Affiliate or Specified Affiliate have not been reimbursed prior to Closing by the Company Group (other than Operating Affiliate or Specified Affiliate) for the same; (C) increased by an amount equal to the amount of all pre-paid Property Costs incurred by Operating Affiliate or Specified Affiliate in connection with the ownership or operation of the Assets between the Effective Time and the Closing to the extent Operating Affiliate or Specified Affiliate have not been reimbursed prior to Closing by the Company Group (other than Operating Affiliate or Specified Affiliate), including (without limitation) such amounts that are (1) bond and insurance premiums and deductibles incurred by or on behalf of Company Group with respect to any period after the Effective Time (prorated as applicable), (2) Royalties, (3) cash calls to Third Party operators attributable to operations from and after the Effective Time, (4) pre-paid Property Costs incurred by or on behalf of Company Group prior to the Effective Time on behalf of the Working Interest of Third Party non-operators and other Third Party interest holders and attributable to operations from and after the Effective Time that have not been reimbursed or repaid as of the Effective Time, (5) bonus, lease extensions, rentals and other lease maintenance payments not due or payable until after the Effective Time, or (6) annual registration fees or well registration fees attributable to any period after the Effective Time (prorated as applicable), but excluding, for the avoidance of doubt, (x) any Transaction Costs and (y) any amounts that would constitute “Leakage”; and (iii) decreased by the amount of all Suspense Funds held by Operating Affiliate at Closing, to the extent such funds are not transferred to Purchaser’s or the Company Group’s control at the Closing; (k) increased or decreased, as applicable, by any other amounts expressly provided for elsewhere in this Agreement or otherwise agreed upon in writing by the Sellers’ Representative and Purchaser.
Appears in 1 contract
Samples: Securities Purchase Agreement (Matador Resources Co)
Adjustments to the Unadjusted Purchase Price. The Unadjusted Purchase Price shall shall, subject to the proviso set forth at the end of this Section 3.3, be adjusted, without duplication, as follows:
(a) increased or decreased with respect to by the Effective Time Working Capital as follows:
(i) increased, by an amount equal to the Effective Time Working Capital Second Lienholders Payoff Amount in the event the Effective Time Working Capital is a positive amount;
(ii) decreased, by an amount equal Second Lienholders Default has occurred prior to the absolute value of the Effective Time Working Capital in the event the Effective Time Working Capital is a negative amountClosing;
(b) increased, by an amount equal to the aggregate amount, if any, of all Cash and Cash Equivalent capital contributions made by or on behalf of Sellers after the Effective Time to the Company Group (but excluding Specified Affiliate, Operating Affiliate and Company)[RESERVED];
(c) increased or decreased with respect to certain Hedge Losses and/or Hedge Gains as follows:
(i) decreased, by an amount equal to the aggregate amount of all Hedge Losses attributable to the Company Hxxxxx paid by any member of the Company Group (excluding Specified Affiliate or Operating Affiliate) on or after the Effective Time, excluding any payments made at the Closing from the proceeds of the Closing Payments;
(ii) increased, by an amount equal to the aggregate amount of Hedge Gains attributable to the Company Hxxxxx paid to or received by any member of the Company Group (excluding Specified Affiliate or Operating Affiliate) on or after the Effective Time;
(d) increased or decreased with respect to certain Credit Document Indebtedness as follows:
(i) decreased by an amount, if any, equal to any Pre-Effective Time Credit Document Indebtedness that is paid or satisfied by Company Group (excluding Specified Affiliate or Operating Affiliate) during the period after the Effective Time and prior to the Closing, excluding any payments made at the Closing from the proceeds of the Closing Payments;
(ii) increased by an amount, if any, equal to any Post-Effective Time Credit Document Indebtedness (including any interest accrued thereon), that is paid or satisfied out of the proceeds of the Closing Payment or Closing Distribution under Section 2.6;
(e) decreased by the amount, if any, of all Leakage occurring on or after the Effective Time and prior to or at the Closing (including, without duplication, the Closing Distribution);
(f) increased or decreased with respect to Defects and Title Benefits as follows:
(i) decreased, in accordance with Section 3.2(g)(i) with respect to Defects and/or any Assets excluded pursuant to Section 3.2(g)(ii);
(ii) increased, in accordance with Section 3.2(h) with respect to Title Benefits;
(g) increased or decreased with respect to Excluded Assets as follows:
(i) increased, by an amount equal to the aggregate amounts received by Company Group Sellers (excluding Specified Affiliate or Operating Affiliateand not remitted to Buyer pursuant to clause (6) attributable of Section 3.3(f) below) with respect to or all income and proceeds earned with respect to the Assets from and after the Effective Time, including all amounts earned from any Excluded Assets the sale, during any the period from and after the Effective Time;
(ii) decreased, by the amount of all Property Costs paid by Company Group (excluding Specified Affiliate or Operating Affiliate), including all prepaid costs and expenses that are incurred in connection with the ownership or operation of the Excluded Assets, after the Effective Time;
(h) decreased, by an amount equal to the Transaction Costs (i) paid by Company Group (excluding Specified Affiliate or Operating Affiliate) after the Effective Time and prior to Closing or (ii) that remain outstanding and the obligation of Company Group (excluding Specified Affiliate or Operating Affiliate) as of the Closing (and that are not satisfied out of the proceeds of the Closing Payment or Closing Distribution under Section 2.6);
(i) increased or decreased with respect to Company Taxes as follows:
(i) increased, by (A) the amount of all Post-Effective Time Company Taxes that are paid or otherwise economically borne by any Seller, its Affiliates (other than the Company Group (excluding Specified Affiliate or Operating Affiliate)) or any Seller’s direct or indirect owners, and (B) the amount of all Post-Effective Time Company Taxes that are paid or otherwise economically borne by the Company Group (excluding Specified Affiliate or Operating Affiliate) prior to the Effective Time, but only to the extent that the amount so paid or otherwise economically borne by the Company Group (excluding Specified Affiliate or Operating Affiliate) resulted in a reduction in Effective Time Working Capital as compared to what Effective Time Working Capital would have been had such Post-Effective Time Company Taxes not been paid or otherwise economically borne by the Company Group (excluding Specified Affiliate or Operating Affiliate);
(ii) decreased, by (A) the amount of all Pre-Effective Time Company Taxes that are paid or otherwise economically borne by Purchaser, and (B) the amount of all Pre-Effective Time Company Taxes that are (1) paid or otherwise economically borne by the Company Group (excluding Specified Affiliate or Operating Affiliate) after the Effective Time but prior to the Closing Date or (2) unpaid as of the Closing Date (other than Pre-Effective Time Company Taxes required to be paid (or caused to be paid) by Sellers or an Affiliate thereof (other than a member of the Acquired Company Group) pursuant to Section 11.3(a));
(j) with respect to Operating Affiliate:
(i) adjusted for Imbalances, Hydrocarbon inventory and Hydrocarbons in storage of Operating Affiliate with respect to the Assets, in each case, as of the Effective Time as follows:
(A) decreased by the aggregate amount owed by Operating Affiliate to Third Parties for Imbalances attributable to the ownership or operation of the Assets for periods prior to the Effective Time (on the basis of the applicable Settlement Price);
(B) increased by the aggregate amount owed to Operating Affiliate by Third Parties for Imbalances attributable to the ownership or operation of the Assets for periods prior to the Effective Time (on the basis of the applicable Settlement Price); and
(C) (x) increased by the aggregate amount equal to Operating Affiliate’s, Sellers’ or any of their Affiliates’ (other than the Company Group, excluding Company and Operating Affiliate) entitlement of any Hydrocarbons in tanks or storage facilities produced from or credited to the Assets at the Effective Time based upon the quantities in tanks or storage facilities as of the Effective Time multiplied by the applicable Settlement Price;
(ii) without prejudice to any Party’s rights under Article 13, adjusted for proceeds and other income, receivables, Property Costs, and other costs (other than Taxes) attributable to the Assets as follows:
(A) decreased by an amount equal to the aggregate amount of the following proceeds to the extent actually received by Operating Affiliate but not delivered or disbursed to any member of the Company Group (other than Operating Affiliate or Specified Affiliate):
(1) amounts earned from the sale of Hydrocarbons produced from or attributable to the Assets during any period from and after the Effective Time (net of any Burdens paid by on or paid on behalf of Sellers, Operating Affiliate (other than any members of the Company Group excluding Operating Affiliate or Specified Affiliate)); and
(2) other income earned with respect to the Assets that is attributable to periods from and after the Effective Time;
(Bd) decreased by an amount equal to the aggregate amounts paid by Buyer at Closing pursuant to Section 4.2(b) and Section 4.2(c);
(e) increased by an amount equal to the remainder of (i) the aggregate amount of all Property Costs which are incurred by Operating Affiliate or Specified Affiliate Sellers attributable to periods after the Effective Time that are paid by Sellers to Third Parties prior to the Cut-Off Date less (ii) any insurance proceeds actually received by Sellers under third-party, non-captive insurance policies in connection with the ownership or operation of the Assets between Property Costs attributable to periods after the Effective Time and the Closing to the extent Operating Affiliate or Specified Affiliate have not been reimbursed prior to Closing by the Company Group (other than Operating Affiliate or Specified Affiliate) for the same;Time; and
(Cf) increased decreased by an amount equal to the amount of all pre-paid Property Costs incurred by Operating Affiliate or Specified Affiliate in connection with the ownership or operation of the Assets between the Effective Time and the Closing Assumed Prepetition Trade Claims; provided, however, that notwithstanding anything herein to the extent Operating Affiliate or Specified Affiliate have not been reimbursed prior to Closing by the Company Group (other than Operating Affiliate or Specified Affiliate), including (without limitation) such amounts that are contrary:
(1) bond and insurance premiums and deductibles incurred by or on behalf of Company Group with respect to any period after the Effective Time (prorated as applicableadjustments in Sections 3.3(a), if any, shall be applied solely to the Second Lienholders Payoff Amount and shall reduce the amounts, if any, to be received by the Second Lienholders therefrom;
(2) Royaltiesthe adjustment in Section 3.3(d), if any, shall be applied to the DIP/First Lien Payoff Amount and Subsequent Second Lienholders Payment as follows: (i) fifty percent (50%) of any amounts paid at Closing pursuant to Sections 4.2(b) and 4.2(c) shall be deducted from the DIP/First Lien Payoff Amount and shall reduce the amount to be received by the DIP Agent therefrom, and (ii) fifty percent (50%) of any amounts paid at Closing pursuant to Sections 4.2(b) and 4.2(c) shall be deducted from the Subsequent Second Lienholders Payment and shall reduce the amount, if any, to be received by the Second Lienholders therefrom;
(3) cash calls the adjustments in Section 3.3(c) and Section 3.3(f) shall not be applied to Third Party operators attributable to operations from and after the Effective Time, DIP/First Lien Payoff Amount or Second Lienholders Payoff Amount;
(4) pre-paid Property Costs incurred by or on behalf the amount of Company Group prior each adjustment to the Effective Time on behalf Unadjusted Purchase Price described in Section 3.3(c) shall be determined in accordance with GAAP using the accrual method of accounting and XXXXX, as consistently applied (the Working Interest of Third Party non-operators “Accounting Principles”);
(5) “Earned” and other Third Party interest holders “incurred” as used in Section 3.3(c) and Section 3.3(d) shall be interpreted in accordance with accounting recognition guidance under the Accounting Principles;
(6) Buyer shall be entitled to all Hydrocarbons produced from, or attributable to operations to, the Properties from and after the Effective Time that have not been reimbursed or repaid as of the Effective Time, and all proceeds thereof and to all other income earned (5) bonus, lease extensions, rentals and other lease maintenance payments not due or payable until after the Effective Time, or (6) annual registration fees or well registration fees attributable to any period after the Effective Time (prorated as applicable), but excludingincluding, for the avoidance of doubt, any reimbursements for overhead costs charged by Sellers to Third Parties under the applicable operating, unit agreement or other Contract and any and all refunds and indemnities) with respect to the Assets and received on or after Closing. Should any Seller or any Affiliate of Seller receive after Closing any Assets or proceeds or other income to which another Buyer is entitled under this subpart (x6), such Seller shall fully disclose, account for, and promptly remit the same to the Buyer;
(7) All adjustments and payments made pursuant to Section 3.3 shall be without duplication of any Transaction Costs and (y) any other amounts that would constitute “Leakage”adjusted, paid or received under this Agreement; and
(iii8) For purposes of allocating production under Section 3.3(c)(i) decreased by liquid Hydrocarbons shall be deemed to be “from or attributable to” the amount Assets when they are produced into the tank batteries related to or connected to each Well and (ii) gaseous Hydrocarbons shall be deemed to be “from or attributable to” the Assets when they pass through the delivery point sales meters or similar meters at the point of all Suspense Funds held by Operating Affiliate entry into the pipelines through which they are transported. Seller shall use reasonable interpolative procedures to arrive at Closingan allocation of production when exact meter readings, to the extent such funds gauging or strapping data are not transferred to Purchaser’s or the Company Group’s control at the Closing;
(k) increased or decreased, as applicable, by any other amounts expressly provided for elsewhere in this Agreement or otherwise agreed upon in writing by the Sellers’ Representative and Purchaseravailable.
Appears in 1 contract
Adjustments to the Unadjusted Purchase Price. The Unadjusted Purchase Price shall shall, subject to the proviso set forth at the end of this Section 3.3, be adjusted, without duplication, as follows:
(a) increased or decreased with respect to by the Effective Time Working Capital as follows:
(i) increased, by an amount equal to the Effective Time Working Capital Second Lienholders Payoff Amount in the event the Effective Time Working Capital is a positive amount;
(ii) decreased, by an amount equal Second Lienholders Default has occurred prior to the absolute value of the Effective Time Working Capital in the event the Effective Time Working Capital is a negative amountClosing;
(b) increased, by an amount equal to the aggregate amount, if any, of all Cash and Cash Equivalent capital contributions made by or on behalf of Sellers after the Effective Time to the Company Group (but excluding Specified Affiliate, Operating Affiliate and Company)[RESERVED];
(c) increased or decreased with respect to certain Hedge Losses and/or Hedge Gains as follows:
(i) decreased, by an amount equal to the aggregate amount of all Hedge Losses attributable to the Company Hxxxxx paid by any member of the Company Group (excluding Specified Affiliate or Operating Affiliate) on or after the Effective Time, excluding any payments made at the Closing from the proceeds of the Closing Payments;
(ii) increased, by an amount equal to the aggregate amount of Hedge Gains attributable to the Company Hxxxxx paid to or received by any member of the Company Group (excluding Specified Affiliate or Operating Affiliate) on or after the Effective Time;
(d) increased or decreased with respect to certain Credit Document Indebtedness as follows:
(i) decreased by an amount, if any, equal to any Pre-Effective Time Credit Document Indebtedness that is paid or satisfied by Company Group (excluding Specified Affiliate or Operating Affiliate) during the period after the Effective Time and prior to the Closing, excluding any payments made at the Closing from the proceeds of the Closing Payments;
(ii) increased by an amount, if any, equal to any Post-Effective Time Credit Document Indebtedness (including any interest accrued thereon), that is paid or satisfied out of the proceeds of the Closing Payment or Closing Distribution under Section 2.6;
(e) decreased by the amount, if any, of all Leakage occurring on or after the Effective Time and prior to or at the Closing (including, without duplication, the Closing Distribution);
(f) increased or decreased with respect to Defects and Title Benefits as follows:
(i) decreased, in accordance with Section 3.2(g)(i) with respect to Defects and/or any Assets excluded pursuant to Section 3.2(g)(ii);
(ii) increased, in accordance with Section 3.2(h) with respect to Title Benefits;
(g) increased or decreased with respect to Excluded Assets as follows:
(i) increased, by an amount equal to the aggregate amounts received by Company Group Sellers (excluding Specified Affiliate or Operating Affiliateand not remitted to Buyer pursuant to clause (6) attributable of Section 3.3(f) below) with respect to or all income and proceeds earned with respect to the Assets from and after the Effective Time, including all amounts earned from any Excluded Assets the sale, during any the period from and after the Effective Time;
(ii) decreased, by the amount of all Property Costs paid by Company Group (excluding Specified Affiliate or Operating Affiliate), including all prepaid costs and expenses that are incurred in connection with the ownership or operation of the Excluded Assets, after the Effective Time;
(h) decreased, by an amount equal to the Transaction Costs (i) paid by Company Group (excluding Specified Affiliate or Operating Affiliate) after the Effective Time and prior to Closing or (ii) that remain outstanding and the obligation of Company Group (excluding Specified Affiliate or Operating Affiliate) as of the Closing (and that are not satisfied out of the proceeds of the Closing Payment or Closing Distribution under Section 2.6);
(i) increased or decreased with respect to Company Taxes as follows:
(i) increased, by (A) the amount of all Post-Effective Time Company Taxes that are paid or otherwise economically borne by any Seller, its Affiliates (other than the Company Group (excluding Specified Affiliate or Operating Affiliate)) or any Seller’s direct or indirect owners, and (B) the amount of all Post-Effective Time Company Taxes that are paid or otherwise economically borne by the Company Group (excluding Specified Affiliate or Operating Affiliate) prior to the Effective Time, but only to the extent that the amount so paid or otherwise economically borne by the Company Group (excluding Specified Affiliate or Operating Affiliate) resulted in a reduction in Effective Time Working Capital as compared to what Effective Time Working Capital would have been had such Post-Effective Time Company Taxes not been paid or otherwise economically borne by the Company Group (excluding Specified Affiliate or Operating Affiliate);
(ii) decreased, by (A) the amount of all Pre-Effective Time Company Taxes that are paid or otherwise economically borne by Purchaser, and (B) the amount of all Pre-Effective Time Company Taxes that are (1) paid or otherwise economically borne by the Company Group (excluding Specified Affiliate or Operating Affiliate) after the Effective Time but prior to the Closing Date or (2) unpaid as of the Closing Date (other than Pre-Effective Time Company Taxes required to be paid (or caused to be paid) by Sellers or an Affiliate thereof (other than a member of the Acquired Company Group) pursuant to Section 11.3(a));
(j) with respect to Operating Affiliate:
(i) adjusted for Imbalances, Hydrocarbon inventory and Hydrocarbons in storage of Operating Affiliate with respect to the Assets, in each case, as of the Effective Time as follows:
(A) decreased by the aggregate amount owed by Operating Affiliate to Third Parties for Imbalances attributable to the ownership or operation of the Assets for periods prior to the Effective Time (on the basis of the applicable Settlement Price);
(B) increased by the aggregate amount owed to Operating Affiliate by Third Parties for Imbalances attributable to the ownership or operation of the Assets for periods prior to the Effective Time (on the basis of the applicable Settlement Price); and
(C) (x) increased by the aggregate amount equal to Operating Affiliate’s, Sellers’ or any of their Affiliates’ (other than the Company Group, excluding Company and Operating Affiliate) entitlement of any Hydrocarbons in tanks or storage facilities produced from or credited to the Assets at the Effective Time based upon the quantities in tanks or storage facilities as of the Effective Time multiplied by the applicable Settlement Price;
(ii) without prejudice to any Party’s rights under Article 13, adjusted for proceeds and other income, receivables, Property Costs, and other costs (other than Taxes) attributable to the Assets as follows:
(A) decreased by an amount equal to the aggregate amount of the following proceeds to the extent actually received by Operating Affiliate but not delivered or disbursed to any member of the Company Group (other than Operating Affiliate or Specified Affiliate):
(1) amounts earned from the sale of Hydrocarbons produced from or attributable to the Assets during any period from and after the Effective Time (net of any Burdens paid by on or paid on behalf of Sellers, Operating Affiliate (other than any members of the Company Group excluding Operating Affiliate or Specified Affiliate)); and
(2) other income earned with respect to the Assets that is attributable to periods from and after the Effective Time;
(Bd) decreased by an amount equal to the aggregate amounts paid by Buyer at Closing pursuant to Section 4.2(b) and Section 4.2(c);
(e) increased by an amount equal to the remainder of (i) the aggregate amount of all Property Costs which are incurred by Operating Affiliate or Specified Affiliate Sellers attributable to periods after the Effective Time that are paid by Sellers to Third Parties prior to the Cut-Off Date less (ii) any insurance proceeds actually received by Sellers under third-party, non-captive insurance policies in connection with the ownership or operation of the Assets between Property Costs attributable to periods after the Effective Time and the Closing to the extent Operating Affiliate or Specified Affiliate have not been reimbursed prior to Closing by the Company Group (other than Operating Affiliate or Specified Affiliate) for the same;Time; and
(Cf) increased decreased by an amount equal to the amount of all pre-paid Property Costs incurred by Operating Affiliate or Specified Affiliate in connection with the ownership or operation of the Assets between the Effective Time and the Closing Assumed Prepetition Trade Claims; provided, however, that notwithstanding anything herein to the extent Operating Affiliate or Specified Affiliate have not been reimbursed prior to Closing by the Company Group (other than Operating Affiliate or Specified Affiliate), including (without limitation) such amounts that are contrary:
(1) bond and insurance premiums and deductibles incurred by or on behalf of Company Group with respect to any period after the Effective Time (prorated as applicableadjustments in Sections 3.3(a), if any, shall be applied solely to the Second Lienholders Payoff Amount and shall reduce the amounts, if any, to be received by the Second Lienholders therefrom;
(2) Royaltiesthe adjustment in Section 3.3(d), if any, shall be applied to the DIP/First Lien Payoff Amount and Subsequent Second Lienholders Payment as follows: (i) fifty percent (50%) of any amounts paid at Closing pursuant to Sections 4.2(b) and 4.2(c) shall be deducted from the DIP/First Lien Payoff Amount and shall reduce the amount to be received by the DIP Agent therefrom, and (ii) fifty percent (50%) of any amounts paid at Closing pursuant to Sections 4.2(b) and 4.2(c) shall be deducted from the Subsequent Second Lienholders Payment and shall reduce the amount, if any, to be received by the Second Lienholders therefrom;
(3) cash calls the adjustments in Section 3.3(c) and Section 3.3(f) shall not be applied to Third Party operators attributable to operations from and after the Effective Time, DIP/First Lien Payoff Amount or Second Lienholders Payoff Amount;
(4) pre-paid Property Costs incurred by or on behalf of Company Group prior to the Effective Time on behalf of the Working Interest of Third Party non-operators and other Third Party interest holders and attributable to operations from and after the Effective Time that have not been reimbursed or repaid as of the Effective Time, (5) bonus, lease extensions, rentals and other lease maintenance payments not due or payable until after the Effective Time, or (6) annual registration fees or well registration fees attributable to any period after the Effective Time (prorated as applicable), but excluding, for the avoidance of doubt, (x) any Transaction Costs and (y) any amounts that would constitute “Leakage”; and
(iii) decreased by the amount of all Suspense Funds held by Operating Affiliate at Closing, each adjustment to the extent such funds are not transferred to Purchaser’s or Unadjusted Purchase Price described in Section 3.3(c) shall be determined in accordance with GAAP using the Company Group’s control at the Closing;
(k) increased or decreasedaccrual method of accounting and XXXXX, as applicable, by any other amounts expressly provided for elsewhere in this Agreement or otherwise agreed upon in writing by consistently applied (the Sellers’ Representative and Purchaser.“Accounting Principles”);
Appears in 1 contract
Samples: Asset Purchase Agreement
Adjustments to the Unadjusted Purchase Price. The Unadjusted Purchase Price shall be adjusted, without duplication, as follows:
(a) increased or decreased with respect to the Effective Time Working Capital as follows:
(i) increased, by an amount equal to the Effective Time Working Capital in the event the Effective Time Working Capital is a positive amount;
(iib) decreased, decreased by an amount equal to the absolute value of the Effective Time Working Capital in the event the Effective Time Working Capital is a negative amount;
(bc) increased, increased by an amount equal to the aggregate amount, if any, of all Cash and Cash Equivalent capital cash contributions made during the Pre-Closing Period to any member of the Company Group by or on behalf of Sellers Seller (including any and all Property Costs and Post-Effective Time Non-Income Taxes incurred in the ordinary course of business that are, in each case, paid by Seller on behalf of any member of the Company Group after the Effective Time to Time), other than by another member of the Company Group (but excluding Specified Affiliate, Operating Affiliate and Company)Group;
(cd) increased or decreased with respect to certain Hedge Losses and/or Hedge Gains as follows:
(i) decreased, by an amount equal to the aggregate amount of all Hedge Losses attributable Leakage;
(e) decreased by an amount, if any, equal to the Company Hxxxxx any Indebtedness that is paid or satisfied by any member of the Company Group (excluding Specified Affiliate or Operating Affiliate) on or after during the Effective TimePre-Closing Period, excluding (i) any payments made at the Closing from the proceeds of the Closing PaymentsPayments in accordance with Section 10.3(a) and (i) any payment or satisfaction of any Indebtedness for which the Unadjusted Purchase Price is otherwise decreased pursuant to clause (f) below;
(ii) increased, by an amount equal to the aggregate amount of Hedge Gains attributable to the Company Hxxxxx paid to or received by any member of the Company Group (excluding Specified Affiliate or Operating Affiliate) on or after the Effective Time;
(d) increased or decreased with respect to certain Credit Document Indebtedness as follows:
(if) decreased by an amount, if any, equal to (i) any Pre-Indebtedness of the Company Group (other than Indebtedness For Borrowed Money) outstanding as of the Effective Time Credit Document Time, excluding any Indebtedness that is paid or satisfied by Company Group (excluding Specified Affiliate or Operating Affiliate) during the period after the Effective Time and prior to the Closing, excluding any payments made at the Closing from the proceeds of the Closing PaymentsPayments in accordance with Section 10.3(a) and (i) any Indebtedness For Borrowed Money outstanding as of the Closing, excluding any Indebtedness that is paid or satisfied at the Closing from the proceeds of the Closing Payments in accordance with Section 10.3(a);
(iig) increased by an amount, if any, equal to the sum of (i) any Indebtedness For Borrowed Money that is incurred by the Company Group during the Pre-Closing Period (other than any interest and fees incurred on the principal amount of any such Indebtedness that is outstanding as of the Effective Time) (any such Indebtedness, “Post-Effective Time Credit Document Indebtedness”) plus (i) the Indebtedness (including any interest accrued thereon), that is paid or satisfied out of the proceeds of the Closing Payment or Closing Distribution under Section 2.6Interest Amount;
(eh) decreased by the amount, if any, of all Leakage occurring on or after the Effective Time and prior to or at the Closing (including, without duplication, the Closing Distribution);
(fin accordance with Section 3.2(g) increased or decreased with respect to Defects and Title Benefits as follows:Defects;
(i) decreased, increased in accordance with Section 3.2(g)(i) with respect to Defects and/or any Assets excluded pursuant to Section 3.2(g)(ii);
(ii) increased, in accordance with Section 3.2(h) with respect to Title Benefits;
(g) increased or decreased with respect to Excluded Assets as follows:
(i) increased, by an amount equal to the aggregate amounts received by Company Group (excluding Specified Affiliate or Operating Affiliate) attributable to or earned from any Excluded Assets during any period from and after the Effective Time;
(ii) decreased, by the amount of all Property Costs paid by Company Group (excluding Specified Affiliate or Operating Affiliate), including all prepaid costs and expenses that are incurred in connection with the ownership or operation of the Excluded Assets, after the Effective Time;
(h) decreased, by an amount equal to the Transaction Costs (i) paid by Company Group (excluding Specified Affiliate or Operating Affiliate) after the Effective Time and prior to Closing or (ii) that remain outstanding and the obligation of Company Group (excluding Specified Affiliate or Operating Affiliate) as of the Closing (and that are not satisfied out of the proceeds of the Closing Payment or Closing Distribution under Section 2.6);
(i) increased or decreased with respect to Company Taxes as follows:
(i) increased, by (A) the amount of all Post-Effective Time Company Taxes that are paid or otherwise economically borne by any Seller, its Affiliates (other than the Company Group (excluding Specified Affiliate or Operating Affiliate)) or any Seller’s direct or indirect owners, and (B) the amount of all Post-Effective Time Company Taxes that are paid or otherwise economically borne by the Company Group (excluding Specified Affiliate or Operating Affiliate) prior to the Effective Time, but only to the extent that the amount so paid or otherwise economically borne by the Company Group (excluding Specified Affiliate or Operating Affiliate) resulted in a reduction in Effective Time Working Capital as compared to what Effective Time Working Capital would have been had such Post-Effective Time Company Taxes not been paid or otherwise economically borne by the Company Group (excluding Specified Affiliate or Operating Affiliate);
(ii) decreased, by (A) the amount of all Pre-Effective Time Company Taxes that are paid or otherwise economically borne by Purchaser, and (B) the amount of all Pre-Effective Time Company Taxes that are (1) paid or otherwise economically borne by the Company Group (excluding Specified Affiliate or Operating Affiliate) after the Effective Time but prior to the Closing Date or (2) unpaid as of the Closing Date (other than Pre-Effective Time Company Taxes required to be paid (or caused to be paid) by Sellers or an Affiliate thereof (other than a member of the Acquired Company Group) pursuant to Section 11.3(a));
(j) with respect to Operating Affiliate:
(i) adjusted for Imbalances, Hydrocarbon inventory and Hydrocarbons in storage of Operating Affiliate with respect to the Assets, in each case, as of the Effective Time as follows:
(A) decreased by the aggregate amount owed by Operating Affiliate to Third Parties for Imbalances attributable to the ownership or operation of the Assets for periods prior to the Effective Time (on the basis of the applicable Settlement Price);
(B) increased by the aggregate amount owed to Operating Affiliate by Third Parties for Imbalances attributable to the ownership or operation of the Assets for periods prior to the Effective Time (on the basis of the applicable Settlement Price); and
(C) (x) increased by the aggregate amount equal to Operating Affiliate’s, Sellers’ or any of their Affiliates’ (other than the Company Group, excluding Company and Operating Affiliate) entitlement of any Hydrocarbons in tanks or storage facilities produced from or credited to the Assets at the Effective Time based upon the quantities in tanks or storage facilities as of the Effective Time multiplied by the applicable Settlement Price;
(ii) without prejudice to any Party’s rights under Article 13, adjusted for proceeds and other income, receivables, Property Costs, and other costs (other than Taxes) attributable to the Assets as follows:
(Aj) decreased by an amount equal to the aggregate amount of the following proceeds to the extent actually received by Operating Affiliate but not delivered or disbursed to any member of the Company Group (other than Operating Affiliate or Specified Affiliate):
(1) amounts earned from the sale of Hydrocarbons produced from or attributable to the Assets during any period from and after the Effective Time (net of any Burdens paid by or paid on behalf of SellersTransaction Costs, Operating Affiliate (other than any members of the Company Group excluding Operating Affiliate or Specified Affiliate)); and
(2) other income earned with respect to the Assets that is attributable to periods from and after the Effective Time;
(B) increased by an amount equal to the amount of all Property Costs which are incurred by Operating Affiliate or Specified Affiliate in connection with the ownership or operation of the Assets between the Effective Time and the Closing to the extent Operating Affiliate or Specified Affiliate have not been reimbursed prior to Closing by the Company Group (other than Operating Affiliate or Specified Affiliate) for the same;
(C) increased by an amount equal to the amount of all pre-paid Property Costs incurred by Operating Affiliate or Specified Affiliate in connection with the ownership or operation of the Assets between the Effective Time and the Closing to the extent Operating Affiliate or Specified Affiliate have not been reimbursed prior to Closing by the Company Group (other than Operating Affiliate or Specified Affiliate), including (without limitation) such amounts that are (1) bond and insurance premiums and deductibles incurred by or on behalf of Company Group with respect to any period after the Effective Time (prorated as applicable), (2) Royalties, (3) cash calls to Third Party operators attributable to operations from and after the Effective Time, (4) pre-paid Property Costs incurred by or on behalf of Company Group prior to the Effective Time on behalf of the Working Interest of Third Party non-operators and other Third Party interest holders and attributable to operations from and after the Effective Time that have not been reimbursed or repaid as of the Effective Time, (5) bonus, lease extensions, rentals and other lease maintenance payments not due or payable until after the Effective Time, or (6) annual registration fees or well registration fees attributable to any period after the Effective Time (prorated as applicable), but excluding, for the avoidance of doubt, (x) any Transaction Costs and (y) any amounts that would constitute “Leakage”; and
(iii) decreased by the amount of all Suspense Funds held by Operating Affiliate at Closing, to the extent such funds are not transferred to Purchaser’s or the Company Group’s control paid at the Closing;
(k) increased or decreased, as applicable, by any other amounts expressly provided for elsewhere Closing from the proceeds of the Closing Payments in this Agreement or otherwise agreed upon in writing by the Sellers’ Representative and Purchaseraccordance with Section 10.3(a).
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