REVOLVER LOAN AGREEMENT Dated as of August 31, 2018 between and among ENERGY RESOURCES 12, L.P. AND ENERGY RESOURCES 12 OPERATING COMPANY, LLC collectively, the "BORROWER",
Exhibit 10.1
Dated as of
August 31, 2018
between and among
ENERGY RESOURCES 12, L.P. AND ENERGY RESOURCES 12 OPERATING COMPANY, LLC
collectively, the "BORROWER",
Xxxxxxx Bank,
as Administrative Agent and Letter of Credit Issuer
AND
the Lenders Signatory Party Hereto
collectively, the "LENDERS"
THIS REVOLVER LOAN AGREEMENT (this "Agreement"), dated effective as of August 31, 2018, is entered into between ENERGY RESOURCES 12, L.P., a Delaware limited partnership ("ELP"), and ENERGY RESOURCES 12 OPERATING COMPANY, LLC, a Delaware limited liability company ("ELLC" and together with ELP, collectively "Borrowers", and each, a "Borrower"), and XXXXXXX BANK, an Arkansas banking corporation, as administrative agent for the Lenders signatory hereto, Letter of Credit Issuer, and as Agent for the signatory parties to any Intercreditor Agreement (herein defined) (the "Agent"), and the Lenders signatory parties hereto.
ARTICLE I
When used herein, the following terms shall have the following meanings:
"Additional Costs" shall have the meaning given in Section 2.19(c).
"Affected Loans" shall have the meaning given in Section 2.11.
"Affiliate" shall mean any Person which, directly or indirectly, controls, or is controlled by, or is under common control with, another Person and any partner, officer or employee of any such Persons. For purposes of this definition, "control" shall mean the power, directly or indirectly, to direct or in effect cause the direction of the management and policies of such Person whether by contract or otherwise.
"Agreement" shall mean this Revolver Loan Agreement, as amended, restated, supplemented or otherwise modified from time to time.
"Applicable Margin" shall mean the Applicable Margin for LIBOR Rate Loans and Base Rate Loans, respectively, set forth at the appropriate intersection in the interest rate Pricing Grid shown below, based on the Borrowing Base Utilization as in effect from time to time:
|
|
APPLICABLE MARGIN |
||
|
Level |
Borrowing Base Utilization |
LIBOR Rate |
BASE RATE |
|
One |
Less than 25% |
Plus 275 basis points |
Plus 25 basis points |
|
Two |
Equal to or greater than 25% but less than 50% |
Plus 310 basis points |
Plus 60 basis points |
|
Three |
Equal to or greater than 50% but less than 75% |
Plus 345 basis points |
Plus 95 basis points |
|
Four |
Greater than or equal to 75% |
Plus 375 basis points |
Plus 125 basis points |
Each change in the Applicable Margin resulting from a change in the Borrowing Base Utilization shall take effect on the day such change in the Borrowing Base Utilization occurs.
"Bankruptcy Event" shall mean, with respect to any Person, the occurrence of any of the following with respect to such Person: (i) a court or Governmental Authority having jurisdiction in the premises shall enter a decree or order for relief in respect of such Person in an involuntary case under the Bankruptcy Code or any other applicable insolvency or other similar Law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of such Person or for any substantial part of its Property or ordering the winding up or liquidation of its affairs; or (ii) there shall be commenced against such Person an involuntary case under the Bankruptcy Code or any other applicable insolvency or other similar Law now or hereafter in effect, or any case, proceeding or other action for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of such Person or for any substantial part of its Property or for the winding up or liquidation of its affairs, and such involuntary case or other case, proceeding or other action shall remain undismissed, undischarged and unbonded for a period of 60 consecutive days; or (iii) such Person shall commence a voluntary case under the Bankruptcy Code or any other applicable insolvency or other similar Law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of such Person or for any substantial part of its
Property or make any general assignment for the benefit of creditors; or (iv) such Person shall be unable to pay or shall fail to pay, or shall admit in writing its inability to pay, its debts generally as they become due.
"Base Rate" shall mean the prime rate of interest published by the Wall Street Journal, Southwest Edition, in its Money Rates columns as the prime rate or base rate on corporate loans at large U.S. money center commercial banks or a similar rate if such rate ceases to be published. If the prime rate is no longer announced or established for any reason, the Agent may select as the alternate rate such other announced and established prime or base rate for corporate loans of the New York, New York money center bank that Agent deems in its sole discretion to be most comparable to the no longer announced or established rate.
"Base Rate Margin" shall mean the Applicable Margin for Base Rate Loans specified on the Pricing Grid.
"Base Rate Loans" shall mean Loans and loan advances that accrue interest at the Base Rate.
"Borrowing Base Utilization" shall mean (i) the sum of (a) the outstanding principal amount of Revolver Note plus (b) the aggregate face amount of all undrawn and uncancelled and unexpired Letters of Credit, plus (c) the aggregate of all amounts drawn under all Letters of Credit and not yet reimbursed, divided by (ii) the Collateral Borrowing Base (as described and calculated in accordance with the provisions of Article IV hereof).
"Business Day" shall mean a day other than a Saturday, Sunday or a day upon which banks in the State of Oklahoma are closed to business generally.
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, together with all regulations and rulings promulgated with respect thereto.
"Closing Date" shall mean the effective date of this Agreement.
"Collateral" shall have the meaning assigned to that term in Article III of this Agreement.
"Collateral Borrowing Base" shall have the meaning assigned to the term in Section 4.2 of this Agreement.
"Commodity Exchange Act" means the Commodity Exchange Act (7 U S. C. Section 61 et. seq.), as amended from time to time, and any successor statute.
"Current Ratio" shall mean as of any fiscal quarter end determination date, the quotient of current assets (including any availability to Borrowers under the Revolver Commitment) divided by current liabilities (excluding (i) any current maturities owed to the Lenders, (ii) any current maturities owed on the indebtedness evidenced by the BofA Note described and defined in Exhibit C annexed hereto from the Closing Date only through and including March 31, 2019, and (iii) liability associated with Swap Obligations and Hedge Agreements/Hedge Transactions not then
due and payable, payables due for capital expenditures, and any current portion of asset retirement obligations).
"Default Rate" shall mean the then applicable contractual rate of interest on the Revolver Note plus four additional percentage points (4.00%) per annum.
"Deficiency" shall have the meaning given in Section 4.2.
"EBITDAX" shall mean for any period, the sum of a Person's net income for the period minus any non-recurring gains (losses) from the sale of assets, plus the following charges to the extent deducted from net income in such period: interest, income taxes (including franchise taxes calculated with respect to income), depreciation, depletion and amortization, and any other non-cash charges and non-cash revenues plus intangible drilling costs and lease impairment expenses and write downs from impairment of oil and gas properties) and after eliminating extraordinary items. In addition, for any applicable period during which an acquisition or disposition permitted by this Agreement is consummated, EBITDAX shall be determined on a pro forma basis (with such calculation to be acceptable to, and approved by, the Agent and Required Lenders) as if such acquisition or disposition were consummated on the first day of such applicable period.
"Environmental Laws" shall mean Laws, including without limitation federal, state or local Laws, ordinances, rules, regulations, interpretations and orders of courts or administrative agencies or authorities relating to pollution or protection of the environment (including, without limitation, ambient air, surface water, groundwater, land surface and subsurface strata), including without limitation CERCLA, XXXX, RCRA, HSWA, OPA, HMTA, TSCA and other Laws relating to (i) Polluting Substances or (ii) the manufacture, processing, distribution, use, treatment, handling, storage, disposal or transportation of Polluting Substances.
"Equity Interest" means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.
"ERISA" shall mean the Federal Employee Retirement Income Security Act of 1974, as amended, together with all regulations and rulings promulgated with respect thereto.
"Event of Default" shall mean any of the events specified in Section 8.1 of this Agreement, and "Default" shall mean any event, which together with any lapse of time or giving of any notice, or both, would constitute an Event of Default.
"Excluded Swap Obligation" (a) with respect to any guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such guarantor of, or the grant by such guarantor of a security interest to secure, as applicable, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation, or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) and (b) with respect to any Borrower, any Swap Obligation of another loan party if, and to the extent that, all or a portion of the joint and several liability of such Borrower with respect to, or the grant of such Borrower of a security interest to secure, as applicable, such Swap
Obligation is or becomes illegal under the Commodity Exchange Act or any rule, regulation, or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof), by virtue of such guarantor's (in the case of (a)) or Borrower' (in the case of (b)) failure to constitute an "eligible contract participant," as defined in the Commodity Exchange Act and the regulations thereunder, at the time the guarantee of such guarantor, joint and several liability of such Borrower, or grant of such security interest by such guarantor or Borrower, as applicable, becomes or would become effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one Swap Obligation, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Obligations for which such guarantee or security interest or joint and several liability, as applicable, is or becomes illegal.
"Funded Debt" shall mean, with respect to any Person, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (iii) all purchase money Indebtedness (including Indebtedness in respect of conditional sale or title retention arrangements and obligations in respect of the deferred purchase price of property or services) of such Person, including the principal portion of all obligations of such Person under capital leases, (iv) all contingent debt of such Person with respect to Funded Debt of another Person, (v) all Funded Debt of another Person secured by a Lien on any property of such Person, whether or not such Funded Debt has been assumed, and (vi) the Funded Debt of any partnership or joint venture in which such Person is a general partner or joint venturer, but only to the extent to which there is recourse to such Person for the payment of such Funded Debt.
"GAAP" shall mean generally accepted accounting principles applied on a consistent basis in all material respects to those applied in the preceding period. Unless otherwise indicated herein, all accounting terms will be defined according to GAAP.
"Governmental Authority" shall include the country, the state, county, city and political subdivisions in which any Person or such Person's property is located or which exercises valid jurisdiction over any such Person or such Person's property, and any court, agency, department, commission, board, bureau or instrumentality of any of them including monetary authorities which exercises valid jurisdiction over any such Person or such Person's property. Unless otherwise specified, all references to Governmental Authority herein shall mean a Governmental Authority having jurisdiction over, where applicable, Borrowers or any subsidiary, or any of their property or the Agent and Lenders.
"Governmental Requirement" shall mean any applicable law, statute, code, ordinance, order, determination, rule, regulation, judgment, decree, injunction, franchise, permit, certificate, license, authorization or other directive or requirement (having the force of law), including, without limitation, Environmental Laws, energy regulations and occupational, safety and health standards or controls, of any Governmental Authority.
"GP" shall mean Energy Resources 12 GP, LLC, a Delaware limited liability company, the general partner of ELP.
"Guarantee Obligation" as to any Person (the "guaranteeing person"), any obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing Person that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation by another Person (including any bank under any letter of credit) that guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the "primary obligations") of any other third Person (the "primary obligor") in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. For the avoidance of doubt, for purposes of determining any Guarantee Obligations of any guarantor pursuant to the Security Documents, the definition of "Specified Swap Agreement" shall not create any guarantee by any guarantor of (or grant of security interest by any guarantor to support, if applicable) any Excluded Swap Obligation of such guarantor.
"HMTA" shall mean the Hazardous Materials Transportation Act, as amended, together with all regulations and rulings promulgated with respect thereto.
"HSWA" shall mean the Hazardous and Solid Waste Amendments of 1984, as amended, together with all regulations and rulings promulgated with respect thereto.
"Hedge Agreement" means any interest rate or commodity Swap, cap or collar agreements, interest rate and/or oil and gas future or option contracts, currency Swap agreements, currency future or option contracts and rate or commodity Risk Management Agreements or other similar Risk Management Agreements, and includes without limitation any ISDA Agreement and related schedules and documents entered into with any Swap Counterparty from time to time and as governed by any Intercreditor Agreement. "Prohibited Hedge Transactions" shall mean the obligations by Borrowers (or either of them) or any of their respective Subsidiaries entering into (i) both physical and financial hedging transactions effective at concurrent or overlapping periods of time on the same volumes of production or (ii) hedging transactions for more than eighty (80%) of such Borrower's aggregate monthly production.
"Hedge Transaction" means a transaction pursuant to which Borrowers (or either of them) or any of their respective Subsidiaries hedge the price to be received by them for future production of Borrowers' (respective) hydrocarbons, including price Swaps under which such Borrower or any of its Subsidiaries agrees to pay a price for a specified amount of hydrocarbons determined by reference to a recognized market on a specified future date and the contracting party agrees to pay such Borrowers or any Subsidiaries thereof a fixed price for the same or similar amount of hydrocarbons.
"hereby", "herein", "hereof", "hereunder" and similar such terms shall mean and refer to this Agreement as a whole and not merely to the specific section, paragraph or clause in which the respective word appears.
"Highest Lawful Rate" shall mean, with respect to the Lenders, the maximum non-usurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the Revolver Note or on any other Indebtedness under laws applicable to the Lenders which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow.
"Hydrocarbons" shall have the meaning assigned to that term in the Mortgage.
"Indebtedness" shall mean and include any and all: (i) indebtedness, obligations and liabilities of Borrowers to the Lenders and the Letter of Credit Issuer incurred or which may be incurred or purportedly incurred hereafter pursuant to the terms of this Agreement, or any of the other Loan Documents, and any replacements, amendments, extensions, renewals, substitutions, amendments and increases in amount thereof, including all future advances and all such amounts as may be evidenced by the Revolver Notes and all lawful interest, late charges, service fees, commitment fees, fees in lieu of balances, letter of credit fees and other charges, and all reasonable costs and expenses incurred in connection with the preparation, filing and recording of the Loan Documents, including attorneys' fees and legal expenses; (ii) any and all derivative products obligations, direct, contingent or otherwise, whether now existing or hereafter arising, of Borrowers to the Agent and/or Lenders arising under or in connection with any Hedge Agreements or other Risk Management Agreements; (iii) all reasonable costs and expenses paid or incurred by the Lenders and the Letter of Credit Issuer, including attorneys' fees, in enforcing or attempting to enforce collection of any Indebtedness and in enforcing or realizing upon or attempting to enforce or realize upon any collateral or security for any Indebtedness, including interest on all sums so expended by the Lenders and the Letter of Credit Issuer accruing from the date upon which such expenditures are made until paid, at an annual rate equal to the Default Rate; (iv) all sums expended by the Lenders and the Letter of Credit Issuer in curing any Event of Default or Default of Borrowers under the terms of this Agreement the other Loan Documents or any other writing evidencing or securing the payment of the Revolver Note together with interest on all sums so expended by the Agent accruing from the date upon which such expenditures are made until paid, at an annual rate equal to the Default Rate, (v) any overdraft, return items or other similar or comparable ACH (automated clearing house) obligations and other treasury management obligations now or hereafter owing by Borrowers to the Agent or Lenders, and (vi) any indemnity obligations of Borrowers to the Agent, the Lenders and/or the Letter of Credit Issuer; provided, however, that the definition of "Indebtedness" shall not create any Guarantee Obligations by any Subsidiary guarantor of (or grant of security interest by any such Subsidiary guarantor, if any, to support, as applicable) any Excluded Swap Obligations of such Subsidiary guarantor, if any, for purposes of determining any obligations of any such Subsidiary guarantor.
"Interest Period" shall mean, with respect to any LIBOR Rate Loan, the period commencing on the date such LIBOR Rate Loan is made and ending on the numerically corresponding day in the first, second or third calendar month thereafter, as Borrowers may select as provided herein, except that each Interest Period which commences on the last Business Day of
a calendar month (or on any day for which there is no numerically corresponding day in the appropriate subsequent calendar month) shall end on the last Business Day of the appropriate subsequent calendar month. Notwithstanding the foregoing: (i) no Interest Period may end after the applicable final maturity date; (ii) no Interest Period for any LIBOR Rate Loan may end after the scheduled due date of any installment, if any, to the extent that such LIBOR Rate Loan would need to be prepaid prior to the end of such Interest Period in order for such installment to be paid when due; (iii) each Interest Period which would otherwise end on a day which is not a Business Day shall end on the next succeeding Business Day (or, if such next succeeding Business Day falls in the next succeeding calendar month, on the next preceding Business Day); and (iv) no Interest Period shall have a duration of less than one month and, if the Interest Period for any LIBOR Rate Loans would otherwise be for a shorter period, such Loans shall not be available hereunder. Available Interest Periods under this Agreement shall be one (1) month, two (2) months or three (3) months only.
"ISDA Agreement" means any International Swap Dealers Association agreement, as amended, modified, replaced or supplemented from time to time, together with schedules, exhibits, confirmations, addenda and annexes attached thereto from time to time, entered into between or among any of Borrowers and a Swap Counterparty, to govern each Hedge Agreement with such Swap Counterparty.
"Laws" shall mean all statutes, laws, ordinances, regulations, orders, writs, injunctions, or decrees of the United States, any state or commonwealth, any municipality, any foreign country, any territory or possession, or any Tribunal.
"Letters of Credit" shall mean any and all letters of credit issued by the Letter of Credit Issuer pursuant to the request of Borrowers in accordance with the provisions of Sections 2.1 and 2.5 hereof which at any time remain outstanding and subject to draw by the beneficiary, whether in whole or in part.
"Letter of Credit Exposure" means, at any date, the sum of (a) the aggregate face amount of all drafts that may then or thereafter be presented by beneficiaries under all Letters of Credit then outstanding, plus (b) the aggregate face amount of all drafts that the Letter of Credit Issuer has previously accepted under Letters of Credit but has not paid or reflected as advances against the Revolver Note.
"Letter of Credit Issuer" means, for any Letter of Credit issued hereunder, the Letter of Credit Issuer, or in the event the Letter of Credit Issuer does not for any reason issue a requested Letter of Credit, an Affiliate thereof or another financial institution designated by Agent to issue such Letter of Credit.
"Leverage Ratio" means the quotient of Borrowers' (i) total Funded Debt divided by (ii) EBITDAX.
"LIBOR" shall mean, for each Interest Period for any LIBOR borrowing, the rate (expressed to the fifth decimal) per annum (rounded upwards, if necessary, to the nearest 1/16th of 1%) equal to (i) rate of interest which is identified and published in the Bonds, Rates and Yields section of the "Money Rates" column of The Wall Street Journal (Southwest Edition) (the "WSJ")
under the heading "London Interbank Offered Rate" for loans of one (1) month maturity, two (2) month maturity, or three (3) month maturity, as applicable; provided, however, if LIBOR determined as provided above shall be less than zero, LIBOR shall be deemed to be zero for the purposes of this Agreement with respect to any outstanding Loan that is not subject to a Swap Agreement with the Agent or its Affiliates (and with respect to an outstanding Loan that is so subject to a Swap Agreement with the Agent or its Affiliates, the interest rate will nonetheless be subject to the Swap Agreement if LIBOR determined as provided above shall be less than zero). If such WSJ shall not be available or WSJ does not report the LIBOR in United States Dollars or Agent determines in good faith that the rate so reported no longer accurately reflects the rate available to the Agent in the London Interbank market or if such index no longer accurately reflects the rate available to the Agent in the London Interbank market, any successor or similar service as may be selected in good faith by the Agent with Borrowers' consent, which such consent will not be unreasonably withheld, delayed or conditioned. Each determination by the Agent of LIBOR shall be conclusive and binding, absent manifest error, and may be computed using any reasonable averaging and attribution method.
"LIBOR Margin" shall mean the Applicable Margin for LIBOR Rate Loans specified on the Pricing Grid.
"LIBOR Rate" shall mean, with respect to any LIBOR Rate Loan, a rate (expressed to the fifth decimal) per annum (rounded upwards, if necessary, to the nearest 1/16 of 1%) determined by the Agent to be equal to the quotient of (i) LIBOR for such Loan for the Interest Period for such Loan divided by (ii) one (1) minus the Reserve Requirement, if any, for such Loan for such Interest Period, and any change in the LIBOR Rate shall be effective on the effective date of any continuation thereof or conversion thereto in accordance with this Agreement.
"LIBOR Rate Loans" shall mean Loans, the interest rates on which are determined on the basis of rates referred to in the definition of "LIBOR Rate".
"Lien" shall mean any mortgage, pledge, security interest, assignment, encumbrance, lien or charge of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any lease in the nature thereof, and the filing of or agreement to give any financing statement or other similar form of public notice under the Laws of any jurisdiction).
"Loan Documents" shall mean this Agreement, the Revolver Notes, any Intercreditor Agreement, the Security Instruments (including without limitation, the Mortgage), the hedge proceeds letter, any Intercreditor Agreement and all other documents, instruments and certificates executed and delivered to the Agent by Borrowers (or either of them) pursuant to the terms of this Agreement.
"Loans" shall mean any Revolver Loan and any amounts drawn or obligations and liabilities under or arising pursuant to any ISDA Agreement governing Hedge Transactions or other derivative transactions entered into by any Loan Party with the Hedge Counterparty as counterparty.
"Material Adverse Change" shall mean any material and adverse change to (i) the assets, financial condition, business condition, operations or properties of a Borrower, and any future Subsidiaries thereof taken as a whole different from the facts represented or warranted herein or any of the other Loan Documents, (ii) the ability of Borrowers to meet their respective obligations and their other respective material obligations under the Loan Documents on a timely basis, or (iii) the enforceability of the material terms of any of the Loan Documents.
"Maximum Revolver Commitment Amount" shall mean $100,000,000.00 unless otherwise agreed to in writing by all Agent, Lenders and the Borrower.
"Mortgage" shall have the meaning assigned to that term in Section 3.1 of this Agreement, including without limitation, any amendments thereto or supplements thereof.
"Mortgaged Property" shall mean the property covered by the Mortgage defined in Section 4.1(b) of this Agreement.
"OPA" shall mean the Oil Pollution Act of 1990, as amended, together with all regulations and rulings promulgated with respect thereto.
"Person" shall mean and include an individual, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, and a government or any department, agency or political subdivision thereof.
"Polluting Substances" shall mean all pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or wastes and shall include, without limitation, any flammable explosives, radioactive materials, oil, hazardous materials, hazardous or solid wastes, hazardous or toxic substances or related materials defined in CERCLA/XXXX, RCRA/HSWA and in the HMTA; provided, in the event either CERCLA/XXXX, RCRA/HSWA or HMTA is amended so as to broaden the meaning of any term defined thereby, such broader meaning shall apply subsequent to the effective date of such amendment and, provided further, to the extent that the Laws of any State or other Tribunal establish a meaning for "hazardous substance", "hazardous waste," "hazardous material," "solid waste" or "toxic substance" which is broader than that specified in CERCLA/XXXX, RCRA/HSWA, or HMTA, such broader meaning shall apply.
"Pricing Grid" shall mean the Borrowing Base Utilization grid included within the definition of Applicable Margin.
"Proven Reserves" has the meaning ascribed thereto in Section 4.1(c) of this Agreement.
"Qualified ECP Guarantor" means, in respect of any Swap Obligation, Borrowers and any guarantor that is not an individual or a natural person and that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an "eligible contract participant" under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an "eligible contract participant" at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
"RCRA" shall mean the Resource Conservation and Recovery Act of 1976, as amended, together with all regulations and rulings promulgated with respect thereto.
"Regulatory Change" shall mean, with respect to the Lenders or Letter of Credit Issuer, any change after the Closing Date in any Governmental Requirement (including Regulation D) or the adoption or making after such date of any interpretations, directives or requests applying to a class of lenders (including the Lenders or Letter of Credit Issuer) of or under any Governmental Requirement (whether or not having the force of law) by any Governmental Authority charged with the interpretation or administration thereof.
"Required Lenders" means (without regard to any sale by a Lender of one or more participations in any Loan), (i) both Lenders for so long as and to the extent the Initial Lenders (Xxxxxxx and Arvest Bank) are the only Lenders signatory party hereto, and (ii) if and to the extent and for so long as three (3) or more Lenders (including one or more Additional Lenders) are signatory party hereto, (A) in order to reaffirm or decrease the Collateral Borrowing Base or the Revolver Commitment Amount, such Lenders that in the aggregate hold 66.66% of the Percentage Interests; (B) in order to waive, amend or otherwise modify any financial covenant or other covenant of the Loan Agreement, such Lenders that in the aggregate hold more than fifty percent (50%) of the Percentage Interests; and (C) in order to increase the Maximum Revolver Commitment Amount, any increase in the Collateral Borrowing Base, changes in interest rates, extension, renewal or other modification in the Revolver Final Maturity Date or the scheduled payment date of interest or principal payments, release of Collateral in excess of $250,000 in the aggregate during any calendar year or change in the Percentage Interests requirements referenced above, such Lenders holding 100% of the Percentage Interests, provided, that the amount of the outstanding Loan and used Commitments of any Lender that is a Defaulting Lender shall be excluded in determining such amount
"Reserve Requirement" shall mean, for any Interest Period for any LIBOR Rate Loan, the average maximum rate at which reserves (including any marginal, supplemental or emergency reserves) are required to be maintained during such Interest Period under Regulation D by member banks of the Federal Reserve System (or any successor thereto) in New York City with deposits exceeding one billion Dollars against "Eurocurrency liabilities" (as such term is used in Regulation D). Without limiting the effect of the foregoing, the Reserve Requirement shall reflect any other reserves required to be maintained by such member banks by reason of any Regulatory Change against (i) any category of liabilities which includes deposits by reference to which LIBOR is to be determined as provided in the definition of "LIBOR" or (ii) any category of extensions of credit or other assets which include a LIBOR Rate Loan.
"Revolver Commitment" shall mean the Lender's several obligation to make the Revolver Loans pursuant to the terms, provisions and conditions of this Agreement.
"Revolver Commitment Amount" shall be the maximum outstanding principal amount plus Letter of Credit Exposures the Lenders severally agree from time to time to make available under the Revolver Commitment (initially stipulated to be equal to $60,000,000.00).
"Revolver Final Maturity Date" shall mean the date certain three (3) years (36 months) following the Closing Date, unless otherwise extended or renewed in writing by the mutual agreement of Borrowers, Agent and Lenders.
"Revolver Loans" shall have the meaning ascribed to it in Section 2.1 of this Agreement.
"Revolver Note" shall have the meaning ascribed thereto in the Preamble of this Agreement, as more fully described and defined in Section 2.2 of this Agreement, together with each and every extension, renewal, modification, replacement, substitution, rearrangement, consolidation and change in form of any thereof which may be from time to time and for any term or terms effected.
"Risk Management Agreements" shall mean any commodity, interest rate or currency Swap, rate cap, rate floor, rate collar, forward agreement or other exchange, price or rate protection ISDA, Hedge Agreement or similar derivative agreements or any option with respect to any such derivative or hedging transaction.
"XXXX" shall mean the Superfund Amendments and Re-authorization Act of 1987, as amended, together with all regulations and rulings promulgated with respect thereto.
"Security Instruments" shall mean the Mortgage and all other financing statements, security agreements, assignments, pledges, documents or writings and any and all amendments and supplements thereto, granting, conveying, assigning, transferring or in any manner providing the Agent with a security interest in any property as security for the repayment of all or any part of the Indebtedness.
"Xxxxxxx Bank" means Xxxxxxx Bank, an Arkansas banking corporation, and its successors and permitted assigns.
"Special Equity Account" has the meaning assigned to it in Section 2.3(d) of this Agreement.
"Subsidiaries" means, with respect to Borrowers at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of Borrowers in Borrowers' financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held by Borrowers, or (b) that is, as of such date, otherwise controlled, by Borrowers or one or more subsidiaries of Borrowers.
"Swap Counterparty" shall mean the Agent and/or such other hedge provider, if any, acceptable to the Agent and Borrowers, or their respective successors or permitted assigns, in each case, party to an Intercreditor Agreement, if any.
"Swap Agreement" shall mean, with respect to any Person, payment obligations with respect to interest rate swaps, currency swaps, commodity swaps and similar obligations obligating
such Person to make payments, whether periodically or upon the happening of a contingency. For the purposes of this Agreement, the amount of the obligations under any Swap Agreement shall be the amount determined in respect thereof as of the end of the then most recently ended fiscal quarter of such Person, based on the assumption that such Swap Agreement had terminated at the end of such fiscal quarter, and in making such determination, if any agreement relating to such Swap provides for the netting of amounts payable by and to such Person thereunder or if any such agreement provides for the simultaneous payment of amounts by and to such Person, then in each such case, the amount of such obligation shall be the net amount so determined.
"Swaps" shall mean, with respect to any Person, payment obligations with respect to interest rate swaps, currency swaps and similar obligations obligating such Person to make payments, whether periodically or upon the happening of a contingency. For the purposes of this Agreement, the amount of the obligations under any Swap shall be the amount determined in respect thereof as of the end of the then most recently ended fiscal quarter of such Person, based on the assumption that such Swap had terminated at the end of such fiscal quarter, and in making such determination, if any agreement relating to such Swap provides for the netting of amounts payable by and to such Person thereunder or if any such agreement provides for the simultaneous payment of amounts by and to such Person, then in each such case, the amount of such obligation shall be the net amount so determined.
"Swap Obligations" means, with respect to any future guarantor, if any, any obligations to pay or perform under any agreement, contract or transaction that constitutes a "Swap" within the meaning of Section 1a(47) of the Commodity Exchange Act.
"Taxes" shall mean all taxes, assessments, fees, or other charges or levies from time to time or at any time imposed by any Laws or by any Tribunal.
"Tribunal" shall mean any municipal, state, commonwealth, Federal, foreign, territorial or other sovereign, governmental entity, governmental department, court, commission, board, bureau, agency or instrumentality.
"TSCA" shall mean the Toxic Substances Control Act, as amended, together with all regulations and rulings promulgated with respect thereto.
Accounting Terms and Determinations. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all determinations with respect to accounting matters hereunder shall be made, and all financial statements and certificates and reports as to financial matters required to be furnished to the Agent or Lenders hereunder shall be prepared, in accordance with GAAP, applied on a basis consistent with the financial statements of Borrowers herein.
ARTICLE II
Commitment shall be sooner terminated pursuant to the provisions of this Agreement, in such amounts as may from time to time be requested by Borrowers for the payoff of existing indebtedness, acquisition of non-operated oil and natural gas reserves in North Dakota, the development of oil and natural gas reserves, general working capital and capital expenditures, and the issuance of standby letters of credit. In no event shall the aggregate unpaid principal amount of the Revolver Loans advanced, outstanding and unpaid at any time under the Revolver Note plus the amount of the requested Revolver Loan advance plus the amount of Letter of Credit Exposure at any time exceed the lesser of (i) the Collateral Borrowing Base (as calculated in accordance with the provisions of Article IV of this Agreement) or (ii) the then applicable Revolver Commitment Amount, notwithstanding the face principal amount of the Revolver Note from time to time.
2.2 Revolver Note. On the Closing Date, Borrowers shall execute and deliver to the order of the each Lender their joint and several promissory note instrument in the aggregate stated face principal amount of $100,000,000.00 (the "Revolver Note"). The Revolver Note shall be dated as of the Closing Date. The Revolver Note shall be payable as set forth therein. Notwithstanding the stated face principal amount of the Revolver Note from time to time, in no event shall Borrowers request nor shall the Lenders be obligated to make any Revolver Loan advance that causes or results in the aggregate outstanding principal amount of the Revolver Note plus Letters of Credit Exposure to exceed the lesser of the then applicable Revolver Commitment Amount or the Collateral Borrowing Base then in effect. All payments and prepayments shall be made in lawful money of the United States of America in immediately available funds. Any payments or prepayments on the Revolver Note received by the Agent after 2:00 o'clock p.m. (applicable current time in Oklahoma City, Oklahoma) shall be deemed to have been made on the next succeeding Business Day. Any voluntary prepayment may be without any penalty or premium and shall, unless Borrowers direct otherwise in writing and no payment is then due and owing, be applied first to accrued but unpaid interest then to the principal. All outstanding principal of and accrued interest on the Revolver Note not previously paid hereunder shall be due and payable at the Revolver Final Maturity Date, unless such maturity shall be extended by the Required Lenders in writing or accelerated pursuant to the terms hereof.
(i) if such Loan is a Base Rate Loan, the Base Rate (as in effect from time to time) plus the Applicable Margin for Base Rate Loans; and
(ii) if such a Loan is a LIBOR Rate Loan, for each Interest Period relating thereto, the LIBOR Rate plus the Applicable Margin for LIBOR Rate Loans.
Interest shall be calculated on the basis of a year of 360 days, but assessed for the actual number of days elapsed in each accrual period.
$40,000,000.00. Each and all such mandatory principal prepayments required by this Section 2.3(d) shall constitute an automatic and corresponding reduction in the Revolver Commitment Amount and Collateral Borrowing Base.
with the Letter of Credit Issuer standard letter of credit processing/renewal/amendment fees, which such fee shall be due and payable at the time of issuance of each applicable letter of credit.
(b) Borrowings, Continuations and Conversions.
(iii) Notices. All borrowings and conversions shall require advance written notice to the Agent in the form of Exhibit A via facsimile or otherwise (or telephonic notice promptly confirmed by such a written notice), which in each case shall be irrevocable, from Borrowers to be received by the Agent not later than (i) 11:00 a.m. Oklahoma City, Oklahoma time two (2) Business Days prior to the date of each LIBOR Rate Loan borrowing, continuation or conversion, and (ii) 1:00 p.m. Oklahoma City, Oklahoma time one (1) Business Day prior to the date of each Base Rate Loan borrowing.
preceding LIBOR Rate Loan tranche expiring). All or any part of any LIBOR Rate Loan may be continued as provided herein, provided that (i) any continuation of any such Loan shall be (as to each Loan as continued for an applicable Interest Period) in amounts of at least $500,000.00 or any whole multiple of $100,000.00 in excess thereof and (ii) no Event of Default shall have occurred and be continuing. If an Event of Default shall have occurred and be continuing, each LIBOR Rate Loan shall be converted to an Base Rate Loan on the last day of the Interest Period applicable thereto.
(vi) Advances. Subject to Borrowers' timely notice of borrowing pursuant to Section 2.6(b)(iii) above, not later than 2:00 o'clock p.m., Oklahoma City, Oklahoma time, on the appropriate date for the Loan, and the absence of any Default or Deficiency, the Agent shall make available to Borrowers the amount of the Loan to be made by it on such date, to a deposit account as directed by Borrowers.
(a) any payment, prepayment or conversion of a LIBOR Rate Loan properly made by such Lender or Borrowers for any reason (including, without limitation, the acceleration of the Loans pursuant to Article VIII) on a date other than the last day of the Interest Period for such Loan; or
(b) any failure by Borrowers for any reason (including but not limited to, the failure of any of the conditions precedent specified in Article IV to be satisfied) to borrow, continue or convert a LIBOR Rate Loan from such Lender on the date for such borrowing or conversion specified in the relevant notice given pursuant to Section 2.7(b)(iii).
Without limiting the effect of this Section 2.12, such breakage and other similar compensation shall include such Lender's standard breakage administration fee. Without limiting the effect of the preceding sentence, such compensation shall include an amount equal to the excess, if any, of (i) the amount of interest which would have accrued on the principal amount so paid, prepaid or converted or not borrowed for the period from the date of such payment, prepayment or conversion or failure to borrow to the last day of the Interest Period for such Revolver Loan (or, in the case of a failure to borrow, the Interest Period for such Revolver Loan which would have commenced on the date specified for such borrowing) at the applicable rate of interest for such Revolver Loan provided for herein over (ii) the interest component of the amount such Lender would have bid in the London interbank market for Dollar deposits of leading banks in amounts comparable to such principal amount and with maturities comparable to such period (as reasonably determined such Lender).
Agreement, the term "Collateral Borrowing Base" shall mean the Collateral Borrowing Base as determined in accordance with the provisions of Article IV of this Agreement.
2.19 Capital Adequacy and Additional Costs.
until the Regulatory Change giving rise to such request ceases to be in effect (in which case the provisions of Section 2.11 shall be applicable).
the Mortgage or without the prior written consent of the Agent, not to be unreasonably withheld, conditioned or delayed.
ARTICLE III
3.4 Keepwell. Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other loan party to honor all of its obligations under guaranty instrument in respect of a Swap Obligation (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 3.4 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 3.4 or otherwise under this guaranty voidable under applicable law relating to fraudulent conveyance or fraudulent transfer,
and not for any greater amount). Except as otherwise provided herein, the obligations of each Qualified ECP Guarantor under this Section 3.4 shall remain in full force and effect until the termination of all Swap Obligations. Each Qualified ECP Guarantor intends that this Section 3.4 constitute, and this Section 3.4 shall be deemed to constitute, a "keepwell, support, or other agreement" for the benefit of each other loan party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
ARTICLE IV
4.1 Semiannual Engineering Reports.
(a) Borrowers shall deliver to Agent at Borrowers' cost by each August 1 (effective no earlier than July 1 of such year) and February 1 (effective no earlier than January 1 of such year), commencing February 1, 2019, a reserve report in form, scope, and substance acceptable to the Agent evaluating the proven producing oil and gas reserves attributable to ELLC's aggregate interest in the Mortgaged Property (as defined in subsection (b) below), together with the expenses attributable thereto. Borrowers may prepare the reserve report due each August 1 internally, but the reserve report due each February must be prepared by a reputable independent petroleum engineer acceptable to the Agent. The reserve reports shall be accompanied by such other information as shall be reasonably requested by Agent in order for it to make its independent determination of the Collateral Borrowing Base, and by a certificate of ELLC certifying that ELLC has good and defensible title to the Mortgaged Property valued and that payments are being received from purchasers of production with respect to said interests except for payments suspended for valid reasons.
(b) The term "Mortgaged Property" shall refer only to such properties covered by the Mortgage (or a supplemental mortgage or deed of trust, duly executed, acknowledged and delivered by ELLC to the Agent in form satisfactory to counsel for the Agent) and which properties are, at the time:
(i) Particularly and adequately described under the Mortgage or other supplemental mortgage or deed of trust;
(ii) Completed or developed (in the case of oil and gas leases) to the extent that value is being assigned to them by the Agent in connection with such evaluation and the Agent has determined that such properties are capable of producing oil and gas in commercial quantities; and
(iii) Approved as to title to the satisfaction of the Agent.
(c) ELLC agrees that the Agent shall be entitled at all times to have the "Mortgaged Property", as encumbered by the Mortgage or supplemental mortgages or deeds of trust, constitute an aggregate value equal to a percentage (initially set at ninety percent (90%) but subject to adjustment by the Agent from time to time due to changes
implemented in the Lender's energy lending criteria and policies) of the aggregate value of ELLC's Proven Reserves. For the purpose of determining the Collateral Borrowing Base and compliance herewith, the term "Proven Reserves", in addition to properties that qualify as "Mortgaged Property" pursuant to the criteria hereof, shall refer only to such other oil and gas mining, mineral and/or leasehold working interests of ELLC, if any, that satisfy the criteria of clauses (ii) and (iii) of subsection 4.1(b) above in all respects.
In addition to the scheduled semi-annual Collateral Borrowing Base redeterminations, the Lenders shall have the right to require additional Collateral Borrowing Base redeterminations at any time, but not more frequently than quarterly, including acquisitions or permitted sales of oil and gas leasehold producing properties included in the most recent Collateral Borrowing Base redetermination. The initial Collateral Borrowing Base is stipulated to be $60,000,000.00 as of the Closing Date. The good faith determinations of the Lenders in such respects shall be conclusive (except in the case of manifest error). Determinations of the Collateral Borrowing Base shall initially be completed by the Lenders consistent with its then applicable energy lending policies (consistently applied).
(a) Make a prepayment upon the Revolver Notes in an amount sufficient to reduce the aggregate unpaid principal amount outstanding on the Revolver Note plus all other Indebtedness to an amount equal to or less than the amount of the Collateral Borrowing Base;
(b) Make mandatory equal monthly principal payments on the Revolver Notes due on the next five (5) successive monthly payment due dates on the Revolver Note in an aggregate amount that will reduce the aggregate outstanding principal balance of the
Revolver Notes plus all other Indebtedness to the projected Collateral Borrowing Base as of the next immediate semi-annual redetermination thereof in accordance with the provisions of Section 4.2 hereof; or
(c) Execute and deliver to Agent one or more supplemental mortgages, deeds of trust, security agreements or pledges encumbering other properties or assets in form and substance satisfactory to Agent and its counsel as additional security for the Revolver Notes (and all other Indebtedness) to the extent such properties are acceptable to Agent and of such value, as determined by Agent, that the aggregate principal balance of the Revolver Notes plus all other Indebtedness will not exceed the Collateral Borrowing Base in conformance with Lender's then applicable energy lending and engineering/evaluation policies and procedures.
If Borrowers shall have elected to make a prepayment on the Revolver Notes under Section 4.3(a) or 4.3(b) hereof, such prepayment, or the first installment of such prepayment, shall be due within fifteen (15) days after Borrowers shall have notified Agent of such election, and the prepayment shall be applied as mandatory principal prepayments of the Revolver Notes. If Borrowers shall have elected to make installment payments to eliminate the deficiency under Section 4.3(b) hereof, then, until such deficiency is extinguished, any principal amounts outstanding on the Revolver Notes shall bear interest at the then applicable contract rate of interest accruing on the Revolver Notes plus two hundred additional basis points (2.0%). If Borrowers shall elect to execute and deliver one or more supplemental oil and gas mortgages and deeds of trust to Agent under Section 4.3(c) hereof, Borrowers shall provide Agent with descriptions of the additional properties to be mortgaged (together with any title due diligence data and information, current valuations and engineering reports applicable thereto which may be requested by Agent) at the time of ELLCβs notice of such election and shall execute, acknowledge and deliver to Agent the appropriate supplemental mortgages and deeds of trust in recordable form within ten (10) days after such collateral documents shall be tendered to Borrowers by Agent for execution, all in compliance with the provisions of clauses (i), (ii) and (iii) of subsection 4.1(b) above. Borrowers may, subject to Agent's prior written consent, utilize a combination of the approaches set forth in this Section 4.3 to address a Deficiency.
ARTICLE V
CONDITIONS PRECEDENT TO REVOLVER LOANS
5.1 Conditions Precedent to Revolver Loan. The several obligations of the Lenders to establish the Revolver Commitment and to make Revolver Loan advances, including the initial Revolver Loan advance hereunder, and to issue Letters of Credit, are subject to the satisfaction of all of the following conditions on or prior to the Closing Date (in addition to the other terms and conditions set forth herein):
(a) No Default. There shall exist no Default or Event of Default on the Closing Date.
(b) Representations and Warranties. The representations, warranties and covenants set forth in Articles VI and VII shall be true and correct on and as of the Closing Date, with the same effect as though made on and as of the Closing Date.
(c) Certificate. Borrowers shall have delivered to Agent a Certificate, dated as of the Closing Date, and signed by the members and managers of the GP certifying (i) to the matters covered by the conditions specified in Subsections (a) and (b) of this Section 5.1, (ii) that Borrowers have performed and complied with all agreements and conditions required to be performed or complied with by them prior to or on the Closing Date, (iii) to the name and signature of the duly elected or designated company representative authorized to execute and deliver the Loan Documents and any other documents, certificates or writings and to borrow under this Agreement, and (iv) to such other matters in connection with this Agreement which Agent shall determine to be advisable. Agent may conclusively rely on such Certificate until it receives notice in writing to the contrary.
(d) Proceedings. On or before the Closing Date, all limited partnership proceedings of ELP and company proceedings of ELLC and of the GP, respectively, shall be taken in connection with the transactions contemplated by the Loan Documents and shall be satisfactory in form and substance to Agent and its counsel. Agent shall have received certified copies, in form and substance satisfactory to Agent and its counsel, of each of the Borrowers and of the GP's charter and organizational documents, together with a currently issued good standing certificate of each of the Borrowers and of GP from its state of organization and from such other jurisdictions in which Borrowers' (or either of them) or GP's qualification as a foreign partnership or foreign limited liability company is required by applicable law.
(e) Loan Documents/Security Instruments. Borrowers shall have delivered to the Agent the Revolver Loan Agreement, and the Security Instruments (only signed by ELLC), appropriately executed by all parties, witnessed and acknowledged to the satisfaction of the Agent and dated as of the Closing Date, together with such financing statements, and other documents as shall be necessary and appropriate to perfect the Agent's security interests in the Collateral covered by said Security Instruments.
(f) Revolver Notes. Borrowers shall have delivered the Revolver Notes to the order of the respective Lenders, appropriately executed.
(g) Mortgage. ELLC shall have executed and delivered the Mortgage to the Agent in multiple recordable form counterparts as reasonably required by the Agent.
(h) ISDA Agreement. Borrowers shall have executed and delivered any applicable ISDA Agreement to the Swap Counterparty, if any, in counterparts as reasonably required by the Swap Counterparty and Agent.
(i) Intercreditor Agreement. Borrowers shall have delivered any applicable Intercreditor Agreement to the Agent in counterparts as reasonably required by the Agent and the Swap Counterparty.
(j) Title. Borrowers shall have provided the Agent with evidence satisfactory to the Agent and its legal counsel that Borrowers have valid, defensible, unencumbered title to the Collateral, including (without limitation) title reports, title opinions (division order or otherwise regarding the Mortgaged Property), lien releases, and such evidence as shall be reasonably required by the Agent pertaining to all of the existing Mortgaged Property evidencing transfer of lawful title thereto to ELLC, on behalf and for ELLC with all equitable interests therein fully vested in ELLC for all purposes.
(k) Closing Opinions. Borrowers shall cause its outside legal counsel to deliver to the Agent and the Lenders a closing opinion covering corporate and security interest/perfection issues, including, due organization, good standing, authorization, due execution, all necessary consents, no violations of charter or organizational documents and other such matters customarily covered in such corporate and security interest/perfection opinions for secured loans of similar type and size.
(l) Payoff; Lien Releases; UCC Terminations; Other Information. The Agent shall have received such other information, documents and assurances as shall be reasonably requested by the Agent, including (i) acceptable documentation evidencing the pay off in full of any amounts owed by Borrowers to any existing lender, (ii) as applicable, executed and recordable mortgage lien releases and UCC termination statements from any such lender regarding the Mortgaged Property, and (iii) such other information with respect to the Mortgaged Property of Borrowers as shall be reasonably requested by the Agent.
(m) UCC Searches/Other Information. Agent shall have a certified UCC search covering Borrowers, as debtor, from the central filing office of the State of Delaware and such other jurisdictions as the Agent reasonably deems necessary or appropriate, and the Agent shall receive such other information, certificates (including a current good standing certificate issued by the Delaware Secretary of State as to Borrowers' status in Delaware), resolutions, documents and assurances as Agent shall reasonably request.
(n) Renewal of Bank of America Loan. Pursuant to a Loan Agreement Amendment and Consent in form and substance reasonably acceptable to Agent, Borrower must obtain an extension of the final maturity date of the Bank of America unsecured loan described on Exhibit C annexed hereto to a date no earlier than April 15, 2019. Agent acknowledges and stipulates that the foregoing condition precedent of Section 5.1(n) has been satisfied.
5.2 Conditions to All Extensions of Credit. The obligation of the Lenders to make any Revolver Loan or issue any letters of credit hereunder (including the initial Revolver Loan advance to be made hereunder) is subject to the satisfaction of the following additional conditions precedent on the date of making such Revolver Loan advance or issuing such letter of credit (in each case, in addition to the conditions set forth in Section 5.1 above, and in Article II):
(a) Representations and Warranties. The representations and warranties made by Borrowers herein and in any other Loan Document or which are contained in any certificate furnished at any time under or in connection herewith shall (i) on and as of the date of making the initial Revolver Loan advance, be true and correct and (ii) on and as of
the date of making each other Revolver Loan advance or issuing a letter of credit, be true and correct in all material respects on as if made on and as of the date of such extension or such request, as applicable (except for those which expressly relate to an earlier specified date and except that any representations or warranties that already are qualified or modified as to "materiality" or "Material Adverse Effect" in the text thereof, such representations and warranties shall be true and correct in all respects).
(b) No Default or Event of Default. No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the Revolver Loan advance or Letter of Credit issuance to be made on such date and the application of the proceeds thereof unless such Default or Event of Default shall have been waived in accordance with this Agreement.
(c) Bankruptcy or Insolvency. No Bankruptcy Event shall have occurred by or with respect to either of the Borrowers or GP.
Each request for a Revolver Loan advance or Letter of Credit issuance (including extensions and conversions) and each acceptance by Borrowers of a Revolver Loan advance or Letter of Credit issuance (including extensions and conversions) shall be deemed to constitute a representation and warranty by Borrowers as of the date of such Revolver Loan advance or Letter of Credit issuance that the applicable conditions in subsections (a), (b), (c) and (d) of this Section 5.2 have been satisfied.
ARTICLE VI
Borrowers covenant and agree with the Agent, Lenders and Letter of Credit Issuer that from the date hereof and so long as this Agreement is in effect (by extension, amendment or otherwise) and until payment in full of all Indebtedness and the performance of all other obligations of Borrowers under this Agreement, unless the Required Lender shall otherwise consent in writing:
6.6 Financial Statements and Reports.
(a) Monthly 8-K filings. As soon as practicable and in any even within five (5) days of the filing thereof, each of the Borrowers shall furnish Agent with its monthly 8-K filings made by either of them.
(i) A balance sheet of Borrowers at the end of such period, and
(ii) A statement of income of Borrowers for such period with year-to-date earnings, setting forth in each case in comparative form the figures for the previous fiscal year, if applicable, all in reasonable detail.
The preparer of the financial reports (the President or Chief Financial Officer or Manager of Borrower) shall execute and deliver to Agent a quarterly compliance certification in the form of Exhibit B annexed hereto, concurrent with the delivery of the quarterly financial statements pursuant to Section 6.6(b) for the first three (3) fiscal quarters of each calendar year, and concurrent with the delivery of the annual audited financial statements pursuant to Section 6.6(c) below including that he/she has obtained no knowledge of any Event of Default or Default as defined herein, or, if any Event of Default or Default existed or exists, specifying the nature and period of existence thereof and that the each of Borrowers is in compliance with all covenants, warranties, and representations set forth herein, including the financial covenant of Sections 6.30 and 6.31, respectively.
rate(s) or exchange rate(s), as applicable, and any new credit support agreements relating thereto not previously disclosed to Agent.
6.8 Environmental Indemnities. Borrowers hereby agree to indemnify, defend and hold harmless the Agent, Lenders and Letter of Credit Issuer and each of its officers, directors, employees, agents, consultants, attorneys, contractors and each of its affiliates, successors or assigns, or transferees from and against, and reimburse said Persons in full with respect to, any and all out of pocket loss, liability, damage, fines, penalties, costs and expenses, of every kind and character, including reasonable attorneys' fees and court costs, known or unknown, fixed or contingent, occasioned by or associated with any claims, demands, causes of action, suits and/or enforcement actions, including any administrative or judicial proceedings, and any remedial, removal or response actions ever asserted, threatened, instituted or requested by any Persons, including any Tribunal, arising out of or related to: (a) the breach of any representation or warranty of Borrowers contained in Section 7.16 set forth herein; (b) the failure of Borrowers to perform any of their covenants contained in Section 6.7 herein; (c) the ownership, construction, occupancy, operation, use of the Collateral prior to the earlier of the date on which (i) the Indebtedness and obligations secured hereby have been paid and performed in full and the Security Instruments have been released, or (ii) the Collateral has been sold by the Agent following the Agent's ownership of the Collateral by way of foreclosure of the Liens granted pursuant hereto, deed in lieu of such foreclosure or otherwise (the "Release Date"); provided, however, this indemnity shall not apply with respect to matters caused by or arising solely from the Agent's or Lender's activities during any period of time the Agent acquires ownership of the Collateral or otherwise to the extent caused by the Agent's gross negligence or willful misconduct.
The indemnities contained in this Section 6.8 apply, without limitation, to any violation on or before the Release Date of any Environmental Laws and any liability or obligation relating to the environmental conditions on, under or about the Collateral on or prior to the Release Date
(including, without limitation: (a) the presence on, upon or in the Collateral or release, discharge or threatened release on, upon or from the Collateral of any Polluting Substances generated, used, stored, treated, disposed of or otherwise released prior to the Release Date, and (b) any and all damage to real or personal property or natural resources and/or harm or injury including wrongful death, to persons alleged to have resulted from such release of any Polluting Substances regardless of whether the act, omission, event or circumstances constituted a violation of any Environmental Law at the time of its existence or occurrence). The term "release" shall have the meaning specified in CERCLA/XXXX and the terms "stored," "treated" and "disposed" shall have the meanings specified in RCRA/HSWA; provided, however, any broader meanings of such terms provided by applicable laws of the States where the Collateral is located.
The provisions of this Section 6.8 shall be in addition to any other obligations and liabilities Borrowers may have to the Agent or Lender at common law and shall survive the Release Date and shall continue thereafter in full force and effect.
The Agent and Lender agrees that in the event that such claim, suit or enforcement action is asserted or threatened in writing or instituted against it or any of its officers, employers, agents or contractors or any such remedial, removal or response action is requested of it or any of its officers, employees, agents or contractors for which Agent and/or Lenders may desire indemnity or defense hereunder, the Agent shall give written notification thereof to Borrowers.
Notwithstanding anything to the contrary stated herein, the indemnities created by this Section 6.8 shall only apply to losses, liabilities, damages, fines, penalties, costs and expenses actually incurred by the Agent and/or Lenders as a result of claims, demands, actions, suits or proceedings brought by Persons who are not the beneficiaries of any such indemnity. Agent shall act as the exclusive agent for all indemnified Persons under this Section 6.8. With respect to any claims or demands made by such indemnified Persons, the Agent shall notify Borrowers within twenty (20) days after the Agent's receipt of a writing advising the Agent of such claim or demand. Such notice shall identify (i) when such claim or demand was first made, (ii) the identity of the Person making it, (iii) the indemnified Person and (iv) the substance of such claim or demand. Failure by the Agent to so notify Borrowers within said ten (10) day period shall reduce the amount of Borrowers' obligations and liabilities under this Section 6.8 by an amount equal to any damages or losses suffered by Borrowers resulting from any prejudice caused Borrowers by such delay in notification from the Agent. Upon receipt of such notice, Borrowers shall have the exclusive right and obligation to contest, defend, negotiate or settle any such claim or demand through counsel of its own selection (but reasonably satisfactory to the Agent) and solely at Borrowers' own cost, risk and expense; provided, that the Agent, at Lenders' own several cost and expense shall have the right to participate in any such contest, defense, negotiations or settlement. The settlement of any claim or demand hereunder by Borrowers may be made only upon the prior approval of the Agent of the terms of the settlement, which approval shall not be unreasonably withheld, conditioned or delayed.
6.14 Inspection. Borrowers will keep complete and accurate books and records with respect to the Collateral and its other properties, businesses and operations and upon reasonable advance notice will permit employees and representatives of the Agent to review, audit, inspect and examine the same and to make copies thereof and extracts therefrom during normal business hours. All such records (or accurate copies thereof if the original records are required by law, rule, regulation or ordinance to be kept in another location) shall be at all times kept and maintained at the offices of Borrowers in Oklahoma City, OK and/or Richmond, Virginia. Upon any Default or Event of Default, Borrowers will surrender all of such records relating to the Collateral to the Agent upon receipt of any request therefor from the Agent. Borrowers shall immediately notify Agent of any change in the location of their respective principal offices.
without first obtaining Agent's written consent thereto (which consent shall not be unreasonably withheld) and Borrowers will provide Agent with written notice of the sale or other disposition of any obsolete, worn out or other unused items of equipment (whether Collateral or otherwise) or any proposed sale, lease, transfer or other disposition of or mortgage, pledge, granting of a security interest in or encumbrance against any of the other assets of Borrowers, subject, however, to Borrowers' right to sell up to $100,000 worth, in the aggregate for each Borrower, of their properties or assets not constituting Collateral in the ordinary course of business during any calendar year without prior notice to Agent. Borrowers will not dispose of any of their respective assets other than in the normal and prudent ordinary course of their respective business operations.
made by the Lenders pursuant to the permitted loan purposes of Section 2.1, Borrowers will not purchase or otherwise acquire any fixed assets or make or incur capital expenditures, other than in the normal and ordinary course of Borrowers' oil and gas development business operations, in one or more series of transactions in excess of $100,000.00 in the aggregate at any time during each calendar year without the Agent's prior written consent, which such consent will not be unreasonably withheld. In no event shall Borrower make any payments or prepayments of principal on the permitted indebtedness listed in item 1 of Exhibit C until and unless the aggregate indebtedness of the Revolver Notes plus Letter of Credit Exposure is reduced to and remains at $40,000,000.00 or less.
any way which would: (i) change the name or adopt a trade name for Borrowers; or (ii) in any manner adversely affect the rights of Borrowers' obligations or covenants to the Lenders hereunder.
for the quarter ended December 31, 2018, testing on an annualized basis (one quarter annualized as of December 31, 2018, two quarters annualized as of March 31, 2019, and three quarters annualized as of June 30, 2019). Commencing September 30, 2019, Leverage Ratio will be tested on a trailing twelve months basis.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make Revolver Loans to Borrowers under the provisions hereof, and in consideration thereof, Borrowers represent, warrant and covenant as follows:
their operations for the period then ended, and since the date of such statements there has been no Material Adverse Change in the business, financial condition or operations of Borrowers.
the lien provided under Section 4068 of ERISA to attach to the assets of Borrowers. The value of each Plan's benefits guaranteed under Title IV of ERISA on the date hereof does not exceed the value of such Plan's assets allocable to such benefits on the date hereof.
7.14 Fiscal Year. The fiscal year of Borrowers ends as of December 31 of each year.
(a) Borrowers are not subject to any liability or obligation relating to (i) the environmental conditions on, under or about the Collateral, including, without limitation, the soil and ground water conditions at the location of any of such Borrowers' properties, or (ii) the use, management, handling, transport, treatment, generation, storage, disposal, release or discharge of any Polluting Substance;
(b) Borrowers have not obtained and are not required to obtain or make application for any permits, licenses or similar authorizations to construct, occupy, operate or use any buildings, improvements, facilities, fixtures and equipment forming a part of the Collateral by reason of any Environmental Laws;
(c) Borrowers have taken reasonable steps to determine and have determined, to the best of such Borrowers' knowledge, that no Polluting Substances have been disposed of or otherwise released on, onto, into, or from the Collateral (the term "release" shall have the meanings specified in CERCLA/XXXX, and the term "disposal" or "disposed" shall have the meanings specified in RCRA/HSWA; provided, in the event either CERCLA/XXXX or RCRA/HSWA is amended so as to broaden the meaning of any term defined thereby, such broader meaning shall apply subsequent to the effective date of such amendment and provided further, to the extent that the laws of any State or Tribunal establish a meaning for "release," "disposal" or "disposed" which is broader than that specified in CERCLA/XXXX, RCRA/HSWA or other Environmental Laws, such broader meaning shall apply) that causes, creates or results in a Material Adverse Change or a material adverse effect on any Borrower or its financial capabilities or the Mortgaged Properties;
(d) There are no PCB's or asbestos-containing materials, whether in the nature of thermal insulation products such as pipe boiler or breech coverings, wraps or blankets or sprayed-on or troweled-on products in, on or upon the Collateral; and
(e) There is no urea formaldehyde foam insulation ("UFFI") in, on or upon the Collateral.
7.19 Take or Pay Obligations, Prepayments, BTU Adjustments and Balancing Problems. To the best of Borrowers' knowledge, there is no take or pay obligation under any gas purchase agreement comprising a portion of the Collateral which is not matched by a commensurate and corresponding pay or take obligation binding upon the purchaser under a corresponding gas sales agreement such that with respect to the ownership and operation of the business of Borrowers or the Collateral, any such obligation in favor of any seller under any gas purchase agreement to which such Borrower is a "buyer" is matched by a corresponding obligation on the part of "purchasers" under corresponding gas sales agreements pursuant to which such Borrower is the "seller". To the best of Borrowers' knowledge, neither Borrowers nor the Collateral is subject to requirements to make BTU adjustments or effect gas balancing in favor of third parties which would result in Borrowers being required to (i) deliver gas at a price below that established in applicable gas sales agreements or on behalf of and for the benefit of third parties in exchange or to otherwise compensate for prior above market or above contract purchases of gas from Borrowers or their predecessors in interest, or (ii) balance in kind by allowing other owners in the Collateral to make up the past imbalances in gas sales, or (iii) balance in cash by paying other owners of the collateral for the past gas imbalances except for the matters described on Exhibit E hereto which have been disclosed to Borrowers.
(a) the rate, asset, liability or other notional item underlying any Swap Agreement regarding an interest or monetary rate, or foreign exchange swap, entered into or executed in connection with this Loan Agreement is or is directly related to, a financial term hereof;
(b) the aggregate notional amount of all Swap Agreements entered into or executed by any Borrowers in connection with the financial terms of this Loan Agreement, whether entered into or executed with Borrowers or any other individual or entity, will not at any time exceed the aggregate principal amount outstanding hereunder, as such amounts may be determined or calculated contemporaneously form time to time during and throughout the terms of this Loan Agreement;
(c) each Swap Agreement entered into or executed in connection with the financial terms of this Loan Agreement has been or will be entered into no earlier than ninety (90) days before and no later than one hundred eighty (180) days after the date hereof or of any transfer of principal hereunder;
(d) the purpose of any Swap Agreements in respect of any commodity entered into or executed in connection with this Loan Agreement is to hedge commodity price risks incidental to Borrowers' business and arising from potential changes in the price of such commodity; and
(e) each Swap Agreement entered into or executed in connection with this Loan Agreement mitigates against the risk of repayment hereof and is not for the purpose of speculation.
For purposes hereof, the term (i) "financial term" shall include, without limitation, the duration or term of the Loan Agreement, rate of interest, the currency or currencies in which the Revolver Loan is made and its principal amount, and (ii) "transfer of principal" means any draw of principal under the Loan Agreement, any amendment, restructuring, extension or other modification of the Loan Agreement.
ARTICLE XIII
(a) Borrowers shall fail to make any monthly or other scheduled payment on the Revolver Notes when due and such failure shall continue for three (3) days after such due date, or fail to pay the Revolver Notes within five (5) days of the scheduled due date thereof (whether by extension, renewal, acceleration, maturity or otherwise); or
(b) Any representation or warranty of Borrowers made herein or in any writing furnished in connection with or pursuant to any of the Loan Documents shall have been false or misleading in any material respect on the date when made and continues to have a material adverse effect on Borrowers or their financial capacity or business operations; or
(c) Borrowers shall fail to duly observe, perform or comply with any covenant, agreement or term (other than payment provisions which are governed by Section 8.1(a) hereof) contained in this Agreement or any of the Loan Documents and such default or breach shall have not been cured or remedied within the earlier of thirty (30) days after Borrowers shall know (or should have known) of its occurrence or twenty (20) days following receipt of notice thereof from the Agent; or
(d) Borrowers shall default in the payment of principal or of interest on any other obligation for money borrowed or received as an advance (or any obligation under any conditional sale or other title retention agreement, or any obligation issued or assumed as full or partial payment for property whether or not secured by purchase money Lien, or any obligation under notes payable or drafts accepted representing extensions of credit) in excess of $100,000 beyond any grace period provided with respect thereto, or shall default
in the performance of any other agreement, term or condition contained in any agreement under which such obligation is created (or if any other default under any such agreement shall occur and be continuing beyond any period of grace provided with respect thereto) if the effect of such default is to cause the holder or holders of such obligation (or a trustee on behalf of such holder or holders) to accelerate the due date of such obligation prior to its scheduled date of maturity; or
(e) Any (i) Bankruptcy Event shall occur with respect to either of the Borrowers or GP; or (ii) Borrowers shall fail to make timely payment or deposit of any amount of tax required to be withheld by Borrowers and paid to or deposited to or to the credit of the United States of America pursuant to the provisions of the Internal Revenue Code of 1986, as amended, in respect of any and all wages and salaries paid to employees of Borrowers; or
(f) Any final judgment on the merits for the payment of money in an amount in excess of $100,000 shall be outstanding against Borrowers, and such judgment shall remain unstayed and in effect and unpaid for more than thirty (30) days; or
(g) Any Reportable Event described in Section 7.13 hereof which the Agent determines in good faith might constitute grounds for the termination of a Plan therein described or for the appointment by the appropriate United States District Court of a trustee to administer any such Plan shall have occurred and be continuing thirty (30) days after written notice to such effect shall have been given to the Agent by Borrowers, or any such Plan shall be terminated, or a trustee shall be appointed by a United States District Court to administer any such Plan or the Pension Benefit Guaranty Corporation shall institute proceedings to terminate any such Plan or to appoint a trustee to administer any such Plan; or
(h) Any default or event of default occurs under any of the other Loan Documents, including without limitation, the Mortgage or any default or event of default occurs under any other agreement between Borrowers and the Agent and/or Lenders; or
(i) Any default, event of default, termination event, additional termination event or similar event occurs under any Hedge Agreement between Borrowers and any Swap Counterparty; or
(j) A Material Adverse Change shall occur and not be remedied within thirty (30) days of its occurrence or Borrowers' receipt of notification thereof from the Agent.
declare the Revolver Notes and the other Indebtedness, or any part thereof, to be forthwith due and payable, whereupon the Revolver Notes and the other Indebtedness, or such portion as is designated by the Agent shall forthwith become due and payable, without presentment, demand, notice or protest of any kind, all of which are hereby expressly waived by Borrowers. No delay or omission on the part of the Agent in exercising any power or right hereunder or under the Revolver Notes, the Loan Documents or under applicable law shall impair such right or power or be construed to be a waiver of any default or any acquiescence therein, nor shall any single or partial exercise by the Agent of any such power or right preclude other or further exercise thereof or the exercise of any other such power or right by the Agent. In the event that all or part of the Indebtedness becomes or is declared to be forthwith due and payable as herein provided, the Agent shall have the right to set off the amount of all the Indebtedness of Borrowers owing to the Agentagainst, and shall have, and is hereby granted by Borrowers, a lien upon and security interest in, all property of Borrowers in the Agent's possession at or subsequent to such default, regardless of the capacity in which the Agent possesses such property, including but not limited to any balance or share of any deposit, collection or agency account. After Default all proceeds received by the Agent may be applied to the Indebtedness in such order of application and such proportions as the Agent, in its discretion, shall choose. At any time after the occurrence and continuation of any Event of Default, the Agent may, at its option, cause an audit of any and/or all of the books, records and documents of Borrowers to be made by auditors reasonably satisfactory to the Agent at the expense of Borrowers. The Agent also shall have, and may exercise, each and every right and remedy granted to it for default under the terms of the Security Instruments and the other Loan Documents.
ARTICLE IX
with respect to all or any portion of the Revolver Loans, the Letters of Credit and the Revolver Commitment. Lenders signatory hereto have no obligation to increase the Commitments above either such Lender's respective existing Percentage Interest or applicable Commitment amount or, in the aggregate for all of the Lenders, to an amount in excess of the aggregate amount of applicable Commitments set forth on Schedule I, as revised and supplemented from time to time, and any future determination of Lenders to increase their individual Commitment shall be in Lenders' sole and absolute discretion and, if applicable, subject to such Lender obtaining Assignee(s) or Credit Participant(s) under Article X hereof for all amounts of the respective Commitment(s) in excess of the existing maximum amount of such amount(s).
9.4 Lender Operations for Advances, Letters of Credit.
o'clock p.m. (applicable current time in Little Rock, Arkansas) on the day any portion of such Loan is advanced hereunder; provided, however, that Agent is not required or authorized to make any such advance for the account of any Lender who has previously notified Agent in writing that such Lender will not be performing its obligations to make further advances hereunder.
fees and other payments made by Borrower hereunder that would have thereafter otherwise been payable under the Credit Documents to the Delinquent Lender. During any other period in which any Lender is not performing its obligations to extend credit under Article II hereof (a "Nonperforming Lender"), the Nonperforming Lender shall be deemed to have assigned to each Lender that is not a Nonperforming Lender (a "Performing Lender") all principal and other payments made by Borrower that would have thereafter otherwise been payable thereunder to the Nonperforming Lender. Agent shall credit a portion of such payments to each Performing Lender in an amount equal to the Percentage Interest of such Performing Lender divided by one minus the Percentage Interest of the Nonperforming Lender until the respective portions of the Loans owed to all Lenders are the same as the Percentage Interests of Lenders immediately prior to the failure of the Nonperforming Lender to perform its obligations under Article II hereof. The foregoing provisions shall be in addition to any other remedies Agent, the Performing Lenders or Borrower may have under Law or equity against the Delinquent Lender as a result of the Delinquent Payment or against the Nonperforming Lender as a result of its failure to perform its obligations under Article II hereof.
Section 9.5. The provisions of this Section 9.5 are for the sole and exclusive benefit of Lenders and no failure of any Lender to comply with the terms hereof shall be available to Borrower as a defense to the payment of the Loans.
(a) no reduction or waiver shall be made in (i) the amount of principal of any of the Loans, reimbursement obligations for payments made under Letters of Credit or any other payment obligations, (ii) interest rate on the Notes, (iii) the Letter of Credit issuance fees (excluding, however, Letter of Credit fronting and/or processing/application fees, the amount of which shall be within the reasonable discretion of each applicable Letter of Credit Issuer), or (iv) Commitment or non-usage fees;
(b) no change shall be made in the stated time of payment of all or any portion of any of the Revolver Notes or interest thereon or reimbursement of payments made under Letters of Credit or fees relating to any of the foregoing payable to all of the Lenders and no waiver shall be made of any Default or Event of Default under Section 7.1(a);
(c) subject to the provisions of Section 10.4, no increase shall be made in the amount, or extension of the term, of any of the Commitments or the Revolver Commitment Amount;
(d) no alteration shall be made of Lenders' rights of set off contained herein or in the other Credit Documents, or of the pro rata sharing provisions of Section 9.5 or any waterfall, payment or distribution priority provisions of the Credit Documents;
(e) no release of any Collateral, other than cash Collateral released in the ordinary course of business or sales of business ownership interests for fair value, shall be made in excess of $500,000 in the aggregate during any consecutive twelve (12) month period (except that Agent may release particular items of Collateral in dispositions permitted by the Collateral Documents in accordance with the terms and provisions thereof and may release all of the Collateral upon the payment in full of the Loans and all other Indebtedness and termination or extinguishment of the Commitments without the written consent of Lenders);
(f) no extension of the stated expiration date of any Letter of Credit beyond the Revolver Final Maturity Date shall be made;
(g) no release of Borrower or Guarantor shall be made;
(h) no increase in the Maximum Revolver Commitment Amount shall be made; or
(i) no amendment to, modification of or waiver to Section 2.17, Section 2.19, Article V, this Section 9.6, Section 9.7, Article X, the definition of "Required Lenders", the definition of or provisions relating to determining a Lender's "Percentage Interest" or any other provision of the Credit Documents that provides for the consent of all Lenders shall be made.
together with all other powers incidental thereto. Agent shall not have any implied duties to any Person or any obligation to take any action under this Agreement or any other Credit Document except for action specifically provided for in this Agreement or any other Credit Document to be taken by Agent. Before taking any action under this Agreement or any other Credit Document, Agent may request an appropriate specific indemnity satisfactory to it from each Lender in addition to the general indemnity provided for in Section 9.11. Until Agent has received such specific indemnity, Agent shall not be obligated to take (although Agent may in its sole discretion take) any such action under this Agreement or any other Credit Document. Each Lender confirms that Agent does not have a fiduciary relationship to Lenders under the Credit Documents. Borrower confirms that neither Agent nor any other Lender has a fiduciary relationship to Lenders under the Credit Documents.
reimbursement): (a) for which Agent is entitled to reimbursement by Borrower under this Agreement or any other Credit Document, and (b) after the occurrence of a Default, or an Event of Default, for any other reasonable expenses incurred by Agent on Lenders' behalf in connection with the enforcement of Lenders' rights under this Agreement or any other Credit Document.
by the Notes (of such Agent(s) as one of Lenders) or to actions or omissions which are taken by Agent or such Persons in bad faith, with gross negligence or willful misconduct.
ARTICLE X
(i) the aggregate amount of the Commitments of the assigning Lender subject to each such assignment to any Assignee other than another Lender (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be not less than $5,000,000 and in increments of $500,000 in excess thereof; and
(ii) the parties to each such assignment shall execute and deliver to Agent an Assignment and Acceptance (the "Assignment and Acceptance") in the form satisfactory to Agent, together with the Notes subject to such assignment.
Notwithstanding anything in this Agreement to the contrary, in no event may Borrower or any of its respective affiliates (each a "Restricted Person") constitute or become a Lender hereunder, and any purported or attempted assignment made in violation of the preceding sentence to any Restricted Person shall automatically be null and void and without legal effect.
Upon acceptance and recording pursuant to Section 10.2(d), (which acceptance and recording shall be deemed to occur in any event three (3) Business Days following satisfaction of all other requirements hereunder) from and after the effective date specified in each Assignment and Acceptance (which effective date shall be at least three (3) Business Days after the execution thereof unless waived in writing by Agent): (x) the Assignee shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement; and (y) the assigning Lender shall, to the extent provided in such assignment, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to any interest and fees accrued for its account hereunder and not yet paid).
(i) Other than the representation and warranty that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Credit Document or any other instrument or document furnished pursuant hereto.
(ii) Such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower and its Subsidiaries or the performance or observance by Borrower or any of its Subsidiaries of any of its obligations under this Agreement, any other Credit Document or any other instrument or document furnished pursuant hereto.
(iii) Such Assignee confirms that it has received a copy of this Agreement, together with copies of the most recent quarterly or annual financial statements delivered pursuant hereto and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance.
(iv) Such Assignee will independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.
(v) Such Assignee appoints and authorizes Agent to take such action as Agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent by the terms hereof, together with such powers as are reasonably incidental thereto.
(vi) Such Assignee agrees that it will perform in accordance with the terms of this Agreement all the obligations which are to be performed by it as a Lender.
(a) such Lender's obligations under this Agreement shall remain unchanged;
(b) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations;
(c) the Credit Participant shall be entitled to the benefit of any cost protection provisions contained in this Credit Agreement, but shall not be entitled to receive any greater payment thereunder than the selling Lender would have been entitled to receive with respect to the interest so sold if such interest had not been sold; and
(d) Borrower, Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement, and such Lender shall retain the sole right as one of Lenders to vote with respect to the enforcement of the obligations of Borrower relating to the Loans and Letters of Credit and the approval of any amendment, modification or waiver of any provision of this Agreement (other than amendments, modifications, consents or waivers described in Section 9.6 as requiring the consent of each Lender).
Borrower agrees, to the fullest extent permitted by applicable Law, that any Credit Participant and any Lender purchasing a participation from another Lender pursuant to this Section 10.3 may exercise all rights of payment (including the right of set off), with respect to its participation as fully as if such Credit Participant or such Lender were the direct creditor of Borrower and a Lender hereunder in the amount of such participation. Upon receipt of notice of the address of each Credit Participant, Borrower shall thereafter supply such Credit Participants with the same information and reports communicated to Lenders. Borrower hereby acknowledges and agrees that Credit Participants shall be deemed a holder of the applicable Revolver Note(s) to the extent of their respective participation, and Borrower hereby waives its right, if any, to offset amounts owing to Borrower from Lenders against each Credit Participant's portion of the applicable Revolver Notes.
to each of Lenders and Borrower, whereupon such revised and supplemented Schedule 1 shall replace the old Schedule 1 and become part of this Agreement. On the Business Day following any such increase, all outstanding Letter of Credit exposure and Revolver Loans shall be reallocated among Lenders (including any Additional Lender(s)) in accordance with Lenders' respective revised Percentage Interests, and all breakage funding losses of each Lender not so increasing its Revolver Commitment shall be promptly paid by Borrower upon receipt of notice from each such Lender containing a reasonably detailed calculation of the amount thereof.
ARTICLE XI
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If to Borrowers: |
Energy Resources 12, L.P. c/o Energy Resources 12 GP, LLC Energy Resources 12 Operating Company, LLC 0000 X. Xxxxxxx Xxx. Xxxxxxxx Xxxx, XX 00000 Attn: Xxxxxxx X. Xxxxxxx, III (Manager, Energy 11 Management, LLC)
and
Energy Resources 12, L.P. c/o Energy Resources 12 GP, LLC Energy Resources 12 Operating Company, LLC 000 X. Xxxx Xxxxxx Xxxxxxxx, Xxxxxxxx 00000 Attn: Xxxxx XxXxxxxx, Chief Financial Officer |
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If to the Agent: |
Xxxxxxx Bank 0000 Xxxxxxxxx Xxxx., Xxxxx 000 Xxxxxxxx Xxxx, Xxxxxxxx 00000 Attn: Xxxxx Xxxxxx, Senior Vice President |
All notices forwarded or submitted hereunder will be effective when hand-delivered (via reputable courier system or otherwise by personal delivery) to the applicable notice address set forth above or when mailed by certified mail, postage prepaid, addressed as aforesaid, three (3) days thereafter.
such due date shall be extended to the next succeeding Business Day, and such extension of time will in such case be included in computing interest, if any, in connection with such payment.
11.6 SUBMISSION TO JURISDICTION. BORROWERS HEREBY CONSENT TO THE NON-EXCLUSIVE JURISDICTION OF ANY OF THE LOCAL, STATE, AND FEDERAL COURTS LOCATED WITHIN OKLAHOMA COUNTY, OKLAHOMA AND WAIVE ANY OBJECTION WHICH BORROWERS MAY HAVE BASED ON IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT AND WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS UPON THEM, AND CONSENT THAT ALL SUCH SERVICE OF PROCESS BE MADE BY MAIL OR MESSENGER DIRECTED TO THEM AT THE ADDRESSES SET FORTH IN SUBSECTION 9.1 HEREOF AND THAT SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT OR THREE (3) BUSINESS DAYS AFTER MAILED OR DELIVERED BY MESSENGER.
Revolver Notes or any ISDA Agreement is accelerated by reason of an election of the holder thereof resulting from any Event of Default under this Agreement or otherwise, or in the event of any required or permitted prepayment, then such consideration that constitutes interest under law applicable to the Lenders may never include more than the maximum amount allowed by such applicable law, and excess interest, if any, provided for in this Agreement or otherwise shall be canceled automatically by the Lenders as of the date of such acceleration or prepayment and, if theretofore paid, shall be credited by the Bank on the principal amount of the Indebtedness (or, to the extent that the principal amount of the Indebtedness shall have been or would thereby be paid in full, refunded by the Bank to Borrowers). All sums paid or agreed to be paid to the Agent or Lenders for the use, forbearance or detention of sums due hereunder shall, to the extent permitted by law applicable to the Lenders, be amortized, prorated, allocated and spread throughout the full term of the Revolver Loans evidenced by the Revolver Note or any ISDA Agreement until payment in full so that the rate or amount of interest on account of any Revolver Loans hereunder does not exceed the maximum amount allowed by such applicable law. If at any time and from time to time (i) the amount of interest payable to the Lenders on any date shall be computed at the Highest Lawful Rate applicable to the Lenders pursuant to this Section 11.7 and (ii) in respect of any subsequent interest computation period the amount of interest otherwise payable to the Lenders would be less than the amount of interest payable to the Lenders computed at the Highest Lawful Rate applicable to the Lenders, then the amount of interest payable to the Lenders in respect of such subsequent interest computation period shall continue to be computed at the Highest Lawful Rate applicable to the Lenders until the total amount of interest payable to the Lenders shall equal the total amount of interest which would have been payable to the Lenders if the total amount of interest had been computed without giving effect to this Section 11.7.
11.11 WAIVER OF JURY. BORROWERS, AGENT AND LENDERS (BY ITS ACCEPTANCE HEREOF) HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) BETWEEN BORROWERS, AGENT AND LENDERS ARISING OUR OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE REVOLVER NOTES OR THE OTHER LOAN DOCUMENTS. THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDERS TO PROVIDE THE FINANCING CONTEMPLATED HEREBY AND EVIDENCED BY THE REVOLVER NOTES.
MAY HAVE TO CLAIM OR RECOVER FROM THE AGENT AND/OR THE LENDERS IN ANY LEGAL ACTION OR PROCEEDING ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
disbursements and other charges) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of any investigation, litigation, or proceeding (regardless of whether such Indemnified Party is a party thereto or preparation of defense in connection therewith) the Loan Documents or any of the transactions contemplated herein or in any of the Loan Documents or the actual or proposed use of the proceeds of the Revolver Loans or the letters of credit issued hereunder, except to the extent such claim, damage, loss, liability, cost, or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 9.11 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by Borrowers or any Subsidiary thereof, their respective directors, shareholders or creditors or an Indemnified Party or any other Person or any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated. Borrowers agree not to assert, and hereby waive, any claim against the Agent, the Lenders and the Letter of Credit Issuer or any of their respective directors, officers, employees, attorneys, agents, and advisors, on any theory of liability, for, direct or indirect, special, incidental, consequential, exemplary or punitive damages arising out of or otherwise relating to the Loan Documents, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Revolver Loans or the letters of credit issued hereunder.
anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives concerning capital adequacy promulgated by the Lenders for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the US or foreign regulatory authorities shall, in each case, be deemed to be a "Change in Law", regardless of the date enacted, adopted or issued.
any assignee or participant (including prospective assignees and participants) in the Revolver Loans; provided, however, that the Agent and Lenders shall receive a confidentiality agreement from the Person to whom such information is disclosed such that said Person shall have the same obligation to maintain the confidentiality of such information as is imposed upon the Agent and Lenders hereunder. Notwithstanding anything to the contrary provided herein, this obligation of confidence shall cease five (5) years from the date the information was furnished. Each Borrower expressly waives any and all other rights it may have to confidentiality as against the Agent or Lenders arising by contract, agreement, statute or law except as expressly stated in this Section 11.26.
Bank may keep internal records regarding all such communications, notices and actions related to this Agreement and the other Credit Documents in accordance with its past practice.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Revolver Loan Agreement to be duly executed by each Borrower and delivered to the Administrative Agent and the Lenders in Oklahoma City, Oklahoma, effective as of the day and year first above written.
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BORROWERS: |
ENERGY RESOURCES 12, L.P.,
By: Energy Resources 12 GP, LLC, a Delaware limited liability company, its general partner
By: /s/ Xxxxx X. XxXxxxxx
Xxxxx X. XxXxxxxx, Chief Financial Officer
ENERGY RESOURCES 12 OPERATING COMPANY, LLC, Delaware limited liability company
By: /s/ Xxxxx X. XxXxxxxx
Xxxxx X. XxXxxxxx, Chief Financial Officer
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Revolver Loan Agreement Signature Page
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LENDERS: |
XXXXXXX BANK, a division of Xxxxxxx Bank
By: /s/ Xxxxx Xxxxxx Xxxxx Xxxxxx, Senior Vice President
(Lender, Letter of Credit Issuer and Administrative Agent) |
Revolver Loan Agreement Signature Page
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ARVEST BANK
By: /s/ S. Xxxx Xxxxxx S. Xxxx Xxxxxx Vice President β Commercial Banking
000 Xxxxx Xxxx Xxxxxx Xxxxx, Xxxxxxxx 00000
(Lender) |
Revolver Loan Agreement Signature Page
SCHEDULE I
Lender Commitments
|
Lender |
Percentage Interest |
Revolver Commitment Amount |
|
Xxxxxxx Bank |
66.6667.0% |
$40,000,000.00 |
|
Arvest Bank |
33.3333% |
$20,000,000.00 |
SCHEDULE I
Exhibit A - Revolver Loan Request (Β§ 2.7(b)(iii))
Exhibit B - Compliance Certificate (Β§ 6.6(a)(ii))
Exhibit C - Other Obligations (Β§ 6.17), Liabilities (Β§ 6.19)
Exhibit D - Pending Litigation (Β§ 7.2)
Exhibit E - Take or Pay Disputes (Β§ 7.19)
Exhibit F - Assignment and Acceptance (Β§ 10.2(d))
LIST OF EXHIBITS
EXHIBIT A
REVOLVER LOAN REQUEST
Xxxxxxx Bank, Agent for Lenders
0000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx, Senior Vice President
Ladies/Gentlemen:
Pursuant to the provisions of the Revolver Loan Agreement dated effective as of August 31, 2018, as it may be amended from time to time (referred to as the "Loan Agreement"), between ENERGY RESOURCES 12, L.P., a Delaware limited partnership, and Energy Resources 12 Operating Company, LLC, a Delaware limited liability company (collectively, "Borrowers"), and you, Borrowers hereby (i) confirm and ratify your continuing, first and prior security interest in and to all of the Collateral (including proceeds thereof) described or referred to in the Loan Agreement or in the Security Instruments described therein; (ii) apply to you for the Revolver Loans under the Revolver Notes in the amount shown on Line 5 below; (iii) certify that no Event of Default or Default under the Loan Agreement has occurred and is continuing as of the date hereof or exists or would continue to exist but for the lapse of time or giving of notice, or both; (iv) represent and warrant to you that the representations, covenants and warranties set forth or referred to in the Loan Agreement are true and correct on and as of this date, except to the extent related to a specific other date; and (v) certify to you the accuracy of the following information:
1. Revolver Commitment Amount pursuant to Loan Agreement [$60,000,000.00]
2. Current Outstanding Principal Balance under the Revolver Notes $___________
3. Unfunded Aggregate Amount of Unexpired Letters of Credit $___________
4. Amount Available under Revolver Loan (Line 1 minus sum of Line 2
plus Line 3 but in no event in excess of the sum of the
Collateral Borrowing Base) $____________
5. Revolver Loan Advance requested (not to exceed amount of Line 4)
under Revolver Notes ($__________)
Proposed date for Revolver Loan Advance: ___________________
Type of Revolver Loan Advance (Base Rate or LIBOR)
LIBOR RATE LOAN DATA (if applicable)
Dollar Amount Requested $
Requested Funding Date ____________
| Length of Interest Period: (select only one) |
30 day 60 day 90 day |
EXHIBIT A-1
LIBOR Rate Loan continuation for LIBOR Rate Loans maturing on ____________
(a) Aggregate amount to be continued as LIBOR Rate Loan is $________;
(b) Aggregate amount, if applicable, to be converted to Base Rate Loan is $___________;
(c) Length of Interest Period for continued LIBOR Rate Loan is ________.
ENERGY RESOURCES 12, L.P., a Delaware limited partnership
By: Energy Resources 12 GP, LLC, a Delaware limited liability company, its general partner
By: _____________________________
________________________(name)
_________________________(title)
ENERGY RESOURCES 12 OPERATING COMPANY, LLC, a Delaware limited liability company
By: _____________________________
Name: __________________________
Title: ___________________________
"BORROWERS"
EXHIBIT A-2
EXHIBIT B
(quarterly compliance certificate)
Quarterly Compliance Certificate
(Β§6.6(a)(ii))
Pursuant to the Revolver Loan Agreement dated effective as of August 31, 2018 (as the same may at any time hereafter be amended, supplemented or modified and in effect being herein collectively called the "Loan Agreement"), between Energy Resources 12, L.P., a Delaware limited partnership, and Energy Resources 12 Operating Company, LLC, a Delaware limited liability company (collectively, "Borrowers"), and Xxxxxxx Bank, as Agent for the Lenders ("Agent"), Borrowers have reviewed their respective activities for the fiscal quarter ended on _______________, 201_, (the "Compliance Date"), and hereby represent and warrant to Agent that the information set forth below is true and correct as of the Compliance Date (capitalized terms not otherwise defined herein shall have the meanings assigned in the Loan Agreement):
1. Financial Covenants. Required Actual
Section 6.30 β Leverage Ratio (maximum) 3.50 to 1.0 ____ to 1.00
Section 6.31 β Current Ratio (minimum) 1.00 to 1.00 ____ to 1.00
2. Borrowers hereby certify to Agent that as of the Compliance Date:
β Schedule 1 attached to this Compliance Certificate sets forth a true and complete list of all existing ISDA Agreements and Hedge Transactions of Borrowers (or either of them), the material terms thereof (including the type, term, effective date, termination date, and notional volumes and prices), the net xxxx-to-market value thereof, all credit support agreements relating thereof (including any margin required or supplied), and the counter-party to each such Hedge Transactions.
β As of the Compliance Date, Borrowers have no outstanding Hedge Transactions with any parties.
β As of the Compliance Date, Borrowers (or either of them) have entered into no existing ISDA Agreements with any parties.
3. The undersigned company representative hereby certifies to Agent that:
(i) the financial statements delivered with this certificate in accordance with the Loan Agreement fairly present in all material respects the results of operations and financial condition of Borrowers as of the dates and the accounting period covered by such financial statements;
EXHIBIT B-1
(ii) I have reviewed the terms of the Loan Agreement and have made, or caused to be made under my supervision, a review in reasonable detail of the transactions and conditions of Borrowers during the accounting period covered by such financial statements;
(iii) such review has not disclosed the existence during or at the end of such accounting period, and I have no knowledge of the existence as of the date hereof, of any condition or event that constitutes a Default or an Event of Default or an event that would, with the lapse of time or giving of notice, or both, be an Event of Default;
(iv) Borrowers are in compliance with the covenants contained in Article VI of the Loan Agreement, as demonstrated by the calculation of such covenants above;
(v) The Revolver Notes and the Loan Agreement are acknowledged, ratified, confirmed, and agreed by Borrowers to be valid, subsisting, and binding obligations; and
(vi) Borrowers agree that there is no right to set off or defense to payment of the Revolver Notes or any other Indebtedness.
This Quarterly Compliance Certificate is dated as of , 20__.
ENERGY RESOURCES 12, L.P., a Delaware limited partnership
By: Energy Resources 12 GP, LLC, a Delaware limited liability company, its general partner
By: _____________________________
________________________(name)
_________________________(title)
ENERGY RESOURCES 12 OPERATING COMPANY, LLC, a Delaware limited liability company
By: _____________________________
Name: __________________________
Title: ___________________________
"Borrowers"
EXHIBIT B-2
EXHIBIT C
(Β§ 6.17)
1. $15,000,000 unsecured note indebtedness due to Bank of America ("BofA Note") with a final maturity date of April 15, 2019, governed by Loan Agreement dated January 16, 2018, as amended by Loan Agreement Amendment and Consent dated as of August 16, 2018. Borrower shall only pay interest on the BA note until such time as the unpaid and outstanding principal balance on the Revolver Notes plus Letter of Credit Exposure is less $40,000,000.
(Β§ 6.19)
LIABILITIES
None.
EXHIBIT C
EXHIBIT D
(Β§ 7.2)
PENDING LITIGATION
None.
EXHIBIT D
EXHIBIT E
(Β§ 7.19)
TAKE OR PAY DISPUTES
None.
EXHIBIT E
EXHIBIT F
(FORM OF ASSIGNMENT AGREEMENT)
ASSIGNMENT AGREEMENT ("Agreement") dated as of ________________, 200___ between _____________________________________________________ (the "Assignor") and __________________________ (the "Assignee").
A. The Assignor is a party to the Revolver Loan Agreement dated effective as of August 31, 2018 (as amended, modified, supplemented and/or restated and in effect from time to time, the "Credit Agreement") between ENERGY RESOURCES L2, L.P., a Delaware limited partnership, and ENERGY RESOURCES 12 OPERATING, a Delaware limited liability company (the "Borrower"), each of the lenders that is or becomes a party thereto as provided in Section 10.2 of the Credit Agreement (individually, together with its successors and assigns, a "Lender", and collectively, together with their successors and assigns, the "Lenders"), and Xxxxxxx Bank, in its individual capacity, ("Xxxxxxx") and as agent for the Lenders (in such capacity, together with its successors in such capacity, the "Agent").
B. The Assignor proposes to sell, assign and transfer to the Assignee, and the Assignee proposes to purchase and assume from the Assignor, a portion of the Assignor's Revolver Commitment, outstanding Loans and its Percentage Share of the outstanding Letter of Credit Exposure, all on the terms and conditions of this Agreement.
C. In consideration of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Article I
Definitions
1.1 Definitions. All capitalized terms used but not defined herein have the respective meanings given to such terms in the Credit Agreement.
1.2 Other Definitions. As used herein, the following terms have the following respective meanings:
"Assigned Interest" shall mean all of Assignor's (in its capacity as a "Lender") rights and obligations under the Credit Agreement and the other Security Instruments in respect of the Revolver Commitment of the Assignor relating to the Assignor's Maximum Revolver Commitment Amount in the principal amount equal to $____________________ and the principal amount of the Loans outstanding thereunder, currently in the amount of $_________________ (the "Loan Balance"), plus the interest and fees which will accrue from and after the Assignment Date.
"Assignment Date" shall mean _____________________, 20___.
EXHIBIT F
Article II
Sale and Assignment
2.1 Sale and Assignment. On the terms and conditions set forth herein, effective on and as of the Assignment Date, the Assignor hereby sells, assigns and transfers to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, all of the right, title and interest of the Assignor in and to, and all of the obligations of the Assignor in respect of, the Assigned Interest. Such sale, assignment and transfer is without recourse and, except as expressly provided in this Agreement, without representation or warranty.
2.2 Assumption of Obligations. The Assignee agrees with the Assignor (for the express benefit of the Assignor and the Borrower) that the Assignee will, from and after the Assignment Date, perform all of the obligations of the Assignor in respect of the Assigned Interest. From and after the Assignment Date: (a) the Assignor shall be released from the Assignor's obligations in respect of the Assigned Interest, and (b) the Assignee shall be entitled to all of the Assignor's rights, powers and privileges under the Credit Agreement and the other Security Instruments in respect of the Assigned Interest.
2.3 Consent by Agent. By executing this Agreement as provided below, in accordance with Section 10.2(d) of the Credit Agreement, the Agent hereby acknowledges notice of the transactions contemplated by this Agreement and consents to such transactions.
Article III
Payments
3.1 Payments. As consideration for the sale, assignment and transfer contemplated by Section 2.1 hereof, the Assignee shall, on the Assignment Date, assume Assignor's obligations in respect of the Assigned Interest and pay to the Assignor an amount equal to the Loan Balance, if any. An amount equal to all accrued and unpaid interest and fees shall be paid to the Assignor as provided in Section 3.2 (iii) below. Except as otherwise provided in this Agreement, all payments hereunder shall be made in Dollars and in immediately available funds, without setoff, deduction or counterclaim.
3.2 Allocation of Payments. The Assignor and the Assignee agree that (i) the Assignor shall be entitled to any payments of principal with respect to the Assigned Interest made prior to the Assignment Date, together with any interest and fees with respect to the Assigned Interest accrued prior to the Assignment Date, (ii) the Assignee shall be entitled to any payments of principal with respect to the Assigned Interest made from and after the Assignment Date, together with any and all interest and fees with respect to the Assigned Interest accruing from and after the Assignment Date, and (iii) the Agent is authorized and instructed to allocate payments received by it for account of the Assignor and the Assignee as provided in the foregoing clauses. Each party hereto agrees that it will hold any interest, fees or other amounts that it may receive to which the other party hereto shall be entitled pursuant to the preceding sentence for account of such other party and pay, in like money and funds, any such amounts that it may receive to such other party promptly upon receipt.
EXHIBIT F
3.3 Delivery of Notes. Promptly following the receipt by the Assignor of the consideration required to be paid under Section 3.1 hereof, the Assignor shall, in the manner contemplated by Section 10.2(d) of the Credit Agreement, (i) deliver to the Agent (or its counsel) the Note held by the Assignor and (ii) notify the Agent to request that the Borrower execute and deliver new Note to the Assignor, if Assignor continues to be a Lender, and the Assignee, dated the date of this Agreement in principal amounts equal to the Revolver Commitment of the Assignor (if appropriate) and the Assignee after giving effect to the sale, assignment and transfer contemplated hereby.
3.4 Further Assurances. The Assignor and the Assignee hereby agree to execute and deliver such other instruments, and take such other actions, as either party may reasonably request in connection with the transactions contemplated by this Agreement.
Article IV
Conditions Precedent
4.1 Conditions Precedent. The effectiveness of the sale, assignment and transfer contemplated hereby is subject to the satisfaction of each of the following conditions precedent:
(a) the execution and delivery of this Agreement by the Assignor and the Assignee;
(b) the receipt by the Assignor of the payment required to be made by the Assignee under Section 3.1 hereof; and
(c) the acknowledgment and consent by the Agent contemplated by Section 2.3 hereof.
Article V
Representations and Warranties
5.1 Representations and Warranties of the Assignor. The Assignor represents and warrants to the Assignee as follows:
(a) it has all requisite power and authority, and has taken all action necessary to execute and deliver this Agreement and to fulfill its obligations under, and consummate the transactions contemplated by, this Agreement;
(b) the execution, delivery and compliance with the terms hereof by Assignor and the delivery of all instruments required to be delivered by it hereunder do not and will not violate any Governmental Requirement applicable to it;
(c) this Agreement has been duly executed and delivered by it and constitutes the legal, valid and binding obligation of the Assignor, enforceable against it in accordance with its terms;
EXHIBIT F
(d) all approvals and authorizations of, all filings with and all actions by any Governmental Authority necessary for the validity or enforceability of its obligations under this Agreement have been obtained;
(e) the Assignor has good title to, and is the sole legal and beneficial owner of, the Assigned Interest, free and clear of all Liens, claims, participations or other charges of any nature whatsoever; and
(f) the transactions contemplated by this Agreement are commercial banking transactions entered into in the ordinary course of the banking business of the Assignor.
5.2 Disclaimer. Except as expressly provided in Section 5.1 hereof, the Assignor does not make any representation or warranty, nor shall it have any responsibility to the Assignee, with respect to the accuracy of any recitals, statements, representations or warranties contained in the Credit Agreement or in any certificate or other document referred to or provided for in, or received by any Lender under, the Credit Agreement, or for the value, validity, effectiveness, genuineness, execution, effectiveness, legality, enforceability or sufficiency of the Credit Agreement, the Notes or any other document referred to or provided for therein or for any failure by the Borrower or any other Person (other than Assignor) to perform any of its obligations thereunder prior or for the existence, value, perfection or priority of any collateral security or the financial or other condition of the Borrower or the Subsidiaries or any other obligor or guarantor, or any other matter relating to the Credit Agreement or any other Security Instrument or any extension of credit thereunder.
5.3 Representations and Warranties of the Assignee. The Assignee represents and warrants to the Assignor as follows:
(a) it has all requisite power and authority, and has taken all action necessary to execute and deliver this Agreement and to fulfill its obligations under, and consummate the transactions contemplated by, this Agreement;
(b) the execution, delivery and compliance with the terms hereof by Assignee and the delivery of all instruments required to be delivered by it hereunder do not and will not violate any Governmental Requirement applicable to it;
(c) this Agreement has been duly executed and delivered by it and constitutes the legal, valid and binding obligation of the Assignee, enforceable against it in accordance with its terms;
(d) all approvals and authorizations of, all filings with and all actions by any Governmental Authority necessary for the validity or enforceability of its obligations under this Agreement have been obtained;
(e) the Assignee has fully reviewed the terms of the Credit Agreement and the other Security Instruments and has independently and without reliance upon the Assignor, and based on such information as the Assignee has deemed appropriate, made its own credit analysis and decision to enter into this Agreement;
EXHIBIT F
(f) the Assignee has contemporaneously herewith delivered to the Agent and the Borrower such certifications, if and to the extent applicable, as are required thereby to avoid the withholding taxes referred to in Section 4.6; and
(g) the transactions contemplated by this Agreement are commercial banking transactions entered into in the ordinary course of the banking business of the Assignee.
Article VI
Miscellaneous
6.1 Notices. All notices and other communications provided for herein (including, without limitation, any modifications of, or waivers, requests or consents under, this Agreement) shall be given or made in writing (including, without limitation, by telex or telecopy) to the intended recipient at its "Address for Notices" specified below its name on the signature pages hereof or, as to either party, at such other address as shall be designated by such party in a notice to the other party.
6.2 Amendment, Modification or Waiver. No provision of this Agreement may be amended, modified or waived except by an instrument in writing signed by the Assignor and the Assignee, and consented to by the Agent.
6.3 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. The representations and warranties made herein by the Assignee are also made for the benefit of the Agent and the Borrower, and the Assignee agrees that the Agent and the Borrower are entitled to rely upon such representations and warranties.
6.4 Assignments. Neither party hereto may assign any of its rights or obligations hereunder except in accordance with the terms of the Credit Agreement.
6.5 Captions. The captions and section headings appearing herein are included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Agreement.
6.6 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be identical and all of which, taken together, shall constitute one and the same instrument, and each of the parties hereto may execute this Agreement by signing any such counterpart.
6.7 Governing Law. This Agreement shall be governed by, and construed in accordance with, the law of the State of Oklahoma.
6.8 Expenses. Each party hereto shall bear its own expenses in connection with the execution, delivery and performance of this Agreement.
6.9 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
EXHIBIT F
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
ASSIGNOR:
By:
Name:
Title:
Address for Notices:
EXHIBIT F
ASSIGNEE:
By:
Name:
Title:
Address for Notices:
Telecopier No.:
Telephone No.:
Attention:
ACKNOWLEDGED AND CONSENTED TO:
XXXXXXX BANK,
as Agent
By:
Name:
EXHIBIT F