Determinations of the Borrowing Base; Removal of Certain Lenders. (1) The Lenders may from time to time determine the Borrowing Base in their sole discretion in accordance with their usual and customary lending parameters and practices for Canadian borrowing base credit facilities and the Agent shall deliver to the Borrower a written notice specifying each such determination (each such notice, a "Borrowing Base Notice"). Each determination of the Borrowing Base by the Lenders shall be binding and conclusive for all purposes hereof and shall be effective (a) in the case of an increase in the Borrowing Base, immediately upon receipt by the Borrower of the Borrowing Base Notice specifying the same, (b) in the case of a decrease in the Borrowing Base resulting from the sale, transfer, assignment or other disposition of P&NG Rights previously included by the Lenders in the determination of the Borrowing Base (including the disposition of a Subsidiary) or any Hedge Monetization, immediately upon receipt by the Borrower of the Borrowing Base Notice specifying the same, and (c) in the case of all other decreases in the Borrowing Base, 60 days after receipt by the Borrower of the Borrowing Base Notice specifying the same, in each case until the coming into effect of a subsequent determination of the Borrowing Base. As at the date hereof, the Borrowing Base has been determined by the Lenders to be Cdn.$235,000,000. (2) The Borrowing Base shall be determined and re-determined as follows: (a) within 45 days after receipt of the annual Engineering Report delivered to the Agent pursuant to Section 10.1(e)(vii) or the update to such report delivered to the Agent pursuant to Section 10.1(e)(viii), as the case may be, the Lenders shall attempt to reach unanimous agreement on a new Borrowing Base; (b) if all of the Lenders agree to the amount of the Borrowing Base within such 45 day period, then the Agent shall deliver a Borrowing Base Notice to the Borrower (with a copy thereof to each Lender) specifying such agreed upon Borrowing Base; and (c) if all of the Lenders cannot agree on the amount of the Borrowing Base within such 45 day period, then the Borrowing Base shall be deemed to have been determined by the Lenders as the lowest Borrowing Base amount proposed by a Lender or Lenders (each such Lender, a "Lowest Borrowing Base Lender") to the Agent and other Lenders by written notice within such period, and promptly after the expiry of such 45 day period the Agent shall deliver a Borrowing Base Notice to the Borrower (with a copy thereof to each Lender) specifying such Borrowing Base. In addition to and without limiting the foregoing, the Lenders may determine and re-determine the Borrowing Base at any time and from time to time (in addition to the aforementioned determinations of the Borrowing Base after receipt of the annual Engineering Report and the update thereto) with the agreement of all Lenders or if the amounts received by the Borrower and its Subsidiaries from all Hedge Monetizations since the immediately preceding determination of the Borrowing Base together with the proceeds received by the Borrower and its Subsidiaries from the sales, transfers, assignments or other dispositions (for certainty, other than Permitted Dispositions) which the Borrower and its Subsidiaries are entitled to make pursuant to Section 10.2(d) exceeds, in the aggregate, 10% of the then current Borrowing Base. For certainty, but subject to Section 2.24(1), the then current Borrowing Base shall remain in effect unless and until there has been an agreement of all of the Lenders or expiry of the aforementioned 45 day period and determination of the Borrowing Base pursuant to Section 2.24(2)(c). (3) If the Borrowing Base has been determined pursuant to Section 2.24(2)(c), the Borrower shall have the right: (a) to require any Lowest Borrowing Base Lender to assign its Commitments, its Rateable Portion of all Loans and other Obligations and all of its rights, benefits and interests under the Documents to other Lenders which have agreed to increase their Commitments or to other financial institutions acceptable to the Agent and the Fronting Lender, each acting reasonably, and the provisions of Section 2.20(6)(a) shall apply thereto, mutatis mutandis; or (b) to repay a Lowest Borrowing Base Lender's Rateable Portion of all Loans outstanding under the Credit Facilities, together with all accrued but unpaid interest and fees thereon with respect to its Commitments (without making corresponding repayment to the other Lenders) and cancel such Lowest Borrowing Base Lender's Commitments, and the provisions of Section 2.20(6)(b) shall apply thereto, mutatis mutandis.
Appears in 1 contract
Samples: Credit Agreement
Determinations of the Borrowing Base; Removal of Certain Lenders. (1) The Lenders may from time to time determine the Borrowing Base in their sole discretion in accordance with their usual and customary lending parameters and practices for Canadian borrowing base credit facilities and the Agent shall deliver to the Borrower a written notice specifying each such determination (each such notice, a "“Borrowing Base Notice"”). Each determination of the Borrowing Base by the Lenders shall be binding and conclusive for all purposes hereof and shall be effective (a) in the case of an increase in the Borrowing Base, or a re-affirmation of the same Borrowing Base, immediately upon receipt by the Borrower of the Borrowing Base Notice specifying the same, (b) in the case of a decrease in the Borrowing Base resulting from the saleDisposition of any Borrowing Base Properties (including (i) the Disposition of a Subsidiary, transfer, assignment or other disposition and (ii) any Disposition of P&NG Rights previously included by the Lenders in the determination respect of the Borrowing Base (including Properties in connection with the disposition granting of a Subsidiary) royalty in such P&NG Rights), any Hedge Monetization or the Borrower or any Hedge MonetizationSubsidiary becoming subject to ARO Order(s) and/or Energy Regulator Demand(s) for Deposits, immediately upon receipt by the Borrower of the Borrowing Base Notice specifying the same, and (c) in the case of all other decreases in the Borrowing Base, 60 days after receipt by the Borrower of the Borrowing Base Notice specifying the same, and in each case until the coming into effect of a subsequent determination of the Borrowing Base. As at the date hereof, the Borrowing Base has been determined by the Lenders to be Cdn.$235,000,000Cdn.$250,000,000.
(2) The Borrowing Base shall be determined and re-determined as follows:
(a) within 45 days after receipt by May 31st of each year in respect of the annual Engineering Report delivered to the Agent pursuant to Section 10.1(e)(vii9.1(e)(vii) or and by November 30th of each year in respect of the update to such report delivered to the Agent pursuant to Section 10.1(e)(viii9.1(e)(viii), as the case may be, the Lenders shall attempt to reach unanimous agreement on a new Borrowing Base; the next scheduled determination of the Borrowing Base shall be November 30, 2022;
(b) if all of the Lenders agree to the amount of the Borrowing Base within such 45 day periodby May 31st or November 30th, as the case may be, then the Agent shall deliver a Borrowing Base Notice to the Borrower (with a copy thereof to each Lender) specifying such agreed upon Borrowing Base; and
(c) if all of the Lenders cannot agree on the amount of the Borrowing Base by May 31st or November 30th or within such 45 day period30 days in the case of any of (i) to (iv) below, as the case may be, then the Borrowing Base shall be deemed to have been determined by the Lenders as the lowest Borrowing Base amount proposed by a Lender or Lenders (each acting in good faith) (such Lender, a "“Lowest Borrowing Base Lender"”) to the Agent and other Lenders by written notice within such periodnotice, and promptly after each May 31st or November 30th or the expiry of such 45 30 day period period, as the case may be, the Agent shall deliver a Borrowing Base Notice to the Borrower (with a copy thereof to each Lender) specifying such Borrowing Base. In addition to and without limiting the foregoing, the Lenders may determine and re-determine the Borrowing Base at any time and from time to time (in addition to the aforementioned determinations of the Borrowing Base after receipt of the annual Engineering Report and the update thereto):
(i) with at the agreement request of all Lenders the Majority of the Lenders, upon the occurrence of any event, matter or circumstance which has had or would reasonably be expected to have a Material Adverse Effect;
(ii) once per calendar year at the request of the Majority of the Lenders;
(iii) at the request of the Majority of the Lenders, if the amounts received by Borrower or any Subsidiary becomes subject to any ARO Order and/or any Energy Regulator Demand for Deposits, the aggregate estimated cost of compliance with all such ARO Orders and Energy Regulator Demands for Deposits (without duplication), would exceed the Threshold Amount; for the purpose of determining the estimated cost for purposes of this clause (iii), the Borrower shall provide the Agent with a reasonable estimate of such costs within fifteen (15) Banking Days of its receipt of the applicable order or demand and its Subsidiaries from shall deliver to each Lender all Hedge Monetizations since such other relevant information related to such estimate as may be reasonably required by any such Lender; or
(iv) for certainty, to the immediately preceding extent the same may be required pursuant to Section 9.2(d), 9.2(g) or 9.2(k), in each of the foregoing cases, any such determination or re-determination of the Borrowing Base together with the proceeds received that is initiated as aforesaid shall be completed by the Borrower and its Subsidiaries from Lenders within 30 days after the sales, transfers, assignments or other dispositions (for certainty, other than Permitted Dispositions) which Agent provides written notice to the Borrower and its Subsidiaries are entitled to make pursuant to Section 10.2(d) exceeds, in the aggregate, 10% that any of the then current Borrowing Basesuch Lenders have requested such determination or re-determination. For certainty, but subject to Section 2.24(12.23(2)(c), the then current Borrowing Base shall remain in effect unless and until there has been an agreement of all of the Lenders or expiry of the aforementioned 45 30 day period and determination or re-determination of the Borrowing Base pursuant to Section 2.24(2)(c2.23(2)(c).
(3) If the Borrowing Base has been determined pursuant to Section 2.24(2)(c2.23(2)(c), the Borrower shall have the right:
(a) to require any Lowest Borrowing Base Lender to assign its Commitments, its Rateable Portion of all Loans and other Obligations and all of its rights, benefits and interests under the Documents to other Lenders which have agreed to increase their Commitments or to other financial institutions acceptable to the Agent and the Fronting LenderAgent, each acting reasonably, and the provisions of Section 2.20(6)(a2.19(5) shall apply thereto, mutatis mutandis; or
(b) to repay a Lowest Borrowing Base Lender's ’s Rateable Portion of all Loans outstanding under the Credit Facilities, together with all accrued but unpaid interest and fees thereon with respect to its Commitments (without making corresponding repayment to the other Lenders) and cancel such Lowest Borrowing Base Lender's ’s Commitments, and the provisions of Section 2.20(6)(b2.19(5) shall apply thereto, mutatis mutandis.
(4) The Borrower may request, one additional time between scheduled determinations and re-determinations of the Borrowing Base set forth in Section 2.23(2) a re-determination of the Borrowing Base upon notice to the Agent. Upon such request, the Borrowing Base will be re-determined as soon as reasonably practicable, provided that the Borrower has made available to the Agent, for the benefit of the Lenders, the current information which, in the opinion of the Majority of the Lenders, acting reasonably, is required to perform such re-determination. The Borrowing Base will be adjusted effective on the date specified in the notice of same given by the Agent to the Borrower. In connection with any such re-determination, the Agent on behalf of the Lenders will be entitled to charge the Borrower a reasonable “work fee” to be agreed upon between the Borrower and the Agent.
(5) If, after a Borrowing Base determination or re-determination, a Borrowing Base Shortfall exists, the Borrower will, within 60 days after receipt by the Borrower of notice of the Borrowing Base Shortfall: (a) repay Loans under the Credit Facilities to the extent necessary to reduce the Outstanding Principal of Loans under the Credit Facilities by not less than the amount of the Borrowing Base Shortfall and/or (b) add sufficient oil and gas properties as determined by the Lenders to eliminate the Borrowing Base Shortfall. For certainty, the Borrower shall not be entitled to request Drawdowns during the occurrence of a Borrowing Base Shortfall.
(6) At the request of the Agent, the Borrower will meet annually or semi-annually, with the Lenders at a time and place mutually acceptable to the Borrower and the Lenders to review and discuss the production profile of the Borrowing Base Properties, and such other matters affecting the Borrower and the Material Subsidiaries’ business as the Lenders may request, acting reasonably.
Appears in 1 contract
Determinations of the Borrowing Base; Removal of Certain Lenders. (1) The Lenders may from time to time determine the Borrowing Base in their sole discretion in accordance with their usual and customary lending parameters and practices for Canadian borrowing base credit facilities and the Agent shall deliver to the Borrower a written notice specifying each such determination (each such notice, a "“Borrowing Base Notice"”). Each determination, re-determination or re-affirmation of the Borrowing Base by the Lenders shall be binding and conclusive for all purposes hereof and shall be effective (a) in the case of an increase in the Borrowing Base, immediately upon receipt by the Borrower of the Borrowing Base Notice specifying the same, (b) in the case of a decrease in the Borrowing Base resulting from the sale, transfer, assignment or other disposition of P&NG Rights previously included by the Lenders in the determination of the Borrowing Base (including the disposition of a Subsidiary) or any Hedge Monetization, immediately upon receipt by the Borrower of the Borrowing Base Notice specifying the same, and (c) in the case of all other decreases in the Borrowing Base, 60 days after receipt by the Borrower of the Borrowing Base Notice specifying the same, in each case until the coming into effect of a subsequent determination determination, redetermination or re-affirmation of the Borrowing Base. As at the effective date hereof, the Borrowing Base has been determined by the Lenders to be Cdn.$235,000,000Cdn.$300,000,000.
(2) The Subject to Section 2.23(6), the Borrowing Base shall be determined and re-determined as follows:
(a) within 45 days after receipt by May 31st of each year in respect of the annual Engineering Report delivered to the Agent pursuant to Section 10.1(e)(vii) or and by November 30th of each year in respect of the update to such report delivered to the Agent pursuant to Section 10.1(e)(viii), as the case may be, the Lenders shall attempt to reach unanimous agreement on a new Borrowing Base;
(b) if all of the Lenders agree to the amount of the Borrowing Base within such 45 day periodby May 31st or November 30th, as the case may be, then the Agent shall deliver a Borrowing Base Notice to the Borrower (with a copy thereof to each Lender) specifying such agreed upon Borrowing Base; and
(c) if all of the Lenders cannot agree on the amount of the Borrowing Base within such 45 day periodby May 31st, November 30th, as the case may be, then the Borrowing Base shall be deemed to have been determined by the Lenders as the lowest Borrowing Base amount proposed by a Lender or Lenders (each acting in good faith) (such Lender, a "“Lowest Borrowing Base Lender"”) to the Agent and other Lenders by written notice within such periodnotice, and promptly after each May 31st, November 30th, as the expiry of such 45 day period case may be, the Agent shall deliver a Borrowing Base Notice to the Borrower (with a copy thereof to each Lender) specifying such Borrowing Base. In addition to and without limiting the foregoing, the Lenders may determine and re-determine the Borrowing Base at any time and from time to time (in addition to the aforementioned determinations of the Borrowing Base after receipt of the annual Engineering Report and the update thereto): (i) once per calendar year, at the request of the Majority of the Lenders; and (ii) at any time and from time to time:
(A) If there has been any Disposition of P&NG Rights previously included by the Lenders in the determination of the Borrowing Base (including any related P&NG Leases and related facilities, infrastructure or other tangibles, collectively, the “Borrowing Base Properties”), including (I) the disposition of a Material Subsidiary which holds any Borrowing Base Properties and (II) any sale, transfer, assignment or other Disposition of P&NG Rights in connection with the agreement granting of all Lenders or if a royalty in such P&NG Rights, in each case where the amounts Disposition is not a Permitted Disposition; and, in any such case, the aggregate proceeds received by the Borrower and its Subsidiaries from all Hedge Monetizations therefrom since the immediately preceding determination of the Borrowing Base together with exceeds the proceeds received by Threshold Amount; or
(B) at the request of the Majority of the Lenders, if the Borrower or any Subsidiary becomes subject to any ARO Order and/or any Energy Regulator Demand for Deposit, the aggregate estimated cost of compliance with all such ARO Orders and its Subsidiaries from Energy Regulator Demands for Deposit (without duplication), would exceed the salesThreshold Amount; for the purpose of determining the estimated cost for purposes of this subparagraph (B), transfers, assignments or other dispositions (for certainty, other than Permitted Dispositions) which the Borrower and shall provide the Agent with a reasonable estimate of such costs within fifteen (15) Banking Days of its Subsidiaries are entitled to make pursuant to Section 10.2(d) exceeds, in the aggregate, 10% receipt of the then current Borrowing Base. applicable order or demand and shall deliver to each Lender all such other relevant information related to such estimate as may be reasonably required by any such Lender, For certainty, but subject to Section 2.24(1), the then current Borrowing Base shall remain in effect unless and until there has been an agreement of all of the Lenders or expiry of the aforementioned 45 day period and determination or re-determination of the Borrowing Base pursuant to Section 2.24(2)(c2.23(2)(c).
(3) If the Borrowing Base has been determined pursuant to Section 2.24(2)(c2.23(2)(c), the Borrower shall have the right:
(a) to require any Lowest Borrowing Base Lender to assign its Commitments, its Rateable Portion of all Loans and other Obligations and all of its rights, benefits and interests under the Documents to other Lenders which have agreed to increase their Commitments or to other financial institutions acceptable to the Agent and the Fronting LenderAgent, each acting reasonably, and the provisions of Section 2.20(6)(a2.20(5)(a) shall apply thereto, mutatis mutandis; or
(b) to repay a Lowest Borrowing Base Lender's ’s Rateable Portion of all Loans outstanding under the Credit Facilities, together with all accrued but unpaid interest and fees thereon with respect to its Commitments (without making corresponding repayment to the other Lenders) and cancel such Lowest Borrowing Base Lender's ’s Commitments, and the provisions of Section 2.20(6)(b2.20(5)(b) shall apply thereto, mutatis mutandis, provided that no Default or Event of Default shall have occurred and be continuing on and as of the date of such repayment and cancellation nor shall such repayment and/or cancellation result in the occurrence of a Default or Event of Default.
(4) The Borrower may request, one additional time between scheduled determinations and re-determinations of the Borrowing Base set forth in Section 2.23(2) a re-determination of the Borrowing Base upon notice to the Agent. Upon such request, the Borrowing Base will be re-determined as soon as reasonably practicable, provided that the Borrower has made available to the Agent, for the benefit of the Lenders, the current information which, in the opinion of the Majority of the Lenders, acting reasonably, is required to perform such re-determination. The Borrowing Base will be adjusted effective on the date specified in the notice of same given by the Agent to the Borrower. In connection with any such re-determination, the Agent on behalf of the Lenders will be entitled to charge the Borrower a reasonable “work fee” to be agreed upon between the Borrower and the Agent.
(5) If, after a Borrowing Base determination or redetermination, a Borrowing Base Shortfall exists, the Borrower will within 30 days after receipt of notice of the Borrowing Base Shortfall repay Loans under the Credit Facilities to the extent necessary to reduce the Outstanding Principal of Loans under the Credit Facilities by not less than the amount of the Borrowing Base Shortfall. The Borrower shall not be entitled to request Drawdowns during the occurrence of a Borrowing Base Shortfall.
(6) Notwithstanding anything herein or in the other Documents to the contrary, all of the Lenders may defer or suspend any Borrowing Base determination or re-determination (including on or in respect of any scheduled date specified in Section 2.23(2)) required or otherwise contemplated to be made hereby in their sole discretion, and if such Lenders make such determination to defer or suspend as aforesaid, no such determination or re-determination shall be required to be made.
Appears in 1 contract
Determinations of the Borrowing Base; Removal of Certain Lenders. (1) The Lenders may from time to time determine the Borrowing Base in their sole discretion in accordance with their usual and customary lending parameters and practices for Canadian borrowing base credit facilities and the Agent shall deliver to the Borrower a written notice specifying each such determination (each such notice, a "“Borrowing Base Notice"”). Each determination of the Borrowing Base by the Lenders shall be binding and conclusive for all purposes hereof and shall be effective (a) in the case of an increase in the Borrowing Base, or a re-affirmation of the same Borrowing Base, immediately upon receipt by the Borrower of the Borrowing Base Notice specifying the same, (b) in the case of a decrease in the Borrowing Base resulting from the saleDisposition of any Borrowing Base Properties (including (i) the Disposition of a Subsidiary, transfer, assignment or other disposition and (ii) any Disposition of P&NG Rights previously included by the Lenders in the determination respect of the Borrowing Base (including Properties in connection with the disposition granting of a Subsidiary) royalty in such P&NG Rights), any Hedge Monetization or the Borrower or any Hedge MonetizationSubsidiary becoming subject to ARO Order(s) and/or Energy Regulator Demand(s) for Deposits, immediately upon receipt by the Borrower of the Borrowing Base Notice specifying the same, and (c) in the case of all other decreases in the Borrowing Base, 60 days after receipt by the Borrower of the Borrowing Base Notice specifying the same, and in each case until the coming into effect of a subsequent determination of the Borrowing Base. As at the date hereof, the Borrowing Base has been determined by the Lenders to be Cdn.$235,000,000the principal amount of the Credit Facilities available hereunder (that is, Cdn.$205,000,000) and, for certainty, the Borrowing Base shall be deemed to be reduced by the principal amount of the Term Loan Facility repaid from time to time until the Borrowing Base is Cdn.$175,000,000.
(2) The Borrowing Base shall be determined and re-determined as follows:
(a) within 45 days after receipt by May 31st of each year in respect of the annual Engineering Report delivered to the Agent pursuant to Section 10.1(e)(vii9.1(e)(vii) or and by November 30th of each year in respect of the update to such report delivered to the Agent pursuant to Section 10.1(e)(viii9.1(e)(viii), as the case may be, the Lenders shall attempt to reach unanimous agreement on a new Borrowing Base; the next scheduled determination of the Borrowing Base shall be November 30, 2022;
(b) if all of the Lenders agree to the amount of the Borrowing Base within such 45 day periodby May 31st or November 30th, as the case may be, then the Agent shall deliver a Borrowing Base Notice to the Borrower (with a copy thereof to each Lender) specifying such agreed upon Borrowing Base; and
(c) if all of the Lenders cannot agree on the amount of the Borrowing Base by May 31st or November 30th or within such 45 day period30 days in the case of any of (i) to (iv) below, as the case may be, then the Borrowing Base shall be deemed to have been determined by the Lenders as the lowest Borrowing Base amount proposed by a Lender or Lenders (each acting in good faith) (such Lender, a "“Lowest Borrowing Base Lender"”) to the Agent and other Lenders by written notice within such periodnotice, and promptly after each May 31st or November 30th or the expiry of such 45 30 day period period, as the case may be, the Agent shall deliver a Borrowing Base Notice to the Borrower (with a copy thereof to each Lender) specifying such Borrowing Base. In addition to and without limiting the foregoing, the Lenders may determine and re-determine the Borrowing Base at any time and from time to time (in addition to the aforementioned determinations of the Borrowing Base after receipt of the annual Engineering Report and the update thereto):
(i) with at the agreement request of all Lenders the Majority of the Lenders, upon the occurrence of any event, matter or circumstance which has had or would reasonably be expected to have a Material Adverse Effect;
(ii) once per calendar year at the request of the Majority of the Lenders;
(iii) at the request of the Majority of the Lenders, if the amounts received by Borrower or any Subsidiary becomes subject to any ARO Order and/or any Energy Regulator Demand for Deposits, the aggregate estimated cost of compliance with all such ARO Orders and Energy Regulator Demands for Deposits (without duplication), would exceed the Threshold Amount; for the purpose of determining the estimated cost for purposes of this clause (B), the Borrower shall provide the Agent with a reasonable estimate of such costs within fifteen (15) Banking Days of its receipt of the applicable order or demand and its Subsidiaries from shall deliver to each Lender all Hedge Monetizations since such other relevant information related to such estimate as may be reasonably required by any such Lender; or
(iv) for certainty, to the immediately preceding extent the same may be required pursuant to Section 9.2(d), 9.2(g) or 9.2(k), in each of the foregoing cases, any such determination or re-determination of the Borrowing Base together with the proceeds received that is initiated as aforesaid shall be completed by the Borrower and its Subsidiaries from Lenders within 30 days after the sales, transfers, assignments or other dispositions (for certainty, other than Permitted Dispositions) which Agent provides written notice to the Borrower and its Subsidiaries are entitled to make pursuant to Section 10.2(d) exceeds, in the aggregate, 10% that any of the then current Borrowing Basesuch Lenders have requested such determination or re-determination. For certainty, but subject to Section 2.24(12.23(2)(c), the then current Borrowing Base shall remain in effect unless and until there has been an agreement of all of the Lenders or expiry of the aforementioned 45 30 day period and determination or re-determination of the Borrowing Base pursuant to Section 2.24(2)(c2.23(2)(c).
(3) If the Borrowing Base has been determined pursuant to Section 2.24(2)(c2.23(2)(c), the Borrower shall have the right:
(a) to require any Lowest Borrowing Base Lender to assign its Commitments, its Rateable Portion of all Loans and other Obligations and all of its rights, benefits and interests under the Documents to other Lenders which have agreed to increase their Commitments or to other financial institutions acceptable to the Agent and the Fronting LenderAgent, each acting reasonably, and the provisions of Section 2.20(6)(a2.19(5) shall apply thereto, mutatis mutandis; or
(b) to repay a Lowest Borrowing Base Lender's ’s Rateable Portion of all Loans outstanding under the Credit Facilities, together with all accrued but unpaid interest and fees thereon with respect to its Commitments (without making corresponding repayment to the other Lenders) and cancel such Lowest Borrowing Base Lender's ’s Commitments, and the provisions of Section 2.20(6)(b2.19(5) shall apply thereto, mutatis mutandis.
(4) The Borrower may request, one additional time between scheduled determinations and re-determinations of the Borrowing Base set forth in Section 2.23(2) a re-determination of the Borrowing Base upon notice to the Agent. Upon such request, the Borrowing Base will be re-determined as soon as reasonably practicable, provided that the Borrower has made available to the Agent, for the benefit of the Lenders, the current information which, in the opinion of the Majority of the Lenders, acting reasonably, is required to perform such re-determination. The Borrowing Base will be adjusted effective on the date specified in the notice of same given by the Agent to the Borrower. In connection with any such re-determination, the Agent on behalf of the Lenders will be entitled to charge the Borrower a reasonable “work fee” to be agreed upon between the Borrower and the Agent.
(5) If, after a Borrowing Base determination or re-determination, a Borrowing Base Shortfall exists, the Borrower will, within 60 days after receipt by the Borrower of notice of the Borrowing Base Shortfall: (a) repay Loans under the Credit Facilities to the extent necessary to reduce the Outstanding Principal of Loans under the Credit Facilities by not less than the amount of the Borrowing Base Shortfall and/or (b) add sufficient oil and gas properties as determined by the Lenders to eliminate the Borrowing Base Shortfall. For certainty, the Borrower shall not be entitled to request Drawdowns during the occurrence of a Borrowing Base Shortfall.
(6) At the request of the Agent, the Borrower will meet annually or semi-annually, with the Lenders at a time and place mutually acceptable to the Borrower and the Lenders to review and discuss the production profile of the Borrowing Base Properties, and such other matters affecting the Borrower and the Material Subsidiaries’ business as the Lenders may request, acting reasonably.
Appears in 1 contract
Determinations of the Borrowing Base; Removal of Certain Lenders. (1) The Lenders may from time to time determine the Borrowing Base in their sole discretion in accordance with their usual and customary lending parameters and practices for Canadian borrowing base credit facilities and the Agent shall deliver to the Borrower a written notice specifying each such determination (each such notice, a "Borrowing Base Notice"). Each determination, re-determination or re-affirmation of the Borrowing Base by the Lenders shall be binding and conclusive for all purposes hereof and shall be effective (a) in the case of an increase in the Borrowing Base, immediately upon receipt by the Borrower of the Borrowing Base Notice specifying the same, (b) in the case of a decrease in the Borrowing Base resulting from the sale, transfer, assignment or other disposition of P&NG Rights previously included by the Lenders in the determination of the Borrowing Base (including the disposition of a Subsidiary) or any Hedge Monetization, immediately upon receipt by the Borrower of the Borrowing Base Notice specifying the same, and (c) in the case of all other decreases in the Borrowing Base, 60 days after receipt by the Borrower of the Borrowing Base Notice specifying the same, in each case until the coming into effect of a subsequent determination determination, redetermination or re-affirmation of the Borrowing Base. As at the effective date hereof, the Borrowing Base has been determined by the Lenders to be Cdn.$235,000,000Cdn.$300,000,000.
(2) The Subject to Section 2.23(6), the Borrowing Base shall be determined and re-determined as follows:
(a) within 45 days after receipt by May 31st of each year in respect of the annual Engineering Report delivered to the Agent pursuant to Section 10.1(e)(vii) or and by November 30th of each year in respect of the update to such report delivered to the Agent pursuant to Section 10.1(e)(viii), as the case may be, the Lenders shall attempt to reach unanimous agreement on a new Borrowing Base;
(b) if all of the Lenders agree to the amount of the Borrowing Base within such 45 day periodby May 31st or November 30th, as the case may be, then the Agent shall deliver a Borrowing Base Notice to the Borrower (with a copy thereof to each Lender) specifying such agreed upon Borrowing Base; and
(c) if all of the Lenders cannot agree on the amount of the Borrowing Base within such 45 day periodby May 31st, November 30th, as the case may be, then the Borrowing Base shall be deemed to have been determined by the Lenders as the lowest Borrowing Base amount proposed by a Lender or Lenders (each acting in good faith) (such Lender, a "Lowest Borrowing Base Lender") to the Agent and other Lenders by written notice within such periodnotice, and promptly after each May 31st, November 30th, as the expiry of such 45 day period case may be, the Agent shall deliver a Borrowing Base Notice to the Borrower (with a copy thereof to each Lender) specifying such Borrowing Base. In addition to and without limiting the foregoing, the Lenders may determine and re-determine the Borrowing Base at any time and from time to time (in addition to the aforementioned determinations of the Borrowing Base after receipt of the annual Engineering Report and the update thereto): (i) once per calendar year, at the request of the Majority of the Lenders; and (ii) at any time and from time to time:
(A) If there has been any Disposition of P&NG Rights previously included by the Lenders in the determination of the Borrowing Base (including any related P&NG Leases and related facilities, infrastructure or other tangibles, collectively, the "Borrowing Base Properties"), including (I) the disposition of a Material Subsidiary which holds any Borrowing Base Properties and (II) any sale, transfer, assignment or other Disposition of P&NG Rights in connection with the agreement granting of all Lenders or if a royalty in such P&NG Rights, in each case where the amounts Disposition is not a Permitted Disposition; and, in any such case, the aggregate proceeds received by the Borrower and its Subsidiaries from all Hedge Monetizations therefrom since the immediately preceding determination of the Borrowing Base together with exceeds the proceeds received by Threshold Amount; or
(B) at the request of the Majority of the Lenders, if the Borrower or any Subsidiary becomes subject to any ARO Order and/or any Energy Regulator Demand for Deposit, the aggregate estimated cost of compliance with all such ARO Orders and its Subsidiaries from Energy Regulator Demands for Deposit (without duplication), would exceed the salesThreshold Amount; for the purpose of determining the estimated cost for purposes of this subparagraph (B), transfers, assignments or other dispositions (for certainty, other than Permitted Dispositions) which the Borrower and shall provide the Agent with a reasonable estimate of such costs within fifteen (15) Banking Days of its Subsidiaries are entitled to make pursuant to Section 10.2(d) exceeds, in the aggregate, 10% receipt of the then current Borrowing Base. applicable order or demand and shall deliver to each Lender all such other relevant information related to such estimate as may be reasonably required by any such Lender, For certainty, but subject to Section 2.24(1), the then current Borrowing Base shall remain in effect unless and until there has been an agreement of all of the Lenders or expiry of the aforementioned 45 day period and determination or re-determination of the Borrowing Base pursuant to Section 2.24(2)(c2.23(2)(c).
(3) If the Borrowing Base has been determined pursuant to Section 2.24(2)(c2.23(2)(c), the Borrower shall have the right:
(a) to require any Lowest Borrowing Base Lender to assign its Commitments, its Rateable Portion of all Loans and other Obligations and all of its rights, benefits and interests under the Documents to other Lenders which have agreed to increase their Commitments or to other financial institutions acceptable to the Agent and the Fronting LenderAgent, each acting reasonably, and the provisions of Section 2.20(6)(a2.20(5)(a) shall apply thereto, mutatis mutandis; or
(b) to repay a Lowest Borrowing Base Lender's Rateable Portion of all Loans outstanding under the Credit Facilities, together with all accrued but unpaid interest and fees thereon with respect to its Commitments (without making corresponding repayment to the other Lenders) and cancel such Lowest Borrowing Base Lender's Commitments, and the provisions of Section 2.20(6)(b2.20(5)(b) shall apply thereto, mutatis mutandis, provided that no Default or Event of Default shall have occurred and be continuing on and as of the date of such repayment and cancellation nor shall such repayment and/or cancellation result in the occurrence of a Default or Event of Default.
(4) The Borrower may request, one additional time between scheduled determinations and re-determinations of the Borrowing Base set forth in Section 2.23(2) a re-determination of the Borrowing Base upon notice to the Agent. Upon such request, the Borrowing Base will be re-determined as soon as reasonably practicable, provided that the Borrower has made available to the Agent, for the benefit of the Lenders, the current information which, in the opinion of the Majority of the Lenders, acting reasonably, is required to perform such re-determination. The Borrowing Base will be adjusted effective on the date specified in the notice of same given by the Agent to the Borrower. In connection with any such re-determination, the Agent on behalf of the Lenders will be entitled to charge the Borrower a reasonable "work fee" to be agreed upon between the Borrower and the Agent.
(5) If, after a Borrowing Base determination or redetermination, a Borrowing Base Shortfall exists, the Borrower will within 30 days after receipt of notice of the Borrowing Base Shortfall repay Loans under the Credit Facilities to the extent necessary to reduce the Outstanding Principal of Loans under the Credit Facilities by not less than the amount of the Borrowing Base Shortfall. The Borrower shall not be entitled to request Drawdowns during the occurrence of a Borrowing Base Shortfall.
(6) Notwithstanding anything herein or in the other Documents to the contrary, all of the Lenders may defer or suspend any Borrowing Base determination or re-determination (including on or in respect of any scheduled date specified in Section 2.23(2)) required or otherwise contemplated to be made hereby in their sole discretion, and if such Lenders make such determination to defer or suspend as aforesaid, no such determination or re-determination shall be required to be made.
Appears in 1 contract
Determinations of the Borrowing Base; Removal of Certain Lenders. (1) The Lenders may from time to time determine the Borrowing Base in their sole discretion in accordance with their usual and customary lending parameters and practices for Canadian borrowing base credit facilities and the Agent shall deliver to the Borrower a written notice specifying each such determination (each such notice, a "“Borrowing Base Notice"”). Each determination of the Borrowing Base by the Lenders shall be binding and conclusive for all purposes hereof and shall be effective (a) in the case of an increase in the Borrowing Base, or a re-affirmation of the same Borrowing Base, immediately upon receipt by the Borrower of the Borrowing Base Notice specifying the same, (b) in the case of a decrease in the Borrowing Base resulting from the saleDisposition of any Borrowing Base Properties (including (i) the Disposition of a Material Subsidiary, transfer, assignment or other disposition and (ii) any Disposition of P&NG Rights previously included by in connection with the Lenders in the determination of the Borrowing Base (including the disposition granting of a Subsidiary) royalty in such P&NG Rights), any Hedge Monetization or the Borrower or any Hedge MonetizationSubsidiary becoming subject to ARO Order(s) and/or Energy Regulator Demand(s) for Deposits, immediately upon receipt by the Borrower of the Borrowing Base Notice specifying the same, and (c) in the case of all other decreases in the Borrowing BaseBase (i) prior to the ECF Termination Date, 30 days after receipt by the Borrower of the Borrowing Base Notice specifying the same and (ii) on or after the ECF Termination Date, 60 days after receipt by the Borrower of the Borrowing Base Notice specifying the same, and in each case until the coming into effect of a subsequent determination of the Borrowing Base. As at the date hereofEffective Date, the Borrowing Base has been determined by the Lenders to be Cdn.$235,000,000Cdn.$50,000,000.
(2) The Borrowing Base shall be determined and re-determined as follows:
(a) within 45 days after receipt by May 31st of each year in respect of the annual Engineering Report delivered to the Agent pursuant to Section 10.1(e)(vii9.1(e)(vii) or and by November 30th of each year (other than 2023) in respect of the update to such report delivered to the Agent pursuant to Section 10.1(e)(viii9.1(e)(viii), as the case may be, the Lenders shall attempt to reach unanimous agreement on a new Borrowing Base; the next scheduled determination of the Borrowing Base shall occur by May 31, 2024;
(b) if all of the Lenders agree to the amount of the Borrowing Base within such 45 day periodby the applicable dates provided for in clause (a) above, as the case may be, then the Agent shall deliver a Borrowing Base Notice to the Borrower (with a copy thereof to each Lender) specifying such agreed upon Borrowing Base; and
(c) if all of the Lenders cannot agree on the amount of the Borrowing Base within such 45 day periodby the applicable dates provided for in clause (a) above, as the case may be, then the Borrowing Base shall be deemed to have been determined by the Lenders as the lowest Borrowing Base amount proposed by a Lender or Lenders (each acting in good faith) (each such Lender, a "“Lowest Borrowing Base Lender"”) to the Agent and other Lenders by written notice within such periodnotice, and promptly after the expiry of such 45 day period applicable dates provided for in clause (a) above, as the case may be, the Agent shall deliver a Borrowing Base Notice to the Borrower (with a copy thereof to each Lender) specifying such Borrowing Base. In addition to and without limiting the foregoing, the Lenders may determine and re-determine the Borrowing Base at any time and from time to time (in addition to the aforementioned determinations of the Borrowing Base after receipt of the annual Engineering Report and the update thereto):
(i) once per calendar year at the request of the Majority of the Lenders;
(ii) at the request of the Majority of the Lenders, if the Borrower or any Subsidiary becomes subject to any ARO Order and/or any Energy Regulator Demand for Deposit, the aggregate estimated cost of compliance with all such ARO Orders and Energy Regulator Demand for Deposits (without duplication), would exceed 10% of the agreement then applicable Borrowing Base; for the purpose of determining the estimated cost for purposes of this subparagraph (ii), the Borrower shall provide the Agent with a reasonable estimate of such costs within fifteen (15) Banking Days of its receipt of the applicable order or demand and shall deliver to each Lender all Lenders such other relevant information related to such estimate as may be reasonably required by any such Lender;
(iii) at the request of the Majority of the Lenders, if the Borrower and its Subsidiaries acquire upstream oil and gas xxxxx, facilities, pipelines and other P&NG Rights (whether by way of purchase, merger, amalgamation or other transaction) which have uninflated and undiscounted asset abandonment, reclamation or retirement obligations associated therewith, in the aggregate, of greater than the Threshold Amount; or
(iv) if the amounts received by the Borrower and its Subsidiaries from all Hedge Monetizations since the immediately preceding determination of the Borrowing Base together with the proceeds received by the Borrower and its Subsidiaries from the sales, transfers, assignments or other dispositions (for certainty, other than Permitted Dispositions) which the Borrower and its Subsidiaries are entitled to make pursuant to Section 10.2(d9.2(d) exceeds, in the aggregate, 10% of the then current applicable Borrowing Base. For certainty, but subject to Section 2.24(1), the then current Borrowing Base shall remain in effect unless and until there has been an agreement of all of the Lenders or expiry of the aforementioned 45 day period and determination of the Borrowing Base pursuant to Section 2.24(2)(c2.22(2)(c).
(3) If the Borrowing Base has been determined pursuant to Section 2.24(2)(c2.22(2)(c), the Borrower shall have the right:
(a) to require any Lowest Borrowing Base Lender to assign its Commitments, its Rateable Portion of all Loans and other Obligations and all of its rights, benefits and interests under the Documents to other Lenders which have agreed to increase their Commitments or to other financial institutions acceptable to the Agent and the Fronting LenderAgent, each acting reasonably, and the provisions of Section 2.20(6)(a2.19(5)(a) shall apply thereto, mutatis mutandis; or
(b) to repay a Lowest Borrowing Base Lender's ’s Rateable Portion of all Loans outstanding under the Credit Facilities, together with all accrued but unpaid interest and fees thereon with respect to its Commitments (without making corresponding repayment to the other Lenders) and cancel such Lowest Borrowing Base Lender's ’s Commitments, and the provisions of Section 2.20(6)(b2.19(5)(b) shall apply thereto, mutatis mutandis.
(4) If, after a Borrowing Base determination or re-determination, a Borrowing Base Shortfall exists, the Borrower will, (a) prior to the ECF Termination Date, within 30 days after receipt by the Borrower of notice of the Borrowing Base Shortfall, and (b) on or after the ECF Termination Date, within 60 days after receipt by the Borrower of notice of the Borrowing Base Shortfall: (i) repay Loans under the Credit Facilities to the extent necessary to reduce the Outstanding Principal of Loans under the Credit Facilities by not less than the amount of the Borrowing Base Shortfall and/or (ii) add sufficient oil and gas properties as determined by the Lenders to eliminate the Borrowing Base Shortfall. For certainty, the Borrower shall not be entitled to request Drawdowns during the occurrence of a Borrowing Base Shortfall.
(5) At the request of the Agent, the Borrower will meet annually or semi-annually, with the Lenders at a time and place mutually acceptable to the Borrower and the Lenders to review and discuss the production profile of the Borrowing Base Properties, and such other matters affecting the Borrower and the Material Subsidiaries’ business as the Lenders may request, acting reasonably.
Appears in 1 contract
