Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by Banks at least semi-annually and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limits.
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations of (a) By each Evaluation Date, Borrower shall furnish to each Lender the Borrowing Base Engineering Report described in Section 5.1(b)(iv), together with all other information and data which Administrative Agent has then reasonably requested concerning the Related Persons' businesses and properties. Within thirty days after receiving such reports and other information and data, or as promptly thereafter as practicable, Administrative Agent shall be made by Banks at least semi-annually and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of propose to Lenders an amount for the Borrowing Base, and within thirty days thereafter each Lender will notify Administrative Agent of whether or not it accepts such proposed amount. Failure of any Lender to give such notice within such time period shall be deemed to constitute acceptance of such proposed amount by such Lender. If such proposed amount is not accepted by Majority Lenders (or, if Administrative Agent has proposed an increase in the Banks Borrowing Base, by Supermajority Lenders), Administrative Agent and Lenders shall also determine the Monthly Commitment Reduction. Such continue to discuss a new Borrowing Base until such time as Administrative Agent and Monthly Commitment Reduction determinations Majority Lenders (or, if the Borrowing Base is to be increased, Supermajority Lenders) shall have agreed upon an amount for the new Borrowing Base, and promptly thereafter Administrative Agent shall notify Borrower of such amount.
(b) Within five Business Days after receipt of such notice from Administrative Agent, Borrower shall by notice to Administrative Agent either accept such amount as the new Borrowing Base or reduce the Borrowing Base from the amount proposed by Administrative Agent to any lesser amount. (Failure by Borrower to take either such action within such five Business Day period shall be made deemed acceptance of such amount.) Upon any such acceptance or deemed acceptance by Borrower, a new Borrowing Base in the amount accepted shall take effect on such date (herein called a "Determination Date") and shall remain in effect until but not including the next Determination Date. Upon any such reduction by Borrower, a new Borrowing Base in the reduced amount specified by Borrower shall take effect on such date (herein also called a "Determination Date") and shall remain in effect until but not including the next Determination Date.
(c) Whenever any of the following events occur:
(i) the Related Persons, in one or before more transactions after the Determination Date immediately preceding the time in question (or, prior to the first Determination Date, after the date hereof) make aggregate Borrowing Base Asset Sales of $50,000,000 or more, or
(ii) Borrower decides, as contemplated in Section 5.2(b)(iv), to make any unscheduled payment of Subordinated Indebtedness, or
(iii) the Related Persons, in one or more transactions after the Determination Date immediately preceding the time in question (or, prior to the first Determination Date, after 32 the date hereof) make aggregate Forward Sales/Production Payments of $10,000,000 or more, then Borrower will promptly give notice of such event to Administrative Agent and each November 20 Lender and, upon receipt of such notice, Majority Lenders (acting through Administrative Agent) may, at their option, either (1) specify an additional Evaluation Date as contemplated in subsection (d) of the definition in Section 1.1 of "Evaluation Date" and May 20, commencing November 20, 1998, thereafter receive the same to be effective as of each November 1 reports and May 1, commencing November 1, 1998information, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize contemplated above in this Section 2.11, or (2) request any supplemental information which they reasonably desire from Borrower without requiring all such reports and appraisals other information, and then designate a new Borrowing Base as Borrower may furnish they deem appropriate in light of such event and such supplemental information (provided that any increase in the Borrowing Base must be consented to Banks through Agent under other provisions hereof with respect to by Supermajority Lenders). Upon any such designation, a new Borrowing Base in the Collateral, amount designated shall take effect on such date (herein also called a "Determination Date") and shall remain in effect until but not including the next Determination Date.
(d) If Borrower does not furnish all of the reports, information, and data referred to in the first sentence of subsection (a) of this section by the date specified in such sentence, or promptly furnish any supplemental information required pursuant which Administrative Agent requests as contemplated in clause (2) of subsection (c) of this section, then Administrative Agent may designate the Borrowing Base at any amount which Administrative Agent and Majority Lenders (or Supermajority Lenders, in the case of an increase) determine and may redesignate the Borrowing Base from time to Section 12(a)(iiitime thereafter until each Lender receives all such information, reports and data, whereupon Administrative Agent and Lenders shall determine, and Borrower shall accept or reduce, a new Borrowing Base as described in subsections (a), (iv), (vb) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections c) of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsthis section.
Appears in 1 contract
Samples: Credit Agreement (Nuevo Energy Co)
Subsequent Determinations of Borrowing Base. Subsequent determinations By April 1 and October 1 of each year, Parent shall furnish to each Lender all information, reports and data which Administrative Agent has then reasonably requested concerning the Related Persons' businesses and properties (including their oil and gas properties and interests and the reserves and production relating thereto), together with the Engineering Report described in Section C.1(e) or C.1(f) of Annex C to the Intercreditor Agreement, as applicable. Within thirty days after receiving such information, reports and data, or as promptly thereafter as practicable, Majority Lenders shall agree upon an amount for the Borrowing Base and Administrative Agent shall by notice to Borrower, Collateral Agent and the other Lenders designate such amount as the new Borrowing Base for the period beginning on and including the date such notice is sent (herein called a "Determination Date") and continuing until but not including the next date as of which the Borrowing Base is redetermined. If Parent does not furnish all such information, reports and data by the date specified in the first sentence of this section Administrative Agent may nonetheless designate the Borrowing Base at any amount which Majority Lenders determine and may redesignate the Borrowing Base from time to time thereafter until each Lender receives all such information, reports and data, whereupon Majority Lenders shall designate a new Borrowing Base as described above. Majority Lenders shall determine the amount of the Borrowing Base shall be made by Banks at least semi-annually based upon the loan collateral value which they in their discretion assign to the various Oil and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination Gas Properties of the Borrowing Base, Related Persons at the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base time in question and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at based upon such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), credit factors (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow the Collateral and projections of the assets, liabilities, cash flow, provided business, properties, prospects, management and ownership of Related Persons and applicable country risks and political risks) as they in their discretion deem significant. It is expressly understood that nothing herein shall be construed Lenders and Administrative Agent have no obligation to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on designate the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsparticular amount.
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by Banks the Lenders at least semi-annually on May 1 and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as 1 of each November 1 and year beginning May 1, commencing November 2001 or as Unscheduled Redeterminations. The Borrowers shall furnish to the Lenders as soon as possible but in any event no later than April 1 of each year, beginning April 1, 19982001, with an Engineering Report in form and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect substance satisfactory to the Collateral, including Agent prepared by an independent petroleum engineering firm or firms acceptable to Agent covering the information required pursuant Oil and Gas Properties utilizing economic and pricing parameters used by Agent as established from time to Section 12(a)(iii), (iv), (v) and (vi)time, together with such other information concerning the value of the Oil and Gas Properties as the Agent shall deem necessary to determine the value of the Oil and Gas Properties. By October 1 of each year, beginning October 1, 2001, or within thirty (30) days after either (i) receipt of notice from Agent that the Lenders require an Unscheduled Redetermination, or (ii) the Borrowers give notice to Agent of their desire to have an Unscheduled Redetermination performed, the Borrowers shall furnish to the Lenders an engineering report in form and substance satisfactory to Agent prepared by Borrowers' in-house engineering staff valuing the Oil and Gas Properties utilizing economic and pricing parameters used by the Agent as established from time to time, together with such other information, reports and data concerning the value of the Oil and Gas Properties as Banks Agent shall deem reasonably necessary to determine the value of such Oil and Gas Properties. Agent shall by written notice to the Borrowers no later than May 1 and November 1 of each year, or within a reasonable time thereafter (herein called the "Determination Date"), notify the Borrowers of the designation by the Lenders of the new Borrowing Base for the period beginning on such Determination Date and continuing until, but not including, the next Determination Date. If an Unscheduled Redetermination is made by the Lenders, the Agent shall notify the Borrowers within a reasonable time after receipt of all requested information of the new Borrowing Base, and such new Borrowing Base shall continue until the next Determination Date. If the Borrowers do not furnish all such information, reports and data by any date specified in this Section 7(b), unless such failure is of no fault of the Borrowers, the Lenders may deem appropriate under nonetheless designate the then circumstanceBorrowing Base at any amounts which the Lenders in their reasonable discretion determine and may redesignate the Borrowing Base from time to time thereafter until the Lenders receive all such information, reports and data, whereupon the Lenders shall designate a new Borrowing Base as described above. Each Lender shall determine the amount of the Borrowing Base based upon the loan collateral value which such Lender in its reasonable discretion (using such methodology, assumptions and discounts rates as such Lender customarily uses in assigning collateral value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties of the Borrowers at the time in question and based upon such other credit factors consistently applied (including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reportsownership of the Borrowers and their affiliates) as such Lender customarily considers in evaluating similar oil and gas credits, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank but such Lender in its discretiondiscretion shall not be required to give any additional positive value to any Oil and Gas Property over the current economic and pricing parameters used by such Lender for such Determination Date which additional value is derived directly from a hedging, subject only forward sale or swap agreement covering such Oil and Gas Property as of the date of such determination. All determinations or Unscheduled Redeterminations of the Borrowing Base require the approval of Majority Lenders; provided, however, that notwithstanding anything to the requirement that such determination shall contrary herein, the amount of the Borrowing Base may not be reasonable and made in good faithincreased, without the approval of all Lenders. If the Banks Lenders cannot otherwise agree on the Borrowing Base Base, the Agent shall notify each of the Lenders of such fact or Monthly Commitment Reduction, facts and each Bank Lender will submit in writing to the Agent within five (5) days thereafter its proposed Borrowing Base and Monthly Commitment Reduction and the Base. The redetermined Borrowing Base and Monthly Commitment Reduction shall be set on then determined based upon the basis weighted arithmetic average of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed amounts submitted by any Bankeach Lender, said proposals to be weighted according to each Lender's Commitment. If at any time any of the Collateral is Oil and Gas Properties are sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment prepayment, if any, required to be made pursuant to Section 13(e12(r) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined The Borrowing Base shall become effective immediately upon Agent giving notice thereof be additionally reduced from time to time pursuant to the Borrowerprovisions of Sections 2(e) and 2(f) hereof. It is expressly understood that the Lenders have no obligation to designate the Borrowing Base at any particular amounts, except in the exercise of their discretion, whether in relation to the Commitment or otherwise. Provided, however, that no Bank the Lenders shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsthe Commitment.
Appears in 1 contract
Samples: Credit Agreement (3tec Energy Corp)
Subsequent Determinations of Borrowing Base. Subsequent determinations (a) The Borrowing Base shall be redetermined semiannually on or about May 1st and November 1st of each year (commencing May 1, 2014) as provided in this Section. The Borrower shall furnish to the Administrative Agent and each Lender all information, reports and data that the Administrative Agent has then reasonably requested concerning the Borrower’s and the Guarantors’ businesses and properties (including Borrower’s and the Guarantors’ Oil and Gas Properties and interests and the reserves and production relating thereto), together with (and by the date required for) any Engineering Report described in Section 6.2(g), if an Engineering Report is then due. Within thirty (30) days after receiving such information, reports and data, or as promptly thereafter as practicable, the Administrative Agent shall recommend a redetermined Borrowing Base to the Lenders. Such recommended Borrowing Base shall become effective upon the receipt by the Administrative Agent of the approval of the Required Borrowing Base Lenders. The failure of a Lender to respond or object to the recommended Borrowing Base within fifteen (15) days after notice thereof is given to such Lender by the Administrative Agent shall be deemed an acceptance and approval of such recommended Borrowing Base by such Lender. If such recommended Borrowing Base is not approved by Required Borrowing Base Lenders within fifteen (15) days after the Administrative Agent submits the recommended Borrowing Base to the Lenders, then each Lender shall submit in writing to the Administrative Agent, on or within fifteen (15) days after the Administrative Agent notifies the Lenders that the Lenders have not approved any such recommended Borrowing Base, such Lender’s determination of the redetermined Borrowing Base in such case, the redetermined Borrowing Base shall be the highest amount approved by the Required Borrowing Base Lenders. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, WITHOUT THE PRIOR WRITTEN APPROVAL OF ALL OF THE LENDERS, SUCH APPROVAL TO BE IN EACH LENDER’S SOLE DISCRETION, THE REDETERMINED BORROWING BASE SHALL NOT BE INCREASED ABOVE THE AMOUNT OF THE BORROWING BASE IN EFFECT IMMEDIATELY PRIOR TO SUCH REDETERMINATION. The Administrative Agent shall by notice to the Borrower and the Lenders designate the amount of the Borrowing Base (determined by the Required Borrowing Base Lenders or all of the Lenders, as applicable, in accordance with the foregoing procedures) available to the Borrower hereunder, which designation shall take effect immediately on the date such notice is sent and shall remain in effect until but not including the next date as of which the Borrowing Base is redetermined or reduced in accordance with the terms of this Agreement. If the Borrower does not furnish all such information, reports and data by the date specified in the first sentence of this Section, the Administrative Agent may nonetheless designate the Borrowing Base at any amount which the Lenders determine, and may redesignate the Borrowing Base from time to time thereafter at any amount that the Required Borrowing Base Lenders or all Lenders (in the case of an increase) redetermine, until each Lender receives all such information, reports and data, whereupon Lenders shall designate a new Borrowing Base as described above. The Lenders shall determine the amount of the Borrowing Base based upon the loan collateral value which they, in their sole discretion and in accordance with their respective normal practices and standards for oil and gas loans as such practices and standards exist at the particular time, assign to the various Oil and Gas Properties of the Borrower or the Guarantors at the time in question and based upon such other factors (including without limitation the assets, liabilities, fixed charges, cash flow, business, properties, prospects, management and ownership of any of the Borrower or the Guarantors or any Subsidiary of any of the Borrower or the Guarantors) as they, in their sole discretion and in accordance with their respective normal practices and standards for oil and gas loans as such practices and standards exist at the particular time, deem significant. It is expressly understood that Lenders and the Administrative Agent have no obligation to agree upon or designate the Borrowing Base at any particular amount, whether in relation to the Maximum Loan Amount or otherwise, and that the Lenders’ commitments to advance funds hereunder is determined by reference to the Borrowing Base from time to time in effect. Additional redeterminations at the request of the Lenders, the Administrative Agent or the Borrower shall be subject to a $5,000 engineering fee payable by Borrower to the Administrative Agent for its own account.
(b) In addition to the redeterminations of the Borrowing Base required pursuant to Section 2.8(a), the Borrower shall have the right to request in its discretion a special redetermination of the Borrowing Base in its sole discretion at any time and from time to time but not more often than two (2) times each between any two consecutive scheduled redeterminations of the Borrowing Base due to the acquisition of additional Oil and Gas Properties. In connection therewith, the Borrower may include additional Oil and Gas Properties of the Borrower or the Guarantors acquired from time to time as Collateral for the Secured Obligations, which the Borrower may then request be included in the calculation of the Borrowing Base by the Borrower or such Guarantor (A) giving written notice to the Administrative Agent of such properties to be included, (B) subjecting such properties to Liens securing the Secured Obligations (pursuant to Security Documents satisfactory to the Administrative Agent) if necessary to comply with the provisions of Section 6.16, (C) including such properties in an Engineering Report submitted to the Administrative Agent and (D) delivering to the Administrative Agent title opinions (or other title reports or title information acceptable to the Administrative Agent) covering at least 80% of the additional present value of such properties addressed to the Administrative Agent for the benefit of the Lenders covering all of such properties and other legal opinions from counsel acceptable to the Administrative Agent, in its sole discretion, in form, scope and substance acceptable to the Administrative Agent opining favorably as to, among such other matters as may be required by the Administrative Agent, (1) the Borrower’s or the appropriate Guarantor’s ownership of such properties and (2) matters of the type covered by the opinions delivered pursuant to Section 4.1(a)(vi). Any such request and any such redetermination pursuant to this Section 2.8(b) shall be made pursuant to the procedures set forth in Section 2.8(c).
(c) In addition to the redeterminations of the Borrowing Base required pursuant to Section 2.8(a) and (b), the Borrower and the Administrative Agent, at the request of the Required Borrowing Base Lenders, each shall have the right to request in its discretion a special redetermination of the Borrowing Base in its sole discretion at any time and from time to time but not more often than one (1) time each between any two consecutive scheduled redeterminations of the Borrowing Base. To request a special redetermination of the Borrowing Base, (i) if such request is made by the Borrower, the Borrower shall provide written notice of such special redetermination to the Administrative Agent specifying the date as of which the Borrowing Base is to be redetermined (which shall be not sooner than 30 days following the date of such notice) and (ii) if such request is made by the Required Borrowing Base Lenders, such Required Borrowing Base Lenders shall provide written notice of such special redetermination to the Administrative Agent and the Borrower. Any such special redetermination of the Borrowing Base shall be made by Banks at least semi-annually all of the Lenders or the Required Borrowing Base Lenders, as applicable, in their respective sole discretion based upon the most recent Engineering Report delivered to the Lenders by the Borrower pursuant to Section 6.2(g) or 6.2(h), as applicable, and such other information, reports and data as any Lender may reasonably request. Following receipt of a request for a special redetermination in accordance with this Section 2.8(c), the Banks may make Borrowing Base shall be redetermined in accordance with the approval standards set forth in Section 2.8(a). If the special redetermination results in a redetermination at decrease in the Borrowing Base such that a Borrowing Base Deficiency exists after giving effect to such redetermined Borrowing Base, the Borrower shall comply with Section 2.4(b)(ii)(A).
(d) In addition to the any time and shall make a redetermination if and when requested by Borrower. In connection with each such scheduled determination or discretionary determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), ,
(iv), (vi) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be automatically reduced from time to time as set on forth in Section 7.5(e);
(ii) if the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by Borrower shall issue any Bank. If at any time any of the Collateral is soldPermitted Additional Notes, then the Borrowing Base then in effect shall automatically be reduced automatically by a sum equal to $0.25 for every $1 of the stated aggregate principal amount of prepayment required such Permitted Additional Notes (without giving effect to be made pursuant to Section 13(eany discounts) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Providedissued or incurred; provided, however, that no Bank if the Borrower delivers written notice to the Administrative Agent concurrently with the issuance of any such Permitted Additional Notes that the Borrower intends to use all or a portion of the proceeds of such Permitted Additional Notes to call, redeem or repurchase all or a portion of the 2012 Senior Notes or 2011 Senior Notes within thirty (30) days of the issuance of such Permitted Additional Notes in accordance with Section 7.12(a), then the outstanding principal amount of 2012 Senior Notes or 2011 Senior Notes to be called, redeemed or repurchased shall ever have an obligation to designate a be deducted from the stated aggregate principal amount of Permitted Additional Notes for purposes of the foregoing automatic Borrowing Base reduction; provided further that the Borrowing Base shall be automatically reduced further by $0.25 (based on the date such Additional Permitted Notes are issued) for every $1 of the aggregate outstanding principal amount of any 2012 Senior Notes or 2011 Senior Notes, as applicable, that were the subject of such call, redemption or repurchase but that have not been redeemed or repurchased on or before the last day of such thirty (30) day period;
(iii) if the Borrower or any Restricted Subsidiary shall enter into a Hedge Liquidation, and the aggregate Hedging Termination Value of all such terminations and/or offsetting positions, and the fair market value of any Dispositions of Oil and Gas Properties pursuant to Section 7.5(e) exceeds, during any period between two successive scheduled redetermination dates, five percent (5%) of the then effective Borrowing Base, then the Borrowing Base shall be simultaneously reduced in an amount equal to such that Hedging Termination Value, and the Borrowing Base as so reduced shall become the new Borrowing Base immediately upon such Bank's Commitment Percentage thereof is in excess redetermination, effective and applicable to the Borrower, the Administrative Agent, the Issuing Bank and the Lenders until the next redetermination or adjustment of its legal the Borrowing Base pursuant to this Agreement; and
(iv) if at any time the Borrower does not satisfy the title requirements of Section 6.19, then the Administrative Agent may redetermine the Borrowing Base pursuant to Section 6.19, and the Borrowing Base as so reduced shall become the new Borrowing Base immediately upon such redetermination, effective and applicable to the Borrower, the Administrative Agent, the Issuing Bank and the Lenders until the next redetermination or internal lending limitsadjustment of the Borrowing Base pursuant to this Agreement.
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations (a) By April 1 and October 1 of each year, beginning October 1, 2008, Borrower shall furnish to each Lender all information, reports and data which Administrative Agent has then requested concerning Loan Parties’ businesses and properties (including their oil and gas properties and interests and the reserves and production relating thereto), together with, as applicable, the Engineering Report as of January 1 described in Section 6.02(d) or as of July 1 described in Section 6.02(e). Within thirty calendar days after receiving such information, reports and data, or as promptly thereafter as practicable, Administrative Agent shall determine the amount of a proposed Borrowing Base. Administrative Agent shall then deliver to each Lender such proposed Borrowing Base. Within fifteen calendar days after the Lender’s receipt of thereof, or as promptly thereafter as practicable, all Lenders shall agree upon an amount for the Borrowing Base (provided that all Lenders must agree upon any increase in the Borrowing Base), which need not be equal to such proposed Borrowing Base. The Lenders shall determine the amount of the Borrowing Base based upon the loan collateral value which they in their discretion assign to the discounted net present value of the various oil and gas properties included in the Collateral of Loan Parties at the time in question and based upon such other credit factors (including without limitation the assets, liabilities, cash flow, hedged and unhedged exposure to price, foreign exchange rate, and interest rate changes, business, properties, prospects, management and ownership of Loan Parties and their Affiliates) as they in their discretion deem significant. If all Lenders have not approved the Borrowing Base within the fifteen calendar day period after their receipt of such proposed Borrowing Base, Administrative Agent shall be made poll Lenders to ascertain the highest Borrowing Base then acceptable to all Lenders and such amount shall then become the Borrowing Base. Administrative Agent shall by Banks at least semi-annually notice to Borrower designate such amount as the new Borrowing Base available to Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (herein called a “Determination Date”) and shall remain in effect until but not including the Banks next date as of which the Borrowing Base is redetermined (each a “Borrowing Base Period”). IT IS EXPRESSLY UNDERSTOOD THAT LENDERS AND ADMINISTRATIVE AGENT HAVE NO OBLIGATION TO AGREE UPON OR DESIGNATE THE BORROWING BASE AT ANY PARTICULAR AMOUNT, WHETHER IN RELATION TO THE MAXIMUM CREDIT AMOUNT OR
(b) If Borrower does not furnish all such information, reports and data by the date specified in the first sentence of subsection (a) of this section, Administrative Agent may make a redetermination nonetheless designate the Borrowing Base at any amount that all Lenders determine and may redesignate the Borrowing Base from time to time thereafter until each Lender receives all such information, reports and data, whereupon all Lenders shall make designate a redetermination if and when requested by Borrower. new Borrowing Base as described above.
(c) In connection with each such determination addition to the redeterminations of the Borrowing BaseBase pursuant to subsections (a) and (b) of this section, Borrower and Administrative Agent (or Administrative Agent at the Banks shall also determine request of Required Lenders) may each request additional determinations (“Special Determinations”) of the Monthly Commitment Reduction. Such Borrowing Base from time to time; provided, that Borrower may request no more than two (2) Special Determinations in any calendar year and Monthly Commitment Reduction determinations Administrative Agent (or Administrative Agent at the Request of Required Lenders) may request no more than two (2) Special Determinations prior to April 30, 2009, may request no more than one (1) Special Determinations during the remainder of the calendar year ended December 31, 2009, and may request no more than one (1) Special Determinations in any calendar year thereafter. In the event Administrative Agent (or Administrative Agent at the request of Required Lenders) requests such a Special Determination, Administrative Agent shall be made on or before each November 20 promptly deliver notice of such request to Borrower and May Borrower shall, within twenty (20) calendar days following the date of such request, commencing November 20, 1998, the same deliver to be effective Lenders an Engineering Report prepared by petroleum engineers who are employees of Borrower as of each November 1 the last day of the calendar month preceding the date of such request and May 1, commencing November 1, 1998, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks information which Administrative Agent shall make the same if and when have requested. In making the event Borrower requests a Special Determination, Borrower shall deliver written notice of such determinations, Banks may utilize such reports and appraisals request to Lenders which shall include (i) an Engineering Report prepared as Borrower may furnish to Banks through Agent under other provisions hereof with respect of a date not more than thirty (30) days prior to the Collateraldate of such request (or, including in the information required pursuant to Section 12(a)(iiicase of a request made on the 31st day of any calendar month, thirty-one (31) days), (iv), (vii) the amount of the Borrowing Base requested by Borrower and to become effective on the Determination Date applicable to such Special Determination and (vi), together with iii) such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or information which Administrative Agent shall or should obtain have requested. Upon receipt of such Engineering Report and pay for any reportsother information, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks Administrative Agent shall, subject to approval of all Lenders, redetermine the Borrowing Base in accordance with their respective customary practices and standards for loans the procedure set forth in similar amounts to borrowers similarly situatedsubsection (a) of this section, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon on the Determination Date (or as soon thereafter as Administrative Agent giving and all Lenders approve such Borrowing Base and provide notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limits).
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations of (a) By each Evaluation Date, Borrower shall furnish to each Lender the Borrowing Base Engineering Report described in Section 5.1(b)(iv), together with all other information and data which Administrative Agent has then reasonably requested concerning the Related Persons' businesses and properties. Within thirty days after receiving such reports and other information and data, or as promptly thereafter as practicable, Administrative Agent shall be made by Banks at least semi-annually and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of propose to Lenders an amount for the Borrowing Base, and within thirty days thereafter each Lender will notify Administrative Agent of whether or not it accepts such proposed amount. Failure of any Lender to give such notice within such time period shall be deemed to constitute acceptance of such proposed amount by such Lender. If such proposed amount is not accepted by Majority Lenders (or, if Administrative Agent has proposed an increase in the Banks Borrowing Base, by Supermajority Lenders and, if the Maximum Loan Amount is concurrently being increased, by Supermajority Lenders calculated both immediately prior to and immediately following such increase in the Maximum Loan Amount), Administrative Agent and Lenders shall also determine the Monthly Commitment Reduction. Such continue to discuss a new Borrowing Base until such time as Administrative Agent and Monthly Commitment Reduction determinations Majority Lenders (or, if the Borrowing Base is to be increased, Supermajority Lenders) shall have agreed upon an amount for the new Borrowing Base, and promptly thereafter Administrative Agent shall notify Borrower of such amount.
(b) Within five Business Days after receipt of such notice from Administrative Agent, Borrower shall by notice to Administrative Agent either accept such amount as the new Borrowing Base or reduce the Borrowing Base from the amount proposed by Administrative Agent to any lesser amount. (Failure by Borrower to take either such action within such five Business Day period shall be made deemed acceptance of such amount.) Upon any such acceptance or deemed acceptance by Borrower, a new Borrowing Base in the amount accepted shall take effect on such date (herein called a "Determination Date") and shall remain in effect until but not including the next Determination Date. Upon any such reduction by Borrower, a new Borrowing Base in the reduced amount specified by Borrower shall take effect on such date (herein also called a "Determination Date") and shall remain in effect until but not including the next Determination Date.
(c) Whenever any of the following events occur:
(i) the Related Persons, in one or before more transactions after the Determination Date immediately preceding the time in question (or, prior to the first Determination Date, after the date hereof) make Forward Sale/Production Payments and Borrowing Base Asset Sales of $50,000,000 or more in the aggregate, or
(ii) Borrower decides, as contemplated in Section 5.2(b)(iii), to make any unscheduled payment of Subordinated Indebtedness; then Borrower will promptly give notice of such event to Administrative Agent and each November 20 Lender and, upon receipt of such notice, Majority Lenders (acting through Administrative Agent) may, at their option, either (1) specify an additional Evaluation Date as contemplated in subsection (e) of the definition in Section 1.1 of "Evaluation Date" and May 20, commencing November 20, 1998, thereafter receive the same to be effective as of each November 1 reports and May 1, commencing November 1, 1998information, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize contemplated above in this Section 2.11, or (2) request any supplemental information which they reasonably desire from Borrower without requiring all such reports and appraisals other information, and then designate a new Borrowing Base as Borrower may furnish they deem appropriate in light of such event and such supplemental information (provided that any increase in the Borrowing Base must be consented to Banks through Agent under other provisions hereof with respect to by Supermajority Lenders). Upon any such designation, a new Borrowing Base in the Collateral, amount designated shall take effect on such date (herein also called a "Determination Date") and shall remain in effect until but not including the next Determination Date.
(d) If Borrower does not furnish all of the reports, information, and data referred to in the first sentence of subsection (a) of this section by the date specified in such sentence, or promptly furnish any supplemental information required pursuant which Administrative Agent requests as contemplated in clause (2) of subsection (c) of this section, then Administrative Agent may designate the Borrowing Base at any amount which Administrative Agent and Majority Lenders (or Supermajority Lenders, in the case of an increase) determine and may redesignate the Borrowing Base from time to Section 12(a)(iiitime thereafter until each Lender receives all such information, reports and data, whereupon Administrative Agent and Lenders shall determine, and Borrower shall accept or reduce, a new Borrowing Base as described in subsections (a), (iv), (vb) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections c) of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsthis section.
Appears in 1 contract
Samples: Credit Agreement (Nuevo Energy Co)
Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by Banks at least the Lenders semi-annually on April 1 and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as October 1 of each November 1 and May year beginning April 1, commencing November 2004 or as Unscheduled Redeterminations. By March 1 each year, beginning March 1, 19982004, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through the Lenders an engineering report in form and substance reasonably satisfactory to Agent under other provisions hereof with respect prepared by an independent petroleum engineering firm acceptable to Agent, said engineering report to utilize economic and pricing parameters used by the Collateral, including the information required pursuant Agent as established from time to Section 12(a)(iii), (iv), (v) and (vi)time, together with such other information, reports and data concerning the value of the Oil and Gas Properties as Banks may Agent shall deem appropriate under reasonably necessary to determine the value of such Oil and Gas Properties. By September 1 of each year beginning September 1, 2004, or within thirty (30) days after either (i) receipt of notice from Agent that the Lenders require an Unscheduled Redetermination, or (ii) the Borrower gives notice to Agent of its desire to have an Unscheduled Redetermination performed, in each case the Borrower shall furnish to the Lenders an engineering report in form and substance reasonably satisfactory to Agent, said engineering report to utilize economic and pricing parameters used by the Agent as established from to time, together with such other information, reports and data concerning the value of such Oil and Gas Properties. Agent shall by written notice to the Borrower no later than April 1 and October 1 of each year, or within a reasonable time thereafter (herein called the "Determination Date"), notify the Borrower of the designation by the Lenders of the new Borrowing Base for the period beginning on such Determination Date and continuing until, but not including, the next Determination Date. If an Unscheduled Redetermination is to be made by the Lenders, the Agent shall notify the Borrower within a reasonable time after receipt of all requested information of the new Borrowing Base, and such new Borrowing Base shall continue until the next Determination Date. If the Borrower does not furnish all such information, reports and data by any date specified in this Section 7(b), unless such failure is reasonably determined by the Agent to be of no fault of the Borrower, the Lenders nonetheless designate the Borrowing Base at any amounts which the Lenders in their reasonable discretion determine and redesignate the Borrowing Base from time to time thereafter until the Lenders receive all such information, reports and data, whereupon the Lenders shall designate a new Borrowing Base as described above. The procedure for determining the Borrowing Base at each redetermination shall be that the Agent shall determine the Borrowing Base and submit the same to the Lenders. Increases in the Borrowing Base will require approval of all Lenders, but other reaffirmation or changes in the Borrowing Base will be subject to the approval of Required Lenders. If any redetermined Borrowing Base is not approved by Required Lenders within twenty (20) days after submission to the Lenders by the Agent, the Agent shall notify each of the Lenders that the proposed Borrowing Base has not been approved and each Lender will submit within ten (10) days thereafter its proposed Borrowing Base. The redetermined Borrowing Base shall be then circumstancedetermined (in all cases except those involving an increase of the Borrowing Base which requires approval of all Lenders) based upon the weighted arithmetic average of the proposed amounts submitted by each Lender, said proposals to be weighted according to each Lender's Commitment. Each Lender shall determine the amount of the Borrowing Base based upon the loan collateral value which such Lender in its sole discretion (using such methodology, assumptions and discount rates as such Lender customarily uses in assigning collateral value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties of the Borrower at the time in question and based upon such other credit factors consistently applied (including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis ownership of the lowest Borrowing Base Borrower and highest Monthly Commitment Reduction proposed by any Bankits affiliates) as such Lender customarily considers in evaluating similar oil and gas credits. If at any time any of the Collateral is Oil and Gas Properties are sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment prepayment, if any, required to be made pursuant to Section 13(e12(r) hereof. If a non-scheduled It is expressly understood that the Lenders have no obligation to designate the Borrowing Base redetermination is madeat any particular amounts, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof except in the exercise of their discretion, whether in relation to the BorrowerCommitments or otherwise. Provided, however, that no Bank the Lenders shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsthe Commitment.
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations (a) By each Evaluation Date, the Borrower shall furnish to the Administrative Agent and each Lender all information, reports and data which the Administrative Agent has then reasonably requested concerning the Borrower’s and the Guarantors’ businesses and properties (including Borrower’s and the Guarantors’ Oil and Gas Properties and interests and the reserves and production relating thereto), together with the Engineering Report described in Section 6.2(g), if an Engineering Report is then due. Within thirty (30) days after receiving such information, reports and data, or as promptly thereafter as practicable, the Administrative Agent shall recommend a redetermined Borrowing Base to the Lenders. Such recommended Borrowing Base shall become effective upon the receipt by the Administrative Agent of the approval of the Required Borrowing Base Lenders. The failure of a Lender to respond or object to the recommended Borrowing Base within fifteen (15) days after notice thereof is given to such Lender by the Administrative Agent shall be deemed an acceptance and approval of such recommended Borrowing Base by such Lender. If such recommended Borrowing Base is not approved by Required Borrowing Base Lenders within fifteen (15) days after the Administrative Agent submits the recommended Borrowing Base to the Lenders, then each Lender shall submit in writing to the Administrative Agent, on or within fifteen (15) days after the Administrative Agent notifies the Lenders that the Lenders have not approved any such recommended Borrowing Base, such Lender’s determination of the redetermined Borrowing Base; in such case, the redetermined Borrowing Base shall be the highest amount approved by the Required Borrowing Base Lenders. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, WITHOUT THE PRIOR WRITTEN APPROVAL OF ALL OF THE LENDERS, SUCH APPROVAL TO BE IN EACH LENDER’S SOLE DISCRETION, THE REDETERMINED BORROWING BASE SHALL NOT BE INCREASED ABOVE THE AMOUNT OF THE BORROWING BASE IN EFFECT IMMEDIATELY PRIOR TO SUCH REDETERMINATION. The Administrative Agent shall by notice to the Borrower and the Lenders designate the amount of the Borrowing Base (determined by the Required Borrowing Base Lenders or all of the Lenders, as applicable, in accordance with the foregoing procedures) available to the Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (a “Determination Date”) and shall remain in effect until but not including the next date as of which the Borrowing Base is redetermined. If the Borrower does not furnish all such information, reports and data by the date specified in the first sentence of this section, the Administrative Agent may nonetheless designate the Borrowing Base at any amount which the Lenders determine, and may redesignate the Borrowing Base from time to time thereafter at any amount which all Lenders redetermine, until each Lender receives all such information, reports and data, whereupon Lenders shall designate a new Borrowing Base as described above. The Lenders shall determine the amount of the Borrowing Base based upon the loan collateral value which they, in their sole discretion and in accordance with their respective normal practices and standards for oil and gas loans as such practices and standards exist at the particular time, assign to the various Oil and Gas Properties of the Borrower or the Guarantors at the time in question and based upon such other factors (including without limitation the assets, liabilities, fixed charges, cash flow, business, properties, prospects, management and ownership of any of the Borrower or the Guarantors or any Subsidiary of any of the Borrower or the Guarantors) as they, in their sole discretion and in accordance with their respective normal practices and standards for oil and gas loans as such practices and standards exist at the particular time, deem significant. It is expressly understood that Lenders and the Administrative Agent have no obligation to agree upon or designate the Borrowing Base at any particular amount, whether in relation to the Maximum Loan Amount or otherwise, and that the Lenders’ commitments to advance funds hereunder is determined by reference to the Borrowing Base from time to time in effect, which Borrowing Base shall be made used for calculating commitment fees under Section 2.10(a). Additional redeterminations at the request of the Lenders, the Administrative Agent or the Borrower shall be subject to a $5,000 engineering fee payable by Banks Borrower to the Administrative Agent for its own account.
(b) The Borrower may include additional Oil and Gas Properties of the Borrower or the Guarantors acquired from time to time as Collateral for the Secured Obligations, which may then be included in the calculation of the Borrowing Base, by the Borrower or such Guarantor (A) giving written notice to the Administrative Agent of such properties to be included, (B) subjecting such properties to Liens securing the Secured Obligations (pursuant to Security Documents satisfactory to the Administrative Agent) if necessary to comply with the provisions of Section 6.16, (C) including such properties in an Engineering Report submitted to the Administrative Agent and (D) delivering to the Administrative Agent title opinions (or other title reports or title information acceptable to the Administrative Agent) covering at least semi-annually 80% of the additional value of such properties addressed to the Administrative Agent for the benefit of the Lenders covering all of such properties and other legal opinions from counsel acceptable to the Banks Administrative Agent, in its sole discretion, in form, scope and substance acceptable to the Administrative Agent opining favorably as to, among such other matters as may make a redetermination at be required by the Administrative Agent, (1) the Borrower’s or the appropriate Guarantor’s ownership of such properties and (2) matters of the type covered by the opinions delivered pursuant to Section 4.1(a)(vi).
(c) In addition to the any time and shall make a redetermination if and when requested by Borrower. In connection with each such scheduled determination or discretionary determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof be automatically reduced from time to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base time as set forth in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsSection 7.5(e).
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations By each Evaluation Date (or in the case of an Evaluation Date pursuant to clause (a) of the definition of “Evaluation Date”, within thirty days after such Evaluation Date), Borrower shall furnish to each Lender all information, reports and data which Agent has then requested concerning Restricted Persons’ businesses and properties (including their oil and gas properties and interests and the reserves and production relating thereto), together with the Engineering Report described in Section 6.2 which is then due, if any; provided that in the case of any “Evaluation Date” pursuant to clause (a) of the definition thereof, Borrower shall deliver to Agent an Engineering Report of the type described in Section 6.2(e) within thirty days after such Evaluation Date. Within thirty days after receiving such information, reports and data, Required Lenders shall agree upon an amount for the Borrowing Base, and Agent shall by notice to Borrower designate such amount as the new Borrowing Base available to Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (herein called a “Determination Date”) and shall remain in effect until but not including the next date as of which the Borrowing Base is redetermined. If Borrower does not furnish all such information, reports and data by the date specified in the first sentence of this section, Agent may nonetheless designate the Borrowing Base at any amount which Required Lenders determine and may redesignate the Borrowing Base from time to time thereafter until each Lender receives all such information, reports and data, whereupon Required Lenders shall designate a new Borrowing Base as described above. Required Lenders shall determine the amount of the Borrowing Base shall be made by Banks based upon the loan collateral value which they in their discretion assign to the various oil and gas properties included in the Collateral at least semi-annually the time in question and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at based upon such other dates as determined at credit factors (including without limitation the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinationsassets, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateralliabilities, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided hedged and unhedged exposure to price, foreign exchange rate, and interest rate changes, business, properties, prospects, management and ownership of Borrower and its Affiliates) as they in their discretion deem significant. It is expressly understood that nothing herein shall be construed Lenders and Agent have no obligation to require that Banks agree upon or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on designate the Borrowing Base or Monthly Commitment Reductionat any particular amount, each Bank will submit whether in writing relation to the Agent its proposed Borrowing Base Commitment or otherwise, and Monthly Commitment Reduction and that Lenders’ commitments to advance funds hereunder is determined by reference to the Borrowing Base and Monthly Commitment Reduction from time to time in effect, which Borrowing Base shall be set on used to the basis extent permitted by Law and regulatory authorities, for the purposes of capital adequacy determination and reimbursements under Section 3.2. Should the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, last day for Lenders to redetermine the Borrowing Base then in effect connection with a particular Evaluation Date be a day other than a Business Day, the period for such redetermination shall automatically be reduced by a sum equal extended to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsnext succeeding Business Day.
Appears in 1 contract
Samples: Credit Agreement (W&t Offshore Inc)
Subsequent Determinations of Borrowing Base. Subsequent determinations (a) (i) By December 1, 2009 and (ii) April 1 and October 1 of each year beginning April 1, 2010, Borrower shall furnish to each Lender all information, reports and data which Administrative Agent has then requested concerning Restricted Persons’ businesses and properties (including their Oil and Gas Properties and interests and the reserves and production relating thereto), together with, as applicable, the Engineering Report as of December 31 of the immediately preceding year described in Section 6.2(f) or as of June 30 of such year described in Section 6.2(g); provided, however, that the information provided by Borrower in connection with the December 1, 2009 determination of the Borrowing Base shall relate to Restricted Persons’ businesses and properties as of October 1, 2009. Within thirty days after receiving such information, reports and data, or as promptly thereafter as practicable, Administrative Agent shall determine the amount of a proposed Borrowing Base; and Administrative Agent shall then deliver to each Lender such proposed Borrowing Base. Within fifteen days after the Lenders’ receipt of such proposed Borrowing Base, or as promptly thereafter as practicable, Required Lenders shall agree on an amount for the Borrowing Base (provided that all Lenders must agree on any increase in the Borrowing Base), which need not be made equal to such proposed Borrowing Base. Required Lenders shall determine the amount of the Borrowing Base based upon the loan collateral value which they in their discretion assign to the Present Value of the various Oil and Gas Properties of Restricted Persons that will constitute Borrowing Base Properties at the time in question and based upon such other credit factors (including without limitation the assets, liabilities, cash flow, hedged and unhedged exposure to price, foreign exchange rate, and interest rate changes, business, properties, prospects, management and ownership of Restricted Persons) as they in their discretion deem significant. If Required Lenders (or all Lenders in the case of an increase in the Borrowing Base) have not approved the Borrowing Base within the fifteen day period after their receipt of such proposed Borrowing Base, Administrative Agent shall poll Lenders to ascertain the highest Borrowing Base then acceptable to a number of Lenders sufficient to constitute Required Lenders (or all Lenders in the case of an increase in the Borrowing Base) and such amount shall then become the Borrowing Base. Administrative Agent shall by Banks at least semi-annually notice to Borrower designate such amount as the new Borrowing Base available to Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (herein called a “Determination Date”) and shall remain in effect until but not including the Banks next date as of which the Borrowing Base is redetermined. IT IS EXPRESSLY UNDERSTOOD THAT LENDERS AND ADMINISTRATIVE AGENT HAVE NO OBLIGATION TO AGREE UPON OR DESIGNATE THE BORROWING BASE AT ANY PARTICULAR AMOUNT, WHETHER IN RELATION TO THE MAXIMUM CREDIT AMOUNT OR OTHERWISE, AND THAT LENDERS’ COMMITMENTS TO ADVANCE FUNDS HEREUNDER IS DETERMINED BY REFERENCE TO THE BORROWING BASE FROM TIME TO TIME IN EFFECT, WHICH BORROWING BASE SHALL BE USED FOR CALCULATING COMMITMENT FEES UNDER SECTION 2.5 AND, TO THE EXTENT PERMITTED BY LAW AND REGULATORY AUTHORITIES, FOR THE PURPOSES OF CAPITAL ADEQUACY DETERMINATION AND REIMBURSEMENTS UNDER SECTION 3.2.
(b) If Borrower does not furnish all such information, reports and data by the date specified in the first sentence of subsection (a) of this section, Administrative Agent may make a redetermination nonetheless determine the Borrowing Base at any amount that Required Lenders determine and may redetermine the Borrowing Base from time to time thereafter (provided that all Lenders must agree to any increase in the Borrowing Base) until each Lender receives all such information, reports and data, whereupon Required Lenders (or all Lenders, as applicable) shall make designate a redetermination if new Borrowing Base as described above.
(c) In addition to the redeterminations of the Borrowing Base pursuant to subsections (a) and when (b) of this section, Borrower and Administrative Agent (or Administrative Agent at the request of Required Lenders) may each request additional determinations (“Special Determinations”) of the Borrowing Base from time to time; provided, that Administrative Agent (or Administrative Agent at the request of Required Lenders) may not request more than two (2) Special Determinations in any calendar year and Borrower may not request more than one (1) Special Determination in any calendar year. In the event Administrative Agent (or Administrative Agent at the request of Required Lenders) requests such a Special Determination, Administrative Agent shall promptly deliver notice of such request to Borrower and Borrower shall, within thirty (30) days following the date of such request, deliver to Lenders an Engineering Report prepared by Staff Engineers and, within sixty (60) days following the date of such request, audited by Independent Engineers (or, at Borrower’s option, prepared by Independent Engineers) as of the last day of the calendar month preceding the date of such request and such other information which Administrative Agent shall have requested. In the event Borrower requests a Special Determination, Borrower shall deliver written notice of such request to Lenders which shall include (i) an Engineering Report prepared by Staff Engineers as of a date not more than thirty (30) days prior to the date of such request (or, in the case of a request made on the 31st day of any calendar month, thirty-one (31) days), (ii) the amount of the Borrowing Base requested by BorrowerBorrower and to become effective on the Determination Date applicable to such Special Determination and (iii) such other information which Administrative Agent shall have requested. In connection with each Upon receipt of such determination Engineering Report and other information, Administrative Agent shall, subject to approval of Required Lenders, or all Lenders in the event of a proposed increase in the Borrowing Base, redetermine the Banks Borrowing Base in accordance with the procedure set forth in subsection (a) of this section, which Borrowing Base shall also determine become effective on the Monthly Commitment Reduction. Such Determination Date (or as soon thereafter as Administrative Agent and Required Lenders, or all Lenders in the event of a proposed increase in the Borrowing Base, approve such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same provide notice thereof to be effective as of each November 1 and May 1, commencing November 1, 1998, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrower).
(d) The Borrowing Base redeterminations and Banks shall make reduce simultaneously with the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under completion by any Restricted Person of any Asset Disposition (other provisions hereof with respect to than Asset Dispositions permitted by Section 7.5) by the Collateral, including the information required pursuant to Section 12(a)(iii), lesser of (iv), (vi) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and value (which shall be the Borrowing Base value assigned thereto by the Administrative Agent and Monthly Commitment Reduction shall be set approved by the Required Lenders in the most recent Redetermination and provided to Borrower and the Lenders in the notice made on the basis each Determination Date) of the lowest Borrowing Base Properties or Hedging Contracts, if any, which are subject to such Asset Disposition, and highest Monthly Commitment Reduction proposed (ii) the Net Cash Proceeds received by any Bank. If at Restricted Person from such Asset Disposition.
(e) The Borrowing Base shall reduce simultaneously with the issuance by any time Restricted Person of any Additional Indebtedness in an amount equal to the Net Cash Proceeds received by such Restricted Person from such issuance.
(f) On any day when Borrower makes any optional or mandatory prepayment of the Collateral is solda Term Loan for any reason, the Borrowing Base then in effect shall automatically be reduced by a sum an amount equal to the principal amount of such prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, on such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsday.
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations Reduction of --------------------------------------------------------- Borrowing Base. --------------
(a) By October 1 and April 1 of each year, beginning October 1, 2000, dated no earlier than the preceding August 1 and February 1, respectively, Borrower shall furnish to each Lender all information, reports and data which Agent has then requested concerning Restricted Persons' businesses and properties (including their oil and gas properties and interests and the reserves and production relating thereto), together with the Engineering Report described in Section 6.2(d). By the Optional Redetermination Date prepared as of the sixtieth day before such Optional Redetermination Date, Borrower shall furnish to each Lender all information, reports and data which Agent has then requested concerning Restricted Persons' businesses and properties (including their oil and gas properties and interests and the reserves and production relating thereto), together with the Engineering Report described in Section 6.2(e). Within thirty days after receiving such information, reports and data, Required Lenders shall agree upon an amount for the Borrowing Base (provided that all Lenders must agree to any increase in the Borrowing Base) and Agent shall by notice to Borrower designate such amount as the new Borrowing Base available to Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (herein called a "Determination Date") and shall remain in ------------------ effect until but not including the next date as of which the Borrowing Base is redetermined. If Borrower does not furnish all such information, reports and data by the date specified in the first sentence of this section, Agent may nonetheless designate the Borrowing Base at any amount which Required Lenders determine and may redesignate the Borrowing Base from time to time thereafter until each Lender receives all such information, reports and data, whereupon Required Lenders shall designate a new Borrowing Base as described above. Required Lenders shall determine the amount of the Borrowing Base based upon the loan collateral value which they in their discretion assign to the various proved oil and gas properties of Restricted Persons at the time in question and based upon such other credit factors (including without limitation the assets, liabilities, cash flow, hedged and unhedged exposure to price, foreign exchange rate, and interest rate changes, business, properties, prospects, management and ownership of Borrower and its Affiliates) as they in their discretion deem significant. It is expressly understood that Lenders and Agent have no obligation to agree upon or designate the Borrowing Base at any particular amount, whether in relation to the aggregate face amount of the Notes or otherwise, and that Lenders' commitments to advance funds hereunder is determined by reference to the Borrowing Base from time to time in effect, which Borrowing Base shall be made used for calculating commitment fees under Section 2.5 and, to the extent permitted by Banks at least semi-annually Law and regulatory authorities, for the Banks purposes of capital adequacy determination and reimbursements under Section 3.2.
(b) Until the Maturity Date, Borrower may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same notice to be effective as of each November 1 and May 1, commencing November 1, 1998, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, reduce the Borrowing Base then in effect to any lesser amount. Each such notice shall automatically take effect on the date specified therein, which may not be reduced earlier than the date on which such notice is received by a sum equal to Agent, and shall continue in effect until the amount next date as of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled which the Borrowing Base redetermination is made, such non-scheduled redetermined redetermined.
(c) The Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base be reduced in an amount equal to any prepayment on the Loans made in accordance with Section 7.4. Each such that reduction shall take effect on the date of such Bank's Commitment Percentage thereof prepayment, and shall continue in effect until the next date as of which the Borrowing Base is in excess of its legal or internal lending limitsredetermined.
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by the Banks at least semi-annually based on engineering reports effectively dated January 1 and July 1 of each year beginning January 1, 2002 or as otherwise required to accommodate Unscheduled Redeterminations. The Borrowers shall furnish to the Banks may make a redetermination at as soon as possible but in any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as event no later than April 1 of each November 1 and May year, beginning April 1, commencing November 12002, 1998, with an engineering report in form and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect substance satisfactory to the Collateral, including Agent prepared by an independent petroleum engineering firm acceptable to Agent covering the information required pursuant Oil and Gas Properties utilizing economic and pricing parameters used by Agent as established from time to Section 12(a)(iii), (iv), (v) and (vi)time, together with such other information concerning the value of the Oil and Gas Properties as the Agent shall deem necessary to determine the value of the Oil and Gas Properties. By October 1 of each year, or within thirty (30) days after either (i) receipt of notice from Agent that the Banks require an Unscheduled Redetermination, or (ii) the Borrowers give notice to Agent of their desire to have an Unscheduled Redetermination performed, the Borrowers shall furnish to the Banks an engineering report in form and substance satisfactory to Agent prepared by Borrowers' in-house engineering staff valuing the Oil and Gas Properties utilizing economic and pricing parameters used by the Agent as established from time to time, together with such other information, reports and data concerning the value of the Oil and Gas Properties as Agent shall deem reasonably necessary to determine the value of such Oil and Gas Properties. Agent shall by notice to the Borrowers no later than May 1 and November 1 of each year, or within a reasonable time thereafter (herein called the "Determination Date"), notify the Borrowers of the designation by the Banks of the new Borrowing Base for the period beginning on such Determination Date and continuing until, but not including, the next Determination Date. If an Unscheduled Redetermination is made by the Banks, the Agent shall notify the Borrowers within a reasonable time after receipt of all requested information of the new Borrowing Base, and such new Borrowing Base shall continue until the next Determination Date. If the Borrowers do not furnish all such information, reports and data by any date specified in this Section 7.2, the Banks may deem appropriate under nonetheless designate the then circumstanceBorrowing Base at any amount which the Banks in their discretion determine and may redesignate the Borrowing Base from time to time thereafter until the Banks receive all such information, reports and data, whereupon the Banks shall designate a new Borrowing Base as described above. Each Bank shall determine the amount of the Borrowing Base based upon the loan value which such Bank in its discretion (using such methodology, assumptions and discounts rates as such Bank customarily uses in assigning loan value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties and other Collateral of the Borrowers at the time in question and based upon such other credit factors consistently applied (including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reportsownership of the Borrowers and their affiliates) as such Bank customarily considers in evaluating similar oil and gas credits, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each but such Bank in its discretiondiscretion shall not be required to give any additional positive value to any Oil and Gas Property over the current economic and pricing parameters used by such Bank for such Determination Date which additional value is derived directly from a hedging, subject only forward sale or swap agreement covering such Oil and Gas Property as of the date of such determination. All determinations or Unscheduled Redeterminations of the Borrowing Base require the approval of Majority Banks; provided, however, that notwithstanding anything to the requirement that such determination shall contrary herein, the amount of the Borrowing Base may not be reasonable and made in good faithincreased, without the approval of all Banks. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment ReductionBase, each Bank will shall submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest weighted average of the Borrowing Base and highest Monthly Commitment Reduction Bases proposed by any Bankthe Banks. If at any time any of the Collateral is Oil and Gas Properties are sold, the Borrowing Base then in effect shall automatically may be reduced by as a sum equal result of an Unscheduled Redetermination . It is expressly understood that the Banks have no obligation to designate the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is madeat any particular amounts, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to except in the Borrowerexercise of their discretion. Provided, however, that no Bank the Banks shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of the Commitment or its legal or internal lending limits. The Banks shall have the right to perform an Unscheduled Redetermination of the Borrowing Base.
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by Banks at least Lenders semi-annually and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 March 1 and May 20, commencing November 20, 1998, the same to be effective as September 1 of each November 1 and May year beginning September 1, commencing November 1, 1998, 2007 (each “Redetermination Date”) or as Unscheduled Redeterminations. No later than August 1 of each year (for the September 1 Redetermination Date of such year) Borrower shall furnish to Lenders an engineering report in form and at substance reasonably satisfactory to Agent prepared by DxXxxxxx and MxxXxxxxxxx or such other dates independent petroleum engineering firm acceptable to Agent, said engineering report to utilize economic and pricing parameters used by Agent as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish established from time to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi)time, together with such other information, reports and data concerning the value of Borrowing Base Properties as Banks Agent shall deem reasonably necessary to determine the value of such Borrowing Base Properties. The engineering report prepared for the September 1 Redetermination Date shall be prepared as of the preceding July 1 of such year and the engineering report prepared for the March 1 Redetermination Date shall be prepared as of January 1 of such year. In addition to the scheduled semi-annual Borrowing Base Redeterminations, Borrower and Lenders may deem appropriate under each request one Unscheduled Redetermination between Redetermination Dates. By February 1 of each year (for the March 1 Redetermination Date for such year) beginning February 1, 2008, or within thirty (30) days after either (i) receipt of notice from Agent that Lenders require an Unscheduled Redetermination, or (ii) Borrower gives notice to Agent of its desire to have an Unscheduled Redetermination performed, in each case Borrower shall furnish to Lenders an engineering report prepared by a petroleum engineer employed by Borrower and updating the most recent engineering report delivered to Lenders hereunder, in form and substance reasonably satisfactory to Agent, said engineering report to utilize economic and pricing parameters used by Agent as established from to time, together with such other information, reports and data concerning the value of such Borrowing Base Properties. Agent shall by written notice to Borrower within a reasonable time after each Redetermination Date (the date of such notice being herein called the “Determination Date”) notify Borrower of the designation by Lenders of the new Borrowing Base for the period beginning on such Determination Date and continuing until, but not including, the next Determination Date. If an Unscheduled Redetermination is to be made by Lenders, Agent shall notify Borrower within a reasonable time after receipt of all requested information of the new Borrowing Base, and such new Borrowing Base shall continue until the next Determination Date. If Borrower does not furnish all such information, reports and data by any date specified in this Section 7(b), unless such failure is of no fault of Borrower, Lenders nonetheless shall designate the Borrowing Base at any amounts which Lenders in their discretion determine and redesignate the Borrowing Base from time to time thereafter until Lenders receive all such information, reports and data, whereupon Lenders shall designate a new Borrowing Base as described above. The procedure for determining the Borrowing Base at each redetermination shall be that Agent shall determine the Borrowing Base and submit the same to Lenders. Increases in the Borrowing Base will require approval of all Lenders, but other reaffirmations or changes in the Borrowing Base will be subject to the approval of Required Lenders. The failure of any Lender to respond within fifteen (15) days after receipt of the proposed Borrowing Base shall be deemed to be an approval of the proposed Borrowing Base. If Required Lenders (or all Lenders in the case of an increase in the Borrowing Base) do not approve of Agent’s proposed Borrowing Base, Agent shall poll Lenders to determine the highest Borrowing Base that is acceptable to such Lenders that constitute Required Lenders (or all Lenders in the case of an increase in the Borrowing Base), and such amount shall then circumstancebecome the new Borrowing Base. Each Lender shall determine the amount of the Borrowing Base based upon the loan collateral value which such Lender in its sole discretion (using such methodology, assumptions and discount rates as such Lender customarily uses in assigning collateral value to Borrowing Base Properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Borrowing Base Properties of Borrower at the time in question and based upon such other credit factors consistently applied (including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction ownership of Borrower and the Borrowing Base effect of Rate Management Transactions in effect at such time) as such Lender customarily considers in evaluating similar oil and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bankgas credits. If at any time any of the Collateral is Borrowing Base Properties are sold, the Borrowing Base then in effect shall automatically be reduced as required by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e12(r) hereof. If a non-scheduled It is expressly understood that Lenders have no obligation to designate the Borrowing Base redetermination is madeat any particular amounts, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof except in the exercise of their discretion, whether in relation to the BorrowerCommitments or otherwise. Provided, however, that no Bank Lenders shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsthe Commitment.
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by Banks at least Lenders semi-annually and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 April 1 and May 20, commencing November 20, 1998, the same to be effective as October 1 of each November 1 and May year beginning April 1, commencing November 1, 1998, 2008 (each “Redetermination Date”) or as Unscheduled Redeterminations. No later than March 1 of each year (for the April 1 Redetermination Date of such year) Borrower shall furnish to Lenders an engineering report in form and at substance reasonably satisfactory to Agent prepared by DxXxxxxx and MxxXxxxxxxx or such other dates independent petroleum engineering firm acceptable to Agent, said engineering report to utilize economic and pricing parameters used by Agent as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish established from time to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi)time, together with such other information, reports and data concerning the value of Borrowing Base Properties as Banks Agent shall deem reasonably necessary to determine the value of such Borrowing Base Properties. The engineering report prepared for the April 1 Redetermination Date shall be prepared as of the preceding January 1 of such year and the engineering report prepared for the October 1 Redetermination Date shall be prepared as of July 1 of such year. In addition to the scheduled semi-annual Borrowing Base Redeterminations, Borrower and Lenders may deem appropriate under each request one Unscheduled Redetermination between Redetermination Dates. By September 1 of each year (for the October 1 Redetermination Date for such year) beginning September 1, 2008, or within thirty (30) days after either (i) receipt of notice from Agent that Lenders require an Unscheduled Redetermination, or (ii) Borrower gives notice to Agent of its desire to have an Unscheduled Redetermination performed, in each case Borrower shall furnish to Lenders an engineering report prepared by a petroleum engineer employed by Borrower and updating the most recent engineering report delivered to Lenders hereunder, in form and substance reasonably satisfactory to Agent, said engineering report to utilize economic and pricing parameters used by Agent as established from to time, together with such other information, reports and data concerning the value of such Borrowing Base Properties. Agent shall by written notice to Borrower within a reasonable time after each Redetermination Date (the date of such notice being herein called the “Determination Date”) notify Borrower of the designation by Lenders of the new Borrowing Base for the period beginning on such Determination Date and continuing until, but not including, the next Determination Date. If an Unscheduled Redetermination is to be made by Lenders, Agent shall notify Borrower within a reasonable time after receipt of all requested information of the new Borrowing Base, and such new Borrowing Base shall continue until the next Determination Date. If Borrower does not furnish all such information, reports and data by any date specified in this Section 7(b), unless such failure is of no fault of Borrower, Lenders nonetheless shall designate the Borrowing Base at any amounts which Lenders in their discretion determine and redesignate the Borrowing Base from time to time thereafter until Lenders receive all such information, reports and data, whereupon Lenders shall designate a new Borrowing Base as described above. The procedure for determining the Borrowing Base at each redetermination shall be that Agent shall determine the Borrowing Base and submit the same to Lenders. Increases in the Borrowing Base will require approval of all Lenders, but other reaffirmations or changes in the Borrowing Base will be subject to the approval of Required Lenders. The failure of any Lender to respond within fifteen (15) days after receipt of the proposed Borrowing Base shall be deemed to be an approval of the proposed Borrowing Base. If Required Lenders (or all Lenders in the case of an increase in the Borrowing Base) do not approve of Agent’s proposed Borrowing Base, Agent shall poll Lenders to determine the highest Borrowing Base that is acceptable to such Lenders that constitute Required Lenders (or all Lenders in the case of an increase in the Borrowing Base), and such amount shall then circumstancebecome the new Borrowing Base. Each Lender shall determine the amount of the Borrowing Base based upon the loan collateral value which such Lender in its sole discretion (using such methodology, assumptions and discount rates as such Lender customarily uses in assigning collateral value to Borrowing Base Properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Borrowing Base Properties at the time in question and based upon such other credit factors consistently applied (including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction ownership of Borrower and the Borrowing Base effect of Rate Management Transactions in effect at such time) as such Lender customarily considers in evaluating similar oil and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bankgas credits. If at any time any of the Collateral is Borrowing Base Properties are sold, the Borrowing Base then in effect shall automatically be reduced as required by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e12(r) hereof. If a non-scheduled It is expressly understood that Lenders have no obligation to designate the Borrowing Base redetermination is madeat any particular amounts, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof except in the exercise of their discretion, whether in relation to the BorrowerCommitments or otherwise. Provided, however, that no Bank Lenders shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsthe Commitment.
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Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by Banks at least semi-annually and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 19982002, the same to be effective as of each November 1 and May 1, commencing November 1, 19982002, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. The procedure for determining the Borrowing Base and the Monthly Commitment Reduction at each redetermination shall be that the Agent shall determine the Borrowing Base and Monthly Commitment Reduction and submit the same to the Banks. Increases in the Borrowing Base shall require the approval of all Banks, but all other changes in the Borrowing Base and Monthly Commitment Reduction shall require approval of Majority Banks. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's ’s Commitment Percentage thereof is in excess of its legal or internal lending limits.
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Subsequent Determinations of Borrowing Base. Subsequent (a) By April 1 and October 1 of each year, beginning October 1, 2007, Borrower shall furnish to each Lender all information, reports and data which Administrative Agent has then requested concerning Loan Parties’ businesses and properties (including their oil and gas properties and interests and the reserves and production relating thereto), together with, as applicable, the Engineering Report as of January 1 described in Section 6.02(d) or as of July 1 described in Section 6.02(e). Within thirty calendar days after receiving such information, reports and data, or as promptly thereafter as practicable, Administrative Agent shall, in good faith, determine the amount of a proposed Borrowing Base. Administrative Agent shall then deliver to each Lender such proposed Borrowing Base. Within fifteen calendar days after the Lenders’ receipt thereof, or as promptly thereafter as practicable, Supermajority Lenders shall, in good faith, agree upon an amount for the Borrowing Base (provided that all Lenders must agree upon any increase in the Borrowing Base), which need not be equal to such proposed Borrowing Base. If Borrower has specified to Administrative Agent a maximum Borrowing Base requested by Borrower at the time of its delivery of information, reports and data contemplated by this Section, Administrative Agent shall notify the Lenders of such request, and the Borrowing Base determined by Supermajority Lenders (or all Lenders, as applicable) shall not exceed such requested amount. Such determinations by Administrative Agent or any Lenders constituting Supermajority Lenders (or all Lenders, as applicable) shall determine the amount of the Borrowing Base shall be made by Banks at least semi-annually and based upon the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination loan collateral value which they in their sole discretion assign to the discounted net present value of the Borrowing Base, various oil and gas properties included in the Banks shall also determine Collateral of Loan Parties at the Monthly Commitment Reduction. Such Borrowing Base time in question and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at based upon such other dates as determined at credit factors (including without limitation the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinationsassets, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateralliabilities, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed hedged and unhedged exposure to require that Banks or Agent shall or should obtain price, foreign exchange rate, and pay for any reportsinterest rate changes, appraisals or other data from third parties business, properties, prospects, management and ownership of Loan Parties and their Affiliates) as they in connection therewith. Such determinations shall be made by Banks their sole discretion deem significant in accordance with their respective normal and customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faithlending practices. If Supermajority Lenders (or all Lenders in the Banks cancase of an increase in the Borrowing Base) have not otherwise agree on approved the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to within the Agent its fifteen calendar day period after their receipt of such proposed Borrowing Base, Administrative Agent shall poll Lenders to ascertain the highest Borrowing Base then acceptable to a number of Lenders sufficient to constitute Supermajority Lenders (or all Lenders in the case of an increase in the Borrowing Base) and Monthly Commitment Reduction such amount shall then become the Borrowing Base. Administrative Agent shall by notice to Borrower designate such amount as the new Borrowing Base available to Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (herein called a “Determination Date”) and shall remain in effect until but not including the next date as of which the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest is redetermined (each a “Borrowing Base Period”). IT IS EXPRESSLY UNDERSTOOD THAT, SUBJECT TO THE FOREGOING PROVISIONS OF THIS SECTION, LENDERS AND ADMINISTRATIVE AGENT HAVE NO OBLIGATION TO AGREE UPON OR DESIGNATE THE BORROWING BASE AT ANY PARTICULAR AMOUNT, WHETHER IN RELATION TO THE MAXIMUM LOAN AMOUNT OR OTHERWISE, AND THAT LENDERS’ COMMITMENTS TO ADVANCE FUNDS HEREUNDER IS DETERMINED BY REFERENCE TO THE BORROWING BASE FROM TIME TO TIME IN EFFECT, WHICH BORROWING BASE SHALL BE USED FOR CALCULATING UNUSED FEES UNDER SECTION 2.09 AND, TO THE EXTENT PERMITTED BY LAW AND REGULATORY AUTHORITIES, FOR THE PURPOSES OF CAPITAL ADEQUACY DETERMINATION AND REIMBURSEMENTS UNDER SECTION 3.04.
(b) If Borrower does not furnish all such information, reports and highest Monthly Commitment Reduction proposed data by any Bank. If at any time any the date specified in the first sentence of the Collateral is soldsubsection (a) of this section, Administrative Agent may nonetheless designate the Borrowing Base then at any amount that Supermajority Lenders determine and may redesignate the Borrowing Base from time to time thereafter (provided that all Lenders must agree to any increase in effect the Borrowing Base) until each Lender receives all such information, reports and data, whereupon Supermajority Lenders (or all Lenders, as applicable) shall automatically be reduced designate a new Borrowing Base as described above.
(c) In addition to the redeterminations of the Borrowing Base pursuant to subsections (a) and (b) of this section, Borrower and Administrative Agent (or Administrative Agent at the request of Required Lenders) may each request additional determinations (“Special Determinations”) of the Borrowing Base from time to time; provided, that Borrower may request no more than one Special Determinations in any calendar year and Administrative Agent (or Administrative Agent at the Request of Required Lenders) may request no more than one Special Determinations in any calendar year thereafter. In the event Administrative Agent (or Administrative Agent at the request of Required Lenders) requests such a Special Determination, Administrative Agent shall promptly deliver notice of such request to Borrower and Borrower shall, within thirty (30) calendar days following the date of such request, deliver to Lenders an Engineering Report prepared by petroleum engineers who are employees of Borrower as of the last day of the calendar month preceding the date of such request and such other information which Administrative Agent shall have requested. In the event Borrower requests a sum equal Special Determination, Borrower shall deliver written notice of such request to Lenders which shall include (i) an Engineering Report prepared as of a date not more than thirty (30) days prior to the date of such request (or, in the case of a request made on the 31st day of any calendar month, thirty-one (31) days), (ii) the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled the Borrowing Base redetermination is maderequested by Borrower and to become effective on the Determination Date applicable to such Special Determination and (iii) such other information which Administrative Agent shall have reasonably requested. Upon receipt of such Engineering Report and other information, such non-scheduled redetermined Administrative Agent shall, subject to approval of Supermajority Lenders, or all Lenders in the event of a proposed increase in the Borrowing Base, redetermine the Borrowing Base in accordance with the procedure set forth in subsection (a) of this section, which Borrowing Base shall become effective immediately upon on the Determination Date (or as soon thereafter as Administrative Agent giving and Supermajority Lenders, or all Lenders in the event of a proposed increase in the Borrowing Base, approve such Borrowing Base and provide notice thereof to Borrower).
(d) In addition to Scheduled Determinations and Special Determinations, the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base shall automatically reduce, simultaneously with the completion by any Loan Party of any Subject Disposition (other than an Announced Divestiture) resulting in an amount such that such Bank's Commitment Percentage thereof is Net Cash Proceeds in excess of its legal $10,000,000.
(e) either individually or internal lending limitsin the aggregate since the date of the then most recent Scheduled Determination), by the Borrowing Base value of the Oil and Gas Properties which are subject to such Disposition (which shall be the Borrowing Base value assigned thereto as determined by Administrative Agent, and which, in the case of any exchange, shall be the net reduction in the Borrowing Base value realized or resulting from such exchange).
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Subsequent Determinations of Borrowing Base. Subsequent ------------------------------------------- determinations of the Borrowing Base shall be made by the Banks at least semi-annually on May 1 and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by BorrowerNovember 1 of each year beginning November 1, 1999 or as Unscheduled Redeterminations. In connection with with, and as of, each such determination of the Borrowing Base, the Banks shall also determine redetermine the Monthly Commitment Reduction. Such The Borrower shall furnish to the Banks as soon as possible but in any event no later than April 1 of each year, beginning April 1, 2000, with an Engineering Report in form and substance satisfactory to the Agent prepared by an independent petroleum engineering acceptable to Agent covering the Oil and Gas Properties utilizing economic and pricing parameters used by Agent as established from time to time, together with such other information concerning the value of the Oil and Gas Properties as the Agent shall deem necessary to determine the value of the Oil and Gas Properties. By October 1 of each year, or within thirty (30) days after either (i) receipt of notice from Agent that the Banks require an Unscheduled Redetermination, or (ii) the Borrower give notice to Agent of their desire to have an Unscheduled Redetermination performed, the Borrower shall furnish to the Banks an engineering report in form and substance satisfactory to Agent prepared by Borrower's in-house engineering staff valuing the Oil and Gas Properties utilizing economic and pricing parameters used by the Agent as established from time to time, together with such other information, reports and data concerning the value of the Oil and Gas Properties as Agent shall deem reasonably necessary to determine the value of such Oil and Gas Properties. Agent shall by notice to the Borrower no later than May 1 and November 1 of each year, or within a reasonable time thereafter (herein called the "Determination Date"), notify the Borrower of the designation by the Banks of the new Borrowing Base and Monthly Commitment Reduction determinations shall be made for the period beginning on or before each November 20 such Determination Date and May 20continuing until, commencing November 20, 1998but not including, the same to be effective as next Determination Date. If an Unscheduled Redetermination is made by the Banks, the Agent shall notify the Borrower within thirty (30) days after receipt of each November 1 all requested information, or within a reasonable time thereafter, of the new Borrowing Base and May 1, commencing November 1, 1998Monthly Commitment Reduction, and such new Borrowing Base and Monthly Commitment Reduction shall continue until the next Determination Date. If the Borrower does not furnish all such information, reports and data by any date specified in this Section 7(b), unless such failure is of no fault of the Borrower, the Banks may nonetheless designate the Borrowing Base and Monthly Commitment Reduction at any amounts which the Banks in their discretion determine and may redesignate the Borrowing Base and Monthly Commitment Reduction from time to time thereafter until the Banks receive all such information, reports and data, whereupon the Banks shall designate a new Borrowing Base and Monthly Commitment Reduction as described above. Each Bank shall determine the amount of the Borrowing Base and Monthly Commitment Reduction based upon the loan collateral value which such Bank in its discretion (using such methodology, assumptions and discounts rates as such Bank customarily uses in assigning collateral value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties of the Borrower at the time in question and based upon such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), credit factors consistently applied (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reportsownership of the Borrower and their affiliates) as such Bank customarily considers in evaluating similar oil and gas credits, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each but such Bank in its discretiondiscretion shall not be required to give any additional positive value to any Oil and Gas Property over the current economic and pricing parameters used by such Bank for such Determination Date which additional value is derived directly from a hedging, subject forward sale or swap agreement covering such Oil and Gas Property as of the date of such determination. All determinations or Unscheduled Redeterminations of the Borrowing Base and the Monthly Commitment Reduction resulting in an increase in the Borrowing Base or a decrease in the Monthly Commitment Reduction shall require the approval of 100% of the Banks. All other determinations shall require only to the requirement that such determination shall be reasonable and made in good faithMajority Banks. If the Banks cannot otherwise agree on the Borrowing Base or the Monthly Commitment Reduction, each Bank will shall submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on at the basis arithmetic average of the lowest Borrowing Base and highest the Monthly Commitment Reduction proposed by any Bankthe Banks. If at any time any of the Collateral is Oil and Gas Properties are sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e12(r) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined The Borrowing Base shall become effective immediately upon Agent giving notice thereof be additionally reduced from time to time pursuant to the Borrowerprovisions of Sections 2(e) and 2(f) hereof. It is expressly understood that the Banks have no obligation to designate the Borrowing Base or the Monthly Commitment Reduction at any particular amounts, except in the exercise of their discretion, whether in relation to the Revolving Commitment or otherwise. Provided, however, that no Bank the Banks shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of the Revolving Commitment or its legal or internal lending limits.
Appears in 1 contract
Samples: Credit Agreement (Wiser Oil Co)
Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by Banks the Lenders at least semi-annually on April 1 and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by BorrowerOctober 1 of each year beginning April 1, 2000, or as Unscheduled Redeterminations. In connection with with, and as of, each such determination of the Borrowing Base, the Banks Lenders shall also determine redetermine the Monthly Commitment ReductionReduction and allocate the Borrowing Base availability between Tranche A and Tranche B. The Borrower shall furnish to the Lenders as soon as possible but in any event no later than March 1 and September 1 of each year, beginning March 1, 2000 (or within thirty (30) days after either (i) receipt of notice from Agent that Agent or the Lenders require an Unscheduled Redetermination, or (ii) the Borrower gives notice to Agent of its desire to have an Unscheduled Redetermination performed), an engineering report in form, substance and "as of" date satisfactory to Agent prepared by Borrower's in-house engineering staff valuing the Oil and Gas Properties utilizing economic and pricing parameters used by the Agent as established from time to time, together with such other information, reports and data concerning the value of the Oil and Gas Properties as Agent shall deem reasonably necessary to determine the value of such Oil and Gas Properties. Such Provided, however, that Required Lenders shall have the right to request from time to time an engineering report prepared by an independent petroleum reserve engineering firm acceptable to Agent. Agent shall by notice to the Borrower no later than April 1 and October 1 of each year, or within a reasonable time thereafter (herein called the "Determination Date"), notify the Borrower of the designation by the Lenders of the new Borrowing Base and Monthly Commitment Reduction determinations shall be made for the period beginning on or before each November 20 such Determination Date and May 20continuing until, commencing November 20, 1998but not including, the same to be effective as next Determination Date. If an Unscheduled Redetermination is made by the Lenders, the Agent shall notify the Borrower within a reasonable time after receipt of each November 1 and May 1, commencing November 1, 1998, and at such other dates as determined at all requested information of the discretion of Majority Banks. Borrower may likewise request more frequent new Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed and such new Borrowing Base and Monthly Commitment Reduction shall continue until the next Determination Date. If the Borrower does not furnish all such information, reports and data by any date specified in this Section 7(b), the Lenders may nonetheless designate the Borrowing Base and Monthly Commitment Reduction shall be set on at any amounts which the basis of Lenders in their discretion determine and may redesignate the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bankfrom time to time thereafter until the Lenders receive all such information, reports and data, whereupon the Lenders shall designate a new Borrowing Base and Monthly Commitment Reduction as described above. Each Lender shall determine the amount of the Borrowing Base and Monthly Commitment Reduction based upon the amount which such Lender in its discretion (using such methodology, assumptions and discount rates as such Lender deems appropriate in assigning collateral value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties of the Borrower at the time in question and based upon such other credit factors (including, without limitation, the assets, liabilities, cash flow, Rate Management Transactions, business, properties, prospects, management and ownership of the Borrower and its Affiliates) as such Lender deems appropriate. All determinations or Unscheduled Redeterminations of the Borrowing Base and the Monthly Commitment Reduction require the approval of Required Lenders; provided, however, that notwithstanding anything to the contrary herein, the amount of the Borrowing Base may not be increased, nor may the Monthly Commitment Reduction be reduced, without the approval of all Lenders. If at any time any of the Collateral is Oil and Gas Properties are sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e12(r) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined The Borrowing Base shall become effective immediately upon Agent giving notice thereof be additionally reduced from time to time pursuant to the Borrowerprovisions of Sections 2(e) and 2(f) hereof. Provided, however, It is expressly understood that the Lenders have no Bank shall ever have an obligation to designate a the Borrowing Base or the Monthly Commitment Reduction at any particular amounts, except in an amount such that such Bank's the exercise of their discretion, whether in relation to the Commitment Percentage thereof is in excess of its legal or internal lending limitsotherwise.
Appears in 1 contract
Samples: Credit Agreement (Southwest Royalties Holdings Inc)
Subsequent Determinations of Borrowing Base. Subsequent determinations (a) By February 1, 2012, and by each March 31 and September 30 of each year thereafter beginning September 30, 2012, Borrowers shall furnish to each Lender all information, reports and data that Administrative Agent has then reasonably requested concerning Restricted Persons’ businesses and properties (including their oil and gas properties and interests and the reserves and production relating thereto) (all such information, reports and data collectively referred to herein as the “Requested Information”) together with the Engineering Report described in Section 6.2(c) or (d), as applicable. In each case, approximately forty-five days after receiving the Requested Information, or as promptly thereafter as practicable, Administrative Agent shall determine the amount of a proposed Borrowing Base; and Administrative Agent shall then deliver to each Lender such proposed Borrowing Base. Within 15 days after the Lenders’ receipt of such proposed Borrowing Base, or as promptly thereafter as practicable, Majority Lenders (or all Lenders in the case of an increase in the Borrowing Base) shall agree on an amount for the Borrowing Base, which Borrowing Base need not be equal to such proposed Borrowing Base. Majority Lenders shall determine the amount of the Borrowing Base based upon the loan collateral value that they in their discretion assign to the Present Value of the various oil and gas properties at the time in question and based upon such other credit factors (including the assets, liabilities, cash flow, hedged and unhedged exposure to price, foreign exchange rate, and interest rate changes, business, properties, prospects, management and ownership of Borrowers and their Affiliates) as they in their discretion deem significant. If Majority Lenders (or all Lenders in the case of an increase in the Borrowing Base) have not approved the Borrowing Base within the fifteen day period after their receipt of such proposed Borrowing Base, Administrative Agent shall be made poll Lenders to ascertain the highest Borrowing Base then acceptable to a number of Lenders sufficient to constitute Majority Lenders (or all Lenders in the case of an increase in the Borrowing Base) and such amount shall then become the Borrowing Base. Administrative Agent shall by Banks at least semi-annually notice to Borrowers designate such amount as the new Borrowing Base available to Borrowers hereunder, which designation shall take effect immediately on the date such notice is sent (herein called a “Determination Date”) and shall remain in effect until but not including the Banks next date as of which the Borrowing Base is redetermined. IT IS EXPRESSLY UNDERSTOOD THAT LENDERS AND ADMINISTRATIVE AGENT HAVE NO OBLIGATION TO AGREE UPON OR DESIGNATE THE BORROWING BASE AT ANY PARTICULAR AMOUNT, WHETHER IN RELATION TO THE MAXIMUM CREDIT AMOUNT OR OTHERWISE, THAT LENDERS’ COMMITMENTS TO MAKE LOANS HEREUNDER IS DETERMINED BY REFERENCE TO THE BORROWING BASE. THE BORROWING BASE SHALL BE USED FOR CALCULATING COMMITMENT FEES UNDER SECTION 2.5(C) AND, TO THE EXTENT PERMITTED BY LAW AND REGULATORY AUTHORITIES, THE BORROWING BASE SHALL BE USED FOR THE PURPOSES OF CAPITAL ADEQUACY DETERMINATION AND REIMBURSEMENTS UNDER SECTION 3.2.
(b) If Borrowers do not furnish all Requested Information by the date specified in the first sentence of subsection (a) of this section, Administrative Agent may make a redetermination nonetheless determine the Borrowing Base at any amount that Majority Lenders determine and may redetermine the Borrowing Base from time to time thereafter (provided that all Lenders must agree to any increase in the Borrowing Base) until each Lender receives all such information, reports and data, whereupon Majority Lenders (or all Lenders, as applicable) shall make designate a redetermination if new Borrowing Base as described above.
(c) In addition to the redeterminations of the Borrowing Base pursuant to subsections (a) and when (b) of this section, Borrowers and Administrative Agent (or Administrative Agent at the request of Majority Lenders) may each request additional determinations (“Special Determinations”) of the Borrowing Base from time to time; provided, that no such Person may request more than one Special Determination between Scheduled Determinations. In the event Administrative Agent (or Administrative Agent at the request of Majority Lenders) requests such a Special Determination, Administrative Agent shall promptly deliver notice of such request to Borrowers and Borrowers shall, within 45 days following the date of such request, deliver to Lenders an Engineering Report prepared by Netherland Xxxxxx & Associates, Inc. and X.X. Xxxx and Associates, Inc. (or other independent petroleum engineers chosen by Borrowers and acceptable to Administrative Agent) as of the last day of the calendar month preceding the date of such request and such other information that Administrative Agent shall have requested. In the event Borrowers request a Special Determination, Borrowers shall deliver written notice of such request to Lenders that includes (i) an Engineering Report prepared by petroleum engineers who are employees of a Borrower (or, at Borrowers’ option, the independent engineers referred to in the preceding sentence) as of a date not more than 30 days prior to the date of such request (or, in the case of a request made on the 31st day of any calendar month, 31 days), (ii) the amount of the Borrowing Base requested by BorrowerBorrowers and to become effective on the Determination Date applicable to such Special Determination and (iii) such other information requested by Administrative Agent. In connection with each Upon receipt of such determination Engineering Report and other information, Administrative Agent shall, subject to approval of Majority Lenders, or all Lenders in the event of a proposed increase in the Borrowing Base, redetermine the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans the procedure set forth in similar amounts to borrowers similarly situatedsubsection (a) of this section, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon on the Determination Date (or as soon thereafter as Administrative Agent giving and Majority Lenders, or all Lenders in the event of a proposed increase in the Borrowing Base, approve such Borrowing Base and provide notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsBorrowers).
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base and Monthly Commitment Reduction shall be made by the Banks at least semi-annually based on engineering reports effectively dated January 1 and July 1 of each year beginning July 1, 2001 or as otherwise required to accommodate Unscheduled Redeterminations. The Borrowers shall furnish to the Banks may make a redetermination at as soon as possible but in any event no later than April 1 of each year, beginning April 1, 2001, with an engineering report in form and substance satisfactory to the Agent prepared by an independent petroleum engineering firm acceptable to Agent covering the Oil and Gas Properties utilizing economic and pricing parameters used by Agent as established from time and shall make a redetermination if and when requested by Borrower. In connection to time, together with each such determination other information concerning the value of the Borrowing BaseOil and Gas Properties as the Agent shall deem necessary to determine the value of the Oil and Gas Properties. By October 1 of each year, or within thirty (30) days after either (i) receipt of notice from Agent that the Banks require an Unscheduled Redetermination, or (ii) the Borrowers give notice to Agent of their desire to have an Unscheduled Redetermination performed, the Borrowers shall furnish to the Banks an engineering report in form and substance satisfactory to Agent prepared by Borrowers' in-house engineering staff valuing the Oil and Gas Properties utilizing economic and pricing parameters used by the Agent as established from time to time, together with such other information, reports and data concerning the value of the Oil and Gas Properties as Agent shall also deem reasonably necessary to determine the Monthly Commitment Reductionvalue of such Oil and Gas Properties. Such Agent shall by notice to the Borrowers no later than May 1 and November 1 of each year, or within a reasonable time thereafter (herein called the "Determination Date"), notify the Borrowers of the designation by the Banks of the new Borrowing Base and Monthly Commitment Reduction determinations shall be made for the period beginning on or before each November 20 such Determination Date and May 20continuing until, commencing November 20, 1998but not including, the same to be effective as next Determination Date. If an Unscheduled Redetermination is made by the Banks, the Agent shall notify the Borrowers within a reasonable time after receipt of each November 1 and May 1, commencing November 1, 1998all requested information of the new Borrowing Base, and such new Borrowing Base and Monthly Commitment Reduction shall continue until the next Determination Date. If the Borrowers do not furnish all such information, reports and data by any date specified in this Section 7.2, the Banks may nonetheless designate the Borrowing Base and Monthly Commitment Reduction at any amount which the Banks in their discretion determine and may redesignate the Borrowing Base and Monthly Commitment Reduction from time to time thereafter until the Banks receive all such information, reports and data, whereupon the Banks shall designate a new Borrowing Base and Monthly Commitment Reduction as described above. Each Bank shall determine the amount of the Borrowing Base and Monthly Commitment Reduction based upon the loan value which such Bank in its discretion (using such methodology, assumptions and discounts rates as such Bank customarily uses in assigning loan value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties and other Collateral of the Borrowers at the time in question and based upon such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), credit factors consistently applied (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reportsownership of the Borrowers and their affiliates) as such Bank customarily considers in evaluating similar oil and gas credits, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each but such Bank in its discretiondiscretion shall not be required to give any additional positive value to any Oil and Gas Property over the current economic and pricing parameters used by such Bank for such Determination Date which additional value is derived directly from a hedging, subject only forward sale or swap agreement covering such Oil and Gas Property as of the date of such determination. All determinations or Unscheduled Redeterminations of the Borrowing Base require the approval of Majority Banks; provided, however, that notwithstanding anything to the requirement that such determination shall contrary herein, the amount of the Borrowing Base and the Monthly Commitment Reduction may not be reasonable and made in good faithincreased, without the approval of all Banks. If the Banks cannot otherwise agree on the Borrowing Base or and the Monthly Commitment Reduction, each Bank will shall submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest weighted average of the Borrowing Base and highest Monthly Commitment Reduction Bases proposed by any Bankthe Banks. If at any time any of the Collateral is Oil and Gas Properties are sold, the Borrowing Base then in effect shall automatically may be reduced by as a sum equal to the amount result of prepayment required to be made pursuant to Section 13(e) hereofan Unscheduled Redetermination . If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined The Borrowing Base shall become effective immediately upon Agent giving notice thereof be additionally reduced from time to time pursuant to the Borrowerprovisions of Sections 2.6 and 2.7 hereof. It is expressly understood that the Banks have no obligation to designate the Borrowing Base at any particular amounts, except in the exercise of their discretion. Provided, however, that no Bank the Banks shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of the Commitment or its legal or internal lending limits. The Banks shall have the right to perform an Unscheduled Redetermination of the Borrowing Base.
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Subsequent Determinations of Borrowing Base. Subsequent determinations (a) By April 1 and October 1 of each year, beginning April 1, 2006, Borrower shall furnish to each Lender all information, reports and data which Administrative Agent has then requested concerning Loan Parties' businesses and properties (including their oil and gas properties and interests and the reserves and production relating thereto), together with, as applicable, the Engineering Report as of January 1 described in Section 6.02(d) or as of July 1 described in Section 6.02(e). Within thirty calendar days after receiving such information, reports and data, or as promptly thereafter as practicable, Administrative Agent shall determine the amount of a proposed Borrowing Base. Administrative Agent shall then deliver to each Lender such proposed Borrowing Base. Within fifteen calendar days after the Lender's receipt of thereof, or as promptly thereafter as practicable, all Lenders shall agree upon an amount for the Borrowing Base (provided that all Lenders must agree upon any increase in the Borrowing Base), which need not be equal to such proposed Borrowing Base. The Lenders shall determine the amount of the Borrowing Base based upon the loan collateral value which they in their discretion assign to the discounted net present value of the various oil and gas properties included in the Collateral of Loan Parties at the time in question and based upon such other credit factors (including without limitation the assets, liabilities, cash flow, hedged and unhedged exposure to price, foreign exchange rate, and interest rate changes, business, properties, prospects, management and ownership of Loan Parties and their Affiliates) as they in their discretion deem significant. If all Lenders have not approved the Borrowing Base within the fifteen calendar day period after their receipt of such proposed Borrowing Base, Administrative Agent shall be made poll Lenders to ascertain the highest Borrowing Base then acceptable to all Lenders and such amount shall then become the Borrowing Base. Administrative Agent shall by Banks at least semi-annually notice to Borrower designate such amount as the new Borrowing Base available to Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (herein called a "Determination Date") and shall remain in effect until but not including the Banks next date as of which the Borrowing Base is redetermined (each a "Borrowing Base Period"). IT IS EXPRESSLY UNDERSTOOD THAT LENDERS AND ADMINISTRATIVE AGENT HAVE NO OBLIGATION TO AGREE UPON OR DESIGNATE THE BORROWING BASE AT ANY PARTICULAR AMOUNT, WHETHER IN RELATION TO THE MAXIMUM LOAN AMOUNT OR OTHERWISE, AND THAT LENDERS' COMMITMENTS TO ADVANCE FUNDS HEREUNDER IS DETERMINED BY REFERENCE TO THE BORROWING BASE FROM TIME TO TIME IN EFFECT, WHICH BORROWING BASE SHALL BE USED FOR CALCULATING COMMITMENT FEES UNDER SECTION 2.5 AND, TO THE EXTENT PERMITTED BY LAW AND REGULATORY AUTHORITIES, FOR THE PURPOSES OF CAPITAL ADEQUACY DETERMINATION AND REIMBURSEMENTS UNDER SECTION 3.2.
(b) If Borrower does not furnish all such information, reports and data by the date specified in the first sentence of subsection (a) of this section, Administrative Agent may make a redetermination nonetheless designate the Borrowing Base at any amount that all Lenders determine and may redesignate the Borrowing Base from time to time thereafter until each Lender receives all such information, reports and data, whereupon all Lenders shall make designate a redetermination if and when requested by Borrower. new Borrowing Base as described above.
(c) In connection with each such determination addition to the redeterminations of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), subsections (iv), (va) and (vi)b) of this section, together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow Borrower and projections of cash flow, provided that nothing herein shall be construed to require that Banks Administrative Agent (or Administrative Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by request of Required Lenders) may each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on request additional determinations ("Special Determinations") of the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing from time to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Provided, howevertime; provided, that Borrower may request no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limits.more than two (2) Special
Appears in 1 contract
Samples: Credit Agreement (MV Partners LLC)
Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by the Banks at least semi-semi- annually on March 1 and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by BorrowerSeptember 1 of each year beginning March 1, 1999 or as Unscheduled Redeterminations. In connection with with, and as of, each such determination of the Borrowing Base, the Banks shall also determine redetermine the Monthly Commitment Reduction. Such The Borrowers shall furnish to the Banks as soon as possible but in any event no later than February 1 of each year, beginning February 1, 1999, with an engineering report in form and substance satisfactory to the Agent prepared by an independent petroleum engineering acceptable to Agent covering the Oil and Gas Properties utilizing economic and pricing parameters used by Agent as established from time to time, together with such other information concerning the value of the Oil and Gas Properties as the Agent shall deem necessary to determine the value of the Oil and Gas Properties. By August 1 of each year, or within thirty (30) days after either (I) receipt of notice from Agent that the Banks require an Unscheduled Redetermination, or (ii) the Borrowers give notice to Agent of their desire to have an Unscheduled Redetermi- nation performed, the Borrowers shall furnish to the Banks an engineering report in form and substance satisfactory to Agent prepared by Borrowers' in-house engineering staff valuing the Oil and Gas Properties utilizing economic and pricing parameters used by the Agent as established from time to time, together with such other information, reports and data concerning the value of the Oil and Gas Properties as Agent shall deem reasonably necessary to determine the value of such Oil and Gas Properties. Agent shall by notice to the Borrowers no later than March 1 and September 1 of each year, or within a reasonable time thereafter (herein called the "Determination Date"), notify the Borrowers of the designation by the Banks of the new Borrowing Base and Monthly Commitment Reduction determinations shall be made for the period beginning on or before each November 20 such Determination Date and May 20continuing until, commencing November 20, 1998but not including, the same to be effective as next Determination Date. If an Unscheduled Redetermination is made by the Banks, the Agent shall notify the Borrowers within a reasonable time after receipt of each November 1 all requested information of the new Borrowing Base and May 1, commencing November 1, 1998Monthly Commitment Reduction, and such new Borrowing Base and Monthly Commitment Reduction shall continue until the next Determination Date. If the Borrowers do not furnish all such informa- tion, reports and data by any date specified in this Section 7(b), the Banks may nonetheless designate the Borrowing Base and Monthly Commitment Reduction at any amounts which the Banks in their discretion determine and may redesignate the Borrowing Base and Monthly Commitment Reduction from time to time thereafter until the Banks receive all such information, reports and data, whereupon the Banks shall designate a new Borrowing Base and Monthly Commitment Reduction as described above. Each Bank shall determine the amount of the Borrowing Base and Monthly Commitment Reduction based upon the loan collateral value which such Bank in its discretion (using such methodology, assumptions and discounts rates as such Bank customarily uses in assigning col- lateral value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties and other Collateral of the Borrowers at the time in question and based upon such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), credit factors consistently applied (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reportsownership of the Borrowers and their affiliates) as such Bank customarily considers in evaluating similar oil and gas credits, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each but such Bank in its discretiondis- cretion shall not be required to give any additional positive value to any Oil and Gas Property over the current economic and pricing parameters used by such Bank for such Determination Date which additional value is derived directly from a hedging, subject only forward sale or swap agreement covering such Oil and Gas Pro- perty as of the date of such determination. All determinations or Unscheduled Redeterminations of the Borrowing Base and the Monthly Commitment Reduction require the approval of Majority Banks; provided, however, that notwithstanding anything to the requirement that such determination shall contrary herein, the amount of the Borrowing Base may not be reasonable and made in good faithincreased, nor may the Monthly Commitment Reduction be reduced, without the approval of all Banks. If the Banks cannot otherwise agree on the Borrowing Base or the Monthly Commitment Reduction, each Bank will shall submit in writing to the Agent its proposed Borrowing Base and nd Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest weighted average of the Borrowing Base Bases and highest the weighted average of the Monthly Commitment Reduction Reductions proposed by any Bankthe Banks. If at any time any of the Collateral is Oil and Gas Properties are sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e12(r) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined The Borrowing Base shall become effective immediately upon Agent giving notice thereof be additionally reduced from time to time pursuant to the Borrowerprovisions of Sections 2(e) and 2(f) hereof. It is expressly understood that the Banks have no obli- gation to designate the Borrowing Base or the Monthly Commitment Reduction at any particular amounts, except in the exercise of their discretion, whether in relation to the Revolving Commitment or otherwise. Provided, however, that no Bank the Banks shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of the Revolving Commitment or its legal or internal lending limits. Upon the issuance of any public note issue permitted pursuant to Section 13(f)(iv) hereof, the Banks shall have the right to perform an Unscheduled Redetermination of the Borrowing Base.
2. Section 12 of the Agreement, Affirmative Covenants, at Subsection (a)(iii), Report on Properties, is hereby amended to replace the reference to the months of "April" and "October" with the months of "February" and "August" occurring in the second line of said Section 12(a)(iii).
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Subsequent Determinations of Borrowing Base. Subsequent determinations of (a) By each Evaluation Date, Borrower shall furnish to each Lender the Borrowing Base Engineering Report described in Section 5.1(b)(iv), together with all other information and data which Administrative Agent has then reasonably requested concerning the Related Persons' businesses and properties. Within thirty days after receiving such reports and other information and data, or as promptly thereafter as practicable, Administrative Agent shall be made by Banks at least semi-annually and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of propose to Lenders an amount for the Borrowing Base, and within thirty days thereafter each Lender will notify Administrative Agent of whether or not it accepts such proposed amount. Failure of any Lender to give such notice within such time period shall be deemed to constitute acceptance of such proposed amount by such Lender. If such proposed amount is not accepted by Majority Lenders (or, if Administrative Agent has proposed an increase in the Banks Borrowing Base, by Supermajority Lenders), Administrative Agent and Lenders shall also determine the Monthly Commitment Reduction. Such continue to discuss a new Borrowing Base until such time as Administrative Agent and Monthly Commitment Reduction determinations Majority Lenders (or, if the Borrowing Base is to be increased, Supermajority Lenders) shall have agreed upon an amount for the new Borrowing Base, and promptly thereafter Administrative Agent shall notify Borrower of such amount.
(b) Within five Business Days after receipt of such notice from Administrative Agent, Borrower shall by notice to Administrative Agent either accept such amount as the new Borrowing Base or reduce the Borrowing Base from the amount proposed by Administrative Agent to any lesser amount. (Failure by Borrower to take either such action within such five Business Day period shall be made deemed acceptance of such amount.) Upon any such acceptance or deemed acceptance by Borrower, a new Borrowing Base in the amount accepted shall take effect on such date (herein called a "Determination Date") and shall remain in effect until but not including the next Determination Date. Upon any such reduction by Borrower, a new Borrowing Base in the reduced amount specified by Borrower shall take effect on such date (herein also called a "Determination Date") and shall remain in effect until but not including the next Determination Date.
(c) Whenever either of the following events occurs:
(i) the Related Persons, in one or before more transactions after the Determination Date immediately preceding the time in question (or, prior to the first Determination Date, after the date hereof) make aggregate Borrowing Base Asset Sales of $50,000,000 or more, or
(ii) Borrower decides, as contemplated in Section 5.2(b)(iv), to make any unscheduled payment of Subordinated Indebtedness, then Borrower will promptly give notice of such event to Administrative Agent and each November 20 Lender and, upon receipt of such notice, Majority Lenders (acting through Administrative Agent) may, at their option, either (1) specify an additional Evaluation Date as contemplated in subsection (d) of the definition in Section 1.1 of "Evaluation Date" and May 20, commencing November 20, 1998, thereafter receive the same to be effective as of each November 1 reports and May 1, commencing November 1, 1998information, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize contemplated above in this Section 2.11, or (2) request any supplemental information which they reasonably desire from Borrower without requiring all such reports and appraisals other information, and then designate a new Borrowing Base as Borrower may furnish they deem appropriate in light of such event and such supplemental information (provided that any increase in the Borrowing Base must be consented to Banks through Agent under other provisions hereof with respect to by Supermajority Lenders). Upon any such designation, a new Borrowing Base in the Collateral, amount designated shall take effect on such date (herein also called a "Determination Date") and shall remain in effect until but not including the next Determination Date.
(d) If Borrower does not furnish all of the reports, information, and data referred to in the first sentence of subsection (a) of this section by the date specified in such sentence, or promptly furnish any supplemental information required pursuant which Administrative Agent requests as contemplated in clause (2) of subsection (c) of this section, then Administrative Agent may designate the Borrowing Base at any amount which Administrative Agent and Majority Lenders (or Supermajority Lenders, in the case of an increase) determine and may redesignate the Borrowing Base from time to Section 12(a)(iiitime thereafter until each Lender receives all such information, reports and data, whereupon Administrative Agent and Lenders shall determine, and Borrower shall accept or reduce, a new Borrowing Base as described in subsections (a), (iv), (vb) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections c) of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsthis section.
Appears in 1 contract
Samples: Credit Agreement (Nuevo Energy Co)
Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by Banks at least semi-annually and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November May 20, 19982000, the same to be effective as of each November 1 and May 1, commencing November May 1, 19982000, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limits.
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by Banks at least semi-annually on May 1 and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as 1 of each November 1 and year beginning May 1, commencing November 2002 or as an Unscheduled Redetermination. By March 1 each year, beginning March 1, 19982002, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through the Lenders an engineering report in form and substance reasonably satisfactory to Agent under other provisions hereof with respect prepared by an independent petroleum engineering firm acceptable to Agent, said engineering report to utilize economic and pricing parameters used by the Collateral, including the information required pursuant Agent as established from time to Section 12(a)(iii), (iv), (v) and (vi)time, together with such other information, reports and data concerning the value of the Oil and Gas Properties as Banks Agent shall deem reasonably necessary to determine the value of such Oil and Gas Properties. By September 1 of each year beginning September 1, 2002, or within thirty (30) days after either (i) receipt of notice from Agent that the Lenders require an Unscheduled Redetermination, or (ii) the Borrower gives notice to Agent of its desire to have an Unscheduled Redetermination performed, the Borrower shall furnish to the Lenders an engineering report in form and substance reasonably satisfactory to Agent, said internally prepared engineering report to utilize economic and pricing parameters used by the Agent as established from to time, together with such other information, reports and data concerning the value of such Oil and Gas Properties. Agent shall by written notice to the Borrower no later than May 1 and November 1 of each year, or within a reasonable time thereafter (herein called the "Determination Date"), notify the Borrower of the determination by the Lenders of the new Borrowing Base for the period beginning on such Determination Date and continuing until, but not including, the next Determination Date. If an Unscheduled Redetermination is to be made by the Lenders, the Agent shall notify the Borrower within a reasonable time after receipt of all requested information of the new Borrowing Base, and such new Borrowing Base shall continue until the next Determination Date. If the Borrower does not furnish all such information, reports and data by any date specified in this Section 7(b), unless such failure is of no fault of the Borrower, the Lenders may deem appropriate under nonetheless designate the Borrowing Base at any amounts which the Lenders in their reasonable discretion determine and may redesignate the Borrowing Base from time to time thereafter until the Lenders receive all such information, reports and data, whereupon the Lenders shall designate a new Borrowing Base as described above. The procedure for determining the Borrowing Base at each redetermination shall be that the Agent shall determine the Borrowing Base and submit the same to the Lenders. Increases in the Borrowing Base will require approval of all Lenders, but other changes in the Borrowing Base will be subject to the approval of Majority Lenders. If any redetermined Borrowing Base is not approved by Majority Lenders within twenty (20) days after submission to the Lenders by the Agent, the Agent shall notify each of the Lenders that the proposed Borrowing Base has not been approved and each Lender will submit within ten (10) days thereafter its proposed Borrowing Base. The redetermined Borrowing Base shall be then circumstancedetermined based upon the weighted arithmetic average of the proposed amounts submitted by each Lender, said proposals to be weighted according to each Lender's Commitment. Each Lender shall determine the amount of the Borrowing Base based upon the loan collateral value which such Lender in its sole discretion (using such methodology, assumptions and discount rates as such Lender customarily uses in assigning collateral value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties of the Borrower at the time in question and based upon such other credit factors consistently applied (including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices ownership of the Borrower and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction affiliates and the Borrowing Base Current Exchange Rate) as such Lender customarily considers in evaluating similar oil and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bankgas credits. If at any time any of the Collateral is Oil and Gas Properties are sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment prepayment, if any, required to be made pursuant to Section 13(e12(p) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined The Borrowing Base shall become effective immediately upon Agent giving notice thereof be additionally reduced from time to time pursuant to the Borrowerprovisions of Sections 2(d) hereof. It is expressly understood that the Lenders have no obligation to designate the Borrowing Base at any particular amounts, except in the exercise of their discretion, whether in relation to the Commitment or otherwise. Provided, however, that no Bank the Lenders shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsthe Commitment.
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations (a) By each Evaluation Date, the Borrower shall furnish to the Administrative Agent and each Lender all information, reports and data which the Administrative Agent has then reasonably requested concerning the Borrower's and the Guarantors' businesses and properties (including Borrower's and the Guarantors' Oil and Gas Properties and interests and the reserves and production relating thereto), together with the Engineering Report described in Section 6.2(g), if an Engineering Report is then due. Within thirty (30) days after receiving such information, reports and data, or as promptly thereafter as practicable, the Administrative Agent shall recommend a redetermined Borrowing Base to the Lenders. Such recommended Borrowing Base shall become effective upon the receipt by the Administrative Agent of the approval of the Majority Lenders. The failure of a Lender to respond or object to the recommended Borrowing Base within fifteen (15) days after notice thereof is given to such Lender by the Administrative Agent shall be deemed an acceptance and approval of such recommended Borrowing Base by such Lender. If such recommended Borrowing Base is not approved by Majority Lenders within fifteen (15) days after the Administrative Agent submits the recommended Borrowing Base to the Lenders, then each Lender shall submit in writing to the Administrative Agent, on or within fifteen (15) days after the Administrative Agent notifies the Lenders that the Lenders have not approved any such recommended Borrowing Base, such Lender's determination of the redetermined Borrowing Base; in such case, the redetermined Borrowing Base shall be the highest amount approved by the Majority Lenders. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, WITHOUT THE PRIOR WRITTEN APPROVAL OF ALL OF THE LENDERS, SUCH APPROVAL TO BE IN EACH LENDER'S SOLE DISCRETION, THE REDETERMINED BORROWING BASE SHALL NOT BE INCREASED ABOVE THE AMOUNT OF THE BORROWING BASE IN EFFECT IMMEDIATELY PRIOR TO SUCH REDETERMINATION. The Administrative Agent shall by notice to the Borrower and the Lenders designate the amount of the Borrowing Base (determined by the Majority Lenders or all of the Lenders, as applicable, in accordance with the foregoing procedures) available to the Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (a "Determination Date") and shall remain in effect until but not including the next date as of which the Borrowing Base is redetermined. If the Borrower does not furnish all such information, reports and data by the date specified in the first sentence of this section, the Administrative Agent may nonetheless designate the Borrowing Base at any amount which the Lenders determine, and may redesignate the Borrowing Base from time to time thereafter at any amount which all Lenders redetermine, until each Lender receives all such information, reports and data, whereupon Lenders shall designate a new Borrowing Base as described above. The Lenders shall determine the amount of the Borrowing Base based upon the loan collateral value which they, in their sole discretion and in accordance with their respective normal practices and standards for oil and gas loans as such practices and standards exist at the particular time, assign to the various Oil and Gas Properties of the Borrower or the Guarantors at the time in question and based upon such other factors (including without limitation the assets, liabilities, fixed charges, cash flow, business, properties, prospects, management and ownership of any of the Borrower or the Guarantors or any Subsidiary of any of the Borrower or the Guarantors) as they, in their sole discretion and in accordance with their respective normal practices and standards for oil and gas loans as such practices and standards exist at the particular time, deem significant. It is expressly understood that Lenders and the Administrative Agent have no obligation to agree upon or designate the Borrowing Base at any particular amount, whether in relation to the Maximum Loan Amount or otherwise, and that the Lenders' commitments to advance funds hereunder is determined by reference to the Borrowing Base from time to time in effect, which Borrowing Base shall be made used for calculating commitment fees under Section 2.10(a). Additional redeterminations at the request of the Lenders, the Administrative Agent or the Borrower shall be subject to a $5,000 engineering fee payable by Banks Borrower to the Administrative Agent for its own account.
(b) The Borrower may include additional Oil and Gas Properties of the Borrower or the Guarantors acquired from time to time as Collateral for the Obligations, which may then be included in the calculation of the Borrowing Base, by the Borrower (A) giving written notice to the Administrative Agent of such properties to be included, (B) subjecting such properties to Liens securing the Obligations (pursuant to Security Documents satisfactory to the Administrative Agent) if necessary to comply with the provisions of Section 6.16, (C) including such properties in an Engineering Report submitted to the Administrative Agent and (D) delivering to the Administrative Agent title opinions covering at least semi-annually 80% of the additional value of such properties addressed to the Administrative Agent for the benefit of the Lenders covering all of such properties and other legal opinions from counsel acceptable to the Banks Administrative Agent, in its sole discretion, in form, scope and substance acceptable to the Administrative Agent opining favorably as to, among such other matters as may make a redetermination at be required by the Administrative Agent, (1) the Borrower's or the appropriate Guarantor's ownership of such properties and (2) matters of the type covered by the opinions delivered pursuant to Section 4.1(a)(vi).
(c) In addition to the any time and shall make a redetermination if and when requested by Borrower. In connection with each such scheduled determination or discretionary determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof be automatically reduced from time to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base time as set forth in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsSection 7.5(e).
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Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by Banks at least semi-annually and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by BorrowerOctober 1 of each year beginning October 1, 1998 or as Unscheduled Redeterminations. In connection with with, and as of, each such determination of the Borrowing Base, the Banks shall also determine redetermine the Monthly Commitment Reduction. Such The Borrower shall furnish to the Banks as soon as possible but in any event no later than March 1 of each year, beginning March 1, 1999, with an Engineering Report in form and substance satisfactory to the Agent prepared by an independent petroleum engineering acceptable to Agent covering the Oil and Gas Properties utilizing economic and pricing parameters used by Agent as established from time to time, together with such other information concerning the value of the Oil and Gas Properties as the Agent shall deem necessary to determine the value of the Oil and Gas Properties. By September 1 of each year, or within thirty (30) days after either (i) receipt of notice from Agent that the Banks require an Unscheduled Redetermination, or (ii) the Borrower give notice to Agent of their desire to have an Unscheduled Redetermination performed, the Borrower shall furnish to the Banks an engineering report in form and substance satisfactory to Agent prepared by Borrower's in-house engineering staff valuing the Oil and Gas Properties utilizing economic and pricing parameters used by the Agent as established from time to time, together with such other information, reports and data concerning the value of the Oil and Gas Properties as Agent shall deem reasonably necessary to determine the value of such Oil and Gas Properties. Agent shall by notice to the Borrower no later than April 1 and October 1 of each year, or within a reasonable time thereafter (herein called the "Determination Date"), notify the Borrower of the designation by the Banks of the new Borrowing Base and Monthly Commitment Reduction determinations shall be made for the period beginning on or before each November 20 such Determination Date and May 20continuing until, commencing November 20, 1998but not including, the same to be effective as next Determination Date. If an Unscheduled Redetermination is made by the Banks, the Agent shall notify the Borrower within a reasonable time after receipt of each November 1 all requested information of the new Borrowing Base and May 1, commencing November 1, 1998Monthly Commitment Reduction, and such new Borrowing Base and Monthly Commitment Reduction shall continue until the next Determination Date. If the Borrower does not furnish all such information, reports and data by any date specified in this Section 7(b), unless such failure is of no fault of the Borrower, the Banks may nonetheless designate the Borrowing Base and Monthly Commitment Reduction at any amounts which the Banks in their discretion determine and may redesignate the Borrowing Base and Monthly Commitment Reduction from time to time thereafter until the Banks receive all such information, reports and data, whereupon the Banks shall designate a new Borrowing Base and Monthly Commitment Reduction as described above. Each Bank shall determine the amount of the Borrowing Base and Monthly Commitment Reduction based upon the loan collateral value which such Bank in its discretion (using such methodology, assumptions and discounts rates as such Bank customarily uses in assigning collateral value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties of the Borrower at the time in question and based upon such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), credit factors consistently applied (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reportsownership of the Borrower and its affiliates) as such Bank customarily considers in evaluating similar oil and gas credits, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each but such Bank in its discretiondiscretion shall not be required to give any additional positive value to any Oil and Gas Property over the current economic and pricing parameters used by such Bank for such Determination Date which additional value is derived directly from a hedging, subject only forward sale or swap agreement covering such Oil and Gas Property as of the date of such determination. All determinations or Unscheduled Redeterminations of the Borrowing Base and the Monthly Commitment Reduction require the approval of Majority Banks; provided, however, that notwithstanding anything to the requirement that such determination shall contrary herein, the amount of the Borrowing Base may not be reasonable and made in good faithincreased, nor may the Monthly Commitment Reduction be reduced, without the approval of all Banks. If the Banks cannot otherwise agree on the Borrowing Base or the Monthly Commitment Reduction, each Bank will shall submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and the highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is Oil and Gas Properties are sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e12(r) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined The Borrowing Base shall become effective immediately upon Agent giving notice thereof be additionally reduced from time to time pursuant to the Borrowerprovisions of Sections 2(e) and 2(f) hereof. It is expressly understood that the Banks have no obligation to designate the Borrowing Base or the Monthly Commitment Reduction at any particular amounts, except in the exercise of their discretion, whether in relation to the Revolving Commitment or otherwise. Provided, however, that no Bank the Banks shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of the Revolving Commitment or its legal or internal lending limits. Provided, however, that in no event shall the Borrowing Base ever exceed 10% of the Adjusted Consolidated Tangible Net Assets.
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Samples: Loan Agreement (Gothic Energy Corp)
Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by the Banks at least semi-annually on May 1 and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by BorrowerNovember 1 of each year beginning November 1, 1998 or as Unscheduled Redeterminations. In connection with with, and as of, each such determination of the Borrowing Base, the Banks shall also determine redetermine the Monthly Commitment Reduction. Such The Borrowers shall furnish to the Banks as soon as possible but in any event no later than April 1 of each year, beginning April 1, 1999, with an engineering report in form and substance satisfactory to the Agent prepared by an independent petroleum engineering acceptable to Agent covering the Oil and Gas Properties utilizing economic and pricing parameters used by Agent as established from time to time, together with such other information concerning the value of the Oil and Gas Properties as the Agent shall deem necessary to determine the value of the Oil and Gas Properties. By October 1 of each year, or within thirty (30) days after either (i) receipt of notice from Agent that the Banks require an Unscheduled Redetermination, or (ii) the Borrowers give notice to Agent of their desire to have an Unscheduled Redetermination performed, the Borrowers shall furnish to the Banks an engineering report in form and substance satisfactory to Agent prepared by Borrowers' in-house engineering staff valuing the Oil and Gas Properties utilizing economic and pricing parameters used by the Agent as established from time to time, together with such other information, reports and data concerning the value of the Oil and Gas Properties as Agent shall deem reasonably necessary to determine the value of such Oil and Gas Properties. Agent shall by notice to the Borrowers no later than May 1 and November 1 of each year, or within a reasonable time thereafter (herein called the "Determination Date"), notify the Borrowers of the designation by the Banks of the new Borrowing Base and Monthly Commitment Reduction determinations shall be made for the period beginning on or before each November 20 such Determination Date and May 20continuing until, commencing November 20, 1998but not including, the same to be effective as next Determination Date. If an Unscheduled Redetermination is made by the Banks, the Agent shall notify the Borrowers within a reasonable time after receipt of each November 1 all requested information of the new Borrowing Base and May 1, commencing November 1, 1998Monthly Commitment Reduction, and such new Borrowing Base and Monthly Commitment Reduction shall continue until the next Determination Date. If the Borrowers do not furnish all such information, reports and data by any date specified in this Section 7(b), the Banks may nonetheless designate the Borrowing Base and Monthly Commitment Reduction at any amounts which the Banks in their discretion determine and may redesignate the Borrowing Base and Monthly Commitment Reduction from time to time thereafter until the Banks receive all such information, reports and data, whereupon the Banks shall designate a new Borrowing Base and Monthly Commitment Reduction as described above. Each Bank shall determine the amount of the Borrowing Base and Monthly Commitment Reduction based upon the loan collateral value which such Bank in its discretion (using such methodology, assumptions and discounts rates as such Bank customarily uses in assigning collateral value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties and other Collateral of the Borrowers at the time in question and based upon such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), credit factors consistently applied (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reportsownership of the Borrowers and their affiliates) as such Bank customarily considers in evaluating similar oil and gas credits, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each but such Bank in its discretiondiscretion shall not be required to give any additional positive value to any Oil and Gas Property over the current economic and pricing parameters used by such Bank for such Determination Date which additional value is derived directly from a hedging, subject only forward sale or swap agreement covering such Oil and Gas Property as of the date of such determination. All determinations or Unscheduled Redeterminations of the Borrowing Base and the Monthly Commitment Reduction require the approval of Majority Banks; provided, however, that notwithstanding anything to the requirement that such determination shall contrary herein, the amount of the Borrowing Base may not be reasonable and made in good faithincreased, nor may the Monthly Commitment Reduction be reduced, without the approval of all Banks. If the Banks cannot otherwise agree on the Borrowing Base or the Monthly Commitment Reduction, each Bank will shall submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest weighted average of the Borrowing Base Bases and highest the weighted average of the Monthly Commitment Reduction Reductions proposed by any Bankthe Banks. If at any time any of the Collateral is Oil and Gas Properties are sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e12(r) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined The Borrowing Base shall become effective immediately upon Agent giving notice thereof be additionally reduced from time to time pursuant to the Borrowerprovisions of Sections 2(e) and 2(f) hereof. It is expressly understood that the Banks have no obligation to designate the Borrowing Base or the Monthly Commitment Reduction at any particular amounts, except in the exercise of their discretion, whether in relation to the Revolving Commitment or otherwise. Provided, however, that no Bank the Banks shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of the Revolving Commitment or its legal or internal lending limits. Upon the issuance of any public note issue permitted pursuant to Section 13(f)(iv) hereof, the Banks shall have the right to perform an Unscheduled Redetermination of the Borrowing Base.
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Subsequent Determinations of Borrowing Base. Subsequent determinations (a) The Borrowing Base shall be redetermined semiannually on or about May 1st and November 1st of each year (commencing May 1, 2011) as provided in this Section. The Borrower shall furnish to the Administrative Agent and each Lender all information, reports and data that the Administrative Agent has then reasonably requested concerning the Borrower’s and the Guarantors’ businesses and properties (including Borrower’s and the Guarantors’ Oil and Gas Properties and interests and the reserves and production relating thereto), together with (and by the date required for) any Engineering Report described in Section 6.2(g), if an Engineering Report is then due. Within thirty (30) days after receiving such information, reports and data, or as promptly thereafter as practicable, the Administrative Agent shall recommend a redetermined Borrowing Base to the Lenders. Such recommended Borrowing Base shall become effective upon the receipt by the Administrative Agent of the approval of the Required Borrowing Base Lenders. The failure of a Lender to respond or object to the recommended Borrowing Base within fifteen (15) days after notice thereof is given to such Lender by the Administrative Agent shall be deemed an acceptance and approval of such recommended Borrowing Base by such Lender. If such recommended Borrowing Base is not approved by Required Borrowing Base Lenders within fifteen (15) days after the Administrative Agent submits the recommended Borrowing Base to the Lenders, then each Lender shall submit in writing to the Administrative Agent, on or within fifteen (15) days after the Administrative Agent notifies the Lenders that the Lenders have not approved any such recommended Borrowing Base, such Lender’s determination of the redetermined Borrowing Base; in such case, the redetermined Borrowing Base shall be the highest amount approved by the Required Borrowing Base Lenders. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, WITHOUT THE PRIOR WRITTEN APPROVAL OF ALL OF THE LENDERS, SUCH APPROVAL TO BE IN EACH LENDER’S SOLE DISCRETION, THE REDETERMINED BORROWING BASE SHALL NOT BE INCREASED ABOVE THE AMOUNT OF THE BORROWING BASE IN EFFECT IMMEDIATELY PRIOR TO SUCH REDETERMINATION. The Administrative Agent shall by notice to the Borrower and the Lenders designate the amount of the Borrowing Base (determined by the Required Borrowing Base Lenders or all of the Lenders, as applicable, in accordance with the foregoing procedures) available to the Borrower hereunder, which designation shall take effect immediately on the date such notice is sent and shall remain in effect until but not including the next date as of which the Borrowing Base is redetermined. If the Borrower does not furnish all such information, reports and data by the date specified in the first sentence of this section, the Administrative Agent may nonetheless designate the Borrowing Base at any amount which the Lenders determine, and may redesignate the Borrowing Base from time to time thereafter at any amount which all Lenders redetermine, until each Lender receives all such information, reports and data, whereupon Lenders shall designate a new Borrowing Base as described above. The Lenders shall determine the amount of the Borrowing Base based upon the loan collateral value which they, in their sole discretion and in accordance with their respective normal practices and standards for oil and gas loans as such practices and standards exist at the particular time, assign to the various Oil and Gas Properties of the Borrower or the Guarantors at the time in question and based upon such other factors (including without limitation the assets, liabilities, fixed charges, cash flow, business, properties, prospects, management and ownership of any of the Borrower or the Guarantors or any Subsidiary of any of the Borrower or the Guarantors) as they, in their sole discretion and in accordance with their respective normal practices and standards for oil and gas loans as such practices and standards exist at the particular time, deem significant. It is expressly understood that Lenders and the Administrative Agent have no obligation to agree upon or designate the Borrowing Base at any particular amount, whether in relation to the Maximum Loan Amount or otherwise, and that the Lenders’ commitments to advance funds hereunder is determined by reference to the Borrowing Base from time to time in effect, which Borrowing Base shall be used for calculating commitment fees under Section 2.10(a). Additional redeterminations at the request of the Lenders, the Administrative Agent or the Borrower shall be subject to a $5,000 engineering fee payable by Borrower to the Administrative Agent for its own account.
(b) The Borrower may include additional Oil and Gas Properties of the Borrower or the Guarantors acquired from time to time as Collateral for the Secured Obligations, which may then be included in the calculation of the Borrowing Base, by the Borrower or such Guarantor (A) giving written notice to the Administrative Agent of such properties to be included, (B) subjecting such properties to Liens securing the Secured Obligations (pursuant to Security Documents satisfactory to the Administrative Agent) if necessary to comply with the provisions of Section 6.16, (C) including such properties in an Engineering Report submitted to the Administrative Agent and (D) delivering to the Administrative Agent title opinions (or other title reports or title information acceptable to the Administrative Agent) covering at least 80% of the additional value of such properties addressed to the Administrative Agent for the benefit of the Lenders covering all of such properties and other legal opinions from counsel acceptable to the Administrative Agent, in its sole discretion, in form, scope and substance acceptable to the Administrative Agent opining favorably as to, among such other matters as may be required by the Administrative Agent, (1) the Borrower’s or the appropriate Guarantor’s ownership of such properties and (2) matters of the type covered by the opinions delivered pursuant to Section 4.1(a)(vi).
(c) In addition to the redeterminations of the Borrowing Base required pursuant to Section 2.8(a), the Borrower and the Administrative Agent, at the request of the Required Borrowing Base Lenders, each shall have the right to request in its discretion a special redetermination of the Borrowing Base in its sole discretion at any time and from time to time but not more often than one (1) time each between any two consecutive scheduled redeterminations of the Borrowing Base. To request a special redetermination of the Borrowing Base, (i) if such request is made by the Borrower, the Borrower shall provide written notice of such special redetermination to the Administrative Agent specifying the date as of which the Borrowing Base is to be redetermined (which shall be not sooner than 30 days following the date of such notice) and (ii) if such request is made by the Required Borrowing Base Lenders, such Required Borrowing Base Lenders shall provide written notice of such special redetermination to the Administrative Agent and the Borrower. Any such special redetermination of the Borrowing Base shall be made by Banks at least semi-annually all of the Lenders or the Required Borrowing Base Lenders, as applicable, in their respective sole discretion based upon the most recent Engineering Report delivered to the Lenders by the Borrower pursuant to Section 6.2(g) or 6.2(h), as applicable, and such other information, reports and data as any Lender may reasonably request. Following receipt of a request for a special redetermination in accordance with this Section 2.8(c), the Banks may make Borrowing Base shall be redetermined in accordance with the approval standards set forth in Section 2.8(a). If the special redetermination results in a redetermination at decrease in the Borrowing Base such that a Borrowing Base Deficiency exists after giving effect to such redetermined Borrowing Base, the Borrower shall comply with Section 2.4.2(ii)(A).
(d) In addition to the any time and shall make a redetermination if and when requested by Borrower. In connection with each such scheduled determination or discretionary determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), ,
(iv), (vi) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be automatically reduced from time to time as set on forth in Section 7.5(e); and
(ii) if the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by Borrower shall issue any Bank. If at any time any of the Collateral is soldPermitted Additional Notes, then the Borrowing Base then in effect shall automatically be reduced automatically by a sum equal to $0.25 for every $1 of the stated aggregate principal amount of prepayment required such Permitted Additional Notes (without giving effect to be made pursuant to Section 13(eany discounts) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Providedissued or incurred; provided, however, that no Bank if the Borrower delivers written notice to the Administrative Agent concurrently with the issuance of any Permitted Additional Notes that the Borrower intends to use all or a portion of the proceeds of such Permitted Additional Notes to call, redeem or repurchase 2004 Senior Notes within thirty (30) days of the issuance of such Permitted Additional Notes in accordance with Section 7.12(a), then the outstanding principal amount of 2004 Senior Notes to be called, redeemed or repurchased (together with any 2004 Senior Notes previously called, redeemed or repurchased prior to or after the Closing Date) shall ever have an obligation to designate a be deducted from the stated aggregate principal amount of Permitted Additional Notes for purposes of the foregoing automatic Borrowing Base in an reduction; provided further that if the Borrower does not consummate the redemption or repurchase of the 2004 Senior Notes within such thirty (30) day period, the Borrowing Base shall be automatically reduced further by $0.25 for every $1 of the aggregate outstanding principal amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limits2004 Senior Notes.
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations (a) By each Evaluation Date Borrower shall furnish to each Lender all information, reports and data which Administrative Agent has then reasonably requested concerning Related Persons' businesses and properties (including Related Persons' oil and gas properties and interests and the reserves and production relating thereto), together with the Engineering Report described in Section 6.1(b)(iv), if an Engineering Report is then due. Within thirty (30) days after receiving such information, reports and data, or as promptly thereafter as practicable, all Lenders shall agree upon an amount for the Borrowing Base, which, if all Lenders do not agree on such amount, shall be the lowest amount determined by any Lender, and Administrative Agent shall by notice to Borrower designate such amount as the new Borrowing Base available to Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (a "Determination Date") and shall remain in effect until ------------------ but not including the next date as of which the Borrowing Base is redetermined. If Borrower does not furnish all such information, reports and data by the date specified in the first sentence of this section, Administrative Agent may nonetheless designate the Borrowing Base at any amount which Lenders determine, and may redesignate the Borrowing Base from time to time thereafter at any amount which all Lenders redetermine, until each Lender receives all such information, reports and data, whereupon Lenders shall designate a new Borrowing Base as described above. Lenders shall determine the amount of the Borrowing Base based upon the loan collateral value which they, in their sole discretion and in accordance with their respective normal practices and standards for oil and gas loans as such practices and standards exist at the particular time, assign to the various oil and gas properties of Related Persons at the time in question and based upon such other factors (including without limitation the assets, liabilities, fixed charges, cash flow, business, properties, prospects, management and ownership of Borrower and its Related Persons) as they, in their sole discretion and in accordance with their respective normal practices and standards for oil and gas loans as such practices and standards exist at the particular time, deem significant. It is expressly understood that Lenders and Administrative Agent have no obligation to agree upon or designate the Borrowing Base at any particular amount, whether in relation to the Maximum Loan Amount or otherwise, and that Lenders' commitments to advance funds hereunder is determined by reference to the Borrowing Base from time to time in effect, which Borrowing Base shall be made used for calculating commitment fees under Section 2.7(a) and, to the extent permitted by Banks law and regulatory authorities, for the purposes of Section 2.15. Semiannual redeterminations and additional redeterminations at least semi-annually the request of the Lenders or Administrative Agent shall be at no cost to Borrower. Additional redeterminations at Borrower's request shall be subject to a $5,000 engineering fee payable by Borrower to the Administrative Agent for its own account.
(b) The Borrower may include additional oil and gas properties of the Borrower acquired from time to time as Collateral for the Obligations, which may then be included in the calculation of the Borrowing Base, by the Borrower (A) giving written notice to the Administrative Agent of such properties to be included, (B) subjecting such properties to liens securing the Obligations (pursuant to Security Documents satisfactory to the Administrative Agent), (C) including such properties in an Engineering Report submitted to the Administrative Agent and (D) delivering to the Administrative Agent title opinions addressed to the Administrative Agent for the benefit of the Lenders covering all of such properties and other legal opinions from counsel acceptable to the Administrative Agent, in its sole discretion, in form, scope and substance acceptable to the Administrative Agent opining favorably as to, among such other matters as may be required by the Administrative Agent, (1) the Borrower's ownership of such properties and (2) matters of the type covered by the opinions delivered pursuant to Section 4.1 (m) and the Banks may make a redetermination at opinion attached hereto as Exhibit ------- F. -
(c) In addition to the any time and shall make a redetermination if and when requested by Borrower. In connection with each such scheduled determination or discretionary determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately be redetermined upon Agent giving notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a sale or transfer of any oil and gas property of the Borrower included in the Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsas required by Section 6.2(d)(iii).
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations (a) By each Evaluation Date, the Borrower shall furnish to the Administrative Agent and each Lender all information, reports and data which the Administrative Agent has then reasonably requested concerning the Borrower’s and the Guarantors’ businesses and properties (including Borrower’s and the Guarantors’ Oil and Gas Properties and interests and the reserves and production relating thereto), together with the Engineering Report described in Section 6.2(g), if an Engineering Report is then due. Within thirty (30) days after receiving such information, reports and data, or as promptly thereafter as practicable, the Administrative Agent shall recommend a redetermined Borrowing Base to the Lenders. Such recommended Borrowing Base shall become effective upon the receipt by the Administrative Agent of the approval of the Majority Lenders. The failure of a Lender to respond or object in writing to the recommended Borrowing Base within fifteen (15) days after notice thereof is given to such Lender by the Administrative Agent shall be deemed an acceptance and approval of such recommended Borrowing Base by such Lender. If such recommended Borrowing Base is not approved by Majority Lenders within fifteen (15) days after the Administrative Agent submits the recommended Borrowing Base to the Lenders, then each Lender shall submit in writing to the Administrative Agent, on or within fifteen (15) days after the Administrative Agent notifies the Lenders that the Lenders have not approved any such recommended Borrowing Base, such Lender’s determination of the redetermined Borrowing Base; in such case, the redetermined Borrowing Base shall be the highest amount approved by the Majority Lenders. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, WITHOUT THE PRIOR WRITTEN APPROVAL OF ALL OF THE LENDERS, SUCH APPROVAL TO BE IN EACH LENDER’S SOLE DISCRETION, THE REDETERMINED BORROWING BASE SHALL NOT BE INCREASED ABOVE THE AMOUNT OF THE BORROWING BASE IN EFFECT IMMEDIATELY PRIOR TO SUCH REDETERMINATION. The Administrative Agent shall by notice to the Borrower and the Lenders designate the amount of the Borrowing Base (determined by the Majority Lenders or all of the Lenders, as applicable, in accordance with the foregoing procedures) available to the Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (a “Determination Date”) and shall remain in effect until but not including the next date as of which the Borrowing Base is redetermined. If the Borrower does not furnish all such information, reports and data by the date specified in the first sentence of this section, the Administrative Agent may nonetheless designate the Borrowing Base at any amount which the Lenders determine, and may redesignate the Borrowing Base from time to time thereafter at any amount which all Lenders redetermine, until each Lender receives all such information, reports and data, whereupon Lenders shall designate a new Borrowing Base as described above. The Lenders shall determine the amount of the Borrowing Base based upon the loan collateral value which they, in their sole discretion and in accordance with their respective normal practices and standards for oil and gas loans as such practices and standards exist at the particular time, assign to the various Oil and Gas Properties of the Borrower or the Guarantors at the time in question and based upon such other factors (including without limitation the assets, liabilities, fixed charges, cash flow, business, properties, prospects, management and ownership of any of the Borrower or the Guarantors or any Subsidiary of any of the Borrower or the Guarantors) as they, in their sole discretion and in accordance with their respective normal practices and standards for oil and gas loans as such practices and standards exist at the particular time, deem significant. It is expressly understood that Lenders and the Administrative Agent have no obligation to agree upon or designate the Borrowing Base at any particular amount, whether in relation to the Maximum Loan Amount or otherwise, and that the Lenders’ commitments to advance funds hereunder is determined by reference to the Borrowing Base from time to time in effect, which Borrowing Base shall be made used for calculating commitment fees under Section 2.10(a). Additional redeterminations at the request of the Lenders, the Administrative Agent or the Borrower shall be subject to a $5,000 engineering fee payable by Banks Borrower to the Administrative Agent for its own account.
(b) The Borrower may include additional Oil and Gas Properties of the Borrower or the Guarantors acquired from time to time as Collateral for the Obligations, which may then be included in the calculation of the Borrowing Base, by the Borrower (A) giving written notice to the Administrative Agent of such properties to be included, (B) subjecting such properties to Liens securing the Obligations (pursuant to Security Documents satisfactory to the Administrative Agent) if necessary to comply with the provisions of Section 6.15, (C) including such properties in an Engineering Report submitted to the Administrative Agent and (D) delivering to the Administrative Agent title opinions covering at least semi-annually 80% of the additional value of such properties addressed to the Administrative Agent for the benefit of the Lenders covering all of such properties and other legal opinions from counsel acceptable to the Banks Administrative Agent, in its sole discretion, in form, scope and substance acceptable to the Administrative Agent opining favorably as to, among such other matters as may make a redetermination at be required by the Administrative Agent, (1) the Borrower’s or the appropriate Guarantor’s ownership of such properties and (2) matters of the type covered by the opinions delivered pursuant to Section 4.1(a)(vi).
(c) In addition to any time and shall make a redetermination if and when requested by Borrower. In connection with each such scheduled determination or discretionary determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof be automatically reduced from time to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base time as set forth in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsSection 7.5(f).
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base and the Monthly Commitment Reduction shall be made by Banks at least the Lenders semi-annually on April 30 and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as October 31 of each November year beginning October 31, 2002 or as Unscheduled Redeterminations. By April 1 and May October 1 of each year beginning October 1, commencing November 12002, 1998or within thirty (30) days after either (i) receipt of notice from Agent that the Lenders require an Unscheduled Redetermination, and at such other dates as determined at or (ii) the discretion Borrower gives notice to Agent of Majority Banks. their desire to have an Unscheduled Redetermination performed, in each case the Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through the Lenders an engineering report in form and substance reasonably satisfactory to Agent, said engineering report to utilize economic and pricing parameters used by the Agent under other provisions hereof with respect as established from to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi)time, together with such other information, reports and data as Banks may deem appropriate under concerning the then circumstancevalue of Borrower’s and Guarantors’ oil and gas properties. Lenders shall have the right to request at any time, and from time, to time an engineering report covering all of Borrower’s and Guarantors’ oil and gas properties and said report to be prepared by an independent petroleum engineering firm acceptable to Agent, said report to be in form and substance satisfactory to Agent. Agent shall by written notice to the Borrower no later than April 30 and October 31 of each year, or within a reasonable time thereafter (herein called the “Determination Date”), notify the Borrower of the designation by the Lenders of the new Borrowing Base and the Monthly Commitment Reduction for the period beginning on such Determination Date and continuing until, but not including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed the next Determination Date. If an Unscheduled Redetermination is to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices the Lenders, the Agent shall notify the Borrower within a reasonable time after receipt of all requested information of the new Borrowing Base and standards for loans in similar amounts to borrowers similarly situatedthe Monthly Commitment Reduction, at and such new Borrowing Base and the times and under Monthly Commitment Reduction shall continue until the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faithnext Determination Date. If the Banks Borrower does not furnish all such information, reports and data by any date specified in this Section 7(b), unless such failure is as reasonably determined by Agent of no fault of the Borrower, the Lenders may nonetheless designate the Borrowing Base and the Monthly Commitment Reduction at any amounts which the Lenders in their reasonable discretion determine and may redesignate the Borrowing Base and the Monthly Commitment Reduction from time to time thereafter until the Lenders receive all such information, reports and data, whereupon the Lenders shall designate a new Borrowing Base and the Monthly Commitment Reduction as described above. If Lenders cannot otherwise agree on the Borrowing Base or and the Monthly Commitment Reduction, the Borrowing Base and the Monthly Commitment Reduction shall be determined based upon the weighted arithmetic average of the proposed amounts submitted by each Bank will submit Lender, said proposals to be weighted according to each Lender’s Commitment. Each Lender shall determine the amount of the Borrowing Base and the Monthly Commitment Reduction based upon the loan collateral value which such Lender in writing its sole discretion (using such methodology, assumptions and discount rates as such Lender customarily uses in assigning collateral value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties of the Agent Borrower at the time in question and based upon such other credit factors consistently applied (including, without limitation, the assets, liabilities, cash flow, business, properties, prospects, management and ownership of the Borrower and its proposed affiliates) as such Lender customarily considers in evaluating similar oil and gas credits. The initial Borrowing Base and Monthly Commitment Reduction and shall require the approval of all Lenders. Thereafter, increases in the Borrowing Base and decreases in the Monthly Commitment Reduction shall be set on will require the basis approval of all Lenders, but other changes in the lowest Borrowing Base and highest the Monthly Commitment Reduction proposed by any Bankwill require only the approval of Lenders. If at any time any of the Collateral is Oil and Gas Properties are sold, the Borrowing Base and the Monthly Commitment Reduction then in effect shall automatically be reduced by a sum equal to the amount of prepayment prepayment, if any, required to be made pursuant to Section 13(e12(q) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined The Borrowing Base shall become effective immediately upon Agent giving notice thereof be additionally reduced from time to time pursuant to the Borrowerprovisions of Sections 2(f) hereof. It is expressly understood that the Lenders have no obligation to designate the Borrowing Base and the Monthly Commitment Reduction at any particular amounts, except in the exercise of their discretion, whether in relation to the Commitments or otherwise. Provided, however, that no Bank the Lenders shall ever not have an the obligation to designate a Borrowing Base and the Monthly Commitment Reduction in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsthe Commitment.
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations By each March 31 and September 30, of each year, beginning March 31, 2012, Borrower shall furnish to Administrative Agent all information, reports and data which Administrative Agent reasonably requests concerning Restricted Persons’ businesses and properties (including their Oil and Gas Properties and interests and the reserves and production relating thereto), together with the Engineering Report described in Section 6.2(d) or (e), as applicable. In addition, Borrower and Required Lenders may each request one additional Borrowing Base redetermination during the period between each scheduled Borrowing Base determination. Additionally, Administrative Agent and Required Lenders may request an additional Borrowing Base redetermination (i) in connection with any disposition to a third party of Oil and Gas Properties of Borrower the Borrowing Base shall be made value of which exceeds five percent (5%) of the then current Borrowing Base, and (ii) in connection with any Liquidation of a Hedging Contract which would have the effect of reducing the Borrowing Base by Banks at least semi-annually and an amount in excess of five percent (5%) of the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrowerthen current Borrowing Base. In connection with each such determination any redetermination of the Borrowing Base, Borrower will furnish to each Lender all information, reports and data which Administrative Agent reasonably requests concerning Restricted Persons’ businesses and properties (including their Oil and Gas Properties and interests and the Banks reserves and production relating thereto). No later than thirty (30) days after receiving such information, reports and data, Administrative Agent and Required Lenders shall also agree upon an amount for the Borrowing Base (provided that all Lenders must agree to any increase in the Borrowing Base). If Required Lenders (or all Lenders in the case of an increase in the Borrowing Base) have not agreed within the thirty day period after receiving such information, reports and data on a Borrowing Base, the Administrative Agent shall poll Lenders to ascertain the highest Borrowing Base then acceptable to the Required Lenders (or all Lenders in the case of an increase in the Borrowing Base) and such amount shall then become the Borrowing Base. Administrative Agent shall by notice to Borrower designate such amount as the new Borrowing Base available to Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (herein called a “Determination Date”) and shall remain in effect until but not including the next date as of which the Borrowing Base is redetermined. If Borrower does not furnish all such information, reports and data by the date specified in the first sentence of this section, Administrative Agent may nonetheless designate the Borrowing Base at any amount which Required Lenders determine and may redesignate the Borrowing Base from time to time thereafter until Administrative Agent receives all such information, reports and data, whereupon Administrative Agent and Required Lenders shall designate a new Borrowing Base as described above (provided that all Lenders must agree to any increase in the Borrowing Base). Administrative Agent and Required Lenders shall determine the Monthly Commitment Reduction. Such amount of the Borrowing Base based upon the loan collateral value which they in their discretion assign to the various Oil and Monthly Commitment Reduction determinations shall be made on or before each November 20 Gas Properties of the Restricted Persons at the time in question and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at based upon such other dates as determined at credit factors (including without limitation the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinationsassets, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateralliabilities, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided hedged and unhedged exposure to price, foreign exchange rate, and interest rate changes, business, properties, prospects, management and ownership of Borrower and its Affiliates) as they in their discretion deem significant. It is expressly understood that nothing herein shall be construed Lenders and Administrative Agent have no obligation to require that Banks agree upon or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on designate the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing at any particular amount and that Lenders’ commitments to advance funds under the Agent its proposed Borrowing Base and Monthly Commitment Reduction and Loans is determined by reference to the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any from time any of the Collateral is sold, the Borrowing Base then to time in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is madeand such Lender’s Commitment, such non-scheduled redetermined which Borrowing Base shall become effective immediately upon Agent giving notice thereof be used for calculating commitment fees under Section 2.5(c) and, to the Borrower. Providedextent permitted by Law and regulatory authorities, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess for the purposes of its legal or internal lending limitscapital adequacy determination and reimbursements under Section 3.2.
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations By each March 31 and September 30, of each year, beginning March 31, 2012, Borrower shall furnish to Administrative Agent all information, reports and data which Administrative Agent reasonably requests concerning Restricted Persons’ businesses and properties (including their Oil and Gas Properties and interests and the reserves and production relating thereto), together with the Engineering Report described in Section 6.2(d) or (e), as applicable. In addition, Borrower and Required Lenders may each request one additional Borrowing Base redetermination during the period between each scheduled Borrowing Base determination. Additionally, Administrative Agent and Required Lenders may request an additional Borrowing Base redetermination (i) in connection with any disposition to a third party of Oil and Gas Properties of Borrower the Borrowing Base shall be made value of which exceeds five percent (5%) of the then current Borrowing Base, and (ii) in connection with any Liquidation of a Hedging Contract which would have the effect of reducing the Borrowing Base by Banks at least semi-annually and an amount in excess of five percent (5%) of the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrowerthen current Borrowing Base. In connection with each such determination any redetermination of the Borrowing Base, Borrower will furnish to each Lender all information, reports and data which Administrative Agent reasonably requests concerning Restricted Persons’ businesses and properties (including their Oil and Gas Properties and interests and the Banks reserves and production relating thereto). No later than thirty (30) days after receiving such information, reports and data, Administrative Agent and Required Lenders shall also agree upon an amount for the Borrowing Base (provided that all Lenders must agree to any increase in the Borrowing Base). If Required Lenders (or all Lenders in the case of an increase in the Borrowing Base) have not agreed within the thirty day period after receiving such information, reports and data on a Borrowing Base, the Administrative Agent shall poll Lenders to ascertain the highest Borrowing Base then acceptable to the Required Lenders (or all Lenders in the case of an increase in the Borrowing Base) and such amount shall then become the Borrowing Base. Administrative Agent shall by notice to Borrower designate such amount as the new Borrowing Base available to Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (herein called a “Determination Date”) and shall remain in effect until but not including the next date as of which the Borrowing Base is redetermined. If Borrower does not furnish all such information, reports and data by the date specified in the first sentence of this section, Administrative Agent may nonetheless designate the Borrowing Base at any amount which Required Lenders determine and may redesignate the Borrowing Base from time to time thereafter until Administrative Agent receives all such information, reports and data, whereupon Administrative Agent and Required Lenders shall designate a new Borrowing Base as described above (provided that all Lenders must agree to any increase in the Borrowing Base). Administrative Agent and Required Lenders shall determine the Monthly Commitment Reduction. Such amount of the Borrowing Base based upon the loan collateral value which they in their discretion assign to the various Oil and Monthly Commitment Reduction determinations shall be made on or before each November 20 Gas Properties of the Restricted Persons at the time in question and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at based upon such other dates as determined at credit factors (including without limitation the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinationsassets, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateralliabilities, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided hedged and unhedged exposure to price, foreign exchange rate, and interest rate changes, business, properties, prospects, management and ownership of Borrower and its Affiliates) as they in their discretion deem significant. It is expressly understood that nothing herein shall be construed Lenders and Administrative Agent have no obligation to require that Banks agree upon or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on designate the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing at any particular amount and that Lenders’ commitments to advance funds under the Agent its proposed Borrowing Base and Monthly Commitment Reduction and Loans is determined by reference to the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any from time any of the Collateral is soldto time in effect, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined which Borrowing Base shall become effective immediately upon Agent giving notice thereof be used for calculating commitment fees under Section 2.5(c) and, to the Borrower. Providedextent permitted by Law and regulatory authorities, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess for the purposes of its legal or internal lending limitscapital adequacy determination and reimbursements under Section 3.2.
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Subsequent Determinations of Borrowing Base. Subsequent determinations By April 1 and October 1 of each year, on each date on which Borrower requests that the Borrowing Base be redetermined (which request shall not be made more than two times during any Fiscal Year) and within fifteen (15) days of each date on which Agent, on behalf of Majority Lenders, requests that the Borrowing Base be redetermined, Borrower shall furnish to each Lender all information, reports and data which Agent has then requested concerning the Qualified Properties and the reserves and production relating thereto, together with the Engineering Report described in Section 5.1(b)(iv). Within thirty (30) days after receiving such information, reports and data, or as promptly thereafter as practicable, Majority Lenders shall agree upon an amount for the Borrowing Base and Agent shall by notice to Borrower designate such amount as the new Borrowing Base available to Borrower hereunder during the period beginning on and including the date such notice is sent (herein called a "DETERMINATION DATE") and continuing until but not including the next date as of which the Borrowing Base is redetermined. A Determination Date may (but need not) occur during the period beginning on the date on which a Request for Advance is submitted and ending on the date on which such Advances are to be made. If Borrower does not furnish all such information, reports and data by the date specified in the first sentence of this section, Agent may nonetheless designate the Borrowing Base at any amount which Majority Lenders determine and may redesignate the Borrowing Base from time to time thereafter until each Lender receives all such information, reports and data, whereupon Majority Lenders shall designate a new Borrowing Base as described above. Each determination of the Borrowing Base shall be made by Banks at least semi-annually Majority Lenders in the exercise of their sole discretion in accordance with the then current standards and the Banks may make a redetermination at any time practices of Lenders for similar oil and shall make a redetermination if and when requested by Borrower. In connection with each gas loans taking into account such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective factors as of each November 1 and May 1, commencing November 1, 1998, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks Lenders may deem appropriate under the then circumstanceappropriate, including, without limitation, cash flow (i) the nature and projections extent of cash flowthe oil and gas reserves attributable to the oil and gas properties of Borrower and the anticipated timing and extent of net operating income therefrom, provided (ii) any litigation or other proceedings or facts, including, without limitation, defects in or uncertainties as to Borrower's title to such oil and gas properties or encumbrances on the title to such oil and gas properties or encumbrances on the Qualified Properties, that nothing herein may affect the value of any of such oil and gas properties and (iii) the amount of Debt or other obligations, if any, of Borrower and its Subsidiaries. Each such determi nation shall be construed to require that Banks or Agent shall or should obtain binding on and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations non-reviewable by Borrower and no Lender shall be made by Banks in accordance with their respective customary required to disclose to Borrower its standards and practices for oil and standards for loans in similar amounts gas loans. It is expressly understood that Lenders and Agent have no obligation to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on upon or designate the Borrowing Base or Monthly Commitment Reductionat any particular amount, each Bank will submit whether in writing relation to the Agent its proposed Borrowing Base Maximum Loan Amount or otherwise, and Monthly Commitment Reduction and that Lenders' commitments to advance funds hereunder are determined by reference to the Borrowing Base and Monthly Commitment Reduction from time to time in effect, which Borrowing Base shall be set on used to the basis extent permitted by law and regulatory authorities for the purposes of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any BankSection 2.13. If at any time any of the Collateral is sold, Borrower requests Majority Lenders to redetermine the Borrowing Base then at any date in effect addition to the redetermination dates provided above, upon the consent of Majority Lenders to such redetermination, Borrower shall automatically be reduced by within five (5) days after receipt of such consent pay each Lender a sum equal to redetermination fee in the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, $5,000 for each such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsredetermination.
Appears in 1 contract
Samples: Credit Agreement (Forcenergy Inc)
Subsequent Determinations of Borrowing Base. Subsequent determinations By September 1 of each year (and within 60 days after each Evaluation Date described in clause (i) of the definition of Evaluation Date), Borrower shall furnish to each Lender all information, reports and data which Agent has then requested concerning Restricted Persons' businesses and properties (including their oil and gas properties and interests and the reserves and production relating thereto), together with the Engineering Report described in Section 6.2(d), if such Engineering Report is then due. Within forty-five days after receiving such information, reports and data, Required Lenders shall agree upon an amount for the Borrowing Base and Agent shall by notice to Borrower designate such amount as the new Borrowing Base available to Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (herein called a "Determination Date") and shall remain in effect until but not including the next date as of which the Borrowing Base is redetermined. If Borrower does not furnish all such information, reports and data by the date specified in the first sentence of this section, Agent may nonetheless designate the Borrowing Base at any amount which Required Lenders determine and may redesignate the Borrowing Base from time to time thereafter until each Lender receives all such information, reports and data, whereupon Required Lenders shall designate a new Borrowing Base as described above. Required Lenders shall determine the amount of the Borrowing Base shall be made by Banks based upon the loan collateral value which they in their discretion assign to the various oil and gas properties included in the Collateral at least semi-annually the time in question and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at based upon such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limits.credit factors
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by Banks the Bank at least semi-annually on May 1 and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as 1 of each November 1 and year beginning May 1, commencing November 2000 or as Unscheduled Redeterminations. The Borrower shall furnish to the Bank as soon as possible but in any event no later than April 1 of each year, beginning April 1, 19982000, or within thirty (30) days after either (i) receipt of notice from Bank that it requires an Unscheduled Redetermination, or (ii) the Borrower give notice to Bank of their desire to have an Unscheduled Redetermination performed, with an engineering report in form and at such other dates substance satisfactory to Bank prepared by Borrower and audited by a petroleum engineering firm acceptable to Bank, valuing the Oil and Gas Properties utilizing economic and pricing parameters used by Bank as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish established from time to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi)time, together with such other information, report and data concerning the value of the Oil and Gas Properties as Banks Bank shall deem reasonably necessary to determine the value of such Oil and Gas Properties. Bank shall by notice to the Borrower no later than May 1 and November 1 of each year, or within a reasonable time thereafter (herein called the "Determination Date"), designate a new Borrowing Base for the period beginning on such Determination Date and continuing until, but not including, the next Determination Date. If an Unscheduled Redetermination is made by the Bank, the Bank shall notify the Borrower within a reasonable time after receipt of all requested information of the new Borrowing Base, and such new Borrowing Base shall continue until the next Determination Date. If the Borrower do not furnish all such information, reports and data by the date specified in this Section 7(b), unless such failure is of no fault of the Borrower, the Bank may deem appropriate under nonetheless designate the then circumstanceBorrowing Base at any amounts which the Bank determines in its discretion and may redesignate the Borrowing Base from time to time thereafter until the Bank receives all such information, reports and data, whereupon the Bank shall designate a new Borrowing Base as described above. The Bank shall determine the amount of the Borrowing Base based upon the loan collateral value which Bank in its discretion (using such methodology, assumptions and discounts rates as Bank customarily uses in assigning collateral value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties of the Borrower at the time in question and based upon such other credit factors consistently applied (including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis ownership of the lowest Borrowing Base Borrower and highest Monthly Commitment Reduction proposed by any Bankits affiliates) as Bank customarily considers in evaluating similar oil and gas credits. If at any time any of the Collateral is Oil and Gas Properties are sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount loan collateral value of prepayment required the Oil and Gas Properties being sold by Borrower which the Bank in its discretion (using such methodology, assumptions and discount rates as the Bank customarily uses in assigning collateral value to be made pursuant oil and gas properties) assigned to Section 13(e) hereofsuch Oil and Gas Properties at the time in question. If a non-scheduled It is expressly understood that the Bank has no obligation to designate the Borrowing Base redetermination is madeat any particular amounts, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to except in the Borrowerexercise of Bank's discretion. Provided, however, that no Bank shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limits.
Appears in 1 contract
Samples: Loan Agreement (Maynard Oil Co)
Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by Banks the Lenders at least semi-annually on December 1 and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as June 1 of each year, beginning December 1, 2021 or as Unscheduled Redeterminations. The Borrower shall furnish to the Agent as soon as possible but in any event no later than November 1 and May 1of each year, commencing beginning November 1, 19982021 with an effective date of the prior October 1, with an engineering report in form and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect substance satisfactory to the Collateral, including Agent prepared by an independent petroleum engineering firm acceptable to Agent or by an in-house engineering report covering the information required pursuant Oil and Gas Properties based upon PV/9 utilizing economic and pricing parameters used by Agent as established from time to Section 12(a)(iii), (iv), (v) and (vi)time, together with such other information concerning the value of the Oil and Gas Properties as the Lender shall deem necessary to determine the value of the Oil and Gas Properties. By May 1 of each year, beginning May 1, 2022, with an effective date of the prior April 1, or within thirty (30) days after either (i) receipt of notice from Agent that a Lender requires an Unscheduled Redetermination, or (ii) Borrower gives notice to Agent of its desire to have an Unscheduled Redetermination performed, the Borrower shall furnish to the Agent and the Lenders an engineering report in form and substance satisfactory to Agent prepared by Borrower’s in-house engineering staff valuing the Oil and Gas Properties utilizing economic and pricing parameters used by the Lenders as established from time to time, together with such other information, reports and data concerning the value of the Oil and Gas Properties as Banks the Lenders shall deem reasonably necessary to determine the value of such Oil and Gas Properties. Upon receipt of such report, the Administrative Agent shall evaluate the information contained therein and shall, in good faith, propose a new Borrowing Base (the “Proposed Borrowing Base”) as determined pursuant to paragraph “(c)” below. Agent shall by notice to the Borrower no later than June 1 and December 1 of each year, or within a reasonable time thereafter (herein called the “Determination Date”), notify the Borrower of the designation by the Lenders of the new Borrowing Base for the period beginning on such Determination Date and continuing until, but not including, the next Determination Date. If an Unscheduled Redetermination is made by the Lenders, the Agent shall notify the Borrower within a reasonable time after receipt of all requested information of the new Borrowing Base and such new Borrowing Base shall continue until the next Determination Date. If the Borrower does not furnish all such information, reports and data by any date specified in this Section 2.6(b), the Lenders may deem appropriate under nonetheless designate the then circumstanceBorrowing Base at any amount which the Lenders in their reasonable discretion determine and may redesignate the Borrowing Base from time to time thereafter until the Lenders receive all such information, reports and data, whereupon the Lenders shall designate a new Borrowing Base as described above. Lenders shall determine the amount of the Borrowing Base based upon the loan collateral value which Lenders in their discretion (using such methodology, assumptions and discounts rates as Lenders customarily use in assigning collateral value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties and other Collateral of the Borrower at the time in question and based upon such other credit factors consistently applied (including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided business, properties, prospects, management and ownership of the Borrower and its affiliates) as Lenders customarily consider in evaluating similar oil and gas credits, but Lenders in their discretion shall not be required to give any additional positive value to any Oil and Gas Property over the current economic and pricing parameters used by Lenders for such Determination Date which additional value is derived directly from a Hedging Contract covering such Oil and Gas Property as of the date of such determination. It is expressly understood that nothing herein shall be construed the Lenders have no obligation to require that Banks designate the Borrowing Base at any particular amount or Agent shall or should obtain and pay for any reportsto ever increase the Borrowing Base, appraisals or other data from third parties except in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in exercise of its discretion, subject only whether in relation to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base Revolving Commitment or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrowerotherwise. Provided, howeverfurther, that no Bank the Lenders shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of the Revolving Commitment or its legal or internal lending limits.
Appears in 1 contract
Samples: Credit Agreement (PHX Minerals Inc.)
Subsequent Determinations of Borrowing Base. Subsequent determinations (a) By March 1 and September 1 of each year beginning March 1, 2010, Borrower shall furnish to each Lender all information, reports and data which Administrative Agent has then requested concerning Restricted Persons’ businesses and properties (including their Oil and Gas Properties and interests and the reserves and production relating thereto), together with, as applicable, the Engineering Report as of January 1 of such year described in Section 6.2(e) or as of July 1 of such year described in Section 6.2(f). By June 15 and December 15 of each year, Administrative Agent shall determine the amount of a proposed Borrowing Base; and Administrative Agent shall then deliver to each Lender such proposed Borrowing Base. Within fifteen days after the Lenders’ receipt of such proposed Borrowing Base, or as promptly thereafter as practicable, Required Lenders shall agree on an amount for the Borrowing Base (provided that all Lenders must agree on any increase in the Borrowing Base), which need not be equal to such proposed Borrowing Base. Required Lenders shall determine the amount of the Borrowing Base based upon the loan collateral value which they in their discretion assign to the discounted net present value of the various Oil and Gas Properties of Restricted Persons included in the Collateral at the time in question and based upon such other credit factors (including without limitation the assets, liabilities, cash flow, hedged and unhedged exposure to price, foreign exchange rate, and interest rate changes, business, properties, prospects, management and ownership of Restricted Persons) as they in their discretion deem significant. If Required Lenders (or all Lenders in the case of an increase in the Borrowing Base) have not approved the Borrowing Base within the fifteen day period after their receipt of such proposed Borrowing Base, Administrative Agent shall poll Lenders to ascertain the highest Borrowing Base then acceptable to a number of Lenders sufficient to constitute Required Lenders (or all Lenders in the case of an increase in the Borrowing Base) and such amount shall then become the Borrowing Base. Administrative Agent shall by notice to Borrower designate such amount as the new Borrowing Base available to Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (herein called a “Determination Date”) and shall remain in effect until but not including the next date as of which the Borrowing Base is redetermined. It is expressly understood that Lenders and Administrative Agent have no obligation to agree upon or designate the Borrowing Base at any particular amount, whether in relation to the MAXIMUM CREDIT AMOUNT or otherwise, and that Lenders’ commitments to advance funds hereunder is determined by reference to the Borrowing Base from time to time in effect, which Borrowing Base shall be made used for calculating commitment fees under Section 2.5 and, to the extent permitted by Banks at least semi-annually Law and regulatory authorities, for the Banks purposes of capital adequacy determination and reimbursements under Section 3.2.
(b) If Borrower does not furnish all such information, reports and data by the date specified in the first sentence of subsection (a) of this section, Administrative Agent may make a redetermination nonetheless determine the Borrowing Base at any amount that Required Lenders determine and may redetermine the Borrowing Base from time to time thereafter (provided that all Lenders must agree to any increase in the Borrowing Base) until each Lender receives all such information, reports and data, whereupon Required Lenders (or all Lenders, as applicable) shall make designate a redetermination if new Borrowing Base as described above. In addition to the redeterminations of the Borrowing Base pursuant to subsections (a) and when (b) of this section, Borrower and Administrative Agent (or Administrative Agent at the request of Required Lenders) may each request additional determinations (“Special Determinations”) of the Borrowing Base from time to time; provided, that no such Person may request more than one (1) Special Determination between Scheduled Determinations. In the event Administrative Agent (or Administrative Agent at the request of Required Lenders) requests such a Special Determination, Administrative Agent shall promptly deliver notice of such request to Borrower and Borrower shall, within thirty (30) days following the date of such request, deliver to Lenders an Engineering Report prepared by Staff Engineers as of the last day of the calendar month preceding the date of such request (or prepared by Independent Engineers) and such other information which Administrative Agent shall have requested. In the event Borrower requests a Special Determination, Borrower shall deliver written notice of such request to Lenders which shall include (i) an Engineering Report prepared by Staff Engineers as of a date not more than thirty (30) days prior to the date of such request (or, in the case of a request made on the 31st day of any calendar month, thirty-one (31) days), (ii) the amount of the Borrowing Base requested by BorrowerBorrower and to become effective on the Determination Date applicable to such Special Determination and (iii) such other information which Administrative Agent shall have requested. In connection with each Upon receipt of such determination Engineering Report and other information, Administrative Agent shall, subject to approval of Required Lenders, or all Lenders in the event of a proposed increase in the Borrowing Base, redetermine the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans the procedure set forth in similar amounts to borrowers similarly situatedsubsection (a) of this section, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon on the Determination Date (or as soon thereafter as Administrative Agent giving and Required Lenders, or all Lenders in the event of a proposed increase in the Borrowing Base, approve such Borrowing Base and provide notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limits).
Appears in 1 contract
Subsequent Determinations of Borrowing Base. The Borrowing Base shall be redetermined every ninety (90) days for the first year the Commitment is outstanding, beginning ninety (90) days after the Effective Date. Subsequent determinations of the Borrowing Base made after the first year, shall be made by Banks at least the Lenders semi-annually on May 1 and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as 1 of each November 1 and May 1, commencing year beginning November 1, 19982002 or as Unscheduled Redeterminations. By March 1 each year, and at such other dates as determined at the discretion of Majority Banks. beginning March 1, 2002, Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through the Lenders an engineering report in form and substance reasonably satisfactory to Agent under other provisions hereof with respect prepared by an independent petroleum engineering firm acceptable to Agent, said engineering report to utilize economic and pricing parameters used by the Collateral, including the information required pursuant Agent as established from time to Section 12(a)(iii), (iv), (v) and (vi)time, together with such other information, reports and data concerning the value of the Oil and Gas Properties as Banks Agent shall deem reasonably necessary to determine the value of such Oil and Gas Properties. By September 1 of each year beginning September 1, 2001, or within thirty (30) days after either (i) receipt of notice from Agent that the Lenders require an Unscheduled Redetermination, or (ii) the Borrower gives notice to Agent of its desire to have an Unscheduled Redetermination performed, the Borrower shall furnish to the Lenders an engineering report in form and substance reasonably satisfactory to Agent, said internally prepared engineering report to utilize economic and pricing parameters used by the Agent as established from to time, together with such other information, reports and data concerning the value of such Oil and Gas Properties. Agent shall by written notice to the Borrower no later than May 1 and November 1 of each year, or within a reasonable time thereafter (herein called the "Determination Date"), notify the Borrower of the determination by the Lenders of the new Borrowing Base for the period beginning on such Determination Date and continuing until, but not including, the next Determination Date. If an Unscheduled Redetermination is to be made by the Lenders, the Agent shall notify the Borrower within a reasonable time after receipt of all requested information of the new Borrowing Base, and such new Borrowing Base shall continue until the next Determination Date. If the Borrower does not furnish all such information, reports and data by any date specified in this Section 7(b), unless such failure is of no fault of the Borrower, the Lenders may deem appropriate under nonetheless designate the Borrowing Base at any amounts which the Lenders in their reasonable discretion determine and may redesignate the Borrowing Base from time to time thereafter until the Lenders receive all such information, reports and data, whereupon the Lenders shall designate a new Borrowing Base as described above. The procedure for determining the Borrowing Base at each redetermination shall be that the Agent shall determine the Borrowing Base and submit the same to the Lenders. Increases in the Borrowing Base will require approval of all Lenders, but other changes in the Borrowing Base will be subject to the approval of Majority Lenders. If any redetermined Borrowing Base is not approved by Majority Lenders within twenty (20) days after submission to the Lenders by the Agent, the Agent shall notify each of the Lenders that the proposed Borrowing Base has not been approved and each Lender will submit within ten (10) days thereafter its proposed Borrowing Base. The redetermined Borrowing Base shall be then circumstancedetermined based upon the weighted arithmetic average of the proposed amounts submitted by each Lender, said proposals to be weighted according to each Lender's Commitment. Each Lender shall determine the amount of the Borrowing Base based upon the loan collateral value which such Lender in its sole discretion (using such methodology, assumptions and discount rates as such Lender customarily uses in assigning collateral value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties of the Borrower at the time in question and based upon such other credit factors consistently applied (including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices ownership of the Borrower and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction affiliates and the Borrowing Base Current Exchange Rate) as such Lender customarily considers in evaluating similar oil and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bankgas credits. If at any time any of the Collateral is Oil and Gas Properties are sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment prepayment, if any, required to be made pursuant to Section 13(e12(q) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined The Borrowing Base shall become effective immediately upon Agent giving notice thereof be additionally reduced from time to time pursuant to the Borrowerprovisions of Sections 2(d) hereof. It is expressly understood that the Lenders have no obligation to designate the Borrowing Base at any particular amounts, except in the exercise of their discretion, whether in relation to the Commitment or otherwise. Provided, however, that no Bank the Lenders shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsthe Commitment.
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations By each Evaluation Date (or in the case of an Evaluation Date pursuant to clause (a) of the definition of "Evaluation Date", within thirty days after such Evaluation Date), Borrower shall furnish to each Lender all information, reports and data which Agent has then requested concerning Restricted Persons' businesses and properties (including their oil and gas properties and interests and the reserves and production relating thereto), together with the Engineering Report described in Section 6.2 which is then due, if any; provided that in the case of any "Evaluation Date" pursuant to clause (a) of the definition thereof, Borrower shall deliver to Agent an Engineering Report of the type described in Section 6.2(e) by such Evaluation Date. Within thirty days after receiving such information, reports and data (or in the case of a determination of the Borrowing Base shall be made by Banks at least semi-annually and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to an Evaluation Date described in clause (d) of the Collateraldefinition of "Evaluation Date", including the information required pursuant to Section 12(a)(iiiwithin thirty days after such Evaluation Date), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein Required Lenders shall be construed to require that Banks or Agent shall or should obtain and pay agree upon an amount for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction Agent shall be set by notice to Borrower designate such amount as the new Borrowing Base available to Borrower hereunder, which designation shall take effect immediately on the basis date such notice is sent (herein called a "Determination Date") and shall remain in effect until but not including the next date as of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, which the Borrowing Base then is redetermined. If Borrower does not furnish all such information, reports and data by the date specified in effect the first sentence of this section, Agent may nonetheless designate the Borrowing Base at any amount which Required Lenders determine and may redesignate the Borrowing Base from time to time thereafter until each Lender receives all such information, reports and data, whereupon Required Lenders shall automatically be reduced by designate a sum equal to new Borrowing Base as described above. Required Lenders shall determine the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled the Borrowing Base redetermination based upon the loan collateral value which they in their discretion assign to the various oil and gas properties included in the Collateral at the time in question and based upon such other credit factors (including without limitation the assets, liabilities, cash flow, hedged and unhedged exposure to price, foreign exchange rate, and interest rate changes, business, properties, prospects, management and ownership of Borrower and its Affiliates) as they in their discretion deem significant. It is madeexpressly understood that Lenders and Agent have no obligation to agree upon or designate the Borrowing Base at any particular amount, such non-scheduled redetermined whether in relation to the Commitment or otherwise, and that Lenders' commitments to advance funds hereunder is determined by reference to the Borrowing Base from time to time in effect, which Borrowing Base shall become effective immediately upon Agent giving notice thereof be used to the Borrowerextent permitted by Law and regulatory authorities, for the purposes of capital adequacy determination and reimbursements under Section 3.2. Provided, however, that no Bank shall ever have an obligation Should the last day for Lenders to designate a redetermine the Borrowing Base in an amount connection with a particular Evaluation Date be a day other than a Business Day, the period for such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsredetermination shall be extended to the next succeeding Business Day.
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Subsequent Determinations of Borrowing Base. Subsequent determinations (a) By each Evaluation Date, the Borrower shall furnish to the Administrative Agent and each Lender all information, reports and data which the Administrative Agent has then reasonably requested concerning the Borrower's and the Guarantors' businesses and properties (including Borrower's and the Guarantors' Oil and Gas Properties and interests and the reserves and production relating thereto), together with the Engineering Report described in Section 6.2(g), if an Engineering Report is then due. Within thirty (30) days after receiving such information, reports and data, or as promptly thereafter as practicable, the Administrative Agent shall recommend a redetermined Borrowing Base to the Lenders. Such recommended Borrowing Base shall become effective upon the receipt by the Administrative Agent of the approval of such recommended Borrowing Base by Lenders holding not less than 75% of the aggregate amount of the Credit Extensions then outstanding (or 75% of the Commitments if no Credit Extensions are outstanding). If such recommended Borrowing Base is not approved by Lenders holding not less than 75% of the aggregate amount of the Credit Extensions then outstanding (or 75% of the Commitments if no Credit Extensions are then outstanding) within ten (10) days after the Administrative Agent submits the recommended Borrowing Base to the Lenders, then each Lender shall submit in writing to the Administrative Agent, on or within ten (10) days after the Administrative Agent notifies the Lenders that the Lenders have not approved any such recommended Borrowing Base, such Lender's determination of the redetermined Borrowing Base; in such case, the redetermined Borrowing Base shall be the highest amount approved by Lenders holding not less than 75% of the aggregate amount of the Credit Extensions then outstanding (or 75% of the Commitments if no Credit Extensions are outstanding). NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, WITHOUT THE PRIOR WRITTEN APPROVAL OF ALL OF THE LENDERS, SUCH APPROVAL TO BE IN EACH LENDER'S SOLE DISCRETION, THE REDETERMINED BORROWING BASE SHALL NOT BE INCREASED ABOVE THE AMOUNT OF THE BORROWING BASE IN EFFECT IMMEDIATELY PRIOR TO SUCH REDETERMINATION. The Administrative Agent shall by notice to the Borrower and the Lenders designate the amount of the Borrowing Base (determined by Lenders holding not less than 75% of the aggregate amount of Credit Extensions then outstanding or 75% of the Commitments if no Credit Extensions are then outstanding or all of the Lenders, as applicable, in accordance with the foregoing procedures) available to the Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (a "Determination Date") and shall remain in effect until but not including the next date as of which the Borrowing Base is redetermined. If the Borrower does not furnish all such information, reports and data by the date specified in the first sentence of this section, the Administrative Agent may nonetheless designate the Borrowing Base at any amount which the Lenders determine, and may redesignate the Borrowing Base from time to time thereafter at any amount which all Lenders redetermine, until each Lender receives all such information, reports and data, whereupon Lenders shall designate a new Borrowing Base as described above. The Lenders shall determine the amount of the Borrowing Base based upon the loan collateral value which they, in their sole discretion and in accordance with their respective normal practices and standards for oil and gas loans as such practices and standards exist at the particular time, assign to the various Oil and Gas Properties of the Borrower or the Guarantors at the time in question and based upon such other factors (including without limitation the assets, liabilities, fixed charges, cash flow, business, properties, prospects, management and ownership of any of the Borrower or the Guarantors or any Subsidiary of any of the Borrower or the Guarantors) as they, in their sole discretion and in accordance with their respective normal practices and standards for oil and gas loans as such practices and standards exist at the particular time, deem significant. It is expressly understood that Lenders and the Administrative Agent have no obligation to agree upon or designate the Borrowing Base at any particular amount, whether in relation to the Maximum Loan Amount or otherwise, and that the Lenders' commitments to advance funds hereunder is determined by reference to the Borrowing Base from time to time in effect, which Borrowing Base shall be made used for calculating commitment fees under Section 2.10(a) and, to the extent permitted by Banks law and regulatory authorities, for the purposes of Section 2.15. Additional redeterminations at the request of the Lenders, the Administrative Agent or the Borrower shall be subject to a $5,000 engineering fee payable by Borrower to the Administrative Agent for its own account.
(b) The Borrower may include additional Oil and Gas Properties of the Borrower or the Guarantors acquired from time to time as Collateral for the Obligations, which may then be included in the calculation of the Borrowing Base, by the Borrower (A) giving written notice to the Administrative Agent of such properties to be included, (B) subjecting such properties to Liens securing the Obligations (pursuant to Security Documents satisfactory to the Administrative Agent), (C) including such properties in an Engineering Report submitted to the Administrative Agent and (D) delivering to the Administrative Agent title opinions covering at least semi-annually 80% of the additional value addressed to the Administrative Agent for the benefit of the Lenders covering all of such properties and other legal opinions from counsel acceptable to the Banks Administrative Agent, in its sole discretion, in form, scope and substance acceptable to the Administrative Agent opining favorably as to, among such other matters as may make a redetermination at be required by the Administrative Agent, (1) the Borrower's or the appropriate Guarantor's ownership of such properties and (2) matters of the type covered by the opinions delivered pursuant to Section 4.1(a)(vi).
(c) In addition to the any time and shall make a redetermination if and when requested by Borrower. In connection with each such scheduled determination or discretionary determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof be automatically reduced from time to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base time as set forth in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsSection 7.5(e).
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Subsequent Determinations of Borrowing Base. Subsequent determinations Reduction of --------------------------------------------------------- Borrowing Base by Borrower. --------------------------
(a) By each Evaluation Date Borrower shall furnish to each Lender all information, reports and data which Agent has then requested concerning Restricted Persons' businesses and properties (including their oil and gas properties and interests and the reserves and production relating thereto), together with the Engineering Report described in Section 6.2(e). Within forty- five days after receiving such information, reports and data, or as promptly thereafter as practicable, Majority Lenders shall agree upon an amount for the Borrowing Base (provided that all Lenders must agree to any increase in the Borrowing Base) and Agent shall by notice to Borrower designate such amount as the new Borrowing Base available to Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (herein called a "Determination Date") and shall remain in effect until but not including the ------------------ next date as of which the Borrowing Base is redetermined. If Borrower does not furnish all such information, reports and data by the date specified in the first sentence of this section, Agent may nonetheless designate the Borrowing Base at any amount which Majority Lenders determine and may redesignate the Borrowing Base from time to time thereafter until each Lender receives all such information, reports and data, whereupon Majority Lenders shall designate a new Borrowing Base as described above. Majority Lenders shall determine the amount of the Borrowing Base based upon the loan collateral value which they in their discretion assign to the various oil and gas properties of Restricted Persons at the time in question and based upon such other credit factors (including without limitation the assets, liabilities, cash flow, hedged and unhedged exposure to price, foreign exchange rate, and interest rate changes, business, properties, prospects, management and ownership of Borrower and its Affiliates) as they in their discretion deem significant. It is expressly understood that Lenders and Agent have no obligation to agree upon or designate the Borrowing Base at any particular amount, whether in relation to the Maximum Credit Amount or otherwise, and that each Lender's' commitment to advance funds hereunder is determined by reference to the Borrowing Base from time to time in effect, which Borrowing Base shall be used for calculating commitment fees under Section 2.5 and, to the extent permitted by Law and regulatory authorities, for the purposes of capital adequacy determination and reimbursements under Article III.
(b) Until the termination of the Commitment Period, Borrower may, during the fifteen-day period beginning on each Determination Date (each such period being called in this section an "Option Period"), reduce the Borrowing Base from ------------- the amount designated by Agent to any lesser amount. To exercise such option Borrower must within an Option Period send notice to Agent of the amount of the Borrowing Base chosen by Borrower. If Borrower does not affirmatively exercise this option during an Option Period, the Borrowing Base shall be made the amount designated by Banks at least semi-annually and the Banks may make Agent. Any choice by Borrower of a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 the first day of the Option Period during which such choice was made and May 1, commencing November 1, 1998, and at such other dates shall continue in effect until the next date as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsredetermined.
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Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by Banks at least the Lenders semi-annually on April 1 and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as October 1 of each November 1 and May year beginning October 1, commencing November 2004 or as Unscheduled Redeterminations. By March 1 each year, beginning March 1, 19982005, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks Borrowers shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through the Lenders an engineering report in form and substance reasonably satisfactory to Agent under other provisions hereof with respect prepared by an independent petroleum engineering firm acceptable to Agent, said engineering report to utilize economic and pricing parameters used by the Collateral, including the information required pursuant Agent as established from time to Section 12(a)(iii), (iv), (v) and (vi)time, together with such other information, reports and data concerning the value of the Oil and Gas Properties as Banks may Agent shall deem appropriate under reasonably necessary to determine the value of such Oil and Gas Properties. By September 1 of each year beginning September 1, 2004, or within thirty (30) days after either (i) receipt of notice from Agent that the Lenders require an Unscheduled Redetermination, or (ii) Borrowers give notice to Agent of its desire to have an Unscheduled Redetermination performed, in each case Borrowers shall furnish to the Lenders an engineering report in form and substance reasonably satisfactory to Agent, said engineering report to utilize economic and pricing parameters used by the Agent as established from to time, together with such other information, reports and data concerning the value of such Oil and Gas Properties. Agent shall by written notice to Borrowers no later than April 1 and October 1 of each year, or within a reasonable time thereafter (herein called the "Determination Date"), notify Borrowers of the designation by the Lenders of the new Borrowing Base for the period beginning on such Determination Date and continuing until, but not including, the next Determination Date. If an Unscheduled Redetermination is to be made by the Lenders, the Agent shall notify Borrowers within a reasonable time after receipt of all requested information of the new Borrowing Base, and such new Borrowing Base shall continue until the next Determination Date. If Borrowers do not furnish all such information, reports and data by any date specified in this Section 7(b), unless such failure is reasonably determined by the Agent to be of no fault of Borrowers, the Lenders nonetheless designate the Borrowing Base at any amounts which the Lenders in their reasonable discretion determine and redesignate the Borrowing Base from time to time thereafter until the Lenders receive all such information, reports and data, whereupon the Lenders shall designate a new Borrowing Base, as described above. The procedure for determining the Borrowing Base at each redetermination shall be that the Agent shall determine the Borrowing Base and submit the same to the Lenders. Increases in the Borrowing Base will require approval of all Lenders, but other reaffirmation or changes in the Borrowing Base will be subject to the approval of Super Majority Lenders. If any redetermined Borrowing Base is not approved by Super Majority Lenders within twenty (20) days after submission to the Lenders by Agent of the proposed amount, the Agent shall notify each of the Lenders that the proposed Borrowing Base has not been approved and each Lender will submit within ten (10) days thereafter its proposed Borrowing Base. The redetermined Borrowing Base shall be then circumstancedetermined (in all cases except those involving an increase of the Borrowing Base which requires approval of all Lenders) based upon the weighted arithmetic average of the proposed amounts submitted by each Lender, said proposals to be weighted according to each Lender's Commitment. Each Lender shall determine the amount of the Borrowing Base based upon the loan collateral value which such Lender in its sole discretion (using such methodology, assumptions and discount rates as such Lender customarily uses in assigning collateral value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties of Borrowers and the Guarantors at the time in question and based upon such other credit factors consistently applied (including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reports, appraisals or other data from third parties ownership of Borrowers and their affiliates) as such Lender customarily considers in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices evaluating similar oil and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bankgas credits. If at any time any of the Collateral is Oil and Gas Properties are sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment prepayment, if any, required to be made pursuant to Section 13(e) hereof12(r). If a non-scheduled It is expressly understood that the Lenders have no obligation to designate the Borrowing Base redetermination is madeat any particular amounts, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof except in the exercise of their discretion, whether in relation to the Borrower. ProvidedCommitments or otherwise; provided, however, that no Bank the Lenders shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsthe Commitment.
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Subsequent Determinations of Borrowing Base. Subsequent determinations By March 1 ------------------------------------------- and July 15 of each year Borrower shall furnish to each Bank all information, reports and data which Agent has then requested concerning Related Persons' businesses and properties (including their oil and gas properties and interests and the reserves and production relating thereto), together with the Engineering Report described in Section C.1(d) or C.1(e) of Annex C, as applicable. Within thirty days after receiving such information, reports and data, Required Lenders shall agree upon an amount for the Borrowing Base (provided that all Banks must agree to any increase in the Borrowing Base) and Agent shall by notice to Borrower designate such amount as the new Borrowing Base available to Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (herein called a "Determination Date") and shall remain in effect ------------------ until but not including the next date as of which the Borrowing Base is redetermined. If Borrower does not furnish all such information, reports and data by the date specified in the first sentence of this section, Agent may nonetheless designate the Borrowing Base at any amount which Required Lenders determine and may redesignate the Borrowing Base from time to time thereafter until each Bank receives all such information, reports and data, whereupon Required Lenders shall designate a new Borrowing Base as described above. Required Lenders shall determine the amount of the Borrowing Base shall be made by Banks based upon the loan collateral value which they in their discretion assign to the various proved oil and gas properties of Related Persons at least semi-annually the time in question and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as of each November 1 and May 1, commencing November 1, 1998, and at based upon such other dates as determined at credit factors (including without limitation the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinationsassets, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateralliabilities, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed hedged and unhedged exposure to require price, foreign exchange rate, and interest rate changes, business, properties, prospects, management and ownership of Borrower and its Affiliates) as they in their discretion deem significant. It is expressly understood that Banks and Agent have no obligation to agree upon or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on designate the Borrowing Base or Monthly Commitment Reductionat any particular amount, each Bank will submit whether in writing relation to the Agent its proposed Borrowing Base aggregate face amount of the Notes or otherwise, and Monthly Commitment Reduction and that Banks' commitments to advance funds hereunder is determined by reference to the Borrowing Base and Monthly Commitment Reduction from time to time in effect, which Borrowing Base shall be used for calculating commitment fees under Section 2.5 and, to the extent permitted by Law and regulatory authorities, for the purposes of capital adequacy determination and reimbursements under Section 3.2. It is further understood that the scheduled principal payments set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, forth in Section 2.8 are based upon the Borrowing Base then as in effect on the date hereof and that Banks and Agent shall automatically be reduced by a sum equal to not increase the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, without (i) an amendment to such non-scheduled redetermined principal payments as determined by the Banks in connection with such Borrowing Base shall become effective immediately upon Agent giving notice thereof increase and (ii) the consent of Tamco to the Borrower. Provided, however, that no Bank shall ever have an obligation such amendment to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsscheduled principal payments.
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Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by the Banks at least semi-annually on January 1 and July 1 of each year beginning July 1, 2000 or as Unscheduled Redeterminations. The Borrowers shall furnish to the Banks may make a redetermination at as soon as possible but in any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as event no later than April 1 of each November 1 and May year, beginning April 1, commencing November 12001, 1998, with an engineering report in form and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect substance satisfactory to the Collateral, including Agent prepared by an independent petroleum engineering firm acceptable to Agent covering the information required pursuant Oil and Gas Properties utilizing economic and pricing parameters used by Agent as established from time to Section 12(a)(iii), (iv), (v) and (vi)time, together with such other information concerning the value of the Oil and Gas Properties as the Agent shall deem necessary to determine the value of the Oil and Gas Properties. By October 1 of each year, or within thirty (30) days after either (i) receipt of notice from Agent that the Banks require an Unscheduled Redetermination, or (ii) the Borrowers give notice to Agent of their desire to have an Unscheduled Redetermination performed, the Borrowers shall furnish to the Banks an engineering report in form and substance satisfactory to Agent prepared by Borrowers' in-house engineering staff valuing the Oil and Gas Properties utilizing economic and pricing parameters used by the Agent as established from time to time, together with such other information, reports and data concerning the value of the Oil and Gas Properties as Agent shall deem reasonably necessary to determine the value of such Oil and Gas Properties. Agent shall by notice to the Borrowers no later than May 1 and November 1 of each year, or within a reasonable time thereafter (herein called the "Determination Date"), notify the Borrowers of the designation by the Banks of the new Borrowing Base for the period beginning on such Determination Date and continuing until, but not including, the next Determination Date. If an Unscheduled Redetermination is made by the Banks, the Agent shall notify the Borrowers within a reasonable time after receipt of all requested information of the new Borrowing Base, and such new Borrowing Base shall continue until the next Determination Date. If the Borrowers do not furnish all such information, reports and data by any date specified in this Section 7(b), the Banks may deem appropriate under nonetheless designate the then circumstanceBorrowing Base at any amount which the Banks in their discretion determine and may redesignate the Borrowing Base from time to time thereafter until the Banks receive all such information, reports and data, whereupon the Banks shall designate a new Borrowing Base as described above. Each Bank shall determine the amount of the Borrowing Base based upon the loan value which such Bank in its discretion (using such methodology, assumptions and discounts rates as such Bank customarily uses in assigning loan value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties and other Collateral of the Borrowers at the time in question and based upon such other credit factors consistently applied (including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reportsownership of the Borrowers and their affiliates) as such Bank customarily considers in evaluating similar oil and gas credits, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each but such Bank in its discretiondiscretion shall not be required to give any additional positive value to any Oil and Gas Property over the current economic and pricing parameters used by such Bank for such Determination Date which additional value is derived directly from a hedging, subject only forward sale or swap agreement covering such Oil and Gas Property as of the date of such determination. All determinations or Unscheduled Redeterminations of the Borrowing Base require the approval of Majority Banks; provided, however, that notwithstanding anything to the requirement that such determination shall contrary herein, the amount of the Borrowing Base may not be reasonable and made in good faithincreased, without the approval of all Banks. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment ReductionBase, each Bank will shall submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest weighted average of the Borrowing Base and highest Monthly Commitment Reduction Bases proposed by any Bankthe Banks. If at any time any of the Collateral is Oil and Gas Properties are sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e12(r) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined The Borrowing Base shall become effective immediately upon Agent giving notice thereof be additionally reduced from time to time pursuant to the Borrowerprovisions of Sections 2(e) and 2(f) hereof. It is expressly understood that the Banks have no obligation to designate the Borrowing Base at any particular amounts, except in the exercise of their discretion, whether in relation to the Revolving Commitment or otherwise. Provided, however, that no Bank the Banks shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of the Revolving Commitment or its legal or internal lending limits. Upon the issuance of any public note issue permitted pursuant to Section 13(f)(iv) hereof, the Banks shall have the right to perform an Unscheduled Redetermination of the Borrowing Base.
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent determinations (a) Administrative Agent and Lenders shall make each Scheduled Determination on or about the applicable Scheduled Determination Date as set forth below. By March 1 and September 1 of each year beginning March 1, 2014, Borrower shall furnish to each Lender all information, reports and data which Administrative Agent has then requested concerning Restricted Persons’ businesses and properties (including their Oil and Gas Properties and interests and the reserves and production relating thereto), together with, as applicable, the Engineering Report as of January 1 of such year described in Section 6.2(e) or as of July 1 of such year described in Section 6.2(f). By April 1 and October 1 of each year, Administrative Agent shall determine the amount of a proposed Borrowing Base and change in the Borrowing Base Reduction Amount, if any; and Administrative Agent shall then deliver to each Lender such proposed Borrowing Base and change in the Borrowing Base Reduction Amount, if any. Within fifteen days after the Lenders’ receipt of such proposed Borrowing Base and Borrowing Base Reduction Amount, or as promptly thereafter as practicable, Required Lenders shall agree on an amount for the Borrowing Base and change in the Borrowing Base Reduction Amount, if any (provided that all Lenders must agree on any increase in the Borrowing Base and any decrease in the Borrowing Base Reduction Amount), which Borrowing Base and change in the Borrowing Base Reduction Amount need not be equal to such proposed Borrowing Base or Borrowing Base Reduction Amount. Required Lenders shall determine the amount of the Borrowing Base based upon the loan collateral value which they in their discretion assign to the discounted net present value of the various Oil and Gas Properties of Restricted Persons included in the Collateral at the time in question and based upon such other credit factors (including without limitation the assets, liabilities, cash flow, hedged and unhedged exposure to price, foreign exchange rate, and interest rate changes, business, properties, prospects, management and ownership of Restricted Persons) as they in their discretion deem significant. If Required Lenders (or all Lenders in the case of an increase in the Borrowing Base or decrease in the Borrowing Base Reduction Amount) have not approved the Borrowing Base within the fifteen day period after their receipt of such proposed Borrowing Base and Borrowing Base Reduction Amount, Administrative Agent shall be made by Banks at least semi-annually poll Lenders to ascertain the highest Borrowing Base and lowest Borrowing Base Reduction Amount then acceptable to a number of Lenders sufficient to constitute Required Lenders (or all Lenders in the case of an increase in the Borrowing Base or decrease in the Borrowing Base Reduction Amount) and such amounts shall then become the Borrowing Base and the Banks Borrowing Base Reduction Amount . Administrative Agent shall by notice to Borrower designate such amounts as the new Borrowing Base available to Borrower hereunder and the new Borrowing Base Reduction Amount, which designation shall take effect immediately on the date such notice is sent (herein called a “Determination Date”) and shall remain in effect until but not including the next date as of which the Borrowing Base and the Borrowing Base Reduction Amount are redetermined. It is expressly understood that Lenders and Administrative Agent have no obligation to agree upon -
(b) If Borrower does not furnish all such information, reports and data by the date specified in the first sentence of subsection (a) of this section, Administrative Agent may make a redetermination nonetheless determine the Borrowing Base and Borrowing Base Reduction Amount at any amount that Required Lenders determine and may redetermine the Borrowing Base and Borrowing Base Reduction Amount from time to time thereafter (provided that all Lenders must agree to any increase in the Borrowing Base and any decrease in the Borrowing Base Reduction Amount) until each Lender receives all such information, reports and data, whereupon Required Lenders (or all Lenders, as applicable) shall make designate a redetermination if new Borrowing Base and when Borrowing Base Reduction Amount as described above.
(c) In addition to the redeterminations of the Borrowing Base and Borrowing Base Reduction Amount pursuant to subsections (a) and (b) of this section, Borrower and Administrative Agent (or Administrative Agent at the request of Required Lenders) may each request additional determinations (“Special Determinations”) of the Borrowing Base and Borrowing Base Reduction Amount from time to time; provided, that no such Person may request more than one (1) Special Determination between Scheduled Determinations. In the event Administrative Agent (or Administrative Agent at the request of Required Lenders) requests such a Special Determination, Administrative Agent shall promptly deliver notice of such request to Borrower and Borrower shall, within thirty (30) days following the date of such request, deliver to Lenders an Engineering Report prepared by Staff Engineers as of the last day of the calendar month preceding the date of such request (or prepared by Independent Engineers) and such other information which Administrative Agent shall have requested. In the event Borrower requests a Special Determination, Borrower shall deliver written notice of such request to Lenders which shall include (i) an Engineering Report prepared by Staff Engineers as of a date not more than thirty (30) days prior to the date of such request (or, in the case of a request made on the 31st day of any calendar month, thirty-one (31) days), (ii) the amount of the Borrowing Base and Borrowing Base Reduction Amount requested by BorrowerBorrower and to become effective on the Determination Date applicable to such Special Determination and (iii) such other information which Administrative Agent shall have requested. In connection Upon receipt of such Engineering Report and other information, Administrative Agent shall, subject to approval of Required Lenders, or all Lenders in the event of a proposed increase in the Borrowing Base or a decrease in the Borrowing Base Reduction Amount, redetermine the Borrowing Base and the Borrowing Base Reduction Amount in accordance with each such determination the procedure set forth in subsection (a) of this section, which Borrowing Base and Borrowing Base Amount shall become effective on the Determination Date (or as soon thereafter as Administrative Agent and Required Lenders, - or all Lenders in the event of a proposed increase in the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such approve such Borrowing Base and Monthly Commitment Reduction determinations provide notice thereof to Borrower).
(d) The Borrowing Base shall be made reduced automatically on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as first day of each November 1 and May 1, commencing November 1, 1998, and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made calendar month by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base or Monthly Commitment Reduction, each Bank will submit Reduction Amount then in writing to the Agent its proposed effect and such reduced Borrowing Base and Monthly Commitment Reduction and shall continue in effect until the first day of the next calendar month or the next date as of which the Borrowing Base and Monthly Commitment Borrowing Base Reduction Amount are redetermined.”
(a) As soon as available, and in any event within ninety (90) days after the end of each Fiscal Year, complete Consolidated and consolidating financial statements of Borrower together with all notes thereto, prepared in reasonable detail in accordance with GAAP, together with an unqualified opinion, based on an audit using generally accepted auditing standards, by an independent certified public accounting firm selected by Borrower and reasonably acceptable to Administrative Agent, stating that such Consolidated financial statements have been so prepared. These financial statements shall be set contain a Consolidated balance sheet as of the end of such Fiscal Year and Consolidated statements of earnings, of cash flows, and of changes in owners’ equity for such Fiscal Year, each setting forth in comparative form the corresponding figures for the preceding Fiscal Year.
(b) As soon as available, and in any event within forty-five (45) days after the end of each Fiscal Quarter, Borrower’s Consolidated and consolidating balance sheet as of the end of such Fiscal Quarter and Consolidated statements of Borrower’s earnings and cash flows for such Fiscal Quarter and for the period beginning on the basis first day of the lowest Borrowing Base then current Fiscal Year to the end of such Fiscal Quarter, all in reasonable detail and highest Monthly Commitment Reduction proposed prepared in accordance with GAAP, subject to changes resulting from normal year-end adjustments and the absence of footnotes. In addition Borrower will, together with each such set of financial statements and each set of financial statements furnished under subsection (a) of this section, furnish a certificate in the form of Exhibit D signed by any Bank. If a Responsible Officer of Borrower stating that such financial statements are accurate and complete (subject to normal year-end adjustments and the absence of footnotes), stating that he/she has reviewed the Loan Documents, containing calculations showing compliance (or non-compliance) at any time any the end of such Fiscal Quarter with the requirements of Sections 7.11 and 7.12 and containing a reconciliation of the Collateral is soldfinancial covenants contained in such Sections to such financing statements, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Provided, however, and stating that no Bank shall ever have an obligation to designate a Borrowing Base in an amount Default exists at the end of such that Fiscal Quarter or at the time of such Bank's Commitment Percentage thereof is in excess certificate or specifying the nature and period of its legal or internal lending limitsexistence of any such Default.”
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent ------------------------------------------- determinations of the Borrowing Base shall be made by Banks the Lenders at least semi-annually on May 1 and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as 1 of each November 1 and May 1, commencing year beginning November 1, 1998, and at such other dates 2000 or as determined at the discretion of Majority BanksUnscheduled Redeterminations. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks The Borrowers shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof the Lenders as soon as possible but in any event no later than April 1 of each year, beginning April 1, 2001, with respect an Engineering Report in form and substance satisfactory to the Collateral, including Agent prepared by an independent petroleum engineering firm or firms acceptable to Agent covering the information required pursuant Oil and Gas Properties utilizing economic and pricing parameters used by Agent as established from time to Section 12(a)(iii), (iv), (v) and (vi)time, together with such other information concerning the value of the Oil and Gas Properties as the Agent shall deem necessary to determine the value of the Oil and Gas Properties. By October 1 of each year, beginning October 1, 2000, or within thirty (30) days after either (i) receipt of notice from Agent that the Lenders require an Unscheduled Redetermination, or (ii) the Borrowers give notice to Agent of their desire to have an Unscheduled Redetermination performed, the Borrowers shall furnish to the Lenders an engineering report in form and substance satisfactory to Agent prepared by Borrowers' in-house engineering staff valuing the Oil and Gas Properties utilizing economic and pricing parameters used by the Agent as established from time to time, together with such other information, reports and data concerning the value of the Oil and Gas Properties as Banks Agent shall deem reasonably necessary to determine the value of such Oil and Gas Properties. Agent shall by written notice to the Borrowers no later than May 1 and November 1 of each year, or within a reasonable time thereafter (herein called the "Determination Date"), notify the Borrowers of the designation by the Lenders of the new Borrowing Base for the period beginning on such Determination Date and continuing until, but not including, the next Determination Date. If an Unscheduled Redetermination is made by the Lenders, the Agent shall notify the Borrowers within a reasonable time after receipt of all requested information of the new Borrowing Base, and such new Borrowing Base shall continue until the next Determination Date. If the Borrowers do not furnish all such information, reports and data by any date specified in this Section 7(b), unless such failure is of no fault of the Borrowers, the Lenders may deem appropriate under nonetheless designate the then circumstanceBorrowing Base at any amounts which the Lenders in their reasonable discretion determine and may redesignate the Borrowing Base from time to time thereafter until the Lenders receive all such information, reports and data, whereupon the Lenders shall designate a new Borrowing Base as described above. Each Lender shall determine the amount of the Borrowing Base based upon the loan collateral value which such Lender in its reasonable discretion (using such methodology, assumptions and discounts rates as such Lender customarily uses in assigning collateral value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties of the Borrowers at the time in question and based upon such other credit factors consistently applied (including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reportsownership of the Borrowers and their affiliates) as such Lender customarily considers in evaluating similar oil and gas credits, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank but such Lender in its discretiondiscretion shall not be required to give any additional positive value to any Oil and Gas Property over the current economic and pricing parameters used by such Lender for such Determination Date which additional value is derived directly from a hedging, subject only forward sale or swap agreement covering such Oil and Gas Property as of the date of such determination. All determinations or Unscheduled Redeterminations of the Borrowing Base require the approval of Majority Lenders; provided, however, that notwithstanding anything to the requirement that such determination shall contrary herein, the amount of the Borrowing Base may not be reasonable and made in good faithincreased, without the approval of all Lenders. If the Banks Lenders cannot otherwise agree on the Borrowing Base Base, the Agent shall notify each of the Lenders of such fact or Monthly Commitment Reduction, facts and each Bank Lender will submit in writing to the Agent within five (5) days thereafter its proposed Borrowing Base and Monthly Commitment Reduction and the Base. The redetermined Borrowing Base and Monthly Commitment Reduction shall be set on then determined based upon the basis weighted arithmetic average of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed amounts submitted by any Bankeach Lender, said proposals to be weighted according to each Lender's Commitment. If at any time any of the Collateral is Oil and Gas Properties are sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment prepayment, if any, required to be made pursuant to Section 13(e12(r) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined The Borrowing Base shall become effective immediately upon Agent giving notice thereof be additionally reduced from time to time pursuant to the Borrowerprovisions of Sections 2(e) and 2(f) hereof. It is expressly understood that the Lenders have no obligation to designate the Borrowing Base at any particular amounts, except in the exercise of their discretion, whether in relation to the Commitment or otherwise. Provided, however, that no Bank the Lenders shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsthe Commitment.
Appears in 1 contract
Samples: Credit Agreement (3tec Energy Corp)
Subsequent Determinations of Borrowing Base. Subsequent determinations (i) Subject to the -------------------------------------------- other provisions of this Section 5(c), the Borrowing Base shall be made by Banks at least semi-annually and designated on each Determination Date (as defined below) as the Banks may make amount equal to the sum of:
(A) eighty percent (80%) of the Eligible Receivables, plus
(B) eighty percent (80%) of the Prepaid Natural Gas, plus
(C) eighty percent (80%) of the Eligible Products Inventory Value, plus
(D) eighty percent (80%) of the Net Eligible Exchange Balances, plus
(E) one hundred percent (100%) of the Cash Collateral as set forth in the Borrowing Base Certification provided to Agent pursuant to Section 5(b); provided that if in any calendar month the -------- Net Eligible Exchange Balances is a redetermination at any time and negative amount, then such negative amount will be deducted from the Eligible Products Inventory Value in determining the Borrowing Base for such calendar month.
(ii) Lenders shall make have five (5) days after the receipt of a redetermination if and when requested by Borrower. In connection with each such determination Borrowing Base Certification to dispute the calculation of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Base in such Borrowing Base and Monthly Commitment Reduction determinations Certification. If either Lender disputes the calculation it shall be made on or before each November 20 and May 20give Agent notice thereof within the five-day period. If Agent has received notice from any Lender of any dispute, commencing November 20, 1998, it shall within the same to be effective as five-day period notify Borrower of each November 1 such dispute and May 1, commencing November 1, 1998, and at such other dates as determined at of the discretion amount of Majority Banks. Borrower may likewise request more frequent the Borrowing Base redeterminations as recalculated by the Lenders. The amount of the Borrowing Base as so recalculated by the Lenders and Banks set forth in such notice shall make take effect on the same if date specified therein which may not be earlier than the date on which such notice is received by Borrower and when requestedshall continue in effect until the next Determination Date. In making Any such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations recalculation shall be made by Banks the Lenders in accordance with their respective customary practices good faith based on the information in such Borrowing Base Certification and standards for loans in similar amounts any other information available to borrowers similarly situated, the Lenders at the times time in question regarding the Eligible Receivables, Prepaid Natural Gas, Eligible Product Inventory, Eligible Product Inventory Value, Net Eligible Exchange Balances and under the circumstances then prevailing Cash Collateral. The date on which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the Borrowing Base is so designated either by Agent or Monthly Commitment Reduction, each Bank will submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and by operation of the Borrowing Base and Monthly Commitment Reduction Certification if Agent does not give timely notice objecting thereto, shall be set called a "Determination ------------- Date". A Determination Date may occur during the period between the ---- date on which a Request for Advance is submitted and the basis of day on which such Advance is to be made. Until the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by has been determined pursuant to this Section 5(c) for any Bank. If at any time any of the Collateral is soldperiod, the Borrowing Base then in effect shall automatically be reduced by a sum equal the amount determined pursuant to this Section 5 for the immediately preceding period.
(iii) If Borrower does not furnish to the amount of prepayment Agent the information required to be made pursuant to by Section 13(e5(b) hereof. If a non-scheduled by the date specified therein, the Agent may designate the Borrowing Base redetermination is madeat any amount which the Lenders determine based on the relevant information then available to the Lenders and the Agent. The Agent may redesignate the Borrowing Base from time to time thereafter until the Lenders receive the required information, such non-scheduled redetermined whereupon a new Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limitsbe determined as described above.
Appears in 1 contract
Samples: Working Capital Loan Agreement (Markwest Hydrocarbon Inc)
Subsequent Determinations of Borrowing Base. Subsequent determinations of the Borrowing Base shall be made by Banks the Bank at least semi-annually on December 1 and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by Borrower. In connection with each such determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall be made on or before each November 20 and May 20, commencing November 20, 1998, the same to be effective as June 1 of each year beginning December 1, 2006, or as Unscheduled Redeterminations. The Borrower shall furnish to the Bank as soon as possible but in any event no later than May 1 and November 1 and May 1of each year, commencing beginning November 1, 19982007 with an effective date of March 31 and September 30, respectively, with an engineering report in form and at such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect substance satisfactory to the CollateralBank prepared by an independent petroleum engineering firm acceptable to Bank and, including for the information required pursuant May 1 report, by an in-house engineering report (a third party report is not necessary for the May 1 report) covering the Oil and Gas Properties based upon PV/9 utilizing economic and pricing parameters used by Bank as established from time to Section 12(a)(iii), (iv), (v) and (vi)time, together with such other information concerning the value of the Oil and Gas Properties as the Bank shall deem necessary to determine the value of the Oil and Gas Properties. Within thirty (30) days after either (i) receipt of notice from Bank that the Bank require an Unscheduled Redetermination, or (ii) a Borrower gives notice to Bank of its desire to have an Unscheduled Redetermination performed, the Borrower shall furnish to the Bank an engineering report in form and substance satisfactory to Bank prepared by Borrower’ in-house engineering staff valuing the Oil and Gas Properties utilizing economic and pricing parameters used by the Bank as established from time to time, together with such other information, reports and data concerning the value of the Oil and Gas Properties as Banks Bank shall deem reasonably necessary to determine the value of such Oil and Gas Properties. Bank shall by notice to the Borrower no later than August 1 and February 1 of each year, or within a reasonable time thereafter (herein called the “Determination Date”), notify the Borrower of the designation by the Bank of the new Borrowing Base for the period beginning on such Determination Date and continuing until, but not including, the next Determination Date. If an Unscheduled Redetermination is made by the Bank, the Bank shall notify the Borrower within a reasonable time after receipt of all requested information of the new Borrowing Base and such new Borrowing Base shall continue until the next Determination Date. If the Borrower does not furnish all such information, reports and data by any date specified in this Section 4(b), the Bank may deem appropriate under nonetheless designate the then circumstanceBorrowing Base at any amounts which the Bank in its reasonable discretion determines and may redesignate the Borrowing Base from time to time thereafter until the Bank receives all such information, reports and data, whereupon the Bank shall designate a new Borrowing Base as described above. Bank shall determine the amount of the Borrowing Base based upon the loan collateral value which Bank in its discretion (using such methodology, assumptions and discounts rates as Bank customarily uses in assigning collateral value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties and other Collateral of the Borrower at the time in question and based upon such other credit factors consistently applied (including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reportsownership of the Borrower and its affiliates) as Bank customarily considers in evaluating similar oil and gas credits, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each but Bank in its discretiondiscretion shall not be required to give any additional positive value to any Oil and Gas Property over the current economic and pricing parameters used by Bank for such Determination Date which additional value is derived directly from a hedging, subject only forward sale or swap agreement covering such Oil and Gas Property as of the date of such determination. It is expressly understood that the Bank has no obligation to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on designate the Borrowing Base or Monthly Commitment Reductionat any particular amounts, each Bank will submit except in writing the exercise of its discretion, whether in relation to the Agent its proposed Borrowing Base and Monthly Revolving Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined Borrowing Base shall become effective immediately upon Agent giving notice thereof to the Borroweror otherwise. Provided, however, that no the Bank shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of the Revolving Commitment or its legal or internal lending limits.
Appears in 1 contract
Subsequent Determinations of Borrowing Base. Subsequent ------------------------------------------- determinations of the Borrowing Base shall be made by the Banks on June 1, 1997, and thereafter, at least semi-annually on April 1 and the Banks may make a redetermination at any time and shall make a redetermination if and when requested by BorrowerOctober 1 of each year beginning October 1, 1997 or as Unscheduled Redeterminations. In connection with with, and as of, each such determination of the Borrowing Base, the Banks shall also determine redetermine the Monthly Commitment Reduction. Such The Borrowers shall furnish to the Banks as soon as possible but in any event no later than March 1 of each year, beginning March 1, 1997, with an Engineering Report in form and substance satisfactory to the Agent prepared by an independent petroleum engineering acceptable to Agent covering the Oil and Gas Properties utilizing economic and pricing parameters used by Agent as established from time to time, together with such other information concerning the value of the Oil and Gas Properties as the Agent shall deem necessary to determine the value of the Oil and Gas Properties. By September 1 of each year, or within thirty (30) days after either (i) receipt of notice from Agent that the Banks require an Unscheduled Redetermination, or (ii) the Borrowers give notice to Agent of their desire to have an Unscheduled Redetermination performed, an engineering report in form and substance satisfactory to Agent prepared by Borrower's in-house engineering staff valuing the Oil and Gas Properties utilizing economic and pricing parameters used by the Agent as established from time to time, together with such other information, reports and data concerning the value of the Oil and Gas Properties as Agent shall deem reasonably necessary to determine the value of such Oil and Gas Properties. Agent shall by notice to the Borrowers no later than June 1, 1997, and thereafter on April 1 and October 1 of each year, or within a reasonable time thereafter (herein called the "Determination Date"), notify the Borrowers of the designation by the Banks of the new Borrowing Base and Monthly Commitment Reduction determinations shall be made for the period beginning on or before each November 20 such Determination Date and May 20continuing until, commencing November 20, 1998but not including, the same to be effective as next Determination Date. If an Unscheduled Redetermination is made by the Banks, the Agent shall notify the Borrowers within a reasonable time after receipt of each November 1 all requested information of the new Borrowing Base and May 1, commencing November 1, 1998Monthly Commitment Reduction, and such new Borrowing Base and Monthly Commitment Reduction shall continue until the next Determination Date. If the Borrowers do not furnish all such information, reports and data by the date specified in this Section 7(b), unless such failure is of no fault of the Borrowers, the Banks may nonetheless designate the Borrowing Base and Monthly Commitment Reduction at any amounts which the Banks determine in their discretion and may redesignate the Borrowing Base and Monthly Commitment Reduction from time to time thereafter until the Banks receive all such information, reports and data, whereupon the Banks shall designate a new Borrowing Base and Monthly Commitment Reduction as described above. Each Bank shall determine the amount of the Borrowing Base and Monthly Commitment Reduction based upon the loan collateral value which such Bank in its discretion (using such methodology, assumptions and discounts rates as such Bank customarily uses in assigning collateral value to oil and gas properties, oil and gas gathering systems, gas processing and plant operations) assigns to such Oil and Gas Properties of the Borrowers at the time in question and based upon such other dates as determined at the discretion of Majority Banks. Borrower may likewise request more frequent Borrowing Base redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), credit factors consistently applied (iv), (v) and (vi), together with such other data as Banks may deem appropriate under the then circumstance, including, without limitation, cash flow and projections of the assets, liabilities, cash flow, provided that nothing herein shall be construed to require that Banks or Agent shall or should obtain business, properties, prospects, management and pay for any reportsownership of the Borrowers and their affiliates) as such Bank customarily considers in evaluating similar oil and gas credits, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each but such Bank in its discretiondiscretion shall not be required to give any additional positive value to any Oil and Gas Property over the current economic and pricing parameters used by such Bank for such Determination Date which additional value is derived directly from a hedging, subject only to forward sale or swap agreement covering such Oil and Gas Property as of the requirement that date of such determination shall be reasonable and made in good faithdetermination. If the Banks cannot otherwise agree on the Borrowing Base or the Monthly Commitment Reduction, each Bank will shall submit in writing to the Agent its proposed Borrowing Base and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and the highest Monthly Commitment Reduction proposed by any Bank. Notwithstanding any other provision herein to the contrary, the amount of the Borrowing Base may not be increased at any time without the approval of all Banks. If at any time any of the Collateral is Oil and Gas Properties are sold, the Borrowing Base then in effect shall automatically be reduced by a sum equal to the amount of prepayment required to be made pursuant to Section 13(e12(r) hereof. If a non-scheduled Borrowing Base redetermination is made, such non-scheduled redetermined The Borrowing Base shall become effective immediately upon Agent giving notice thereof be additionally reduced from time to time pursuant to the Borrowerprovisions of Sections 2(e) and 2(f) hereof. It is expressly understood that the Banks have no obligation to designate the Borrowing Base or the Monthly Commitment Reduction at any particular amounts, except in the exercise of their discretion, whether in relation to the Revolving Commitment or otherwise. Provided, however, that no Bank the Banks shall ever not have an the obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess of its legal or internal lending limits.
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Samples: Loan Agreement (Gothic Energy Corp)
Subsequent Determinations of Borrowing Base. Subsequent determinations (a) At least forty-five (45) days prior to each Evaluation Date, Borrower shall furnish to each Lender all information, reports and data that the Administrative Agent has then reasonably requested concerning Related Persons' businesses and properties (including Related Persons' Oil and Gas Properties and interests and the reserves and production relating thereto), together with the Engineering Report described in Section 6.1(b)(iv), if an Engineering Report is then due. Within thirty (30) days after receiving such information, reports and data (including an Engineering Report, if then due), or as promptly thereafter as practicable, the Administrative Agent shall notify the Lenders of Administrative Agent's proposed value for the Borrowing Base. After having received notice of such proposal by the Administrative Agent, each Lender shall have fifteen (15) days to agree or disagree with such proposal. If at the end of the fifteen (15) days, any Lender has not communicated its approval or disapproval, such silence shall be deemed to be an approval. If however, the Required Borrowing Base Lenders shall not have approved or shall not have been deemed to have approved the new Borrowing Base within fifteen (15) days, the Administrative Agent and the Required Borrowing Base Lenders shall, within a reasonable period of time, agree on a new Borrowing Base. The Administrative Agent shall by notice to Borrower designate such amount as the new Borrowing Base available to Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (a "Determination Date") and which ------------------ Borrowing Base shall remain in effect until but not including the next date as of which the Borrowing Base is redetermined. If Borrower does not furnish all such information, reports and data by the date specified in the first sentence of this section, the Required Borrowing Base Lenders may nonetheless designate the Borrowing Base at any amount which the Required Borrowing Base Lenders determine, and may redesignate the Borrowing Base from time to time thereafter at any amount which Required Borrowing Base Lenders redetermine, until each Lender receives all such information, reports and data, whereupon Required Borrowing Base Lenders shall designate a new Borrowing Base as described above. Subject to clause (e) below, the Borrowing Base shall be made that amount of debt which the Required Borrowing Base Lenders shall agree can be supported, after taking into account other fixed charges such as subordinated debt interest payments, capital lease payments, obligations in respect of operating leases and preferred dividends payable in cash, by Banks the cash flows of the Borrower's producing and non-producing proved oil and gas reserves after an engineering and economic review of such reserves conducted by the Lenders using their customary standards for oil and gas lending practices (including consideration of oil and gas, energy and/or commodities price forecasts as they may change from time to time), and gas sales contracts and hedging agreements will be taken into consideration to arrive at least semi-annually appropriate price projections; provided, however, that it is expressly understood that Lenders (or the Required Borrowing Base Lenders, as the case may be) and Administrative Agent have no obligation to agree upon or designate the Banks may make a redetermination Borrowing Base at any particular amount, whether in relation to the Maximum Loan Amount or otherwise, and that Lenders' commitments (or those of the Required Borrowing Base Lenders, as the case may be) to advance funds hereunder is determined by reference to the Borrowing Base from time to time in effect, which Borrowing Base shall be used for calculating commitment fees under Section 2.7(a) and, to the extent permitted by law and regulatory authorities, for the purposes of Section 2.15. Semiannual redeterminations and additional redeterminations at the request of the Lenders or Administrative Agent shall make a redetermination if and when requested by be at no cost to Borrower. Additional redeterminations at Borrower's request shall be subject to a $5,000 engineering fee payable by Borrower to the Administrative Agent for its own account.
(b) The Borrower may include additional Oil and Gas Properties of the Borrower in the calculation of the Borrowing Base, by the Borrower (A) giving written notice to the Administrative Agent of such properties to be included, and (B) including such properties in an Engineering Report submitted to the Administrative Agent.
(c) In connection with each such addition to any scheduled determination or discretionary determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall may be made on redetermined upon the sale, transfer or before each November 20 and May 20, commencing November 20, 1998, disposition of the same to be effective assets of Borrower included in the Borrowing Base in the amount as of each November 1 and May 1, commencing November 1, 1998required by Section 6.2(d)(iii).
(d) The Borrower may, and at the Administrative Agent may (and shall, if so directed by the Majority Lenders), once annually, request an additional Borrowing Base redetermination (a "Requested Redetermination") by delivering to ------------------------- the other party a notice requesting such other dates as determined Requested Redetermination. Following delivery of such request from Administrative Agent to Borrower or from Borrower to Administrative Agent, Borrower shall provide all information, data and reports described in clause (b) above; provided, that, any Requested Redetermination made at the discretion option of Majority Banks. Borrower may likewise request more frequent Borrowing Base Administrative Agent will be calculated using a company-prepared Engineering Report that has been updated from the most recently provided Engineering Report; provided, further, that redeterminations pursuant to clause (e) below and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v6.2(d)(iii) and (vi), together with such other data as Banks may deem appropriate under shall not count toward the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed Administrative Agent's ability to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the request a Borrowing Base or Monthly Commitment Reductionredetermination pursuant to this clause (d). Upon receipt of such information, each Bank will submit in writing to the Agent its proposed Borrowing Base data and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is soldreports, the Borrowing Base then shall be redetermined in effect shall automatically be reduced by a sum equal accordance with the appropriate procedures described in clause (b) above.
(e) Notwithstanding anything herein to the amount of prepayment required to be made pursuant to Section 13(econtrary (including clause (a) hereof. If a non-scheduled above), any increase in the Borrowing Base redetermination is made, such non-scheduled redetermined from the then immediately effective Borrowing Base shall become effective immediately upon Agent giving notice thereof to require the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess approval of its legal or internal lending limitsall Lenders.
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Subsequent Determinations of Borrowing Base. Subsequent determinations (a) Not later than sixty (60) days immediately following each December 31 and June 30, and at such other times as the Determining Banks shall request in connection with a redetermination of the Borrowing Base pursuant to clauses (b), (c) and (d) of this Section 2.13, Borrower shall furnish to each Lender all information, reports and data that the Determining Banks have then reasonably requested concerning Related Persons’ businesses and properties (including Related Persons’ Oil and Gas Properties and interests and the reserves and production relating thereto), together with the Engineering Report described in Section 6.1(b)(iv), if an Engineering Report is then due. Within thirty (30) days after receiving such information, reports and data (including an Engineering Report, if then due), or as promptly thereafter as practicable, the Administrative Agent shall notify the Lenders of the Determining Banks’ proposed value for the Borrowing Base. After having received notice of such proposal from the Administrative Agent, each Lender shall have fifteen (15) days to agree or disagree with such proposal. If at the end of the fifteen (15) days, any Lender has not communicated its approval or disapproval, such silence shall be deemed to be an approval. If however, the Required Borrowing Base Lenders shall not have approved or shall not have been deemed to have approved the proposed Borrowing Base within fifteen (15) days, the Determining Banks and the Required Borrowing Base Lenders shall, within a reasonable period of time, agree on and approve a new Borrowing Base, which new Borrowing Base shall be the highest amount that is acceptable to the Required Borrowing Base Lenders. The Administrative Agent shall by notice to Borrower designate such amount as the new Borrowing Base available to Borrower hereunder, which designation shall take effect immediately on the date such notice is sent (a “Determination Date”) and which Borrowing Base shall remain in effect until but not including the next date as of which the Borrowing Base is redetermined. If Borrower does not furnish all such information, reports and data by the date specified in the first sentence of this section, the Required Borrowing Base Lenders may nonetheless designate the Borrowing Base at any amount which the Required Borrowing Base Lenders determine, and may redesignate the Borrowing Base from time to time thereafter at any amount which Required Borrowing Base Lenders redetermine, until each Lender receives all such information, reports and data, whereupon Required Borrowing Base Lenders shall designate a new Borrowing Base as described above. Subject to clause (e) below, the Borrowing Base shall be made that amount of debt which the Required Borrowing Base Lenders shall agree can be supported, after taking into account other fixed charges such as subordinated debt interest payments, capital lease payments, obligations in respect of operating leases and preferred dividends payable in cash, by Banks the cash flows of the Borrower’s producing and non-producing proved oil and gas reserves after an engineering and economic review of such reserves conducted by the Lenders using their customary standards for oil and gas lending practices (including consideration of oil and gas, energy and/or commodities price forecasts as they may change from time to time), and gas sales contracts and hedging agreements will be taken into consideration to arrive at least semi-annually appropriate price projections; provided, however, that it is expressly understood that Lenders (or the Required Borrowing Base Lenders, as the case may be) and the Determining Banks may make a redetermination have no obligation to agree upon or designate the Borrowing Base at any particular amount, whether in relation to the Maximum Loan Amount or otherwise, and that Lenders’ commitments (or those of the Required Borrowing Base Lenders, as the case may be) to advance funds hereunder is determined by reference to the Borrowing Base from time to time in effect, which Borrowing Base shall be used for calculating commitment fees under Section 2.7(a) and, to the extent permitted by law and regulatory authorities, for the purposes of Section 2.15. Semiannual redeterminations and additional redeterminations at the request of the Lenders or the Determining Banks shall make a redetermination if and when requested by be at no cost to Borrower. Additional redeterminations at Borrower’s request shall be subject to a $5,000 engineering fee payable by Borrower to each of the Determining Banks for each Determining Bank’s own account.
(b) The Borrower may include additional Oil and Gas Properties of Related Persons in the calculation of the Borrowing Base, by the Borrower (A) giving written notice to the Administrative Agent of such properties to be included, and (B) including such properties in an Engineering Report submitted to the Administrative Agent.
(c) In connection with each such addition to any scheduled determination or discretionary determination of the Borrowing Base, the Banks shall also determine the Monthly Commitment Reduction. Such Borrowing Base and Monthly Commitment Reduction determinations shall may be made on redetermined upon the sale, transfer or before each November 20 and May 20, commencing November 20, 1998, disposition of the same to be effective assets of Borrower or any Related Person included in the Borrowing Base in excess of the Maximum Asset Sales Amount as of each November 1 and May 1, commencing November 1, 1998required by Section 6.2(d)(iii).
(d) The Borrower may, and at the Determining Banks may (and shall, if so directed by the Majority Lenders), once annually, request an additional Borrowing Base redetermination (a “Requested Redetermination”) by delivering to the other party a notice requesting such other dates as determined Requested Redetermination. Following delivery of such request from the Determining Banks to Borrower or from Borrower to Administrative Agent, Borrower shall provide all information, data and reports described in clause (b) above; provided, that, any Requested Redetermination made at the discretion option of the Determining Banks (or the Majority Banks. Borrower may likewise request more frequent Borrowing Base Lenders) will be calculated using a company-prepared Engineering Report that has been updated from the most recently provided Engineering Report; provided, further, that redeterminations and Banks shall make the same if and when requested. In making such determinations, Banks may utilize such reports and appraisals as Borrower may furnish to Banks through Agent under other provisions hereof with respect to the Collateral, including the information required pursuant to Section 12(a)(iii), (iv), (v6.2(d)(iii) and (vi), together with such other data as Banks may deem appropriate under shall not count toward the then circumstance, including, without limitation, cash flow and projections of cash flow, provided that nothing herein shall be construed Determining Banks’ right to require that Banks or Agent shall or should obtain and pay for any reports, appraisals or other data from third parties in connection therewith. Such determinations shall be made by Banks in accordance with their respective customary practices and standards for loans in similar amounts to borrowers similarly situated, at the times and under the circumstances then prevailing which are considered by each Bank in its discretion, subject only to the requirement that such determination shall be reasonable and made in good faith. If the Banks cannot otherwise agree on the request a Borrowing Base or Monthly Commitment Reductionredetermination pursuant to this clause (d). Upon receipt of such information, each Bank will submit in writing to the Agent its proposed Borrowing Base data and Monthly Commitment Reduction and the Borrowing Base and Monthly Commitment Reduction shall be set on the basis of the lowest Borrowing Base and highest Monthly Commitment Reduction proposed by any Bank. If at any time any of the Collateral is soldreports, the Borrowing Base then shall be redetermined in effect shall automatically be reduced by a sum equal accordance with the appropriate procedures described in clause (b) above.
(e) Notwithstanding anything herein to the amount of prepayment required to be made pursuant to Section 13(econtrary (including clause (a) hereof. If a non-scheduled above), any increase in the Borrowing Base redetermination is made, such non-scheduled redetermined from the then immediately effective Borrowing Base shall become effective immediately upon Agent giving notice thereof to require the Borrower. Provided, however, that no Bank shall ever have an obligation to designate a Borrowing Base in an amount such that such Bank's Commitment Percentage thereof is in excess approval of its legal or internal lending limitsall Lenders.
Appears in 1 contract
