Conditions Precedent This Sixth Amendment will take effect on the date on which the conditions set forth below in this Section 4 are satisfied or waived in accordance with Section 12.02 of the Credit Agreement (the “Sixth Amendment Effective Date”). The Administrative Agent shall notify the Borrower and the Lenders of the Sixth Amendment Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, this Sixth Amendment shall not become effective unless each of the foregoing conditions is satisfied at or prior to 2:00 p.m., central standard time, on February 28, 2014 (and, in the event such conditions are not so satisfied or waived, this Sixth Amendment shall be deemed null and void and of no force and effect).
4.1 The Administrative Agent shall have received counterparts of this Sixth Amendment from the Loan Parties and each of the Lenders.
4.2 The Administrative Agent shall have received duly executed counterparts of (a) the Parent Guaranty and Pledge Agreement executed by REA and REI, (b) an assumption agreement executed by Alpha Shale Holdings and Alpha Shale Resources pursuant to which Alpha Shale Holdings and Alpha Shale Resources will become parties to the Guaranty and Pledge Agreement and the Intercreditor Agreement, (c) new mortgages duly executed by Alpha Shale Resources and (d) any amendments requested by the Administrative Agent to any existing mortgages previously delivered by a Loan Party under the Credit Agreement, in each case, in form and substance satisfactory to the Administrative Agent. In connection with the execution and delivery of the such Security Instruments, the Administrative Agent shall be reasonably satisfied that the Liens under such Security Instruments will, upon the recording of such Security Instruments and the requisite UCC financing statements, as applicable, be first priority, perfected Liens (subject only to Permitted Liens other than Liens securing Permitted Second Lien Debt), after giving effect to the Alpha Shale Acquisition, on (i) at least 80% of the total PV10 of the proved Oil and Gas Properties evaluated in the most recent Reserve Report (as supplemented by any applicable Reserve Report relating to the Oil and Gas Properties of Alpha Shale Resources), (ii) 80% of the Unproven Utica Shale Acreage, (iii) substantially all of each Gathering System then in operation, and (iv) all other Property purported to be pledged as Collateral pursuant to the Security Instruments including, without limitation, all Equity Interests in each Loan Party other than REI.
4.3 To the extent not already in possession of the Administrative Agent, the Administrative Agent shall have received the original certificates, if any exist, evidencing the Equity Interests of each Loan Party (other than REI), together with an appropriate undated stock or equity interest power for each certificate duly executed in blank by the registered owner thereof.
4.4 The Administrative Agent shall have received duly executed Notes payable to each Lender requesting a Note in a principal amount equal to its Maximum Credit Amount (as amended hereby) dated as of the date hereof.
4.5 The Administrative Agent shall have received a certificate of the Secretary, Assistant Secretary or a Responsible Officer of the Borrower and each other Loan Party setting forth (a) resolutions of the members, board of directors or other appropriate governing body with respect to the authorization of the Borrower or such other Loan Party to execute and deliver the Loan Documents to which it is a party and to enter into the transactions contemplated hereby and in those documents, (b) the officers of the Borrower or such other Loan Party who are authorized to sign the Loan Documents to which such Loan Party is a party and who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with the Credit Agreement and the transactions contemplated hereby, (c) specimen signatures of such authorized officers, and (d) the limited liability company agreement, the articles or certificate of incorporation and bylaws (or comparable organizational documents) of the Borrower and such other Loan Party, certified as being true and complete (or, if previously delivered and certified in connection with the Credit Agreement, a certification that such documents have not been amended, modified, supplemented or rescinded and remain in full force and effect). The Administrative Agent and the Lenders may conclusively rely on each such certificate until the Administrative Agent receives notice in writing from the Borrower to the contrary.
4.6 The Administrative Agent shall have received certificates of the appropriate State agencies with respect to the existence, qualification and good standing of the Borrower and each other Loan Party.
4.7 The IPO shall have been consummated in accordance with (a) the Form S-1 Registration Statement File No. 333-192894 initially filed by REI with the SEC on December 16, 2013, as amended prior to the date hereof (the “Registration Statement”), (b) the certificate of incorporation and other organizational documents of REI and (c) all Governmental Requirements, and the Administrative Agent shall have received copies of any documentation related thereto that it has reasonably requested.
4.8 The consummation of the IPO shall have resulted in gross cash proceeds to REI in an amount not less than $400,000,000, and REI shall have contributed, directly or indirectly, all of such proceeds (less underwriting discounts, offering expenses and other costs of the IPO) to the Borrower and/or shall have used such net cash proceeds for the Borrower’s benefit to complete the Alpha Shale Acquisition and pay the Alpha Shale Group Debt.
4.9 The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower certifying (a) that Rice Drilling C is concurrently consummating the Alpha Shale Acquisition and acquiring all of the Specified Equity Interests as contemplated in the Alpha Shale Acquisition Agreement, with no condition precedent or other provision of the Alpha Shale Acquisition Agreement having been waived, amended, supplemented or otherwise modified in any manner that is adverse to the interests of the Lenders, (b) as to the purchase price to be paid for the Specified Equity Interests on or about the Sixth Amendment Effective Date, after giving effect to all adjustments, if any, as of the Sixth Amendment Effective Date contemplated by the Alpha Shale Acquisition Agreement, (c) that attached to such certificate is a true, correct and complete copy of all amendments, if any, to the Alpha Shale Acquisition Agreement (or, if there have not been any amendments to the Alpha Shale Acquisition Agreement after December 6, 2013, such certificate shall include a statement to that effect), (d) that, after giving effect to the Alpha Shale Acquisition, Rice Drilling C owns, directly or indirectly, 100% of the outstanding Equity Interests of both Alpha Shale Holdings and Alpha Shale Resources, and (e) that the IPO Related Transactions have been consummated or are being consummated contemporaneously herewith.
4.10 After giving effect to the Alpha Shale Acquisition and any additional title information delivered to the Administrative Agent in connection therewith, the Administrative Agent shall have received title information satisfactory to it on at least 80% of the total PV10 of the Proved Oil and Gas Properties evaluated in the most recent Reserve Report, as supplemented by any applicable Reserve Report relating to the Properties of Alpha Shale Resources (but not, for the avoidance of doubt, with respect to the status of title on the Gathering Systems).
4.11 The Administrative Agent shall be satisfied that (a) the Alpha Shale Group Debt and all other amounts due under the Alpha Shale Credit Agreement have been or are being paid in full, (b) that all commitments to lend thereunder have been terminated, and (c) all Liens securing such the Alpha Shale Credit Agreement will be released upon such payment in full.
4.12 The Administrative Agent shall have received an opinion of Xxxxxxxx & Xxxxxx, LLP, special counsel to the Loan Parties, and local counsel in the States of Ohio and Pennsylvania, in each case in form and substance reasonably satisfactory to the Administrative Agent.
4.13 The Administrative Agent shall have received a certificate of insurance coverage of the Borrower, the Parent Guarantors and the Guarantors evidencing that such entities are carrying insurance in accordance with Section 7.12 of the Credit Agreement (after giving effect to this Sixth Amendment).
4.14 The Administrative Agent and Xxxxx Fargo Securities, LLC shall have received all fees and other amounts due and payable on or prior to the Sixth Amendment Effective Date including, without limitation, the upfront fees described in Section 4.15 below.
4.15 The Administrative Agent shall have received, for the account of each of the Lenders, upfront fees in an aggregate amount for each such Lender equal to (a) fifty basis points (0.50%) of the amount of such Lender’s Increased Commitment (as defined below), if any, (b) twelve and one half basis points (0.125%) of the amount of such Lender’s Continued Alpha Shale Commitment (as defined below), if any, and (c) seven and one half basis points (0.075%) of the amount of such Lender’s Continued Rice Commitment (as defined below), if any. As used in this Section 4.15 with respect to any Lender:
Conditions Precedent to Initial Advance The obligation of each Lender to make its initial Advance hereunder shall be subject to the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) each of the Facility Documents (other than the Collateral Agent Fee Letter which shall be delivered directly to the Collateral Agent) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Equityholder and the Servicer as in effect on the Closing Date;
(c) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its designated manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(d) [Reserved];
(e) [Reserved];
(f) a certificate of a Responsible Officer of the Servicer certifying, respectively, (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (iv) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(g) financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable) in proper form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(h) copies of proper financing statement amendments (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower, the Equityholder or any transferor;
(i) legal opinions (addressed to each of the Secured Parties) of counsel to the Borrower, the Equityholder, the Servicer, the Collateral Agent and the Custodian, covering such matters as the Administrative Agent and its counsel shall reasonably request;
(j) evidence reasonably satisfactory to it that all of the Covered Accounts shall have been established, and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect;
(k) evidence that (i) all fees and expenses due and payable to each Lender on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; (ii) the reasonable and documented fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to the Administrative Agent, in connection with the transactions contemplated hereby (to the extent invoiced prior the Closing Date); and (iii) all other reasonable and documented up-front expenses and fees (including legal fees of outside counsel and any fees required under the Collateral Agent Fee Letter) that are, in the case of clauses (ii) and (iii), invoiced at least one Business Day prior to the Closing Date, shall have been paid by the Borrower;
(l) delivery of such Collateral (including any promissory note, executed assignment agreements and Word or pdf copies of the principal credit agreement for each initial Collateral Loan, to the extent received by the Borrower) in accordance with the Custodian Agreement shall have been effected;
(m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, certifying to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and, in the case of clauses (i) through (iii) below, immediately prior to the delivery thereof on the Closing Date:
(i) the Borrower is the owner of such Collateral free and clear of any Liens except for those which are being released on the Closing Date or Permitted Liens;
(ii) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than Permitted Liens or interests granted pursuant to this Agreement; and
(iii) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except Permitted Liens or as permitted by this Agreement; and
(n) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested.
