LEGAL_US_W # 117907087.6 Execution Version FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 31, 2023 AMONG CHORD ENERGY CORPORATION, AS PARENT, OASIS PETROLEUM NORTH AMERICA LLC, AS BORROWER, THE OTHER CREDIT PARTIES PARTY...
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LEGAL_US_W # 117907087.6 Execution Version FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 31, 2023 AMONG CHORD ENERGY CORPORATION, AS PARENT, OASIS PETROLEUM NORTH AMERICA LLC, AS BORROWER, THE OTHER CREDIT PARTIES PARTY HERETO, XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT, ISSUING BANK AND SWINGLINE LENDER AND THE LENDERS PARTY HERETO
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LEGAL_US_W # 117907087.6 1 FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this βFourth Amendmentβ) dated as of October 31, 2023, is among: Chord Energy Corporation, a Delaware corporation (the βParentβ); Oasis Petroleum LLC, a Delaware limited liability company (βOP LLCβ), Oasis Petroleum North America LLC, a Delaware limited liability company (the βBorrowerβ); the other Guarantors listed on the signature pages hereto; each of the Lenders party hereto; and Xxxxx Fargo Bank, National Association, as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the βAdministrative Agentβ) and as the issuing bank (in such capacity, the βIssuing Bankβ). R E C I T A L S: A. The Parent, OP LLC, the Borrower, the Administrative Agent and the Lenders are parties to that certain Amended and Restated Credit Agreement dated as of July 1, 2022 (as amended, amended and restated, restated, supplemented or otherwise modified prior to the date hereof, the βCredit Agreementβ), pursuant to which the Lenders have made certain extensions of credit available to and on behalf of the Borrower. B. The Parent, the Borrower, the Administrative Agent, the Issuing Bank and the Lenders party hereto desire to (i) evidence the reaffirmation of the Borrowing Base at $2,500,000,000 and (ii) amend certain provisions of the Credit Agreement, in each case, as set forth herein and effective as of the Fourth Amendment Effective Date (as defined below), subject to the terms and conditions hereof. NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: Section 1. Defined Terms. Each capitalized term used herein but not otherwise defined herein has the meaning given such term in the Credit Agreement, as amended by this Fourth Amendment. Unless otherwise indicated, all section references in this Fourth Amendment refer to sections of the Credit Agreement. Section 2. Amendments to Credit Agreement. Effective as of the Fourth Amendment Effective Date, the Credit Agreement (including Annex I, Exhibit A, Exhibit B, Exhibit F, Exhibit G and Exhibit H thereto, but excluding all of the other exhibits and schedules attached to the Credit Agreement) is hereby amended in its entirety to read as set forth on Exhibit A attached hereto (the Credit Agreement, as so amended, the βAmended Credit Agreementβ). Section 3. Conditions Precedent. This Fourth Amendment shall become effective as of the date when each of the following conditions is satisfied (or waived in accordance with Section 12.02 of the Credit Agreement) (the βFourth Amendment Effective Dateβ): 3.1 Executed Counterparts of Fourth Amendment. The Administrative Agent shall have received from the Borrower, each Guarantor and each Lender (in such number as may
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LEGAL_US_W # 117907087.6 2 be requested by the Administrative Agent) executed counterparts of this Fourth Amendment signed on behalf of such Person. 3.2 Fees and Expenses. The Administrative Agent shall have received all fees and other amounts due and payable by the Credit Parties on or prior to the Fourth Amendment Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Fourth Amendment Effective Date, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower pursuant to the Credit Agreement. 3.3 Mortgages. The Administrative Agent shall have received duly executed and notarized deeds of trust and/or mortgages or supplements to existing deeds of trust and/or mortgages in form reasonably satisfactory to the Administrative Agent to the extent necessary so that the Mortgaged Properties satisfy the Mortgage Coverage Requirement. 3.4 Title. The Administrative Agent shall have received title information in form and substance reasonably acceptable to the Administrative Agent covering enough of the Oil and Gas Properties evaluated in the most recent Reserve Report so that the Administrative Agent shall have received, together with title information previously delivered to the Administrative Agent, reasonably satisfactory title information that satisfies the Title Coverage Requirement. 3.5 No Default. No Default, Event of Default or Borrowing Base Deficiency shall have occurred and be continuing as of the Fourth Amendment Effective Date prior to and after giving effect to the terms of this Fourth Amendment. The Administrative Agent is hereby authorized and directed to declare the Fourth Amendment Effective Date to have occurred when it has received documents confirming or certifying, to the satisfaction of the Administrative Agent, compliance with the conditions set forth in this Section 3 or the waiver of such conditions as permitted hereby. Such declaration shall be final, conclusive and binding upon all parties to the Credit Agreement for all purposes. Section 4. Miscellaneous. 4.1 Confirmation and Effect. The provisions of the Credit Agreement, as amended by this Fourth Amendment, shall remain in full force and effect following the effectiveness of this Fourth Amendment. Each reference in the Credit Agreement to βthis Agreementβ, βhereunderβ, βhereofβ, βhereinβ or any other word or words of similar import shall mean and be a reference to the Credit Agreement as amended hereby, and each reference in any other Loan Document to the Credit Agreement or any word or words of similar import shall be and mean a reference to the Credit Agreement as amended hereby. 4.2 No Waiver. Neither the execution by the Administrative Agent or the Lenders of this Fourth Amendment, nor any other act or omission by the Administrative Agent or the Lenders or their officers in connection herewith, shall be deemed a waiver by the Administrative Agent or the Lenders of any Defaults or Events of Default which may exist, which may have occurred prior to the date of the effectiveness of this Fourth Amendment or which may occur in the future under the Credit Agreement and/or the other Loan Documents. Similarly, nothing contained in this Fourth Amendment shall directly or indirectly in any way whatsoever either: (a) impair, prejudice or otherwise adversely affect the Administrative Agentβs or the
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LEGAL_US_W # 117907087.6 3 Lendersβ right at any time to exercise any right, privilege or remedy in connection with the Loan Documents with respect to any Default or Event of Default, (b) except to the extent expressly set forth herein, amend or alter any provision of the Credit Agreement, the other Loan Documents, or any other contract or instrument, or (c) constitute any course of dealing or other basis for altering any obligation of the Borrower or any right, privilege or remedy of the Administrative Agent or the Lenders under the Credit Agreement, the other Loan Documents, or any other contract or instrument. 4.3 Ratification and Affirmation; Representations and Warranties. Each Credit Party hereby: (a) acknowledges the terms of this Fourth Amendment, (b) ratifies and affirms its obligations under, and acknowledges its continued liability under, each Loan Document to which it is a party and agrees that each Loan Document to which it is a party remains in full force and effect as expressly amended hereby and (c) represents and warrants to the Lenders that as of the date hereof, after giving effect to the execution of this Fourth Amendment: (i) all of the representations and warranties contained in each Loan Document to which it is a party are true and correct in all material respects (or, if already qualified by materiality, Material Adverse Effect or a similar qualification, true and correct in all respects), except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, such representations and warranties shall continue to be true and correct in all material respects (or, if already qualified by materiality, Material Adverse Effect or a similar qualification, true and correct in all respects) as of such specified earlier date and (ii) no Default or Event of Default has occurred and is continuing. 4.4 Counterparts. This Fourth Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of this Fourth Amendment by facsimile or other electronic transmission (e.g., βpdfβ or βtifβ), including via DocuSign or other similar electronic signature technology shall be effective as delivery of a manually executed counterpart hereof. 4.5 No Oral Agreement. This Fourth Amendment, the Credit Agreement and the other Loan Documents executed in connection herewith and therewith represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous, or unwritten oral agreements of the parties. There are no subsequent oral agreements between the parties. 4.6 GOVERNING LAW. THIS FOURTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. 4.7 Payment of Expenses. In accordance with Section 12.03 of the Credit Agreement, the Borrower agrees to pay or reimburse the Administrative Agent for all of its reasonable out-of-pocket costs and reasonable expenses incurred in connection with this Fourth Amendment, any other documents prepared in connection herewith and the transactions contemplated hereby, including, without limitation, the reasonable fees and disbursements of Xxxx Xxxxxxxx LLP, as counsel to the Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be duly executed as of the date first written above. BORROWER: OASIS PETROLEUM NORTH AMERICA LLC By: /s/ Xxxxxxx Xxx Name: Xxxxxxx Xxx Title: Executive Vice President and Chief Financial Officer GUARANTORS: CHORD ENERGY CORPORATION CHORD ENERGY LLC CHORD ENERGY MARKETING LLC OASIS WELL SERVICES LLC OMS HOLDINGS LLC OASIS PETROLEUM PERMIAN LLC OASIS INVESTMENT HOLDINGS LLC XXXXXXX HOLDINGS LLC XXXXXXX OIL AND GAS CORPORATION By: /s/ Xxxxxxx Xxx Name: Xxxxxxx Xxx Title: Executive Vice President and Chief Financial Officer Signature Page to Fourth Amendment to Amended and Restated Credit Agreement (Oasis Petroleum North America LLC)
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ADMINISTRATIVE AGENT, SWINGLINE LENDER, ISSUING BANK AND LENDER: XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Issuing Bank, a Swingline Lender and a Lender By: /s/ Xxxxxxx Xxxx Name: Xxxxxxx Xxxx Title: Managing Director Signature Page to Fourth Amendment to Amended and Restated Credit Agreement (Oasis Petroleum North America LLC)
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LENDERS: CITIBANK, N.A., as a Lender By: /s/ Xxxxx Xxx Name: Xxxxx Xxx Title: Vice President Signature Page to Fourth Amendment to Amended and Restated Credit Agreement (Oasis Petroleum North America LLC)
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JPMORGAN CHASE BANK, N.A., as a Lender By: /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: Authorized Officer Signature Page to Fourth Amendment to Amended and Restated Credit Agreement (Oasis Petroleum North America LLC)
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ROYAL BANK OF CANADA, as a Lender By: /s/ Xxx X. Xxxxxxx Name: Xxx X. Xxxxxxx Title: Authorized Signatory Signature Page to Fourth Amendment to Amended and Restated Credit Agreement (Oasis Petroleum North America LLC)
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CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender By: /s/ Xxxxx Xxx Xxxxx Name: Xxxxx Xxx Xxxxx Title: Vice President Signature Page to Fourth Amendment to Amended and Restated Credit Agreement (Oasis Petroleum North America LLC)
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CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH, as a Lender By: /s/ Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx Title: Authorized Signatory By: /s/ Xxxxxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxxxx Title: Authorized Signatory Signature Page to Fourth Amendment to Amended and Restated Credit Agreement (Oasis Petroleum North America LLC)
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CITIZENS BANK, N.A., as a Lender By: /s/ Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx Title: Senior Vice President Signature Page to Fourth Amendment to Amended and Restated Credit Agreement (Oasis Petroleum North America LLC)
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ZIONS BANCORPORATION, N.A. DBA AMEGY BANK, as a Lender By: /s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: Senior Vice President Signature Page to Fourth Amendment to Amended and Restated Credit Agreement (Oasis Petroleum North America LLC)
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BOKF, NA DBA BANK OF TEXAS, as a Lender By: /s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: Senior Vice President Signature Page to Fourth Amendment to Amended and Restated Credit Agreement (Oasis Petroleum North America LLC)
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TRUIST BANK, as a Lender By: /s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: Director Signature Page to Fourth Amendment to Amended and Restated Credit Agreement (Oasis Petroleum North America LLC)
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COMERICA BANK, as a Lender By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Vice President Signature Page to Fourth Amendment to Amended and Restated Credit Agreement (Oasis Petroleum North America LLC)
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REGIONS BANK, as a Lender By: /s/ Xxxxxxx Xxxxxxxxxx Name: Xxxxxxx Xxxxxxxxxx Title: Managing Director Signature Page to Fourth Amendment to Amended and Restated Credit Agreement (Oasis Petroleum North America LLC)
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XXXXXXX XXXXX BANK USA, as a Lender By: /s/ Xxx Xxxxxx Name: Xxx Xxxxxx Title: Authorized Signatory Signature Page to Fourth Amendment to Amended and Restated Credit Agreement (Oasis Petroleum North America LLC)
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MIZUHO BANK, LTD., as a Lender By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Executive Director Signature Page to Fourth Amendment to Amended and Restated Credit Agreement (Oasis Petroleum North America LLC)
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LEGAL_US_W # 117975371.5 Execution Version Exhibit A to Fourth Amendment 4885-6545-0631v.4 AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF JULY 1, 2022 AMONG CHORD ENERGY CORPORATION, AS PARENT, OASIS PETROLEUM NORTH AMERICA LLC, AS BORROWER, THE OTHER CREDIT PARTIES PARTY HERETO, XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT, ISSUING BANK AND SWINGLINE LENDER AND THE LENDERS PARTY HERETO SOLE LEAD ARRANGER AND SOLE BOOKRUNNER XXXXX FARGO SECURITIES, LLC
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LEGAL_US_W # 117975371.5 v 4885-6545-0631v.4 ANNEXES, EXHIBITS AND SCHEDULES Annex I List of Maximum Credit Amounts and Elected Revolving Commitments Exhibit A-1 Exhibit A-2 Form of Note (Revolving Loans) Form of Note (Term Loans) Exhibit B Form of Borrowing Request Exhibit C Form of Interest Election Request Exhibit D Form of Compliance Certificate Exhibit E-1 Security Instruments Exhibit E-2 Form of Guaranty and Security Agreement Exhibit F Form of Assignment and Assumption Exhibit G Form of Elected Revolving Commitment Increase Certificate Exhibit H Form of Additional Lender Certificate Exhibit I-1 Form of U.S. Tax Compliance Certificate (Foreign Lenders; Not Partnerships) Exhibit I-2 Form of U.S. Tax Compliance Certificate (Foreign Participants; Not Partnerships) Exhibit I-3 Form of U.S. Tax Compliance Certificate (Foreign Participants; Partnerships) Exhibit I-4 Form of U.S. Tax Compliance Certificate (Foreign Lenders; Partnerships) Schedule 1.02(a) Existing Letters of Credit Schedule 1.02(b) Permitted Existing Secured Swap Agreements Schedule 7.05 Litigation Schedule 7.06 Environmental Matters Schedule 7.14 Subsidiaries Schedule 7.16 Title Defects Schedule 7.18 Gas Imbalances Schedule 7.19 Marketing Contracts Schedule 7.20 Swap Agreements Schedule 8.18 Post-Closing Covenants Schedule 9.02 Debt Schedule 9.03 Liens Schedule 9.04(b) Investments
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LEGAL_US_W # 117975371.5 4885-6545-0631v.4 THIS AMENDED AND RESTATED CREDIT AGREEMENT dated as of July 1, 2022, is among: Chord Energy Corporation, a Delaware corporation (the βParentβ); Oasis Petroleum LLC, a Delaware limited liability company (βOP LLCβ), Oasis Petroleum North America LLC, a Delaware limited liability company (the βBorrowerβ); each of the Lenders from time to time party hereto; and Xxxxx Fargo Bank, National Association (in its individual capacity, βXxxxx Fargoβ) as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the βAdministrative Agentβ). R E C I T A L S WHEREAS, the Parent, OP LLC and the Borrower are each a party to that certain Credit Agreement, dated as of November 19, 2020, with the banks, financial institutions and other lending institutions from time to time party as lenders thereto and Xxxxx Fargo, as administrative agent (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the Effective Date, the βExisting Credit Agreementβ); WHEREAS, prior to the Effective Date, the Parent formed Ohm Merger Sub Inc., a Delaware corporation and a wholly-owned subsidiary of the Parent, and New Ohm LLC, a Delaware limited liability company and wholly-owned subsidiary of the Parent, for the purpose of acquiring Xxxxxxx Petroleum Corporation, a Delaware corporation (βXxxxxxxβ) and its subsidiaries and on March 7, 2022, the Parent, Ohm Merger Sub Inc., New Ohm LLC (βNew Ohmβ) and Xxxxxxx executed that certain Agreement and Plan of Merger (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the Effective Date, the βMerger Agreementβ), pursuant to which (a) Ohm Merger Sub Inc. will be merged with and into Xxxxxxx and (b) Xxxxxxx will be merged with and into New Ohm LLC and New Ohm LLC shall continue as a direct Wholly-Owned Subsidiary of the Borrower on or prior to the Effective Date (the βMergerβ, and together with the payment of cash consideration required under the Merger Agreement and fees and expenses therewith and the other transactions contemplated by the Merger Agreement, the βMerger Transactionsβ); WHEREAS, (a) in connection with the Transactions, the Parent, OP LLC and the Borrower (collectively, the βParent Groupβ) desire to amend and restate the Existing Credit Agreement in its entirety, and (b) the Borrower has requested that the Lenders provide certain loans to and extensions of credit on behalf of the Borrower through an amendment and restatement of the Existing Credit Agreement; and WHEREAS, the Lenders, the Swingline Lender and the Issuing Bank are willing to make available: (i) to the Borrower, such revolving credit and swingline facilities and (ii) to the Borrower and the other Credit Parties (as defined below), such letter of credit facilities, in each case, upon the terms and subject to the conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and of the loans, extensions of credit and commitments hereinafter referred to, the parties hereto agree as follows:
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LEGAL_US_W # 117975371.5 3 4885-6545-0631v.4 βAdministrative Questionnaireβ means an Administrative Questionnaire in a form supplied by the Administrative Agent. βAffected Financial Institutionβ means (a) any EEA Financial Institution or (b) any UK Financial Institution. βAffiliateβ means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. βAgentsβ means, collectively, the Administrative Agent and any other agent for the Lenders from time to time appointed under this Agreement. βAggregate Elected Revolving Commitment Amountsβ at any time shall equal the sum of the Elected Revolving Commitments, as the same may be increased, reduced or terminated pursuant to Section 2.06(c). As of the Fourth Amendment Effective Date, the Aggregate Elected Revolving Commitment Amounts are equal to $1,000,000,000. βAggregate Maximum Credit Amountsβ at any time shall equal the sum of the Maximum Credit Amounts. The Aggregate Maximum Credit Amounts as of the Fourth Amendment Effective Date is $3,000,000,000. βAgreementβ means this Amended and Restated Credit Agreement, including any schedules and exhibits hereto, as amended by the First Amendment, the Second Amendment, the Third Amendment and the Fourth Amendment, and as the same may from time to time be further amended, restated, amended and restated, supplemented or modified. βAlternate Base Rateβ means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus Β½ of 1% and (c) Adjusted Term SOFR for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00% (provided that clause (c) shall not be applicable during any period in which Adjusted Term SOFR is unavailable or unascertainable). Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Term SOFR shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Term SOFR, respectively. βAnti-Corruption Lawsβ means all state or federal laws, rules, and regulations applicable to each member of the Parent Group or any of its respective Subsidiaries from time to time concerning or relating to bribery or corruption, including the FCPA. βAnti-Money Laundering Lawsβ means any and all laws, statues, regulations or obligatory government orders, decrees, ordinances or rules related to terrorism financing or money laundering (including, without limitation, the USA Patriot Act, the Money Laundering Control Act of 1986, the Bank Secrecy Act, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), and the rules and regulations promulgated thereunder) of the jurisdictions in which the Borrower or any of its Subsidiaries operates or in which the proceeds of the Loans or Letters of
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LEGAL_US_W # 117975371.5 4 4885-6545-0631v.4 Credit will be used in connection with the operations of each member of the Parent Group or any of its respective Subsidiaries. βApplicable Marginβ means, for any day, with respect to: (a) any ABR Revolving Loan or SOFR Revolving Loan or any Swingline Loan, or with respect to the Commitment Fee Rate, as the case may be, the rate per annum set forth in the Total Revolving Commitments Utilization Grid below based upon the Total Revolving Commitments Utilization Percentage then in effect: Total Revolving Commitments Utilization Grid Total Revolving Commitments Utilization Percentage < 25% β₯ 25% < 50% β₯ 50% < 75% β₯ 75% < 90% β₯ 90% ABR Revolving Loans or Swingline Loans 0.750% 1.000% 1.250% 1.500% 1.750% Term SOFR Revolving Loans 1.750% 2.000% 2.250% 2.500% 2.750% Commitment Fee Rate 0.375% 0.375% 0.500% 0.500% 0.500% Each change in the Applicable Margin shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change, provided, however, that if at any time the Borrower fails to deliver a Reserve Report pursuant to Section 8.11(a), then if so elected by the Majority Lenders, until the time that the Borrower delivers such Reserve Report to the Administrative Agent, the βApplicable Marginβ means the rate per annum set forth on the grid when the Total Revolving Commitments Utilization Percentage is at its highest level (retroactive to the date on which the Borrower failed to deliver such Reserve Report); and (b) any Term Loan, the rate per annum as set forth in the applicable Term Loan Amendment. βApplicable Maturity Dateβ means, when used in reference to any Loan, the Maturity Date applicable to such Loan. βApplicable Revolving Percentageβ means, with respect to any Revolving Lender, the percentage of the Aggregate Maximum Credit Amounts represented by such Revolving Lenderβs Maximum Credit Amount as such percentage is set forth on Annex I; provided that if the Revolving Commitments have terminated or expired, each Revolving Lenderβs Applicable Revolving Percentage shall be determined based upon the Revolving Commitments most recently in effect.
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LEGAL_US_W # 117975371.5 5 4885-6545-0631v.4 βApplicable Term Loan Percentageβ means, with respect to any Term Lender, the percentage of the aggregate Term Commitments of all Term Lenders represented by such Term Lenderβs Term Commitment (or, if the Term Commitments have terminated or expired, the percentage of the Total Term Loan Exposures represented by such Term Lenderβs Term Loan Exposure at such time). βApproved Counterpartyβ shall mean any Person who, with respect to a Swap Agreement, is (a) a Secured Swap Party, or (b) any other Person whose issuer rating or long term senior unsecured debt ratings at the time of entry into such Swap Agreement is A-/A3 by S&P or Xxxxxβx (or their equivalent) or higher (or whose obligations under the applicable Swap Agreement are guaranteed by an Affiliate of such Person meeting such rating standards). βApproved Electronic Platformβ means IntraLinksTM, DebtDomain, SyndTrak, ClearPar or any other electronic platform chosen by the Administrative Agent to be its electronic transmission system. βApproved Fundβ means an Approved Revolving Fund or an Approved Term Fund, or both, as the context may require. βApproved Petroleum Engineersβ means (a) Netherland, Xxxxxx & Associates, Inc., (b) Xxxxx Xxxxx Company Petroleum Consultants, L.P., (c) XxXxxxxx and XxxXxxxxxxx, (d) Xxxxxx, Xxxxxxxxx & Associates, Inc. and (e) any other independent petroleum engineers reasonably acceptable to the Administrative Agent. βApproved Revolving Fundβ means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Revolving Lender, (b) an Affiliate of a Revolving Lender or (c) an entity or an Affiliate of an entity that administers or manages a Revolving Lender. βApproved Term Fundβ means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Term Lender, (b) an Affiliate of a Term Lender or (c) an entity or an Affiliate of an entity that administers or manages a Term Lender. βArrangerβ means Xxxxx Fargo Securities, LLC, in its capacities as the sole lead arranger and sole bookrunner hereunder. βASCβ means the Financial Accounting Standards Board Accounting Standards Codification, as in effect from time to time. βAssignment and Assumptionβ means an assignment and assumption entered into by a Xxxxxx and an assignee (with the consent of any party whose consent is required by Section 12.04(b)), and accepted by the Administrative Agent, in the form of Exhibit F or any other form approved by the Administrative Agent.
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LEGAL_US_W # 117975371.5 6 4885-6545-0631v.4 βAvailability Periodβ means the period from and including the Effective Date to but excluding the Termination Date. βAvailable Borrowing Baseβ means, at any time, the Borrowing Base then in effect minus the Total Term Loan Exposures at such time minus the aggregate principal amount of all Permitted Secured Term Debt outstanding at such time. βAvailable Tenorβ means, as of any date of determination and with respect to the then- current Benchmark, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of βInterest Periodβ pursuant to Section 3.03(c)(iv). βBail-In Actionβ means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution. βBail-In Legislationβ means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings). βBank Productsβ means any of the following bank services: (a) commercial credit cards, including merchant card services and purchase or debit cards, including non-card e-payables services, (b) stored value cards, and (c) treasury management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items, overdrafts and interstate depository network services). βBank Products Providerβ means any Revolving Lender or Affiliate of a Revolving Lender that provides Bank Products to any member of the Parent Group or any Restricted Subsidiary. βBasketβ shall mean any amount, threshold, exception or value (including any Fixed Basket and Non-Fixed Basket) permitted or prescribed with respect to any Lien, Debt, Disposition, Investment, Restricted Payment, transaction, action, judgment or amount under any provision in this Agreement or any other Loan Document. For all purposes hereunder, (x) βFixed Basketβ shall mean any Basket that is subject to a fixed-Dollar limit (including Baskets based on a percentage of EBITDAX or Consolidated Total Assets) and (y) βNon-Fixed Basketβ shall mean any Basket that is subject to compliance with a financial ratio or test (including any Basket requiring compliance with the Leverage Ratio or the Secured Leverage Ratio covenant on a Pro Forma Basis).
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LEGAL_US_W # 117975371.5 7 4885-6545-0631v.4 βBenchmarkβ means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then βBenchmarkβ means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 3.03(c)(i). βBenchmark Replacementβ means, with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date: (a) Adjusted Daily Simple SOFR; or (b) the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (ii) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents. βBenchmark Replacement Adjustmentβ means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities. βBenchmark Replacement Dateβ means the earlier to occur of the following events with respect to the then-current Benchmark: (a) in the case of clause (a) or (b) of the definition of βBenchmark Transition Event,β the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or (b) in the case of clause (c) of the definition of βBenchmark Transition Event,β the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-
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LEGAL_US_W # 117975371.5 8 4885-6545-0631v.4 representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date. For the avoidance of doubt, the βBenchmark Replacement Dateβ will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof). βBenchmark Transition Eventβ means the occurrence of one or more of the following events with respect to the then-current Benchmark: (a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); (b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or (c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative. For the avoidance of doubt, a βBenchmark Transition Eventβ will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof). βBenchmark Unavailability Periodβ means the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.03(c)(i) and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.03(c)(i).
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LEGAL_US_W # 117975371.5 9 4885-6545-0631v.4 βBeneficial Ownership Certificationβ means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation. βBeneficial Ownership Regulationβ means 31 C.F.R. Β§ 1010.230. βBHC Act Affiliateβ of a party means an βaffiliateβ (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party. βBoardβ means the Board of Governors of the Federal Reserve System of the United States of America or any successor Governmental Authority. βBorrowingβ means (a) Loans of the same Type and Class, made, converted or continued on the same date and, in the case of Term SOFR Loans, as to which a single Interest Period is in effect or (b) a Swingline Loan. βBorrowing Baseβ means at any time an amount equal to the amount determined in accordance with Section 2.07, as the same may be adjusted from time to time pursuant to Section 8.12(c) or Section 9.12(d). βBorrowing Base Deficiencyβ means, at any time, the amount by which (a) (i) the Total Revolving Credit Exposures at such time plus (ii) the Total Term Loan Exposures at such time (if any) plus (iii) the aggregate principal amount of Permitted Pari Term Loan Debt outstanding at such time (if any) exceeds (b) the Borrowing Base then in effect. βBorrowing Base Propertiesβ means the proved Oil and Gas Properties of the Credit Parties included in the Initial Reserve Reports and thereafter in the most recently delivered Reserve Report delivered hereunder. βBorrowing Base Valueβ means, with respect to any Oil and Gas Property of a Credit Party or any Swap Agreement in respect of commodities, the value the Administrative Agent attributed to such asset in connection with the most recent determination of the Borrowing Base. βBorrowing Requestβ means a request by the Borrower for a Borrowing in accordance with Section 2.03. βBusiness Dayβ means any day that (a) is not a Saturday, Sunday or other day on which the NYFRB is closed and (b) is not a day on which commercial banks in New York City or Houston, Texas are closed. βCall Spread Counterpartiesβ means one or more financial institutions selected by the Parent to sell the options contemplated by the Permitted Bond Hedge Transaction(s) and purchase the warrants contemplated by the Permitted Warrant Transaction(s). βCapital Expendituresβ means accrued capital expenditures (as determined in accordance with GAAP) of the Parent and its Consolidated Restricted Subsidiaries for any period, including exploration and production expenses and other capital expenditures.
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LEGAL_US_W # 117975371.5 10 4885-6545-0631v.4 βCapital Leasesβ means, in respect of any Person, all leases which shall have been, or should have been, in accordance with GAAP, recorded as capital leases on the balance sheet of the Person liable (whether contingent or otherwise) for the payment of rent thereunder. βCasualty Eventβ means any loss, casualty or other insured damage to, or any nationalization, taking under power of eminent domain or by condemnation or similar proceeding of, any Property of the Borrower or any of its Restricted Subsidiaries having a fair market value in excess of $15,000,000. βCFCβ means any subsidiary that is a βcontrolled foreign corporationβ within the meaning of Section 957 of the Code. βChange in Controlβ means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof) of Equity Interests representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Parent, (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Parent by Persons who were not (i) members of the board of directors of Parent as of the Effective Date, (ii) nominated (or whose nomination was approved) by the board of directors of the Parent or (iii) appointed (or whose appointment was approved) by directors so nominated (or whose nomination was so approved), (c) the Parent fails to own directly or indirectly all of the Equity Interests of the Xxxxxxxx, (d) the occurrence of a βchange of controlβ (or any other similar event) under any Material Indebtedness or (e) the occurrence of a βchange of controlβ or similar event with respect to any Permitted Junior Lien Term Loan Debt, Permitted Pari Term Loan Debt or any Permitted Refinancing Debt in respect of any of the foregoing Debt referred to in this clause (e). βChange in Lawβ means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation, implementation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender or the Issuing Bank (or, for purposes of Section 5.01(b), by any lending office of such Lender or by such Lenderβs or the Issuing Bankβs holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided, however, for the purposes of this Agreement, each of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, guidelines or directives in connection therewith or promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision or the United States or foreign regulatory authorities, in each case, pursuant to Basel III, shall be deemed to be a change in law regardless of when such law, rule or regulation goes into effect or is adopted. βClassβ (a) when used with respect to any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments, (b) when used with respect to Commitments, refers to whether such Commitments are Revolving Commitments or Term Commitments and (c) when used with respect to Loans, refers to whether such Loans are Revolving Loans, Term Loans of a given Term Loan Facility, or Extended Term Loans of a given Term Loan Extension Series. Loans that are not fungible for United States federal income tax purposes shall be construed to be in different Classes or tranches. Commitments that, if and when
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LEGAL_US_W # 117975371.5 11 4885-6545-0631v.4 drawn in the form of Loans, would yield Loans that are construed to be in different Classes or tranches pursuant to the immediately preceding sentence shall be construed to be in different Classes or tranches of Commitments corresponding to such Loans. There shall be no more than an aggregate of three Classes of Term Loan Facilities under this Agreement. βCodeβ means the Internal Revenue Code of 1986, as amended from time to time. βCollateralβ means all Property which is subject to a Lien under one or more Security Instruments. βCommitmentβ means, with respect to any Lender, such Xxxxxxβs Term Commitment or Revolving Commitment, as applicable. The total Commitment is the aggregate amount of the Commitments of all Lenders. βCommitment Fee Rateβ has the meaning set forth in the definition of βApplicable Marginβ. βCommodity Exchange Actβ means the Commodity Exchange Act (7 U.S.C. Β§ 1 et seq.), as amended from time to time, and any successor statute. βConforming Changesβ means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of βAlternate Base Rate,β the definition of βBusiness Day,β the definition of βU.S. Government Securities Business Day,β the definition of βInterest Periodβ or any similar or analogous definition (or the addition of a concept of βinterest periodβ), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 5.02 and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents). βConsolidated Net Incomeβ means with respect to the Parent and the Consolidated Restricted Subsidiaries, for any period, the aggregate of the net income (or loss) of the Parent and the Consolidated Restricted Subsidiaries, without duplication, after allowances for taxes for such period determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded from such net income (to the extent otherwise included therein) the following: (a) the net income of any Person in which the Parent or any Consolidated Restricted Subsidiaries has an interest (which interest does not cause the net income of such other Person to be consolidated with the net income of the Parent and the Consolidated Restricted Subsidiaries in accordance with GAAP), except to the extent of the amount of dividends or distributions actually paid in cash during such period by such Person to the Parent or any Consolidated Restricted Subsidiary; (b) the
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LEGAL_US_W # 117975371.5 12 4885-6545-0631v.4 net income (but not loss) during such period of any Consolidated Restricted Subsidiaries to the extent that the declaration or payment of dividends or similar distributions or transfers or loans by that Consolidated Restricted Subsidiaries is not at the time permitted by operation of the terms of its charter or any agreement, instrument or Governmental Requirement applicable to such Consolidated Restricted Subsidiary or is otherwise restricted or prohibited, in each case determined in accordance with GAAP; (c) the net income (or loss) of any Person acquired in a pooling-of- interests transaction for any period prior to the date of such transaction; (d) any extraordinary non- cash gains or losses during such period and (e) any gains or losses attributable to writeups or writedowns of assets, including ceiling test writedowns. βConsolidated Restricted Subsidiariesβ means any Restricted Subsidiaries that are Consolidated Subsidiaries. βConsolidated Subsidiariesβ means each Subsidiary of the Parent (whether now existing or hereafter created or acquired), the financial statements of which shall be (or should have been) consolidated with the financial statements of the Parent in accordance with GAAP. βConsolidated Total Assetsβ shall mean the total assets of the Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP, as shown on the most recent consolidated balance sheet of the Borrower. βConsolidated Unrestricted Subsidiariesβ means any Unrestricted Subsidiaries that are Consolidated Subsidiaries. βControlβ means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. βControllingβ and βControlledβ have meanings correlative thereto. βControl Agreementβ has the meaning assigned to such term in the Guaranty and Security Agreement. βConvertible Notesβ means any unsecured senior or unsecured senior subordinated Debt securities (whether registered or privately placed) convertible into Equity Interests of the Parent (other than Disqualified Capital Stock) incurred pursuant to a Convertible Notes Indenture. βConvertible Notes Indentureβ means any indenture among the Parent, as issuer, the subsidiary guarantors party thereto and the trustee named therein, pursuant to which the Convertibles Notes are issued, as the same may be amended or supplemented in accordance with Section 9.04(b). βCovered Entityβ means any of the following: (i) a βcovered entityβ as that term is defined in, and interpreted in accordance with, 12 C.F.R. Β§ 252.82(b); (ii) a βcovered bankβ as that term is defined in, and interpreted in accordance with, 12 C.F.R.Β§ 47.3(b); or
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LEGAL_US_W # 117975371.5 13 4885-6545-0631v.4 (iii) a βcovered FSIβ as that term is defined in, and interpreted in accordance with, 12 C.F.R.Β§ 382.2(b). βCovered Partyβ has the meaning assigned to it in Section 12.19. βCredit Partiesβ means, collectively, the Borrower and each Guarantor, and βCredit Partyβ means any one of the foregoing. βCrestwood Common Unitsβ means common units representing limited partner interests in Crestwood Equity Partners LP, a Delaware limited partnership. βCrestwood Mergerβ means the transactions described in that certain Agreement and Plan of Merger, dated as of October 25, 2021, by and among Crestwood Equity Partners LP, a Delaware limited partnership, Project Falcon Merger Sub LLC, a Delaware limited liability company, Project Phantom Merger Sub LLC, a Delaware limited liability company, Oasis Midstream Partners LP, a Delaware limited partnership, OMP GP LLC, a Delaware limited liability company, and Crestwood Equity GP LLC, a Delaware limited liability company. βCurrent Assetsβ has the meaning assigned to such term in Section 9.01(a). βCurrent Liabilitiesβ has the meaning assigned to such term in Section 9.01(a). βCurrent Productionβ means the lesser of (a) the prior monthβs production of each of crude oil and natural gas, calculated separately, of the Borrower and its Restricted Subsidiaries and (b) the forecasted production, as reasonably determined by the Borrower, of each of crude oil and natural gas, calculated separately, of the Borrower and its Restricted Subsidiaries for each month for the period ending no sooner than the latest month for which volumes are hedged under Swap Agreements. βCurrent Ratioβ has the meaning assigned to such term in Section 9.01(a). βDaily Simple SOFR Loanβ means any Loan bearing interest at a rate based on Adjusted Daily Simple SOFR. βDebtβ means, for any Person, the sum of the following (without duplication): (a) all obligations of such Person for borrowed money or evidenced by bonds, bankersβ acceptances, debentures, notes or other similar instruments; (b) all obligations of such Person (whether contingent or otherwise) in respect of letters of credit, surety or other bonds and similar instruments; (c) all accounts payable and all accrued expenses, liabilities or other obligations of such Person to pay the deferred purchase price of Property or services, other than any such obligations that (i) are not greater than sixty (60) days past the date of invoice or delinquent or (ii) are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP; (d) all obligations under Capital Leases; (e) all obligations under Synthetic Leases; (f) all Debt (as defined in the other clauses of this definition) of others secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) a Lien on any Property of such Person, whether or not such Debt is assumed by such Person; (g) all Debt (as defined in the other clauses of this definition) of others guaranteed
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LEGAL_US_W # 117975371.5 14 4885-6545-0631v.4 by such Person or in which such Person otherwise assures a creditor against loss of the Debt (howsoever such assurance shall be made) to the extent of the lesser of the amount of such Debt and the maximum stated amount of such guarantee or assurance against loss; (h) all obligations or undertakings of such Person to maintain or cause to be maintained the financial position or covenants of others to purchase the Debt or Property of others; (i) obligations to deliver commodities, goods or services, including, without limitation, Hydrocarbons, in consideration of one or more advance payments, other than gas balancing arrangements in the ordinary course of business; (j) obligations to pay for goods or services even if such goods or services are not actually received or utilized by such Person (other than firm transportation or storage, or drilling contracts); (k) any Debt of a partnership for which such Person is liable either by agreement, by operation of law or by a Governmental Requirement but only to the extent of such liability; (l) Disqualified Capital Stock; and (m) the undischarged balance of any production payment created by such Person or for the creation of which such Person directly or indirectly received payment. The Debt of any Person shall include all obligations of such Person of the character described above to the extent such Person remains legally liable in respect thereof notwithstanding that any such obligation is not included as a liability of such Person under GAAP. βDebt Transactionsβ means, with respect to (a) the Borrower, the execution, delivery and performance by the Borrower of this Agreement and each other Loan Document to which it is a party, the borrowing of Loans, the use of the proceeds thereof and/or the issuance of Letters of Credit, and the grant or reaffirmation of Liens by the Borrower on Mortgaged Properties and other Properties pursuant to the Security Instruments and (b) each Guarantor, the execution, delivery and performance by such Guarantor of each Loan Document to which it is a party, the guaranteeing (or reaffirmation of existing guaranties) of the Indebtedness and the other obligations under the Guaranty and Security Agreement by such Guarantor, and the grant or reaffirmation of Liens by such Guarantor on Mortgaged Properties and other Properties pursuant to the Security Instruments. βDefaultβ means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default. βDefault Rightβ has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. βDefaulting Lenderβ means any Lender that (a) has failed to (i) within three (3) Business Days of the date required to be funded or paid, to fund any portion of its Loans, unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Xxxxxxβs determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied or (ii) within three (3) Business Days of the date required to be funded or paid, to fund any portion of its Loans, fund any portion of its participations in Letters of Credit or Swingline Loans or pay over to any Credit Party any other amount required to be paid by it hereunder; (b) has notified the Borrower or any other Credit Party in writing, or has made a public statement, to the effect that it does not intend or expect to comply with any of its funding obligations under this Agreement or generally under other agreements in which it commits to extend credit (unless such writing or public statement relates to such Xxxxxxβs obligation to fund a Loan hereunder and states that such position is based on such Xxxxxxβs determination that a condition precedent to funding (which condition precedent, together with any applicable default,
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LEGAL_US_W # 117975371.5 15 4885-6545-0631v.4 shall be specifically identified in such writing or public statement) cannot be satisfied); (c) has failed, within three (3) Business Days after request by the Administrative Agent, a Swingline Lender or a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans under this Agreement; provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Partyβs receipt of such certification in form and substance satisfactory to it and the Administrative Agent; or (d) has (or whose bank holding company has) been placed into receivership, conservatorship or bankruptcy or has become subject to a Bail-In Action; provided that (x) a Lender shall not become a Defaulting Lender solely as a result of the acquisition or maintenance of an ownership interest in such Lender or Person controlling such Lender or the exercise of control over a Lender or Person controlling such Lender by a Governmental Authority or an instrumentality thereof, (y) the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator with respect to a Lender or Person under the Dutch Financial Supervision Act 2007 (as amended from time to time and including any successor legislation) shall not be deemed an event described in clause (d) hereof, so long as, in the case of each of clauses (x) and (y), such ownership interest or such appointment, as applicable, does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such governmental authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender, and (z) no Term Lender shall be a Defaulting Lender solely as a result of the circumstances referred to in clause (d) of this definition at any time that it has any outstanding Term Loans. βDispositionβ means with respect to any Property, any sale, lease, sale and leaseback transaction, assignment, farmout, exchange, conveyance, transfer or other disposition (including by way of a merger or consolidation) of such Property or any interest therein. The terms βDisposeβ and βDisposed ofβ shall have correlative meanings. βDisqualified Capital Stockβ means any Equity Interest that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event, matures or is mandatorily redeemable for any consideration other than other Equity Interests (which would not constitute Disqualified Capital Stock), pursuant to a sinking fund obligation or otherwise, or is convertible or exchangeable for Debt or redeemable for any consideration other than other Equity Interests (which would not constitute Disqualified Capital Stock) at the option of the holder thereof, in whole or in part, on or prior to the date that is one year after the earlier of (a) the Latest Maturity Date and (b) the date on which Payment in Full has occurred. βdollarsβ or β$β refers to lawful money of the United States of America. βDomestic Subsidiaryβ means any Restricted Subsidiary that is organized under the laws of the United States of America or any state thereof or the District of Columbia. βEBITDAXβ means, for any period, the sum of Consolidated Net Income for such period, plus the following expenses or charges to the extent deducted from Consolidated Net Income in
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LEGAL_US_W # 117975371.5 16 4885-6545-0631v.4 such period: (i) interest, (ii) income taxes, (iii) depreciation, depletion, amortization or exploration expenses and other similar non-cash charges, (iv) any fees, expenses and other transaction costs (whether or not such transactions were consummated) in connection with the Transactions which are incurred through December 31, 2022, (v) without duplication of any amounts added back pursuant to clause (iv), transaction costs and other fees and expenses of third party advisors (including without limitation legal counsel, investment bankers, accountants, consultants, engineers and similar professionals) incurred during such period or any amortization thereof for such period, in connection with any acquisition, investment, asset disposition, issuance or repayment of Debt, issuance of equity securities, refinancing transaction or amendment or other modification of any debt instrument (in each case, including any such transaction undertaken but not completed), (vi) any costs, charges or expenses relating to severance, cost savings (including reductions in general and administrative expenses), operating expense reductions, facilities closing, consolidations and integration costs, and other restructuring charges or reserves; provided that the amount that may be added back pursuant to this clause (vi) for any Fiscal Quarter (any Fiscal Quarter for which the maximum addback pursuant to this proviso is being calculated, a βSubject Fiscal Quarterβ) shall not exceed (1) the greater of (X) $100,000,000 and (Y) 10.0% of EBITDAX for the period of four consecutive fiscal quarters ending on the last day of such Subject Fiscal Quarter (calculated in accordance with this definition but prior to giving effect to any addback pursuant to this clause (vi)) minus (2) the aggregate of all amounts added back pursuant to this clause (vi) during such period of four fiscal quarters ending on the last day of such Subject Fiscal Quarter; provided further that, for the avoidance of doubt, (I) any addback to EBITDAX for any fiscal quarter made pursuant to this clause (vi) in reliance on the limitation set forth in clause (1)(Y) above may be included in the calculation of EBITDAX for any subsequent period of four consecutive fiscal quarters that includes such fiscal quarter, notwithstanding any decline in the amount set forth in clause (1)(Y) for such subsequent period and (II) correspondingly, any such decline in the amount set forth in clause (1)(Y) for any subsequent period shall not result in any amounts previously added back pursuant to this clause (vi) in reliance on the limitation set forth in clause (1)(Y) above ceasing to be permitted to be added back pursuant to this clause (vi), (vii) any net losses from the Liquidation of any Swap Agreement and (viii) any losses on asset dispositions or abandonments (other than the sale of Hydrocarbons in the ordinary course of business), minus the following to the extent included in Consolidated Net Income in such period, (a) all non-cash income added to Consolidated Net Income and (b) any net gains from the Liquidation of any Swap Agreement and (c) any gains on asset dispositions or abandonments (other than the sale of Hydrocarbons in the ordinary course of business). For the purposes of calculating EBITDAX for any Test Period for any determination of the Leverage Ratio or the Secured Leverage Ratio, if at any time during such Test Period the Borrower or any Consolidated Restricted Subsidiary shall have made any Material Disposition or Material Acquisition, the EBITDAX for such Test Period shall be calculated after giving pro forma effect thereto as if such Material Disposition or Material Acquisition had occurred on the first day of such Test Period; provided that such pro forma adjustments shall be acceptable to Administrative Agent and the Borrower. βEEA Financial Institutionβ means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member
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LEGAL_US_W # 117975371.5 17 4885-6545-0631v.4 Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent. βEEA Member Countryβ means any of the member states of the European Union, Iceland, Liechtenstein, and Norway. βEEA Resolution Authorityβ means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution. βEffective Dateβ means the date on which the conditions specified in Section 6.01 are satisfied (or waived in accordance with Section 12.02). βElected Revolving Commitmentβ means, as to each Revolving Lender, the amount set forth opposite such Revolving Lenderβs name on Annex I under the caption βElected Revolving Commitmentβ, as the same may be increased, reduced or terminated from time to time in connection with an optional increase, reduction or termination of the Aggregate Elected Revolving Commitment Amounts pursuant to Section 2.06(c). βElected Revolving Commitment Increase Certificateβ has the meaning assigned to such term in Section 2.06(c)(ii)(F). βElection Noticeβ has the meaning assigned to such term in Section 3.04(c)(ii). βElectronic Recordβ has the meaning assigned to that term in, and shall be interpreted in accordance with, 15 U.S.C. 7006. βElectronic Signatureβ has the meaning assigned to that term in, and shall be interpreted in accordance with, 15 U.S.C. 7006. βEngineering Reportsβ has the meaning assigned such term in Section 2.07(c)(i). βEnvironmental Lawsβ means any and all Governmental Requirements pertaining in any way to occupational health and worker safety (to the extent relating to exposure to Hazardous Materials), the protection of the environment, the preservation or reclamation of natural resources, or the management, Release or threatened Release of any Hazardous Materials, in effect in any and all jurisdictions in which the Parent, the Borrower or any Subsidiary is conducting or at any time has conducted business, or where any Property of the Borrower or any Subsidiary is located, including without limitation, the Oil Pollution Act of 1990, as amended, the Clean Air Act, as amended, the Comprehensive Environmental, Response, Compensation, and Liability Act of 1980 (βCERCLAβ), as amended, the Federal Water Pollution Control Act, as amended, the Occupational Safety and Health Act of 1970, as amended (to the extent relating to exposure to Hazardous Materials), the Resource Conservation and Recovery Act of 1976 (βRCRAβ), as amended, the Safe Drinking Water Act, as amended, the Toxic Substances Control Act, as amended, the Superfund Amendments and Reauthorization Act of 1986, as amended, the Hazardous Materials Transportation Act, as amended, and other analogous state or local environmental conservation or protection Governmental Requirements.
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LEGAL_US_W # 117975371.5 18 4885-6545-0631v.4 βEnvironmental Permitβ means any permit, registration, license, approval, consent, exemption, variance, or other authorization required under or issued pursuant to applicable Environmental Laws. βEquity Interestsβ 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. βERISAβ means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute. βERISA Affiliateβ means each trade or business (whether or not incorporated) which together with the Borrower or a Subsidiary would be deemed to be a βsingle employerβ within the meaning of section 4001(b)(1) of ERISA or subsections (b) or (c) of section 414 of the Code, or solely with respect to Section 412 of the Code or Section 302 of ERISA, subsections (m) or (o) of section 414 of the Code. βERISA Eventβ means: (a) any βreportable event,β as defined in section 4043(c) of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30- day notice period is waived); (b) the failure of a Plan to meet the minimum funding standards under section 412 of the Code or section 302 of ERISA (determined without regard to any waiver of the funding provisions therein or in section 430 of the Code or section 303 of ERISA); (c) the filing pursuant to section 412 of the Code or section 303 of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the failure of a Plan to satisfy the requirements of section 401(a)(29) of the Code, section 436 of the Code or section 206(g) of ERISA; (e) the incurrence by the Borrower, a Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan (including any liability in connection with the filing of a notice of intent to terminate a Plan or the treatment of a Plan amendment as a termination under section 4041 of ERISA); (f) the receipt by the Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan or the occurrence of any other event or condition which might constitute grounds under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (g) the incurrence by the Borrower, a Subsidiary or any ERISA Affiliate of any liability under section 4062(e) of ERISA or with respect to the withdrawal or partial withdrawal from any Plan (including as a βsubstantial employer,β as defined in section 4001(a)(2) of ERISA) or Multiemployer Plan (including the incurrence by the Borrower, a Subsidiary or any ERISA Affiliate of any Withdrawal Liability); (h) the occurrence of an act or omission which could give rise to the imposition on the Borrower, a Subsidiary or any ERISA Affiliate of fines, penalties, taxes or related charges or liabilities under Chapter 43 of the Code or under section 409, section 502, or section 4071 of ERISA in respect of any employee benefit plan (within the meaning of section 3(3) of ERISA); or (i) the receipt by the Borrower, a Subsidiary or any ERISA Affiliate of any notice concerning the imposition of a Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, in endangered or critical status, within the meaning of section 305 of ERISA, or insolvent, within the meaning of Title IV of ERISA.
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LEGAL_US_W # 117975371.5 19 4885-6545-0631v.4 βErroneous Paymentβ has the meaning assigned thereto in Section 11.12(a). βEU Bail-In Legislation Scheduleβ means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time. βEvent of Defaultβ has the meaning assigned such term in Section 10.01. βExcepted Liensβ means: (a) Liens for Taxes, assessments or other governmental charges or levies which are not delinquent or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP; (b) Liens arising by operation of law in connection with workersβ compensation, unemployment insurance or other social security, old age pension or public liability obligations which are not delinquent for more than 30 days or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP; (c) statutory landlordβs liens, operatorsβ, vendorsβ, carriersβ, warehousemenβs, repairmenβs, mechanicsβ, suppliersβ, workersβ, materialmenβs, construction or other like Liens arising by operation of law in the ordinary course of business or incident to the exploration, development, operation and maintenance of Oil and Gas Properties each of which is in respect of obligations that are not delinquent for more than 30 days or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP; (d) contractual Liens which arise in the ordinary course of business under operating agreements, joint venture agreements, oil and gas partnership agreements, oil and gas leases, farm-out agreements, division orders, contracts for the sale, transportation or exchange of oil and natural gas, unitization and pooling declarations and agreements, area of mutual interest agreements, overriding royalty agreements, marketing agreements, processing agreements, net profits agreements, development agreements, gas balancing or deferred production agreements, injection, repressuring and recycling agreements, salt water or other disposal agreements, seismic or other geophysical permits or agreements, and other agreements which are usual and customary in the oil and gas business and are for claims which are not delinquent for more than 30 days or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP, provided that any such Lien referred to in this clause does not materially impair the use of any material Property covered by such Lien for the purposes for which such Property is held by the Borrower or any Restricted Subsidiary or materially impair the value of such Property subject thereto; (e) Liens arising solely by virtue of any statutory or common law provision relating to bankerβs liens, rights of set-off or similar rights and remedies or customary deposit account terms and burdening only deposit accounts or other funds maintained with a creditor depository institution, provided that no such deposit account is a dedicated cash collateral account or is subject to restrictions against access by the depositor in excess of those set forth by regulations promulgated by the Board and no such deposit account is intended by Parent or any of its Restricted Subsidiaries to provide collateral to the depository institution; (f) easements, restrictions, servitudes, permits, conditions, covenants, exceptions or reservations in any Property of the Parent or any Restricted Subsidiary for the purpose of roads, pipelines, transmission lines, transportation lines, distribution lines for the removal of gas, oil, coal or other minerals or timber, and other like purposes, or for the joint or common use of real estate, rights of way, facilities and equipment, that do not secure any monetary obligations and which in the aggregate do not materially impair the use of any material Property for the purposes of which such Property is held by the Parent or any Restricted Subsidiary or materially impair the value of any material Property subject thereto; (g)
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LEGAL_US_W # 117975371.5 20 4885-6545-0631v.4 leases, licenses, subleases or sublicenses granted to others not interfering in any material respect with the business of the Parent or any Restricted Subsidiary, taken as a whole; (h) Liens arising from precautionary UCC financing statement or similar filings; (i) Liens on cash or securities pledged to secure (or to secure the bonds, letters of credit or similar instruments securing) performance of tenders, surety, stay, customs and appeal bonds, government contracts, performance and return of money bonds, bids, trade contracts, leases, statutory obligations, plugging and abandonment or decommissioning obligations, regulatory obligations and other obligations of a like nature, including those incurred to secure health, safety and environmental obligations, incurred in the ordinary course of business and (j) judgment and attachment Liens not giving rise to an Event of Default; provided that any appropriate legal proceedings which may have been duly initiated for the review of any such judgment that, individually or in the aggregate, exceeds the materiality threshold applicable thereto set forth in Section 10.01(k), shall not have been finally terminated or the period within which such proceeding may be initiated shall not have expired and no action to enforce such Lien has been commenced; provided, further that (i) Liens described in clauses (a) through (d) shall remain βExcepted Liensβ only for so long as no action to enforce such Xxxx has been commenced that has not been stayed or dismissed and no intention to subordinate the first priority Xxxx granted in favor of the Administrative Agent and the Lenders is to be hereby implied or expressed by the permitted existence of such Excepted Liens and (ii) the term βExcepted Liensβ shall not include any Lien securing Debt for borrowed money other than the Indebtedness. βExcess Cashβ means as of any date, the cash or cash equivalents of the Borrower or any other Credit Party in excess of $150,000,000 in the aggregate (other than, without duplication, (i) cash collateral with respect to Letters of Credit, (ii) any cash set aside and to be used to pay royalty or other production revenue obligations of the Credit Parties for amounts which have accrued to unaffiliated third parties, (iii) any cash set aside to and to be used to pay in the ordinary course of business amounts (other than royalty or other production revenue obligations) of the Credit Parties then due and owing to unaffiliated third parties and for which the Credit Parties have issued checks or have initiated wires or ACH transfers (or will issue checks or initiate wires or ACH transfers within five (5) Business Days) in order to make such payments, (iv) any cash set aside and used solely for payroll or employee benefits or for the payment of taxes of the Credit Parties, (v) any cash of the Credit Parties constituting purchase price deposits set aside and held in escrow by an unaffiliated third party pursuant to a binding and enforceable purchase and sale agreement with an unaffiliated third party containing customary provisions regarding the payment and refunding of such deposits, (vi) any cash set aside to pay the purchase price for any acquisition of any Property not prohibited by this Agreement by the Borrower or any direct or indirect Restricted Subsidiary pursuant to a binding and enforceable purchase and sale, merger or similar agreement with an unaffiliated third party, to be used within thirty (30) days after such time so long as such cash is held in a deposit account subject to a Control Agreement in favor of the Administrative Agent). βExcluded Lenderβ means, any Person that is an Industry Competitor, a Credit Party, any Credit Partyβs Affiliate or Subsidiary, a Defaulting Lender or a natural person (including a holding company, investment vehicle or trust for, owned and operated for the primary benefit of, a natural person). βExcluded Subsidiaryβ means (a) any Foreign Subsidiary, (b) any CFC, (c) any FSHCO, (d) any Subsidiary that is a direct or indirect subsidiary of any CFC or FSHCO, (e) any Unrestricted
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LEGAL_US_W # 117975371.5 21 4885-6545-0631v.4 Subsidiary, (f) any Restricted Subsidiary that is not a Material Subsidiary and (g) so long as such Subsidiary does not own any Borrowing Base Property, any Subsidiary that is prohibited by (i) any applicable contractual obligation existing on the Effective Date (other than customary non- assignment provisions that are ineffective under the Uniform Commercial Code or other applicable law or any term, covenant, condition or provision that could be waived by the Parent or its Affiliates and only to the extent such contractual obligation was not entered into in contemplation of such Subsidiary becoming a Subsidiary or a Restricted Subsidiary) or (ii) any Governmental Requirement, in each case, from guaranteeing or granting Liens to secure the Indebtedness at the time such Subsidiary becomes a Restricted Subsidiary (and for so long as such restriction or any replacement or renewal thereof is in effect) or such guarantee or grant of Liens to secure the Indebtedness at the time such Subsidiary becomes a Restricted Subsidiary would require a consent, approval, license or authorization of a Governmental Authority (unless such consent, approval, license or authorization has been received and only for so long as such restriction is outstanding). βExcluded Swap Obligationβ means, with respect to any Credit Party individually determined on a Credit Party by Credit Party basis, any Indebtedness in respect of any Swap Agreement if, and solely to the extent that, all or a portion of the guarantee of such Person of, or the grant by such Person of a security interest to secure, such Indebtedness in respect of any Swap Agreement (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) by virtue of such Personβs failure for any reason to constitute an βeligible contract participantβ as defined in the Commodity Exchange Act at the time such guarantee or grant of a security interest becomes effective with respect to such related Indebtedness in respect of any Swap Agreement. If any Indebtedness in respect of any Swap Agreement arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Indebtedness in respect of any Swap Agreement that is attributable to swaps for which such guarantee or security interest is or becomes illegal. βExcluded Taxesβ means, with respect to the Administrative Agent, any Lender, the Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of the Borrower or any Guarantor hereunder or under any other Loan Document, (a) Taxes imposed on (or measured by) its net income (however denominated), franchise Taxes, and branch profits Taxes (i) imposed as a result of such recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, any U.S. federal withholding tax that is imposed on amounts payable to such Lender at the time such Lender becomes a party to this Agreement or designates a new lending office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts with respect to such withholding tax pursuant to Section 5.03(a) or Section 5.03(c), (c) any withholding tax that is attributable to the Administrative Agentβs or any Lenderβs failure to comply with Section 5.03(f), and (d) any withholding taxes imposed by FATCA. βExcluded Term Loan Exposuresβ shall mean the Term Loan Exposures of Term Lenders holding Term Loans with respect to which the terms of the Term Loan Amendments for such Term Loans specifically state that such Term Loans and the Term Loan Exposure attributable to such Term Loans shall not be included for purposes of determining the βMajority Lendersβ or the
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LEGAL_US_W # 117975371.5 23 4885-6545-0631v.4 βFATCAβ means Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of the foregoing. βFCPAβ means the Foreign Corrupt Practices Act of 1977, as amended. βFederal Funds Effective Rateβ means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published by the NYFRB on the Business Day next succeeding such day, provided that if such rate is not so published for any day which is a Business Day, the Federal Funds Effective Rate for such day shall be the average of the quotation for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by the Administrative Agent. Notwithstanding the foregoing, if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. βFERCβ means the Federal Energy Regulatory Commission or any of its successors. βFinance Coβ means a Restricted Subsidiary that is a Guarantor formed by the Parent for the purpose of being a co-issuer of Senior Notes or any Permitted Secured Term Debt issued by the Parent or the Borrower. βFinancial Officerβ means, for any Person, any vice president, the chief financial officer, principal accounting officer, treasurer or controller of such Person. Unless otherwise specified, all references herein to a Financial Officer means a Financial Officer of the Borrower. βFinancial Statementsβ means the financial statement or statements of the Parent and its Consolidated Subsidiaries referred to in Section 7.04(a). βFirst Amendmentβ means that certain First Amendment to Amended and Restated Credit Agreement, dated as of August 8, 2022 among the Parent, the Borrower, the other Guarantors, the Administrative Agent, the Issuing Bank and the Lenders party thereto. βFlood Insurance Regulationsβ means (a) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (b) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto, (c) the National Flood Insurance Reform Act of 1994 (amending 42 USC Β§ 4001, et seq.), as the same may be amended or recodified from time to time, and (d) the Flood Insurance Reform Act of 2004 and any regulations promulgated thereunder. βFloorβ means a rate of interest equal to 0.00%. βForeign Lenderβ means any Lender that is not a U.S. Person.
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LEGAL_US_W # 117975371.5 24 4885-6545-0631v.4 βFourth Amendment Effective Dateβ has the meaning assigned to such term in the Fourth Amendment. βFourth Amendmentβ means that certain Fourth Amendment to Amended and Restated Credit Agreement, dated as of October 31, 2023, among the Parent, the Borrower, the other Guarantors, the Administrative Agent, the Issuing Bank and the Lenders party thereto. βForeign Subsidiaryβ means any Restricted Subsidiary that is not a Domestic Subsidiary. βFSHCOβ means any domestic subsidiary, substantially all the assets of which consist of equity interests, or debt and equity interests, in CFCs. βGAAPβ means generally accepted accounting principles in the United States of America as in effect from time to time subject to the terms and conditions set forth in Section 1.05. βGovernmental Authorityβ means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government over the Parent, the Borrower, any Subsidiary, any of their Properties, any Agent, the Issuing Bank or any Lender. βGovernmental Requirementβ means any law, statute, code, ordinance, order, determination, rule, regulation, judgment, decree, injunction, franchise, permit, certificate, license, rule of common law, authorization or other directive or requirement, whether now or hereinafter in effect, including, without limitation, Environmental Laws, energy regulations and occupational, safety and health standards or controls, of any Governmental Authority. βGuarantorsβ means: (a) the Parent; (b) OP LLC; (c) Oasis Petroleum Marketing LLC, a Delaware limited liability company; (d) Oasis Well Services LLC, a Delaware limited liability company; (e) OMS Holdings LLC, a Delaware limited liability company; (f) Oasis Petroleum Permian LLC, a Delaware limited liability company; (g) Oasis Investment Holdings LLC, a Delaware limited liability company; (h) New Ohm; (i) Xxxxxxx Opco; and
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LEGAL_US_W # 117975371.5 25 4885-6545-0631v.4 (k) each other Person that guarantees the Indebtedness pursuant to Section 8.13(b). βGuaranty and Security Agreementβ means the Amended and Restated Guaranty and Security Agreement executed by the Credit Parties in substantially the form of Exhibit E-2 pursuant to which the Credit Parties (a) unconditionally guaranty on a joint and several basis, payment of the Indebtedness, and (b) grant Liens and a security interest on the Credit Partiesβ personal property constituting βcollateralβ as defined therein in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Indebtedness, as the same may be amended, modified or supplemented from time to time. βHazardous Materialβ means any substance regulated or as to which liability might arise under any applicable Environmental Law due to its hazardous, toxic, dangerous or deleterious properties or characteristics including, without limitation: (a) any chemical, compound, material, product, byproduct, substance or waste defined as or included in the definition or meaning of βhazardous substance,β βhazardous material,β βhazardous waste,β βsolid waste,β βtoxic waste,β βextremely hazardous substance,β βtoxic substance,β βcontaminant,β βpollutant,β or words of similar meaning or import found in any applicable Environmental Law; (b) Hydrocarbons, petroleum products, petroleum substances, natural gas, oil, oil and gas waste, crude oil, and any components, fractions, or derivatives thereof; and (c) radioactive materials, explosives, asbestos or asbestos containing materials, polychlorinated biphenyls, radon, infectious or medical wastes. βHighest Lawful Rateβ means, with respect to each Lender, the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the Loans or on other Indebtedness under laws applicable to such Lender 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 nonusurious interest rate than applicable laws allow as of the date hereof. βHydrocarbon Interestsβ means all rights, titles, interests and estates now or hereafter acquired in and to oil and gas leases, oil, gas and mineral leases, or other liquid or gaseous hydrocarbon leases, mineral fee interests, overriding royalty and royalty interests, net profit interests and production payment interests, including any reserved or residual interests therein or thereto, of whatever nature. βHydrocarbonsβ means oil, gas, casinghead gas, drip gasoline, natural gasoline, condensate, distillate, liquid hydrocarbons, gaseous hydrocarbons and all products refined or separated therefrom. βIncreasing Revolving Lenderβ has the meaning set forth in Section 2.06(c)(i). βIllegality Noticeβ has the meaning set forth in Section 3.03(b). βIndebtednessβ means, without duplication, any and all amounts and obligations of every nature owing or to be owing by any member of the Parent Group, any Subsidiary or any Guarantor (whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising): (a) to the Administrative Agent, the Issuing Bank or any Lender under any Loan Document; (b) to any Secured Swap Party under any Secured
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LEGAL_US_W # 117975371.5 27 4885-6545-0631v.4 βIntercreditor Agreementβ means any Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement, as applicable. βInterest Election Requestβ means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.04. βInterest Payment Dateβ means (a) with respect to any ABR Loan or any Daily Simple SOFR Loan, the last day of each March, June, September and December, (b) with respect to any Term SOFR Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Term SOFR Loan with an Interest Period of more than three monthsβ duration, each day prior to the last day of such Interest Period that occurs at intervals of three monthsβ duration after the first (1st) day of such Interest Period and (c) with respect to a Swingline Loan, the day that such Loan is required to be repaid pursuant to Section 2.09. βInterest Periodβ means with respect to any Term SOFR Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one week, one month, three months or six months (or, with the consent of each Lender, twelve months) thereafter, as the Borrower may elect; provided, that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (b) any Interest Period (other than a one week Interest Period) pertaining to a Term SOFR Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period and (c) no tenor that has been removed from this definition pursuant to Section 3.03(c)(iv) shall be available for specification in any Borrowing Request or Interest Election Request. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing. βInterim Redeterminationβ has the meaning assigned such term in Section 2.07(b). βInterim Redetermination Dateβ means the date on which a Borrowing Base that has been redetermined pursuant to an Interim Redetermination becomes effective as provided in Section 2.07(d). βInvestmentβ means, for any Person: (a) the acquisition (whether for cash, Property, services or securities or otherwise) of Equity Interests of any other Person; (b) the making of any deposit with, or advance, loan or capital contribution to, the assumption of Debt of, the purchase or other acquisition of any other Debt of or equity participation or interest in, or other extension of credit to, any other Person (including the purchase of Property from another Person subject to an understanding or agreement, contingent or otherwise, to resell such Property to such Person, but excluding any such advance, loan or extension of credit having a term not exceeding ninety (90) days representing the purchase price of inventory, material, equipment or supplies sold by such Person in the ordinary course of business); (c) the purchase or acquisition (in one or a series of transactions) of Property of another Person that constitutes a business unit or (d) the entering into of any guarantee of, or other contingent obligation (including the deposit of any Equity
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LEGAL_US_W # 117975371.5 29 4885-6545-0631v.4 βLienβ means any interest in Property securing an obligation owed to, or a claim by, a Person other than the owner of the Property, whether such interest is based on the common law, statute or contract, and whether such obligation or claim is fixed or contingent, and including but not limited to (a) the lien or security interest arising from a mortgage, encumbrance, pledge, security agreement, conditional sale or trust receipt or a lease, consignment or bailment for security purposes or (b) production payments and the like payable out of Oil and Gas Properties. The term βLienβ shall include easements, restrictions, servitudes, permits, conditions, covenants, exceptions or reservations. For the purposes of this Agreement, each member of the Parent Group and the Subsidiaries shall be deemed to be the owner of any Property which it has acquired or holds subject to a conditional sale agreement, or leases under a financing lease or other arrangement pursuant to which title to the Property has been retained by or vested in some other Person in a transaction intended to create a financing. βLimited Condition Transactionβ means (a) any acquisition or Investment or similar transaction (whether by merger, amalgamation, consolidation or other business combination or the acquisition of capital stock or otherwise) whose consummation is not conditioned on the availability of, or on obtaining, third party financing, (b) any Redemption of Debt or Disqualified Capital Stock or preferred equity interests, in each case, requiring irrevocable notice in advance of such Redemption, (c) any Restricted Payment requiring irrevocable notice in advance thereof and/or (d) any Disposition. βLiquidateβ means, with respect to any Swap Agreement, the sale, assignment, novation, unwind or termination of all or any part of such Swap Agreement; provided that for purposes of this definition, a Swap Agreement shall not be deemed to have been Liquidated if, (a) such Swap Agreement is novated from the existing counterparty to an Approved Counterparty, with the Borrower or another Credit Party being the βremaining partyβ for purposes of such novation, or (b) upon its termination, it is replaced, in a substantially contemporaneous transaction, with one or more Swap Agreements with approximately the same mark-to-market value and without cash payments to the Borrower or any other Credit Party in connection therewith. The terms βLiquidatedβ and βLiquidationβ have correlative meanings thereto. βLoan Documentsβ means this Agreement, the Notes, the Letter of Credit Agreements, the Letters of Credit and the Security Instruments. βLoansβ means the loans made by the Lenders to the Borrower pursuant to this Agreement, including Revolving Loans, Term Loans and Extended Term Loans. βMajority Lendersβ means, at any time, Lenders having more than fifty percent (50%) of the Total Credit Exposures (without regard to any sale by a Lender of a participation in any Loan under Section 12.04(c)); provided that the (i) Commitments and the principal amount of the Loans and participation interests in Letters of Credit of the Defaulting Lenders (if any) and (ii) Excluded Term Loan Exposures, shall be excluded from the determination of Majority Lenders. βMajority Revolving Lendersβ means, (a) at any time while no Revolving Loans or LC Exposure is outstanding, Revolving Lenders having more than fifty percent (50%) of the Aggregate Maximum Credit Amounts; and (b) at any time while any Revolving Loans or LC Exposure is outstanding, Revolving Lenders holding more than fifty percent (50%) of the sum of
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LEGAL_US_W # 117975371.5 30 4885-6545-0631v.4 (i) outstanding aggregate principal amount of the Revolving Loans and participation interests in Letters of Credit (without regard to any sale by a Revolving Lender of a participation in any Revolving Loan under Section 12.04(c)) and (ii) the aggregate undrawn Revolving Commitments of all Revolving Lenders; provided that the Maximum Credit Amounts and the principal amount of the Revolving Loans and participation interests in Letters of Credit of the Defaulting Lenders (if any) shall be excluded from the determination of Majority Revolving Lenders. βMajority Term Lendersβ means Term Lenders having more than fifty percent (50%) of the Total Term Loan Exposures at the time of determination (without regard to any sale by a Term Lender of a participation in any Term Loan under Section 12.04(c)); provided that the principal amount of the Term Loans of the Defaulting Lenders (if any) shall be excluded from the determination of Majority Term Lenders. βMaterial Acquisitionβ means any acquisition of Property or series of related acquisitions of Property (whether pursuant to an asset sale, by merger or otherwise) that involves the payment of consideration by any Credit Party with a value in excess of a dollar amount equal to $25,000,000 (whether or not in the form or cash; provided that, for the avoidance of doubt, the Merger shall be deemed to be a Material Acquisition hereunder). βMaterial Adverse Effectβ means a material adverse change in, or material adverse effect on (a) the business, operations, Property or financial condition of the Credit Parties, taken as a whole, (b) the ability of the Credit Parties to perform any of their obligations under any Loan Document, (c) the validity or enforceability of any Loan Document or (d) the rights and remedies of or benefits available to the Administrative Agent, any other Agent, the Issuing Bank or any Lender under any Loan Document. βMaterial Dispositionβ means (a) any Disposition of Property or series of related Dispositions of property that yields gross proceeds to the Credit Parties in excess of a dollar amount equal to $25,000,000 and (b) any Disposition of Crestwood Common Units. βMaterial Indebtednessβ means Debt (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements, of any one or more of each member of the Parent Group and the Restricted Subsidiaries in an aggregate principal amount exceeding $75,000,000. For purposes of determining Material Indebtedness, the βprincipal amountβ of the obligations of each member of the Parent Group or any Restricted Subsidiary in respect of any Swap Agreement at any time shall be the Swap Termination Value owed by each member of the Parent Group and the Restricted Subsidiaries, as applicable. βMaterial Subsidiaryβ means, as of any date, any Restricted Subsidiary that: (i) owns any Borrowing Base Property; or (ii) whose total assets (when combined with the assets of such Restricted Subsidiaryβs Subsidiaries, after eliminating intercompany obligations and determined as if references to the Parent and its Restricted Subsidiaries in the definition of βConsolidated Total Assetsβ were references to such Restricted Subsidiary and its Subsidiaries) at the last day of the most recent Test Period were equal to or greater than 5.0% of Consolidated Total Assets at such date; or (iii) whose revenues (when combined with the revenues of such Restricted Subsidiaryβs Subsidiaries, after eliminating intercompany obligations) during the most recent Test Period were equal to or greater than 5.0% of the consolidated revenues of the Parent and the Restricted
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LEGAL_US_W # 117975371.5 31 4885-6545-0631v.4 Subsidiaries for such period, in each case determined in accordance with GAAP; provided that if, at any time and from time to time after the Effective Date, Restricted Subsidiaries that are not Material Subsidiaries have, in the aggregate, (x) total assets (when combined with the assets of such Restricted Subsidiaryβs Subsidiaries, after eliminating intercompany obligations and determined as if references to the Parent and its Restricted Subsidiaries in the definition of βConsolidated Total Assetsβ were references to such Restricted Subsidiary and its Subsidiaries) at the last day of the most recent Test Period equal to or greater than 10.0% of Consolidated Total Assets at such date or (y) revenues (when combined with the revenues of such Restricted Subsidiaryβs Subsidiaries, after eliminating intercompany obligations) during the most recent Test Period equal to or greater than 10.0% of the consolidated revenues of the Parent and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP, then the Borrower shall, on the date on which financial statements for such fiscal quarter are delivered (or required to be delivered) pursuant to this Agreement, designate in writing to the Administrative Agent one or more of such Restricted Subsidiaries as βMaterial Subsidiariesβ, and the Borrower shall cause such designated Material Subsidiaries to comply with Section 8.13(b). In the event that the Borrower fails to so designate sufficient additional Restricted Subsidiaries as βMaterial Subsidiariesβ as aforesaid, the Administrative Agent may, by prior written notice to and in consultation with the Borrower, designate sufficient additional Restricted Subsidiaries as βMaterial Subsidiariesβ on the Borrowerβs behalf, whereupon such Restricted Subsidiaries shall constitute βMaterial Subsidiariesβ for all purposes of this Agreement. βMaturity Dateβ means (a) with respect to any Revolving Loan, the Revolving Maturity Date and (b) with respect to any Term Loan, the Term Loan Maturity Date applicable to such Term Loan. βMaximum Credit Amountβ means, as to each Lender, the amount set forth opposite such Xxxxxxβs name on Annex I under the caption βMaximum Credit Amountsβ, as the same may be reduced or terminated from time to time in connection with a reduction or termination of the Aggregate Maximum Credit Amounts pursuant to Section 2.06(b), modified from time to time pursuant to Section 2.06(c) or modified from time to time pursuant to any assignment permitted by Section 12.04(b). βMergerβ shall have the meaning provided in the recitals to this Agreement. βMerger Agreementβ shall have the meaning provided in the recitals to this Agreement. βMerger Transactionsβ shall have the meaning provided in the recitals to this Agreement. βMinimum Extension Conditionβ has the meaning assigned such term in Section 2.12(b). βMoney Market Fundβ means a money market fund that (a) complies with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940; (b) is rated AAA by S&P and Aaa by Moodyβs; (c) has portfolio assets of at least $5,000,000,000; (d) invests principally in the following securities (which, in each case, must be U.S. dollar denominated): (i) high quality commercial paper and other short-term debt securities, including floating and variable rate demand notes of U.S. and foreign corporations, (ii) debt securities issued or guaranteed by qualified U.S. and foreign banks, including certificates of deposit, time deposits and other short-term securities;
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LEGAL_US_W # 117975371.5 32 4885-6545-0631v.4 (iii) securities issued or guaranteed by the U.S. government, its agencies or instrumentalities or Government-Sponsored Enterprises; (iv) asset-backed securities; (v) repurchase agreements; and (vi) taxable municipal obligations; (e) has a dollar-weighted average maturity of 70 days or less and a dollar-weighted average life to maturity of 130 days or less; and (f) is limited to investing in securities that have remaining maturities of 412 days (or 24 months if securities issued or guaranteed by the U.S. government (including repurchase agreements), its agencies or instrumentalities or Government-Sponsored Enterprises) or less or securities otherwise permitted to be purchased because of maturity shortening provisions under applicable regulations. βMoodyβsβ means Xxxxxβx Investors Service, Inc. and any successor thereto that is a nationally recognized rating agency. βMortgage Coverage Requirementβ means that the Mortgaged Properties must (a) represent at least eighty-five percent (85%) (or such greater percentage as is then required by the terms of the Permitted Secured Loan Documents to secure any Permitted Secured Term Debt at such time) of the total value of the Proved Reserves evaluated in the Reserve Report most recently delivered hereunder after giving effect to exploration and production activities, acquisitions, dispositions and production and (b) otherwise include any other Oil and Gas Properties (including, to the extent applicable, any unproven acreage and any midstream or gathering assets) on which Liens have been granted to secure any Permitted Secured Term Debt at such time. βMortgaged Propertyβ means any Property owned by the Borrower or any Guarantor which is subject to the Liens existing and to exist under the terms of the Security Instruments. βMultiemployer Planβ means a multiemployer plan as defined in section 3(37) or 4001(a)(3) of ERISA that is subject to Title IV of ERISA, section 412, 431 or 432 of the Code or section 302, 304 or 305 of ERISA and to which the Borrower, a Subsidiary or any ERISA Affiliate is making or accruing an obligation to make contributions. βNew Borrowing Base Noticeβ has the meaning assigned such term in Section 2.07(d). βNew Debtβ has the meaning assigned such term in Section 2.07(e)(i). βNew Guarantorsβ means New Ohm and Xxxxxxx Opco. βNon-Consenting Lenderβ means any Lender that does not approve (a) any amendment, waiver or consent of or under any Loan Document that requires the approval of all Lenders or all affected Lenders in accordance with Section 12.02 (other than any Proposed Borrowing Base that would increase the then-current Borrowing Base) and has been approved by the Required Lenders or (b) any Proposed Borrowing Base that would increase the then-current Borrowing Base that has been approved by (i) if there are less than three Lenders at such time, all Lenders (other than any Defaulting Lender), and (ii) if there are three or more Lenders at such time, Lenders having at least eighty percent (80%) of the Total Credit Exposures (without regard to any sale by a Lender of a participation in any Loan under Section 12.04(c)).
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LEGAL_US_W # 117975371.5 33 4885-6545-0631v.4 βNon-Defaulting Lenderβ means, at any time, each Lender that is not a Defaulting Lender at such time. βNotesβ means the promissory notes of the Borrower described in Section 2.02(d) and being substantially in the form of (a) Exhibit A-1 in the case of a promissory note payable to a Revolving Lender and (b) Exhibit A-2 in the case of a promissory note payable to a Term Lender, in each case, together with all amendments, modifications, replacements, extensions and rearrangements thereof. βNYFRBβ means the Federal Reserve Bank of New York. βOFACβ means the Office of Foreign Assets Control of the United States Department of the Treasury. βOil and Gas Propertiesβ means (a) Hydrocarbon Interests; (b) the Properties now or hereafter pooled or unitized with Hydrocarbon Interests; (c) all presently existing or future unitization, pooling agreements and declarations of pooled units and the units created thereby (including without limitation all units created under orders, regulations and rules of any Governmental Authority) which may affect all or any portion of the Hydrocarbon Interests; (d) all operating agreements, contracts and other agreements, including production sharing contracts and agreements, which relate to any of the Hydrocarbon Interests or the production, sale, purchase, exchange or processing of Hydrocarbons from or attributable to such Hydrocarbon Interests; (e) all Hydrocarbons in and under and which may be produced and saved or attributable to the Hydrocarbon Interests, including all oil in tanks, and all rents, issues, profits, proceeds, products, revenues and other incomes from or attributable to the Hydrocarbon Interests; (f) all tenements, hereditaments, appurtenances and Properties in any manner appertaining, belonging, affixed or incidental to the Hydrocarbon Interests and (g) all Properties, rights, titles, interests and estates described or referred to above, including any and all Property, real or personal, now owned or hereinafter acquired and situated upon, used, held for use or useful in connection with the operating, working or development of any of such Hydrocarbon Interests or Property (excluding drilling rigs, automotive equipment, rental equipment or other personal Property which may be on such premises for the purpose of drilling a well or for other similar temporary uses) and including any and all oil xxxxx, gas xxxxx, injection xxxxx or other xxxxx, buildings, structures, fuel separators, liquid extraction plants, plant compressors, pumps, pumping units, field gathering systems, tanks and tank batteries, fixtures, valves, fittings, machinery and parts, engines, boilers, meters, apparatus, equipment, appliances, tools, implements, cables, wires, towers, casing, tubing and rods, surface leases, rights-of-way, easements and servitudes together with all additions, substitutions, replacements, accessions and attachments to any and all of the foregoing. βOther Connection Taxesβ means, with respect to the Administrative Agent or any Lender, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
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LEGAL_US_W # 117975371.5 34 4885-6545-0631v.4 βOther Taxesβ means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes or any other excise or Property taxes, charges or similar levies arising from any payment made hereunder, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement and any other Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 5.04(b)). βParent Groupβ shall have the meaning provided in the recitals to this Agreement. Each reference to the term βParent Groupβ shall be deemed to be a reference to each member of the Parent Group, individually or collectively as the context may require. βPari Passu Intercreditor Agreementβ means, with respect to any Permitted Pari Term Loan Debt, an intercreditor agreement, in form and substance acceptable to the Administrative Agent, the Borrower and the Majority Lenders, as the same may from time to time be amended, amended and restated, supplemented or otherwise modified in accordance with the terms thereof. βParticipantβ has the meaning set forth in Section 12.04(c)(i). βParticipant Registerβ has the meaning set forth in Section 12.04(c)(i). βPayment in Fullβ means that (a) the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder and all other amounts payable under the Loan Documents have been paid in full (other than with respect to contingent obligations for which no claim has been made), (b) all Letters of Credit have expired or terminated (other than those that have been cash collateralized in an amount in cash equal to 102.5% of the LC Exposure, or with respect to which other arrangements have been made on terms reasonably satisfactory to the Issuing Bank) and all LC Disbursements shall have been reimbursed, (c) no Secured Swap Agreement is outstanding and all amounts payable by the Borrower or any Restricted Subsidiary to any Secured Swap Party under any Secured Swap Agreement shall have been paid in full, or if any Secured Swap Agreement is outstanding, credit support arrangements acceptable in the sole discretion of the Secured Swap Party party thereto have been made to secure the Borrowerβs or any Restricted Subsidiaryβs obligations thereunder to such Secured Swap Party, or such Secured Swap Agreement has been novated or assigned to one or more third parties and all amounts required to be paid by the Borrower or any Restricted Subsidiary in respect of any such novation shall have been paid in full and (d) each Bank Product to which a Bank Product Provider is a party has been terminated and all amounts owed in respect of each Bank Product shall have been paid in full in cash (other than contingent indemnification obligations and obligations under Bank Products as to which arrangements reasonably satisfactory to the applicable Bank Products Provider shall have been made). βPBGCβ means the Pension Benefit Guaranty Corporation, or any successor thereto. βPermitted Bond Hedge Transaction(s)β means the bond hedge or capped call options purchased by the Parent or any other Credit Party from the Call Spread Counterparties to hedge the Parentβs payment and/or delivery obligations due upon conversion of the Convertible Notes.
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LEGAL_US_W # 117975371.5 35 4885-6545-0631v.4 βPermitted Debtβ means Senior Notes (including the Convertible Notes), Permitted Secured Term Debt and, in each case, any Permitted Refinancing Debt in respect thereof. βPermitted Existing Secured Swap Agreementsβ means, collectively, the commodity hedging transactions identified on Schedule 1.02(b) entered into between a Restricted Subsidiary and KeyBank National Association or PNC Bank, National Association, as applicable, in each case, without giving effect to any amendments, modifications or supplements thereto entered into after the Effective Date (except that such transactions may be novated from a Restricted Subsidiary to the Borrower at any time prior to or after the Effective Date) and, for the avoidance of doubt, excluding any other Swap Agreement or other transactions entered into between any member of the Parent Group or any Restricted Subsidiary and KeyBank National Association or PNC Bank, National Association. βPermitted Junior Lien Term Loan Debtβ means Debt in the form of junior lien secured term loans or junior lien debt securities (whether registered or privately placed) incurred by the Parent, the Borrower and/or Finance Co; provided that (a) after giving Pro Forma Effect to the incurrence of such Debt (and the use of proceeds thereof), the Secured Leverage Ratio shall not exceed 2.00 to 1.00, (b) at the time of and immediately after giving effect to the incurrence of such Debt, no Default or Event of Default shall have occurred that is continuing or will result therefrom, (c) at the time of and immediately after giving effect to the incurrence of such Debt, the Total Revolving Credit Exposures are not greater than 80% of the Total Revolving Commitments then in effect, (d) such Debt (i) has a stated maturity that is no earlier than 91 days after the Latest Maturity Date and (ii) does not have any scheduled prepayment, amortization, mandatory prepayment or redemption provisions, sinking fund or similar obligations prior to the date that is 91 days after the Latest Maturity Date (except for (A) a customary mandatory prepayment or tender offer provision, in each case, upon the occurrence of a change of control or with the proceeds of Debt not permitted thereunder, (B) a customary asset sale or casualty or condemnation event mandatory prepayment or tender offer provision, to the extent such provision in this clause (B) first permits, at the option of the Parent, the Borrower and/or Finance Co, as the case may be, prepayment in full of the Indebtedness (or permits at the option of the Parent, the Borrower and/or Finance Co, as the case may be, the net cash proceeds to be applied first to the prepayment of the Indebtedness), and (C) scheduled amortization of no greater than 5% per annum of the original principal amount of such Debt); provided that if such Debt is incurred to finance all or a portion of a direct or indirect acquisition of Oil and Gas Properties, such Debt may contain mandatory prepayment or redemption provisions providing for the repayment or redemption of such Debt in the event that such acquisition is not consummated by a certain date in an amount not to exceed the principal amount of such Debt and any accrued interest thereon through the prepayment or redemption date, (e) such Debt does not contain any financial covenants that are more restrictive than any financial covenants set forth in this Agreement, including, for the avoidance of doubt, as a result of any Permitted Secured Loan Document governing such Debt containing one or more financial covenants not contained in this Agreement (it being understood, however, that this Agreement may be amended on or prior to the date that any financial covenant is contained in the Permitted Secured Loan Documents governing such Debt so as to avoid such Debt containing any financial covenants that are more restrictive than any financial covenants set forth in this Agreement), (f) (i) such Debt is on terms, taken as a whole, not materially less favorable to the Parent and its Restricted Subsidiaries than market terms for similar junior lien Debt for borrowers
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LEGAL_US_W # 117975371.5 36 4885-6545-0631v.4 of similar size and credit quality given the then-prevailing market conditions, in each case as reasonably determined by the Borrower, and (ii) prior to the date that is 91 days after the Latest Maturity Date, the representations and warranties, covenants and events of default of such Debt, when taken as a whole, are no more restrictive in any material respect than those contained in this Agreement and the other Loan Documents (it being understood, however, that (x) this Agreement may be amended so as to avoid such Debt containing any such terms that, when taken as a whole, are more restrictive in any material respect than those contained in this Agreement and (y) the terms of such Debt shall not restrict the voluntary or mandatory prepayment of the Indebtedness in any respect), (g) such Debt is secured by Liens on all or a portion of the Collateral on a junior priority basis with the Liens on the Collateral securing the Indebtedness and is not secured by any assets of the Parent or any Subsidiary other than the Collateral (and is not secured by any cash collateral provided in accordance herewith), (h) such Debt is not guaranteed by the Parent or any Subsidiary of the Parent other than the Credit Parties or any Person that becomes a Credit Party in connection with the incurrence of such Debt, and (i) the administrative agent, collateral agent, trustee and/or any similar representative acting on behalf of the holders of such Debt shall have become party to a Junior Lien Intercreditor Agreement, providing that the Liens on the Collateral securing such Debt shall rank junior in priority to the Liens on the Collateral securing the Indebtedness. It is understood and agreed that, notwithstanding anything to the contrary herein, Permitted Junior Lien Term Loan Debt may only be incurred in reliance on, and remain outstanding, pursuant to Section 9.02(c). βPermitted Pari Term Loan Debtβ means Debt (other than the Indebtedness) in the form of senior secured term loans or senior secured notes (whether registered or privately placed) incurred by the Parent, the Borrower and/or Finance Co (such Credit Party, the βDebtorβ); provided that (a) after giving Pro Forma Effect to the incurrence of such Debt (and the use of proceeds thereof), the Secured Leverage Ratio shall not exceed 2.00 to 1.00, (b) at the time of and immediately after giving effect to the incurrence of such Debt, no Default or Event of Default has occurred and is continuing or would result therefrom, (c) at the time of and immediately after giving effect to the incurrence of such Debt, the Total Revolving Credit Exposures are not greater than 80% of the Total Revolving Commitments then in effect, (d) such Debt has a stated maturity that is no earlier than 91 days after the Latest Maturity Date, (e) such Debt does not have any scheduled prepayment, amortization, sinking fund or similar obligations prior to the date that is 91 days after the Latest Maturity Date, except for (i) customary mandatory prepayment or tender offer provisions requiring prepayments upon the occurrence of a change of control or with the proceeds of Debt not permitted thereunder, (ii) mandatory prepayment or redemption provisions providing for the repayment or redemption of such Debt to the extent incurred to finance all or a portion of a direct or indirect acquisition of Oil and Gas Properties in the event that such acquisition is not consummated by a certain date, in an amount not to exceed the principal amount of such Debt plus any accrued interest thereon through the prepayment or redemption date, (iii) a customary asset sale or casualty or condemnation event mandatory prepayment or tender offer provision but only to the extent such mandatory prepayment or tender offer provision in this clause (iii) first permits, at the option of the Parent, the Borrower, and/or Finance Co, as the case may be, prepayment in full of the Indebtedness (or permits at the option of the Parent, the Borrower and/or Finance Co, as the case may be, the net cash proceeds to be applied first to the prepayment of the Indebtedness), (iv) a customary mandatory prepayment or tender offer provision requiring periodic prepayments in an amount equal to a specified portion of such Debtorβs excess cash flow (but only to the extent such
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LEGAL_US_W # 117975371.5 37 4885-6545-0631v.4 mandatory prepayment or tender offer provision in the Permitted Secured Loan Documents governing such Debt does not require such prepayment or tender offer to be made unless such prepayment or tender offer is permitted by this Agreement) and (v) scheduled amortization of no greater than 5% per annum of the original principal amount of such Debt; provided that the Permitted Secured Loan Documents shall provide that any mandatory prepayment, tender offer or amortization payment described in the foregoing clauses (i) through (v) shall only be required to be made if, both before and immediately after giving effect to any such mandatory prepayment, tender offer or amortization payment, each of the Specified Conditions is satisfied, (f) such Debt does not contain any financial covenants that are more restrictive than any financial covenants set forth in this Agreement, including, for the avoidance of doubt, as a result of any Permitted Secured Loan Document governing such Debt containing one or more financial covenants not contained in this Agreement (it being understood, however, that this Agreement may be amended on or prior to the date that any financial covenant is contained in the Permitted Secured Loan Documents governing such Debt so as to avoid such Debt containing any financial covenants that are more restrictive than any financial covenants set forth in this Agreement), (g) (i) such Debt is on terms, taken as a whole, not materially less favorable to the Parent and its Restricted Subsidiaries than market terms for similar senior secured Debt for borrowers of similar size and credit quality given the then prevailing market conditions, in each case as reasonably determined by the Borrower and (ii) prior to the date that is 91 days after the Latest Maturity Date, the representations and warranties, covenants and events of default of such Debt, when taken as a whole, are no more restrictive in any material respect than those contained in this Agreement and the other Loan Documents (it being understood, however, that (x) this Agreement may be amended so as to avoid such Debt containing any such terms that, when taken as a whole, are more restrictive in any material respect than those contained in this Agreement and (y) the terms of such Debt shall not restrict the voluntary or mandatory prepayment of the Indebtedness in any respect), (h) such Debt is secured by Liens on all or a portion of the Collateral on a pari passu basis with the Liens on the Collateral securing the Indebtedness (it being understood that the determination as to whether such Liens are on a pari passu basis shall be made without regard to control of remedies) and is not secured by any assets of the Parent or any Subsidiary other than the Collateral (and is not secured by any cash collateral provided in accordance herewith), (i) such Debt is not guaranteed by the Parent or any subsidiary of the Parent other than the Credit Parties or any Person that becomes a Credit Party in connection with the incurrence of such Debt, and (j) the administrative agent, collateral agent, trustee and/or any similar representative acting on behalf of the holders of such Debt shall have become party to a Pari Passu Intercreditor Agreement, providing that the Liens on the Collateral securing such Debt shall rank equal in priority to the Liens on the Collateral securing the Indebtedness (it being understood that the determination as to whether such Liens rank equal in priority shall be made without regard to control of remedies). It is understood and agreed that, notwithstanding anything to the contrary herein, Permitted Pari Term Loan Debt may only be incurred in reliance on, and remain outstanding, pursuant to Section 9.02(c). βPermitted Refinancing Debtβ means Senior Notes, Permitted Secured Term Debt or Debt permitted under Section 9.02(n) issued or incurred by the Parent, the Borrower and/or Finance Co (for purposes of this definition, such Credit Party, the βDebtorβ and such Debt, the βnew Debtβ), incurred or issued in exchange for, or the net proceeds of which are used to extend, refinance, repay, renew, replace (whether or not contemporaneously), defease, discharge, refund or otherwise Redeem in whole or in part (collectively to βRefinanceβ or a βRefinancingβ or βRefinancedβ)
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LEGAL_US_W # 117975371.5 39 4885-6545-0631v.4 Borrower or a Subsidiary or an ERISA Affiliate and to which the Borrower or a Subsidiary has any liability, including on account of an ERISA Affiliate. βPrime Rateβ means the rate of interest per annum publicly announced from time to time by Xxxxx Fargo, as its prime rate in effect at its principal office in San Francisco; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective. Such rate is set by the Administrative Agent as a general reference rate of interest, taking into account such factors as the Administrative Agent may deem appropriate; it being understood that many of the Administrative Agentβs commercial or other loans are priced in relation to such rate, that it is not necessarily the lowest or best rate actually charged to any customer and that the Administrative Agent may make various commercial or other loans at rates of interest having no relationship to such rate. βPro Forma Basisβ and βPro Forma Effectβ means, (a) for the purpose of calculating the Leverage Ratio or the Secured Leverage Ratio for any Specified Transaction as of any date of determination, that such calculation shall be made on a pro forma basis using (i) Total Net Debt or Total Secured Net Debt on such date (giving effect to any Redemption, incurrence or assumption of Debt on such date) and (ii) EBITDAX for the most recently ended Test Period and (b) for the purpose of calculating the Current Ratio for any Specified Transaction, that such calculation shall be made on a pro forma basis using each of Current Assets and Current Liabilities as of such date; provided that with respect to any pro forma calculations to be made in connection with any acquisition or investment in respect of which financial statements for the relevant target are not available for the same Test Period for which internal financial statements of the Borrower are available, the Borrower shall determine such pro forma calculations on the basis of the available financial statements (even if for differing periods) or such other basis as determined on a commercially reasonable basis by the Borrower (and in a manner reasonably acceptable to the Administrative Agent). βPropertyβ means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible, including, without limitation, cash, securities, accounts and contract rights. βProposed Borrowing Baseβ has the meaning assigned to such term in Section 2.07(c)(i). βProposed Borrowing Base Noticeβ has the meaning assigned to such term in Section 2.07(c)(ii). βProved Reservesβ means collectively, βproved oil and gas reserves,β βproved developed producing oil and gas reserves,β βproved developed non-producing oil and gas reservesβ (consisting of proved developed shut-in oil and gas reserves and proved developed behind pipe oil and gas reserves), and βproved undeveloped oil and gas reserves,β as such terms are defined by the SPE in its standards and guidelines. βPurchase Money Debtβ means Debt of the Credit Parties incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including equipment or motor vehicles, and any Debt assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and
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LEGAL_US_W # 117975371.5 40 4885-6545-0631v.4 replacements of any such Debt; provided that (i) in each case the acquired assets are reasonably related to the businesses of the Credit Parties engaged in on the Effective Date and (ii) such Debt is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement. βQFCβ has the meaning assigned to the term βqualified financial contractβ in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). βQFC Credit Supportβ has the meaning assigned to it in Section 12.19. βQualified ECP Guarantorβ means, in respect of any Swap Agreement, each Credit Party that (a) has total assets exceeding $10,000,000 at the time any guaranty of obligations under such Swap Agreement becomes effective or (b) otherwise constitutes an βeligible contract participantβ under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another Person to qualify as an βeligible contract participantβ at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act. βRedemptionβ means with respect to any Debt, the repurchase, redemption, prepayment, repayment, defeasance or any other acquisition or retirement for value (or the segregation of funds with respect to any of the foregoing) of such Debt. βRedeemβ has the correlative meaning thereto. βRedetermination Dateβ means, with respect to any Scheduled Redetermination or any Interim Redetermination, the date that the redetermined Borrowing Base related thereto becomes effective pursuant to Section 2.07(d). βRegisterβ has the meaning assigned such term in Section 12.04(b)(iv). βRelated Partiesβ means, with respect to any specified Person, such Personβs Affiliates and the respective directors, officers, partners, employees, agents and advisors (including attorneys, accountants and experts) of such Person and such Personβs Affiliates. βReleaseβ means any depositing, spilling, leaking, pumping, pouring, placing, emitting, discarding, abandoning, emptying, discharging, migrating, injecting, escaping, leaching, dumping, or disposing into the environment. βRelevant Governmental Bodyβ means the Board and/or the NYFRB, or a committee officially endorsed or convened by the Board and/or the NYFRB or any successor thereto. βRemedial Workβ has the meaning assigned such term in Section 8.09(a). βRequired Lendersβ means, at any time, Lenders having at least sixty-six and two-thirds percent (66-β
%) of the Total Credit Exposures (without regard to any sale by a Lender of a participation in any Loan under Section 12.04(c)); provided that the (i) Commitments and the principal amount of the Loans and participation interests in Letters of Credit of the Defaulting Lenders (if any) and (ii) Excluded Term Loan Exposures shall be excluded from the determination of Required Lenders.
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LEGAL_US_W # 117975371.5 41 4885-6545-0631v.4 βRequired Revolving Loan Prepayment Amountβ means, with respect to any prepayment of Revolving Loans required to be made by the Borrower pursuant to Section 3.04(c) at any time when there are any Term Loans then outstanding, an amount necessary so that, after giving effect to such prepayment, the Total Revolving Credit Exposures would be equal to 80% of the Total Revolving Commitments. βReserve Reportβ means a report, in form and substance reasonably satisfactory to the Administrative Agent, setting forth, as of each January 1st or July 1st (or such other date in the event of an Interim Redetermination) the oil and gas reserves located in the United States attributable to the Oil and Gas Properties of the Credit Parties, together with a projection of the rate of production and future net income, taxes, operating expenses and capital expenditures with respect thereto as of such date, based upon the economic assumptions consistent with the Administrative Agentβs lending requirements at the time. βResolution Authorityβ means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. βResponsible Officerβ means, as to any Person, the Chief Executive Officer, the President, any Financial Officer or any Vice President of such Person. Unless otherwise specified, all references to a Responsible Officer herein shall mean a Responsible Officer of the Borrower. βRestricted Partiesβ means the Parent and its Restricted Subsidiaries, and βRestricted Partyβ means any one of the foregoing. βRestricted Paymentβ means any dividend or other distribution (whether in cash, securities or other Property and including any transfer of cash, securities or other Property by division of any Person) with respect to any Equity Interests in each member of the Parent Group or any of the Restricted Subsidiaries, or any payment (whether in cash, securities or other Property and including any transfer of cash, securities or other Property by division of any Person), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in the each member of the Parent Group or any of the Restricted Subsidiaries or any option, warrant or other right to acquire any such Equity Interests in each member of the Parent Group or any of the Restricted Subsidiaries. βRestricted Subsidiaryβ means any Subsidiary of the Parent that is not an Unrestricted Subsidiary. For the avoidance of doubt, each of the Borrower and OP LLC is a Restricted Subsidiary of the Parent. βRevolving Commitmentsβ means, with respect to each Revolving Lender, the commitment of such Revolving Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Revolving Lenderβs Revolving Credit Exposure hereunder, as such commitment may be (a) modified from time to time pursuant to Section 2.06, (b) increased or reduced from time to time pursuant to Section 2.06(c) and (c) modified from time to time pursuant to assignments by or to such Lender pursuant to Section 12.04. The amount representing each Revolving Lenderβs Revolving Commitment shall at any time be the least of (i) such Revolving Lenderβs Maximum Credit Amount less such Revolving Lenderβs Term Loan Exposure, (ii) such
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LEGAL_US_W # 117975371.5 42 4885-6545-0631v.4 Revolving Lenderβs Applicable Revolving Percentage of the then effective Available Borrowing Base and (iii) such Revolving Lenderβs Elected Revolving Commitment. βRevolving Credit Exposureβ means, with respect to any Revolving Lender at any time, the sum of the outstanding principal amount of such Revolving Lenderβs Revolving Loans and its LC Exposure at such time plus such Xxxxxxβs Swingline Exposure at such time. βRevolving Extension Amendmentβ has the meaning set forth in Section 2.10(b). βRevolving Extension Electionβ has the meaning set forth in Section 2.10(c). βRevolving Extension Minimum Conditionβ means a condition to consummating any extension of a minimum amount (to be determined and specified in the relevant Revolving Loan Extension Request, in the Borrowerβs sole discretion) of any or all applicable Classes to be submitted for extension. βRevolving Lendersβ means (a) the Persons listed on Annex I with a Revolving Commitment, (b) any Person that shall have become a party hereto as a Revolving Lender pursuant to an Assignment and Assumption, and (c) any Person that shall have become a party hereto as an Additional Revolving Lender pursuant to Section 2.06(c), other than, in each case, any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context otherwise requires, the term βLendersβ includes the Swingline Lender. βRevolving Loansβ has the meaning set forth in Section 2.01(a), and, shall include, unless the context otherwise requires, the Swingline Loans. βRevolving Loan Extension Periodβ has the meaning set forth in Section 2.10(a). βRevolving Loan Extension Requestβ has the meaning set forth in Section 2.10(a). βRevolving Loan Extension Seriesβ has the meaning set forth in Section 2.10(a). βRevolving Maturity Dateβ means the date that is the earlier to occur of (a) July 1, 2027 and (b) the date on which the Revolving Commitments are terminated in full pursuant to this Agreement. βS&Pβ means S&P Global Ratings and any successor thereto that is a nationally recognized rating agency. βSanctioned Countryβ means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (including, as of the Fourth Amendment Effective Date, the so- called Donetsk Peopleβs Republic, the so-called Luhansk Peopleβs Republic, the Crimea, Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea and Syria). βSanctioned Personβ means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, or by the United Nations Security Council, the European Union, any European Union member state, His Majestyβs Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating,
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LEGAL_US_W # 117975371.5 43 4885-6545-0631v.4 organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clause (a) or clause (b). βSanctionsβ means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state, His Majestyβs Treasury of the United Kingdom or other relevant sanctions authority. βScheduled Redeterminationβ has the meaning assigned such term in Section 2.07(b). For purposes of this Agreement, the initial Borrowing Base determination on the Effective Date shall constitute a Scheduled Redetermination hereunder. βScheduled Redetermination Dateβ means the date on which a Borrowing Base that has been redetermined pursuant to a Scheduled Redetermination becomes effective as provided in Section 2.07(d). For purposes of this Agreement, the Effective Date shall constitute a Scheduled Redetermination Date hereunder. βSECβ means the Securities and Exchange Commission or any successor Governmental Authority. βSecond Amendmentβ means that certain Second Amendment to Amended and Restated Credit Agreement, dated as of October 31, 2022 among the Parent, the Borrower, the other Guarantors, the Administrative Agent, the Issuing Bank and the Lenders party thereto. βSecond Amendment Effective Dateβ has the meaning assigned to such term in the Second Amendment. βSecured Leverage Ratioβ means, as of any date of determination, the ratio of Total Secured Net Debt as of such date to EBITDAX for the most recently ended Test Period (or if such date is the last day of a fiscal quarter, the Test Period ending on such date), in each case for the Parent and the Consolidated Restricted Subsidiaries. βSecured Partiesβ means, collectively, the Administrative Agent, the Lenders, the Bank Products Providers and the Secured Swap Parties, and βSecured Partyβ means any of them individually. βSecured Swap Agreementsβ means (i) any Swap Agreement between a member of the Parent Group or any Restricted Subsidiary and any Secured Swap Party and (ii) any Permitted Existing Secured Swap Agreement. βSecured Swap Indebtednessβ means Indebtedness of the type referred to in clause (b) of the definition of Indebtedness. βSecured Swap Partyβ means any Person that is a party to a Swap Agreement with a member of the Parent Group or any Restricted Subsidiary that entered into such Swap Agreement prior to the time, or during the time, that such Person or its Affiliate is a Revolving Lender (including any Swap Agreement between such Person in existence prior to the date hereof), even
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LEGAL_US_W # 117975371.5 44 4885-6545-0631v.4 if such Person subsequently ceases to be a Revolving Lender (or an Affiliate thereof) for any reason; provided that any such Person that ceases to be a Revolving Lender or an Affiliate thereof shall not be a Secured Swap Party with respect to any Swap Agreement (or transactions under any Swap Agreement) that it thereafter enters into (or that is assigned or transferred to it) while it is not a Revolving Lender or an Affiliate thereof; provided further that, notwithstanding the foregoing, each of KeyBank National Association and PNC Bank, National Association shall be a βSecured Swap Partyβ solely with respect to each Permitted Existing Secured Swap Agreement to which it is a party. βSecurity Instrumentsβ means the Guaranty and Security Agreement, any Intercreditor Agreement, mortgages, deeds of trust, and other agreements, instruments or certificates described or referred to in Exhibit E-1, and any and all other agreements, instruments, consents or certificates now or hereafter executed and delivered by each member of the Parent Group, any other Guarantor or any other Person (other than Secured Swap Agreements or participation or similar agreements between any Lender and any other lender or creditor with respect to any Indebtedness pursuant to this Agreement) as security for the payment or performance of the Indebtedness, the Notes, this Agreement, or reimbursement obligations under the Letters of Credit, as such agreements may be amended, modified, supplemented or restated from time to time. βSenior Notesβ means, individually or collectively as the context may require, any unsecured senior or unsecured senior subordinated Debt of the Parent, the Borrower and/or Finance Co, including, for the avoidance of doubt, any Convertible Notes and the Existing Senior Notes. βSenior Notes Documentsβ means any credit agreement, notes, indenture, agreement, instrument or other definitive document governing, evidencing or related to, or securing, guaranteeing or otherwise providing credit support for, any Senior Notes, as the same may from time to time be amended, restated, amended and restated, supplemented or otherwise modified to the extent not prohibited by Section 9.04(b). βSOFRβ means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator. βSOFR Adjustmentβ means a percentage equal to 0.10% per annum. βSOFR Administratorβ means the NYFRB (or a successor administrator of the secured overnight financing rate). βSOFR Administratorβs Websiteβ means the website of the NYFRB, currently at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time. βSOFR Loanβ means any Daily Simple SOFR Loan or Term SOFR Loan. βSolventβ means, with respect to any Person on any date of determination, that on such date (a) the fair value of the assets (after giving effect to amounts that could reasonably be received by reason of indemnity, offset, insurance or any similar arrangement) of such Person and its
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LEGAL_US_W # 117975371.5 45 4885-6545-0631v.4 Restricted Subsidiaries, on a consolidated basis, exceeds, on a consolidated basis, their Debt, (b) the present fair saleable value of the property of such Person and its Restricted Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their Debt, as such Debt becomes absolute and matured, (c) such Person and its Restricted Subsidiaries, on a consolidated basis, are able to pay their Debt, as such Debt becomes absolute and matured (after taking into account the timing and amounts of cash to be received by such Person and its Restricted Subsidiaries and the amounts to be payable on or in respect of its liabilities, and giving effect to amounts that could reasonably be received by reason of indemnity, offset, insurance or any similar arrangement) and (d) such Person and its Restricted Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in, business for which they have unreasonably small capital. The amount of any contingent Debt at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. βSPEβ means the Society of Petroleum Engineers. βSpecified Conditionsβ means, as of any date, that: (a) no Default, Event of Default or Borrowing Base Deficiency has occurred and is continuing; (b) the Total Revolving Credit Exposures is not greater than eighty percent (80%) of the Total Revolving Commitments and (c) the Leverage Ratio is equal to or less than 3.00 to 1.00 on a Pro Forma Basis. βSpecified Event of Defaultβ means any Event of Default pursuant to Section 10.01(a), (b), (h), (i) or (j). βSpecified Existing Revolving Commitment Classβ has the meaning set forth in Section 2.10(a). βSpecified Transactionβ means any incurrence or Redemption of Debt, Investment, Disposition, Capital Expenditure or Restricted Payment, in each case, that by the terms of this Agreement requires the Leverage Ratio, the Secured Leverage Ratio and/or the Current Ratio to be calculated on a Pro Forma Basis. βSubsidiaryβ means (a) any Person of which at least a majority of the outstanding Equity Interests having by the terms thereof ordinary voting power to elect a majority of the board of directors, manager or other governing body of such Person (irrespective of whether or not at the time Equity Interests of any other class or classes of such Person shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by the Parent and/or one or more of its Subsidiaries and (b) any partnership of which the Parent or any of its Subsidiaries is a general partner. Unless otherwise indicated herein, each reference to the term βSubsidiaryβ shall mean a Subsidiary of the Parent. βSubsidiary Guarantorβ means any Restricted Subsidiary of the Borrower that is a Guarantor. βSupported QFCβ has the meaning assigned to it in Section 12.19.
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LEGAL_US_W # 117975371.5 46 4885-6545-0631v.4 βSwap Agreementβ means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement, whether exchange traded, βover-the-counterβ or otherwise, involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions (including any agreement, contract or transaction that constitutes a βswapβ within the meaning of section 1a(47) of the Commodity Exchange Act); provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or its Subsidiaries shall be a Swap Agreement. βSwap Termination Valueβ means, in respect of any one or more Swap Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Agreements, (a) for any date on or after the date such Swap Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s) and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Agreements, as determined by the counterparties to such Swap Agreements. βSwingline Borrowingβ means a borrowing of a Swingline Loan pursuant to Section 2.09. βSwingline Exposureβ means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall be its Applicable Percentage of the total Swingline Exposure at such time. βSwingline Lenderβ means Xxxxx Fargo, in its capacity as a lender of Swingline Loans hereunder. βSwingline Loanβ has the meaning assigned to such term in Section 2.09(a). βSynthetic Leasesβ means, in respect of any Person, all leases which shall have been, or should have been, in accordance with GAAP, treated as operating leases on the financial statements of the Person liable (whether contingently or otherwise) for the payment of rent thereunder and which were properly treated as indebtedness for borrowed money for purposes of U.S. federal income taxes, if the lessee in respect thereof is obligated to either purchase for an amount in excess of, or pay upon early termination an amount in excess of, 80% of the residual value of the Property subject to such operating lease upon expiration or early termination of such lease. βTaxesβ means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. βTerm Commitmentsβ has the meaning assigned to such term in Section 2.11(a). βTerm Lendersβ means (a) any Person that shall become a party hereto with a Term Commitment pursuant to Section 2.11 and (b) any Person that shall have become a party hereto as a Term Lender pursuant to an Assignment and Assumption, other than, in each case, any such Person that ceases
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LEGAL_US_W # 117975371.5 47 4885-6545-0631v.4 to be a party hereto pursuant to an Assignment and Assumption. For the avoidance of doubt, any Term Lender that ceases to have any Term Loan Exposure shall not constitute a Term Lender hereunder. βTerm Loan Amendmentβ has the meaning assigned to such term in Section 2.11(f). βTerm Loan Extensionβ has the meaning set forth in Section 2.12(a). βTerm Loan Extension Offerβ has the meaning set forth in Section 2.12(a). βTerm Loan Extension Seriesβ has the meaning set forth in Section 2.12(a). βTerm Loan Exposureβ means, with respect to any Term Lender at any time, the outstanding principal amount of such Term Lenderβs Term Loans at such time. βTerm Loan Facilityβ means any Class of Term Loans under the same Term Loan Amendment with the same terms applicable thereto. βTerm Loan Facility Closing Dateβ has the meaning assigned to such term in Section 2.11. βTerm Loan Increaseβ has the meaning assigned to such term in Section 2.11(a). βTerm Loan Maturity Dateβ means, (a) with respect to any Term Loans, the final maturity date as specified for such Term Loans in the applicable Term Loan Amendment and (b) with respect to any Extended Term Loans of a given Term Loan Extension Series, the final maturity date as specified in the applicable Extension Amendment. βTerm Loan Requestβ has the meaning assigned to such term in Section 2.11(a). βTerm Loansβ means the term loans made to the Borrower by the Term Lenders pursuant to Article II, or any portion thereof, as the context requires, and, unless the context requires otherwise, any Extended Term Loan. βTerm SOFRβ means, (a) for any calculation with respect to a Term SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period (provided that, if the applicable Interest Period is one week, then, prior to the first date on which the Term SOFR Administrator publishes a Term SOFR Reference Rate for a tenor of one week, the Term SOFR Reference Rate for an Interest Period of one week shall be the Term SOFR Reference Rate for a tenor comparable to an Interest Period of one month) on the day (such day, the βPeriodic Term SOFR Determination Dayβ) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (Eastern time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities
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LEGAL_US_W # 117975371.5 48 4885-6545-0631v.4 Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and (b) for any calculation with respect to an ABR Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the βAlternate Base Rate Term SOFR Determination Dayβ) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (Eastern time) on any Alternate Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Alternate Base Rate Term SOFR Determination Day; provided, further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above) shall be less than the Floor, then Term SOFR shall be deemed to be the Floor. βTerm SOFR Administratorβ means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion). βTerm SOFR Loanβ means any Loan bearing interest at a rate based on Adjusted Term SOFR (other than pursuant to clause (c) of the definition of βAlternate Base Rateβ) as provided in Section 3.02(b). βTerm SOFR Reference Rateβ means the forward-looking term rate based on SOFR. βTermination Dateβ means the earlier of the Revolving Maturity Date and the date of termination of the Revolving Commitments. βTest Periodβ means (i) for the purposes of calculating the Leverage Ratio pursuant to Section 9.01(b), the period of four (4) consecutive fiscal quarters ending on the last day of each fiscal quarter and (ii) for any other purposes under this Agreement, for any date of determination, the period of four (4) consecutive fiscal quarters of the Borrower then most recently ended for which financial statements and the related compliance certificate have been delivered pursuant to Section 8.01(a) or (b), as applicable, and Section 8.01(c). βThird Amendmentβ means that certain Third Amendment to Amended and Restated Credit Agreement, dated as of May 2, 2023 among the Parent, the Borrower, the other Guarantors, the Administrative Agent, the Issuing Bank and the Lenders party thereto.
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LEGAL_US_W # 117975371.5 49 4885-6545-0631v.4 βThird Amendment Effective Dateβ has the meaning assigned to such term in the Third Amendment. βTitle Coverage Requirementβ means that the Administrative Agent shall have received satisfactory title information (a) on at least eighty-five percent (85%) (or such greater percentage for which the Credit Parties have agreed to deliver satisfactory title information pursuant to the Permitted Secured Loan Documents at such time) of the total value of the Proved Reserves evaluated in the most recently completed Reserve Report and (b) that otherwise covers any other Oil and Gas Properties (including, to the extent applicable, any unproven acreage and any midstream or gathering assets) for which the Credit Parties have agreed to provide title information under the Permitted Secured Loan Documents at such time. βTotal Credit Exposureβ means, at any time, the sum of (a) the Total Revolving Credit Exposures at such time plus (b) the aggregate unused Revolving Commitments at such time plus (c) the Total Term Loan Exposures at such time. βTotal Net Debtβ means, at any date, (a) all Debt (i) of the type described in clause (a), (b) (to the extent such amounts have been funded and not reimbursed), (c), (d), (e), (l) or (m) of the definition thereof or (ii) of the type described in clauses (f), (g) or (k) to the extent in respect of Debt of the type described in clause (i), in each case of the definition thereof, of the Parent and the Consolidated Restricted Subsidiaries on a consolidated basis, excluding non-cash obligations under ASC 815 minus (b) the aggregate cash and cash equivalents of the Parent and the Consolidated Restricted Subsidiaries, in each case, free and clear of all Liens other than Liens permitted under Section 9.03, included in the cash and cash equivalents accounts listed on the consolidated balance sheet of the Parent and the Consolidated Restricted Subsidiaries at such date, provided that if any Loans are outstanding at such date, the amount deducted pursuant to this clause (b) shall not exceed $150,000,000 in the aggregate. βTotal Revolving Commitmentsβ means all of the Revolving Lendersβ Revolving Commitments. βTotal Revolving Commitments Utilization Percentageβ means, as of any day, the fraction expressed as a percentage, the numerator of which is the sum of the Revolving Credit Exposures of the Revolving Lenders on such day, and the denominator of which is the Total Revolving Commitments of the Revolving Lenders in effect on such day. βTotal Revolving Credit Exposuresβ means, at any time, the amount of the Revolving Credit Exposures of all Revolving Lenders. βTotal Secured Net Debtβ means, at any date, all Total Net Debt of the Parent and the Consolidated Restricted Subsidiaries on a consolidated basis that is secured by a Lien on any of their Properties. βTotal Term Commitmentsβ means all of the Term Lendersβ Term Commitments. βTotal Term Loan Exposuresβ means, at any time, the amount of the Term Loan Exposure of all Term Lenders.
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LEGAL_US_W # 117975371.5 50 4885-6545-0631v.4 βTransactionsβ means, collectively, the Debt Transactions, the Merger Transactions, the repayment in full of all loans and other amounts owing under the Xxxxxxx Credit Agreement, and the payment of all fees and expenses incurred or paid by the Parent Group or any of their respective Subsidiaries in connection with any of the foregoing. βTypeβ, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Alternate Base Rate or the Adjusted Term SOFR, or to the extent applicable, Adjusted Daily Simple SOFR. βUK Financial Institutionβ means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms. βUK Resolution Authorityβ means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution. βUnadjusted Benchmark Replacementβ means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment. βUnrestricted Subsidiaryβ means Oasis Petroleum International LLC, a Delaware limited liability company, Xxxxxxx Programs, Inc., a Delaware limited liability company and each of their subsidiaries, if any, and any other Subsidiary of the Parent (for the avoidance of doubt, other than the Borrower or OP LLC) designated as such on Schedule 7.14 as of the Effective Date or which the Borrower has designated in writing to the Administrative Agent to be an Unrestricted Subsidiary pursuant to Section 9.08. βU.S. Government Securities Business Dayβ means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities; provided, that for purposes of notice requirements in Section 2.03, Section 2.04(b) and Section 3.04(b), in each case, such day is also a Business Day. βU.S. Personβ means any Person that is a βUnited States Personβ as defined in Section 7701(a)(30) of the Code. βU.S. Special Resolution Regimeβ has the meaning assigned to it in Section 12.19. βU.S. Tax Compliance Certificateβ has the meaning set forth in Section 5.03(f). βWeighted Average Life to Maturityβ means, when applied to any Debt at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining amortization, installment, sinking fund, serial maturity or other
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LEGAL_US_W # 117975371.5 57 4885-6545-0631v.4 by such Lender. Failure to make any such notation or to attach a schedule shall not affect any Lenderβs or the Borrowerβs rights or obligations in respect of such Loans or affect the validity of such transfer by any Lender of its Note. Section 2.03 Requests for Borrowings. To request a Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone or e-mail (a) in the case of a Term SOFR Borrowing, not later than 12:00 noon, New York City time, three (3) U.S. Government Securities Business Days before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of the proposed Borrowing; provided that no such notice shall be required for any deemed request of an ABR Borrowing to finance the reimbursement of an LC Disbursement as provided in Section 2.08(e). Each such telephonic or e-mail Borrowing Request shall be irrevocable and, if made by telephone, shall be confirmed promptly by hand delivery, facsimile or e-mail to the Administrative Agent of a written Borrowing Request in substantially the form of Exhibit B and signed by each member of the Parent Group. Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02: (i) whether such Borrowing is a Revolving Borrowing or a Term Borrowing; (ii) the aggregate amount of the requested Borrowing; (iii) the date of such Borrowing, which shall be a Business Day; (iv) whether such Borrowing is to be an ABR Borrowing or a Term SOFR Borrowing; (v) in the case of a Term SOFR Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term βInterest Periodβ; (vi) (A) the amount of the then effective Borrowing Base and the Available Borrowing Base, (B) the amount of the then effective Aggregate Elected Revolving Commitment Amounts, (C) the aggregate principal amount of Permitted Pari Term Loan Debt then outstanding, (D) the current Total Revolving Credit Exposures (without regard to the requested Borrowing), (E) the pro forma Total Revolving Credit Exposures and the Total Term Loan Exposures (giving effect to the requested Borrowing); (F) the Total Term Loan Exposures (without regard to the requested Borrowing) and (G) the pro forma Total Term Loan Exposures (giving effect to the requested Borrowing); and (vii) the location and number of the Borrowerβs account to which funds are to be disbursed, which shall comply with the requirements of Section 2.05. If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Term SOFR Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one monthβs duration. Each Borrowing Request shall constitute a representation that the amount of the
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LEGAL_US_W # 117975371.5 59 4885-6545-0631v.4 (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Term SOFR Borrowing; and (iv) if the resulting Borrowing is a Term SOFR Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term βInterest Periodβ. If any such Interest Election Request requests a Term SOFR Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one monthβs duration. (d) Notice to Lenders by the Administrative Agent. Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Xxxxxxβs portion of each resulting Borrowing. (e) Effect of Failure to Deliver Timely Interest Election Request and Events of Default on Interest Election. If the Borrower fails to deliver a timely Interest Election Request with respect to a Term SOFR Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, acting at the direction of the Majority Lenders, has notified the Borrower that no conversion of outstanding Borrowings into, or continuation as, Term SOFR Borrowings shall be permitted, (i) no outstanding Borrowing may be converted to or continued as a Term SOFR Borrowing (and any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Term SOFR Borrowing shall be ineffective) and (ii) unless repaid, each Term SOFR Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto. Section 2.05 Funding of Borrowings; Funding by Xxxxxxx. (a) Funding by Xxxxxxx. Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 1:00 p.m., New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders; provided that Swingline Loans shall be made as provided in Section 2.09. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account subject to a Control Agreement designated by the Borrower in the applicable Borrowing Request; provided that ABR Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.08(e) shall be remitted by the Administrative Agent to the Issuing Bank. Nothing herein shall be deemed to obligate any Lender to obtain the funds for its Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for its Loan in any particular place or manner. (b) Presumption of Funding by the Lenders. Except with respect to Swingline Loans made pursuant to Section 2.09, unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make
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LEGAL_US_W # 117975371.5 60 4885-6545-0631v.4 available to the Administrative Agent such Xxxxxxβs share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.05(a) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lenderβs Loan included in such Borrowing. Section 2.06 Termination and Reduction of Commitments and Aggregate Maximum Credit Amounts; Optional Increase and Reduction of Aggregate Elected Revolving Commitment Amounts. (a) Scheduled Termination of Revolving Commitments. Unless previously terminated, the Total Revolving Commitments (and the Revolving Commitment of each Revolving Lender) shall terminate on the Revolving Maturity Date. If at any time the Aggregate Maximum Credit Amounts, the Borrowing Base or the Aggregate Elected Revolving Commitment Amounts is terminated or reduced to zero, then the Revolving Commitments shall terminate on the effective date of such termination or reduction. Each Revolving Loan, all accrued but unpaid interest thereon, and all other Indebtedness (other than Indebtedness in respect of Term Loans) shall be due and payable in full on the Revolving Maturity Date. (b) Optional Termination and Reduction of Aggregate Maximum Credit Amounts. (i) The Borrower may at any time terminate, or from time to time reduce, the Aggregate Maximum Credit Amounts; provided that (a) each reduction of the Aggregate Maximum Credit Amounts shall be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000, (b) the Borrower shall not terminate or reduce the Aggregate Maximum Credit Amounts if, after giving effect to any concurrent prepayment of the Revolving Loans in accordance with Section 3.04(c), the Total Revolving Credit Exposures would exceed the Total Revolving Commitments, and (c) upon any reduction of the Aggregate Maximum Credit Amounts that results in the Aggregate Maximum Credit Amounts being less than the sum of the Aggregate Elected Revolving Commitment Amounts plus the Total Term Loan Exposures, the Aggregate Elected Revolving Commitment Amounts shall be automatically reduced (ratably among the Revolving Lenders in accordance with each Revolving Lenderβs Applicable Revolving Percentage) so that they equal the Aggregate Maximum Credit Amounts as so reduced minus the Total Term Loan Exposures. (ii) The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Aggregate Maximum Credit Amounts under Section 2.06(b)(i)
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LEGAL_US_W # 117975371.5 61 4885-6545-0631v.4 at least three (3) Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Revolving Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section 2.06(b)(ii) shall be irrevocable; provided that any such notice delivered hereunder may state that it is conditioned upon the occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Aggregate Maximum Credit Amounts shall be permanent and may not be reinstated. Each reduction of the Aggregate Maximum Credit Amounts shall be made ratably among the Revolving Lenders in accordance with each Revolving Lenderβs Applicable Revolving Percentage. (c) Optional Increase and Reduction of Aggregate Elected Revolving Commitment Amounts. (i) Subject to the conditions set forth in Section 2.06(c)(ii), the Borrower may increase the Aggregate Elected Revolving Commitment Amounts then in effect by increasing the Elected Revolving Commitment of a Revolving Lender (an βIncreasing Revolving Lenderβ) or by causing a Person that is acceptable to the Administrative Agent that at such time is not a Revolving Lender to become a Revolving Lender (any such Person that is not at such time a Lender and becomes a Lender, an βAdditional Revolving Lenderβ). Notwithstanding anything to the contrary contained in this Agreement, in no case shall an Additional Revolving Lender be the Borrower or an Affiliate of a Borrower. (ii) Any increase in the Aggregate Elected Revolving Commitment Amounts shall be subject to the following additional conditions: (A) such increase shall not be less than $50,000,000 unless the Administrative Agent otherwise consents, and no such increase shall be permitted if after giving effect thereto the Aggregate Elected Revolving Commitment Amounts exceed the Available Borrowing Base then in effect; (B) following any Scheduled Redetermination Date, the Borrower may not increase the Aggregate Elected Revolving Commitment Amounts more than once before the next Scheduled Redetermination Date; (C) no Default shall have occurred and be continuing on the effective date of such increase; (D) on the effective date of such increase, no Term SOFR Borrowings shall be outstanding or if any Term SOFR Borrowings are outstanding, then the effective date of such increase shall be the last day of the Interest Period in respect of such Term SOFR Borrowings unless the Borrower pays compensation required by Section 5.02;
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LEGAL_US_W # 117975371.5 62 4885-6545-0631v.4 (E) no Lenderβs Elected Revolving Commitment may be increased without the consent of such Lender; (F) if the Borrower elects to increase the Aggregate Elected Revolving Commitment Amounts by increasing the Elected Revolving Commitment of an Increasing Revolving Lender, the Borrower and such Increasing Revolving Lender shall execute and deliver to the Administrative Agent a certificate substantially in the form of Exhibit G (an βElected Revolving Commitment Increase Certificateβ); and (G) if the Borrower elects to increase the Aggregate Elected Revolving Commitment Amounts by causing an Additional Revolving Lender to become a party to this Agreement, then the Borrower and such Additional Revolving Lender shall execute and deliver to the Administrative Agent a certificate substantially in the form of Exhibit H (an βAdditional Revolving Lender Certificateβ), together with an Administrative Questionnaire and a processing and recordation fee of $3,500, and the Borrower shall (1) if requested by the Additional Revolving Lender, deliver a Note payable to such Additional Revolving Lender in a principal amount equal to its Maximum Credit Amount, and otherwise duly completed and (2) pay any applicable fees as may have been agreed to between the Borrower, the Additional Revolving Lender and the Arranger. (H) the increase shall be on the exact same terms and pursuant to the exact same documentation applicable to this Agreement (other than with respect to any arrangement, structuring, upfront or other fees or discounts payable in connection with such increase in the Aggregate Elected Revolving Commitment Amounts) (provided that, to the extent applicable, the Applicable Margin shall be increased to be consistent with that for such increase in the Aggregate Elected Revolving Commitment Amounts). (iii) Subject to acceptance and recording thereof pursuant to Section 2.06(c)(iv), from and after the effective date specified in the Elected Revolving Commitment Increase Certificate or the Additional Revolving Lender Certificate (or if any Term SOFR Revolving Borrowings are outstanding, then the last day of the Interest Period in respect of such Term SOFR Borrowings, unless the Borrower has paid compensation required by Section 5.02): (a) the amount of the Aggregate Elected Revolving Commitment Amounts shall be increased as set forth therein, and (b) in the case of an Additional Revolving Lender Certificate, any Additional Revolving Lender party thereto shall be a party to this Agreement and have the rights and obligations of a Lender under this Agreement and the other Loan Documents. In addition, the Increasing Revolving Lender or the Additional Revolving Lender, as applicable, shall purchase a pro rata portion of the outstanding Revolving Loans (and participation interests in Letters of Credit) of each of the other Revolving Lenders (and such Revolving Lenders hereby agree to sell and to take all such further action to effectuate such sale) such that each Revolving Lender (including any Increasing Revolving Lender and any Additional Revolving Lender, if applicable) shall hold its Applicable Revolving Percentage of the outstanding Revolving Loans (and participation interests) after giving effect to the increase in the Aggregate Elected
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LEGAL_US_W # 117975371.5 63 4885-6545-0631v.4 Revolving Commitment Amounts (and the resulting modifications of each Revolving Lenderβs Applicable Revolving Percentage and Maximum Credit Amount pursuant to Section 2.06(c)(iv) or Section 2.06(c)(v), as applicable). (iv) Upon its receipt of a duly completed Elected Revolving Commitment Increase Certificate or an Additional Revolving Lender Certificate, executed by the Borrower and the Increasing Revolving Lender or by the Borrower and the Additional Revolving Lender party thereto, as applicable, the processing and recording fee referred to in Section 2.06(c)(ii) and the Administrative Questionnaire referred to in Section 2.06(c)(ii), if applicable, the Administrative Agent shall accept such Elected Revolving Commitment Increase Certificate or Additional Revolving Lender Certificate and record the information contained therein in the Register required to be maintained by the Administrative Agent pursuant to Section 12.04(b)(iv). No increase in the Aggregate Elected Revolving Commitment Amounts shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this Section 2.06(c)(iv). (v) Upon any increase in the Aggregate Elected Revolving Commitment Amounts pursuant to Section 2.06(c)(iv), (A) each Revolving Lenderβs Applicable Revolving Percentage shall be automatically deemed amended to the extent necessary so that each Revolving Lenderβs Applicable Revolving Percentage equals the percentage of the Aggregate Elected Revolving Commitment Amount represented by such Revolving Lenderβs Elected Revolving Commitment, in each case, after giving effect to such increase, (B) each Revolving Lenderβs Maximum Credit Amount shall be automatically deemed amended to the extent necessary so that each such Revolving Lenderβs Maximum Credit Amount equals such Revolving Lenderβs Applicable Revolving Percentage of the Aggregate Maximum Credit Amounts and (C) Annex I to this Agreement shall be deemed amended to reflect the Elected Revolving Commitment of each Increasing Revolving Lender and any Additional Revolving Lender as thereby increased, and any changes in the Revolving Lendersβ respective Applicable Revolving Percentages and Maximum Credit Amount pursuant to the foregoing clause (A) and clause (B). On the date of such increase, the Administrative Agent may distribute to the Borrower and the Revolving Lenders (including each Additional Revolving Lender) a revised Annex I to this Agreement, which shall set forth the Maximum Credit Amount and the Revolving Commitment of each Revolving Lender after giving effect to such deemed amendment and increase, and such revised Annex I shall amend and restate and supersede and replace Annex I to this Agreement as in effect immediately prior to such increase pursuant to Section 2.06(c)(iv). (vi) The Borrower may from time to time reduce the Aggregate Elected Revolving Commitment Amounts; provided that (a) each reduction of the Aggregate Elected Revolving Commitment Amounts shall be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000 and (b) the Borrower shall not reduce the Aggregate Elected Revolving Commitment Amounts if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 3.04(c), the Total Revolving Credit Exposures would exceed the Aggregate Elected Revolving Commitment Amounts as so reduced.
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LEGAL_US_W # 117975371.5 64 4885-6545-0631v.4 (vii) The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Aggregate Elected Revolving Commitment Amounts under Section 2.06(c)(v) at least three (3) Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section 2.06(c)(vii) shall be irrevocable; provided that any such notice of termination of the Aggregate Elected Revolving Commitment Amounts delivered hereunder may state that it is conditioned upon the occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Aggregate Elected Revolving Commitment Amounts shall be permanent and may not be reinstated, except pursuant to Section 2.06(c)(i). Each reduction of the Aggregate Elected Revolving Commitment Amounts shall be made ratably among the Revolving Lenders in accordance with each Revolving Lenderβs Applicable Revolving Percentage. (viii) Upon any redetermination of or other adjustment to the Available Borrowing Base pursuant to this Agreement that would result in the Available Borrowing Base becoming less than the Aggregate Elected Revolving Commitment Amounts, the Aggregate Elected Revolving Commitment Amounts shall be automatically reduced (ratably among the Revolving Lenders in accordance with each Revolving Lenderβs Applicable Revolving Percentage) so that they equal such redetermined Available Borrowing Base (and Annex I shall be deemed amended to reflect such amendments to each Revolving Lenderβs Elected Revolving Commitment and the Aggregate Elected Revolving Commitment Amounts). On the date of such redetermination of or other adjustment to the Available Borrowing Base, the Administrative Agent may distribute to the Borrower and the Revolving Lenders a revised Annex I to this Agreement, which shall set forth the Maximum Credit Amount and the Revolving Commitment of each Revolving Lender after giving effect to such deemed redetermination or other adjustment, and such revised Annex I shall amend and restate and supersede and replace Annex I to this Agreement as in effect immediately prior to such redetermination or other adjustment. (ix) Contemporaneously with any increase in the Borrowing Base pursuant to this Agreement, if (a) the Borrower elects to increase the Aggregate Elected Revolving Commitment Amount and (b) each Revolving Lender has consented to such increase in its Elected Revolving Commitment, then the Aggregate Elected Revolving Commitment Amount shall be increased (ratably among the Lenders in accordance with each Revolving Lenderβs Applicable Revolving Percentage) by the amount requested by the Borrower (subject to the limitations set forth in Section 2.06(c)(ii)(A)) without the requirement that any Revolving Lender deliver an Elected Revolving Commitment Increase Certificate, and Annex I shall be deemed amended to reflect such amendments to each Lenderβs Elected Revolving Commitment and the Aggregate Elected Revolving Commitment Amount. The Administrative Agent shall record the information regarding such increases in the Register required to be maintained by the Administrative Agent pursuant to Section 12.04(b)(iv).
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LEGAL_US_W # 117975371.5 66 4885-6545-0631v.4 as the Administrative Agent deems appropriate in its sole discretion and consistent with its normal oil and gas lending criteria as it exists at the particular time. (ii) The Administrative Agent shall notify the Borrower and the Lenders of the Proposed Borrowing Base (the βProposed Borrowing Base Noticeβ): (A) in the case of a Scheduled Redetermination (x) if the Administrative Agent shall have received the Engineering Reports required to be delivered by the Borrower pursuant to Section 8.11(a) and (c) in a timely and complete manner, then on or before March 15th and September 15th of such year following the date of delivery or (y) if the Administrative Agent shall not have received the Engineering Reports required to be delivered by the Borrower pursuant to Section 8.11(a) and (c) in a timely and complete manner, then promptly after the Administrative Agent has received complete Engineering Reports from the Borrower and has had a reasonable opportunity to determine the Proposed Borrowing Base in accordance with Section 2.07(c)(i); and (B) in the case of an Interim Redetermination, promptly, and in any event, within fifteen (15) days after the Administrative Agent has received the required Engineering Reports. (iii) Any Proposed Borrowing Base that would increase the Borrowing Base then in effect must be approved by all of the Lenders (other than any Term Lender that is not permitted to approve a proposed Borrowing Base pursuant to the terms of a Term Loan Amendment) as provided in this Section 2.07(c)(iii); and any Proposed Borrowing Base that would decrease or maintain the Borrowing Base then in effect must be approved or be deemed to have been approved by the Required Lenders based upon the Engineering Reports and such other information (including, without limitation, the status of title information with respect to the Oil and Gas Properties of the Credit Parties as described in the Engineering Reports and the existence of any other Debt, the Credit Partiesβ other assets, liabilities, fixed charges, cash flow, business, properties, prospects, management and ownership, hedged and unhedged exposure to price, price and production scenarios, interest rate and operating cost changes) as each Lender deems appropriate in its sole discretion and consistent with its normal oil and gas lending criteria as it exists at the particular time as provided in this Section 2.07(c)(iii). Upon receipt of the Proposed Borrowing Base Notice, each Lender shall have fifteen (15) days to agree with the Proposed Borrowing Base or disagree with the Proposed Borrowing Base by proposing an alternate Borrowing Base. If at the end of such fifteen (15) days, any Lender has not, in the case of any Proposed Borrowing Base that would decrease or maintain the Borrowing Base then in effect, communicated its approval or disapproval in writing to the Administrative Agent, such silence shall be deemed to be an approval of the Proposed Borrowing Base. If at the end of such fifteen (15) days, any Lender has not, in the case of any Proposed Borrowing Base that would increase the Borrowing Base then in effect, communicated its approval or disapproval in writing to the Administrative Agent, such silence shall be deemed to be a disapproval of the Proposed Borrowing Base. If, at the end of such fifteen (15) day period, all of the Lenders (other than any Term Lender that is not permitted to approve a proposed Borrowing Base pursuant to the terms of a Term Loan
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LEGAL_US_W # 117975371.5 68 4885-6545-0631v.4 9.02(i) (βNew Debtβ) during the period between Scheduled Redetermination Dates and not in conjunction with an Interim Redetermination, then on the date of such issuance, the Borrowing Base then in effect shall be reduced by an amount equal to the product of 0.25 multiplied by an amount equal to the difference between (A) the stated principal amount of such New Debt minus (B) in the event such New Debt constitutes Permitted Refinancing Debt, the stated principal amount of the previously outstanding Senior Notes Redeemed with the proceeds of such New Debt. Such reduction shall be effective and applicable to the Borrower, the Agents, the Issuing Bank and the Lenders on such date until the next redetermination or modification of the Borrowing Base under this Agreement. For purposes of this Section 2.07(e), if any such New Debt is issued at a discount or otherwise sold for less than βparβ, the reduction shall be calculated based upon the stated principal amount without reference to such discount. (ii) The Borrowing Base reduction provided for in Section 2.07(e)(i) shall not occur on the date such New Debt is issued or incurred if reasonably prior (and in any event, at least two Business Days prior) to the issuance or incurrence of such New Debt: (A) The Borrower delivers written notice to the Administrative Agent and the Lenders that the Credit Parties intend to issue or incur such New Debt to finance all or a portion of (x) a recent acquisition of Oil and Gas Properties for which the acquired assets have not yet been included in the most recent redetermination of the Borrowing Base or (y) a contemplated acquisition of Oil and Gas Properties (such properties, the βAcquisition Propertiesβ), which notice shall specify the contemplated principal amount of such New Debt and the targeted closing date of the issuance thereof; (B) The Borrower delivers to the Administrative Agent and the Lenders a Reserve Report and such other Engineering Reports reasonably requested by the Administrative Agent in form and with an βas ofβ date reasonably satisfactory to the Administrative Agent which evaluates such Acquisition Properties; and (C) The Borrower delivers to the Administrative Agent a certificate in form and substance reasonably acceptable to the Administrative Agent stating that the Borrower has a reasonable, good faith expectation that the value that the Lenders will attribute to such Acquisition Properties in the first redetermination of the Borrowing Base that becomes effective following the consummation of such contemplated (or recently completed) acquisition will be greater than or equal to 25% of the stated principal amount of such New Debt; Provided, that: (1) the Borrowing Base shall, subject to clauses (2) and (3) below, be redetermined giving pro forma effect to the acquisition of such Acquisition Properties in accordance with the procedures set forth in Section 2.07(c) for an Interim Redetermination, with such redetermined
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LEGAL_US_W # 117975371.5 69 4885-6545-0631v.4 Borrowing Base to become effective upon the later to occur of (x) the date the Credit Parties acquire substantially all of such Acquisition Properties and (y) the date that is 30 days following the date on which the Lenders receive the applicable Engineering Reports pursuant to clause (B) above or, in either case, such date as soon thereafter as reasonably practicable (provided that such redetermination shall not constitute a Scheduled Redetermination or an Interim Redetermination requested by the Borrower or the Majority Lenders); (2) if (i) the Credit Parties do not acquire substantially all of such Acquisition Properties for any reason prior to the date that is 90 days following the Credit Partiesβ issuance of such New Debt or (ii) any Credit Party knows with reasonable certainty that the Credit Parties will not acquire substantially all of such Acquisition Properties, then, subject to clause (3) below, the redetermination referred to in the foregoing clause (1) shall not be effective and the Borrowing Base shall be automatically reduced upon the earlier to occur of the events described in clauses (i) and (ii) in accordance with the procedures set forth in Section 2.07(e)(i) by an amount equal to 25% of the stated principal amount of such New Debt; (3) if upon consummation of such acquisition, the Credit Parties acquire at least 85% but less than 95% of the total value of such Acquisition Properties (as reasonably determined by the Administrative Agent), (i) the Borrowing Base reduction provided for in the foregoing clause (2) shall not occur, (ii) the redetermination referred to in the foregoing clause (1) shall not be effective and (iii) the Borrowing Base shall be redetermined giving effect to the Acquisition Properties actually acquired by the Credit Parties in accordance with the procedures set forth in Section 2.07(c) for an Interim Redetermination, with such redetermined Borrowing Base to become effective 15 days (or such longer period as is reasonably necessary) following the date on which such acquisition is consummated (provided that such redetermination shall not constitute a Scheduled Redetermination or an Interim Redetermination requested by the Borrower or the Required Lenders), provided further, that this clause (3) shall only be given effect if the redetermination referred to in clause (1) resulted in a Proposed Borrowing Base greater than or equal to the Borrowing Base in effect immediately prior to such redetermination; (4) the Borrower shall promptly (and in any event, within two Business Days) provide the Administrative Agent with written notice upon the Borrower knowing with reasonable certainty that the Credit Parties will not acquire substantially all of the Acquisition Properties; (5) for purposes of the foregoing clauses (1) and (2), βsubstantially all of such Acquisition Propertiesβ shall mean Oil and Gas Properties with a value (as reasonably determined by the Administrative
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LEGAL_US_W # 117975371.5 71 4885-6545-0631v.4 (v) specifying the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit; and (vi) specifying the amount of the then effective Available Borrowing Base and the then effective Aggregate Elected Revolving Commitment Amounts and whether a Borrowing Base Deficiency exists at such time, the current Total Revolving Credit Exposures (without regard to the requested Letter of Credit or the requested amendment, renewal or extension of an outstanding Letter of Credit) and the pro forma Total Revolving Credit Exposures (giving effect to the requested Letter of Credit or the requested amendment, renewal or extension of an outstanding Letter of Credit). Each notice shall constitute a representation by the Borrower that after giving effect to the requested issuance, amendment, renewal or extension, as applicable, (x) the LC Exposure shall not exceed the LC Commitment and (y) the Total Revolving Credit Exposures shall not exceed the Total Revolving Commitments (i.e., the least of (i) the Aggregate Maximum Credit Amounts less the Total Term Loan Exposures, (ii) the then effective Available Borrowing Base and (iii) the then effective Aggregate Elected Revolving Commitment Amounts). If requested by the Issuing Bank, the Borrower also shall submit a letter of credit application on the Issuing Bankβs standard form in connection with any request for a Letter of Credit; provided that, in the event of any conflict between such application or any Letter of Credit Agreement and the terms of this Agreement, the terms of this Agreement shall control. (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is five (5) Business Days prior to the Revolving Maturity Date. Notwithstanding the foregoing, no Letter of Credit may expire beyond the close of business on the date that is five (5) Business Days prior to the earliest Maturity Date applicable to any Lender, unless the amount of such Letter of Credit on the date of issuance, renewal or extension, as applicable, together with the outstanding Total Revolving Credit Exposures at such time, is less than or equal to the total Commitments of all Lenders having a later Maturity Date. (d) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the Revolving Lenders, the Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Revolving Lenderβs Applicable Revolving Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Revolving Lenderβs Applicable Revolving Percentage of each LC Disbursement made by the Issuing Bank and not reimbursed by the Borrower on the date due as provided in Section 2.08(e), or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this Section 2.08(d) in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance
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LEGAL_US_W # 117975371.5 72 4885-6545-0631v.4 whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, the existence of a Borrowing Base Deficiency or reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. (e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 3:00 p.m., New York City time, on the date that such LC Disbursement is made, if the Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such notice has not been received by the Borrower prior to such time on such date, then not later than 3:00 p.m., New York City time, on the Business Day immediately following the date that the Borrower receives such notice; provided that the Borrower shall, subject to the conditions to Borrowing set forth herein, be deemed to have requested, and the Borrower does hereby request under such circumstances, that such payment be financed with an ABR Revolving Borrowing in an equivalent amount and, to the extent so financed, the Borrowerβs obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing. If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Revolving Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Revolving Lenderβs Applicable Revolving Percentage thereof. Promptly following receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its Applicable Revolving Percentage of the payment then due from the Borrower, in the same manner as provided in Section 2.05 with respect to Revolving Loans made by such Revolving Lender (and Section 2.05 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from the Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this Section 2.08(e), the Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to this Section 2.08(e) to reimburse the Issuing Bank, then to such Revolving Lenders and the Issuing Bank as their interests may appear. Any payment made by a Revolving Lender pursuant to this Section 2.08(e) to reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans as contemplated above) shall not constitute a Revolving Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement. (f) Obligations Absolute. The Borrowerβs obligation to reimburse LC Disbursements as provided in Section 2.08(e) shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit, any Letter of Credit Agreement or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit or any Letter of Credit Agreement, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.08(f), constitute a legal or
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LEGAL_US_W # 117975371.5 73 4885-6545-0631v.4 equitable discharge of, or provide a right of setoff against, the Borrowerβs obligations hereunder. Neither the Administrative Agent, the Revolving Lenders nor the Issuing Bank, nor any of their Related Parties shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Bank; provided that the foregoing shall not be construed to excuse the Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the Issuing Bankβs failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised all requisite care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit. (g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone (confirmed by telecopy or e-mail) of such demand for payment and whether the Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement. (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then, until the Borrower shall have reimbursed the Issuing Bank for such LC Disbursement (either with its own funds or a Borrowing under Section 2.08(e)), the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at the rate per annum then applicable to ABR Revolving Loans. Interest accrued pursuant to this Section 2.08(h) shall be for the account of the Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to Section 2.08(e) to reimburse the Issuing Bank shall be for the account of such Revolving Lender to the extent of such payment. (i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Revolving Lenders of any such replacement of the Issuing Bank. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced
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LEGAL_US_W # 117975371.5 75 4885-6545-0631v.4 not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrower and the Guarantors under this Agreement or the other Loan Documents. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, and the Borrower is not otherwise required to pay to the Administrative Agent the excess attributable to an LC Exposure in connection with any prepayment pursuant to Section 3.04(c), then such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3) Business Days after all Events of Default have been cured or waived. (k) Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, and any LC Exposure or any Swingline Exposure exists at the time a Lender becomes a Defaulting Lender, then: (i) all or any part of such LC Exposure or Swingline Exposure shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Revolving Percentages (calculated without regard to such Defaulting Lenderβs Commitment) but only to the extent (x) the sum of all Non-Defaulting Lendersβ Revolving Credit Exposures does not exceed the total of all Non-Defaulting Lendersβ Revolving Commitments and (y) the conditions set forth in Section 6.02 are satisfied at such time; (ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under applicable law, within one (1) Business Day following notice by the Administrative Agent cash collateralize such Defaulting Lenderβs LC Exposure and prepay such Defaulting Lenderβs Swingline Exposure (in each case after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.08(j) for so long as such LC Exposure is outstanding; (iii) if the Borrower cash collateralizes any portion of such Defaulting Lenderβs LC Exposure pursuant to this Section 2.08(k), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.05(b) with respect to such Defaulting Lenderβs LC Exposure during the period such Defaulting Lenderβs LC Exposure is cash collateralized; (iv) if the LC Exposure and the Swingline Exposure of the Non- Defaulting Lenders is reallocated pursuant to this Section 2.08(k), then the fees payable to the Revolving Lenders pursuant to Section 3.05(a) and Section 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lendersβ Applicable Revolving Percentages; or (v) if any Defaulting Lenderβs LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.08(k), then, without prejudice to any rights or remedies of the Issuing Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lenderβs Revolving Commitment that was utilized by such LC Exposure) under Section 3.05(a) and letter of credit fees payable under Section 3.05(b)
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LEGAL_US_W # 117975371.5 77 4885-6545-0631v.4 required to make a Swingline Loan that would result in the total outstanding amount of such Xxxxxxβs Loans to exceed such Xxxxxxβs Revolving Commitment. The Borrower shall pay to the Administrative Agent, for the account of the Swingline Lender or each Lender, as applicable, pursuant to this Section 2.09, the outstanding aggregate principal and accrued and unpaid interest under each Swingline Loan no later than seven (7) Business Days following such Swingline Borrowing. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow amounts under the subfacility for Swingline Loans provided for in this Section 2.09, provided that, for the avoidance of doubt, in no event may the Borrower continue or convert a Swingline Loan. (b) To request a Swingline Loan, the Borrower shall notify each of the Administrative Agent and the Swingline Lender of such request by telephone or e-mail not later than 2:00 p.m., New York City time, on the date of the proposed Swingline Loan (and, in the case of telephonic notice, confirmed by hand delivery or e-mail). Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of (i) the current Total Revolving Credit Exposures, (ii) the aggregate principal amount of Permitted Secured Term Debt then outstanding and (iii) the amount of the Available Revolving Commitment. To the extent that the Swingline Lender receives the information referred to in the immediately preceding sentence no later than 4:00 p.m., New York City time, then the Swingline Lender shall make such Swingline Loan available to the Borrower by means of a credit to the general deposit account of the Borrower by 5:00 p.m., New York City time, on the requested date of such Swingline Loan. Each Swingline Borrowing shall be in an amount that is an integral multiple of $250,000 and not less than $1,000,000. (c) The Lenders shall participate in Swingline Loans according to their respective Applicable Revolving Percentages. Upon any Swingline Borrowing, the Administrative Agent shall give notice thereof to each Lender, specifying in such notice such Lenderβs Applicable Revolving Percentage of such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lenderβs Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Total Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.05 with respect to Loans made by such Lender (and Section 2.05 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders and shall distribute the payments received from the Borrower to the Swingline Lender and the other Lenders as their interests appear with respect to such Swingline Loans. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations
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LEGAL_US_W # 117975371.5 79 4885-6545-0631v.4 Loan Extension Request shall be designated a series (each, an βRevolving Loan Extension Seriesβ) of Extended Revolving Commitments and Extended Revolving Loans for all purposes of this Agreement; provided that any Extended Revolving Commitments and Extended Revolving Loans amended from an Existing Revolving Class may, to the extent provided in the applicable Extension Revolving Amendment, be designated as an increase in any previously established Extension Revolving Series with respect to an Existing Revolving Class. Each request for an Extension Revolving Series of Extended Revolving Commitments and Extended Revolving Loans proposed to be incurred under this Section 2.10 shall be in an aggregate principal amount that is not less than $10,000,000 (it being understood that the actual principal amount thereof provided by the applicable Revolving Lenders may be lower than such minimum amount) and the Borrower may impose a Revolving Extension Minimum Condition with respect to any Revolving Loan Extension Request, which may be waived by the Borrower in its sole discretion. (b) The Borrower shall provide the applicable Revolving Loan Extension Request at least five (5) Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the date on which Revolving Lenders under the Existing Revolving Class are requested to respond, and shall agree to such procedures, if any, as may be established by, or acceptable to, the Administrative Agent and the Borrower, in each case acting reasonably to accomplish the purposes of this Section 2.10. No Revolving Lender shall have any obligation to agree to have any of its Revolving Commitments and Revolving Loans of any Existing Revolving Class amended into an Extended Revolving Class pursuant to any Revolving Loan Extension Request. Any Revolving Lender holding a Revolving Commitment or Revolving Loan under an Existing Revolving Class (each, an βExtending Revolving Lenderβ) wishing to have all or a portion of its Revolving Commitments and Revolving Loans under the Existing Revolving Class subject to such Revolving Loan Extension Request amended into Extended Revolving Commitments and Extended Revolving Loans shall notify the Administrative Agent (each, an βRevolving Extension Electionβ) on or prior to the date specified in such Revolving Loan Extension Request of the amount of its Revolving Commitments and Revolving Loans under the Existing Revolving Class, which it has elected to request be amended into an Extended Revolving Class (subject to any minimum denomination requirements imposed by the Administrative Agent). In the event that the aggregate principal amount of Revolving Commitments and Revolving Loans under the Existing Revolving Class in respect of which applicable Revolving Lenders shall have accepted the relevant Revolving Loan Extension Request exceeds the amount of Extended Revolving Commitments and Extended Revolving Loans requested to be extended pursuant to the Revolving Loan Extension Request, Revolving Commitments and Revolving Loans subject to Revolving Extension Elections shall be amended to Extended Revolving Commitments and Extended Revolving Loans on a pro rata basis (subject to rounding by the Administrative Agent) based on the aggregate principal amount of Revolving Commitments and Revolving Loans included in each such Revolving Extension Election. Notwithstanding the conversion of any Existing Revolving Commitment into an Extended Revolving Commitment, such Extended Revolving Commitment shall be treated identically to all Existing Revolving Commitments of the Specified Existing Revolving Commitment Class for purposes of the obligations of a Revolving Lender in respect of Swingline Loans under Section 2.09 and Letters of Credit under Section 2.08, except that the applicable Extension Revolving Amendment may provide that the Revolving Maturity Date with respect to Swingline Loans and/or the last day for issuing Letters of Credit may be extended and the related obligations to make Swingline Loans and issue Letters of Credit
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LEGAL_US_W # 117975371.5 82 4885-6545-0631v.4 (ii) after giving effect to such Term Commitments, and as a condition to funding the Term Loans thereunder, the conditions of Section 6.02 shall be satisfied (it being understood that all references to βsuch dateβ or similar language in such Section 6.02 shall be deemed to refer to the effective date of such Term Loan Amendment); (iii) on a pro forma basis after giving effect to the making of such Term Loans and the use of proceeds thereof, (A) the Secured Leverage Ratio shall not exceed 2.00 to 1.00, (B) the Total Revolving Credit Exposures are not greater than eighty percent (80%) of the Total Revolving Commitments and (C) there shall be no Permitted Pari Term Loan Debt outstanding; (iv) the aggregate Term Commitments with respect to such Class of Term Loans shall be in an aggregate principal amount that is not less than $25,000,000 unless the Administrative Agent otherwise consents; (v) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received (A) customary legal opinions addressed to the Administrative Agent and the Lenders, board resolutions and officersβ certificates and (B) reaffirmation agreements and/or such amendments to the Security Instruments (including modifications to any mortgages), as may be reasonably requested by the Administrative Agent in order to ensure that the enforceability of the Security Instruments and the perfection and priority of the Liens thereunder are preserved and maintained; and (vi) (A) the Term Loan Amendment shall be in form and substance acceptable to the Administrative Agent, contain each of the required terms set forth in Section 2.11(e) and shall otherwise comply with this Section 2.11, and shall contain a representation by each Term Lender providing such Term Commitments that such Term Lender has no present intention to assign or sell participations in its Term Loans, (B) the execution of the Term Loan Amendment by the Borrower, each Term Lender providing such Term Commitments and the Administrative Agent, and (C) such other conditions as the Borrower and each Term Lender providing such Term Commitments shall agree. (e) Required Terms. The terms, provisions and documentation of the Term Loans and Term Commitments of any Class shall be as agreed between the Borrower and the applicable Term Lenders providing such Term Commitments. In any event: (i) the Term Loans: (A) shall rank pari passu in right of payment and of security with the Revolving Loans and any other Term Loans; (B) shall not mature earlier than the Revolving Maturity Date at the time of incurrence of such Term Loans and no scheduled principal or amortization payments shall be required in respect of such Term Loans except to the extent such payments would not cause the Weighted Average Life to Maturity of such Term Loans at any time to be shorter than fifty percent (50%) of the number of years remaining until the Revolving Maturity Date in effect; provided that, at no time shall there be Term Loans hereunder which have more than three different maturity dates unless the Administrative Agent otherwise consents to more than three different maturity dates;
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LEGAL_US_W # 117975371.5 83 4885-6545-0631v.4 (C) shall have an applicable rate, fees, premiums and, subject to Section 2.11(e)(i)(B) and Section 2.11(e)(i)(F), amortization determined by the Borrower and the applicable Term Lenders; (D) except as provided in Section 2.11(e)(i)(C) above, shall have mandatory prepayments, representations and warranties, covenants and events of default that are the same as, or no more restrictive on the Credit Parties (as determined by the Administrative Agent in its reasonable discretion) than, those set forth in this Agreement immediately prior to the applicable Term Loan Facility Closing Date unless any more restrictive mandatory prepayments, representations and warranties, covenants and events of default are incorporated into this Agreement on the applicable Term Loan Facility Closing Date; (E) may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Term Loan Amendment; and (F) shall provide that any mandatory prepayments or amortization payments in respect of such Term Loans shall only be required if each of the Specified Conditions is satisfied on a pro forma basis after giving effect to such payments. (f) Term Loan Amendment. (i) Term Commitments shall become Commitments under this Agreement pursuant to an amendment (a βTerm Loan Amendmentβ) to this Agreement in compliance with this Section 2.11 and executed by the Borrower, each Term Lender providing such Term Commitments and the Administrative Agent. Any corresponding amendments to the other Loan Documents necessary or appropriate in connection with and in compliance with this Section 2.11 shall be effective once executed by the Borrower and the Administrative Agent (without the consent of any Lender). The Term Loan Amendment may, without the consent of any other Lender, effect such amendments to this Agreement as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.11 (including introducing additional or tightening existing mandatory prepayments, representations and warranties, covenants or events of default for the benefit of all Lenders). The Borrower will use the proceeds of the Term Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Term Loans unless it so agrees, which agreement shall be given or withheld in such Xxxxxxβs sole discretion. (ii) The Lenders hereby irrevocably authorize Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Credit Parties as may be necessary order to establish new tranches or sub-tranches in respect of Loans or commitments made or established pursuant to this Section 2.11 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case, on terms consistent with this Section 2.11, including any amendments that are not adverse to the interests of any Lender that are made to effectuate changes necessary to enable any Term Loans to be fungible for United States federal income tax purposes with another Class of Term Loans, which
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LEGAL_US_W # 117975371.5 85 4885-6545-0631v.4 (v) any Extended Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, as specified in the applicable Term Loan Extension Offer; (vi) if the aggregate principal amount of Term Loans (calculated on the face amount thereof) in respect of which Term Lenders shall have accepted the relevant Term Loan Extension Offer shall exceed the maximum aggregate principal amount of Term Loans (calculated on the face amount thereof) offered to be extended by the Borrower pursuant to such Term Loan Extension Offer, then the Term Loans of such Term Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Term Lenders have accepted such Term Loan Extension Offer; (vii) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrower; and (viii) all documentation in respect of such Term Loan Extension shall be consistent with the foregoing and acceptable to the Administrative Agent. (b) With respect to all Term Loan Extensions consummated by the Borrower pursuant to this Section 2.12, (i) such Term Loan Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 3.04 and (ii) no Term Loan Extension Offer is required to be in any minimum amount or any minimum increment; provided that the Borrower may at its election specify as a condition (a βMinimum Extension Conditionβ) to consummating any such Term Loan Extension that a minimum amount of Term Loans of any or all applicable Classes be extended. The Administrative Agent and the Lenders hereby consent to the Term Loan Extensions and the other transactions contemplated by this Section 2.12 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans on such terms as may be set forth in the relevant Term Loan Extension Offer) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Section 4.01 or any other pro rata payment section, but excluding, for the avoidance of doubt, any of the provisions of this Section 2.12) or any other Loan Document that may otherwise prohibit or restrict any such Term Loan Extension or any other transaction contemplated by this Section 2.12. (c) Each of the parties hereto hereby (i) agrees that this Agreement and the other Loan Documents may be amended to give effect to each Term Loan Extension (an βExtension Amendmentβ), without the consent of any Lenders other than Extending Term Lenders, to the extent (but only to the extent) necessary to (A) reflect the existence and terms of the Extended Term Loans incurred pursuant thereto, (B) modify any scheduled repayments set forth in Section 3.01 with respect to any Class of Term Loans subject to a Term Loan Extension to reflect a reduction in the principal amount of the Term Loans thereunder in an amount equal to the aggregate principal amount of the Extended Term Loans amended pursuant to the applicable Term Loan Extension (with such amount to be applied ratably to reduce scheduled repayments of such Term Loans as may be required pursuant to Section 3.01), (C) modify the prepayments set forth in Section 3.04 to reflect the existence of the Extended Term Loans and the application of prepayments with respect thereto and (D) effect such other amendments to this Agreement and the
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LEGAL_US_W # 117975371.5 87 4885-6545-0631v.4 (c) Swingline Loans. Each Swingline Loan shall bear interest on the unpaid principal amount of such Swingline Loan at the Alternate Base Rate plus the Applicable Margin, but in no event to exceed the Highest Lawful Rate. (d) Post-Default Rate and Borrowing Base Deficiency Rate. Notwithstanding the foregoing, (i) if any Specified Event of Default has occurred and is continuing or (ii) the Majority Lenders (or the Administrative Agent at their direction) provide written notice to the Borrower of their election in connection with the occurrence and continuance on or after the Effective Date of any other Event of Default, then in each case all Loans then outstanding and any other fees or other amounts then due and owing under any Loan Document, shall bear interest, after as well as before judgment, at a rate per annum equal to two percent (2%) plus the rate applicable to ABR Loans as provided in Section 3.02(a) but in no event to exceed the Highest Lawful Rate. In the case of the foregoing clause (i), such increase in the interest rate shall become effective automatically upon the occurrence of any such Event of Default and shall accrue from and including the first date on which such Event of Default occurred. In the case of the foregoing clause (ii), such increase in the interest rate shall become effective upon delivery of written notice to the Borrower of the election of the Majority Lenders (or the election of the Administrative Agent at the direction of the Majority Lenders) during the continuance of such Event of Default, and thereafter shall accrue from and including the date upon which the notice of such election described therein is provided to the Borrower and ending on the date on which such Event of Default has been cured or waived in accordance with Section 12.02. During any Borrowing Base Deficiency, a portion of the Revolving Credit Exposure equal to the amount of the Borrowing Base Deficiency shall, upon the written election of the Majority Lenders (or the Administrative Agent at their direction), bear interest, after as well as before judgment, at the rate per annum equal to two percent (2%) plus the rate otherwise applicable to such portion of the Revolving Credit Exposures but in no event to exceed the Highest Lawful Rate; provided that, upon such written election of the Majority Lenders (or the Administrative Agent at their direction), such increase in the interest rate shall accrue from and including the date on which notice of such written election is provided to the Borrower and ending on the date on which such Borrowing Base Deficiency has been repaid or waived in accordance with Section 12.02. (e) Interest Payment Dates. Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan, on the Applicable Maturity Date and, in the case of the Revolving Loans, on the Termination Date; provided that (i) interest accrued pursuant to Section 3.02(d) shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than an optional prepayment of an ABR Loan prior to the Applicable Maturity Date for such Loan or, in the case of the Revolving Loans, the Termination Date), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment, (iii) in the event of any conversion of any Term SOFR Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion and (iv) accrued interest on any Swingline Loan shall be payable on the earlier of (x) the Termination Date and (y) seven (7) Business Days after such Swingline Loan is made. (f) Interest Rate Computations. All interest hereunder shall be computed on the basis of a year of three hundred sixty (360) days, unless such computation would exceed the Highest Lawful Rate, in which case interest shall be computed on the basis of a year of three
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LEGAL_US_W # 117975371.5 89 4885-6545-0631v.4 comparable agency, shall make it unlawful or impossible for any of the Lenders (or any of their respective lending offices) to honor its obligations hereunder to make or maintain any Term SOFR Loan or to determine or charge interest based upon SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, (i) such Lender shall promptly give notice thereof to the Administrative Agent and the Administrative Agent shall promptly give notice to the Borrower and the other Lenders (an βIllegality Noticeβ) and (ii) thereafter, until the Administrative Agent notifies the Borrower that such circumstances no longer exist, (A) any obligation of the Lenders to make Term SOFR Loans, and any right of the Borrower to convert any Loan to a Term SOFR Loan or continue any Loan as a Term SOFR Loan, shall be suspended and (B) if necessary to avoid such illegality, the Administrative Agent shall compute the Alternate Base Rate without reference to clause (c) of the definition of βAlternate Base Rateβ. Upon receipt of an Illegality Notice, the Borrower shall, if necessary to avoid such illegality, upon demand from any Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Term SOFR Loans to ABR Loans (in each case, if necessary to avoid such illegality, the Administrative Agent shall compute the Alternate Base Rate without reference to clause (c) of the definition of βAlternate Base Rateβ), on the last day of the Interest Period therefor, if all affected Lenders may lawfully continue to maintain such Term SOFR Loans to such day, or immediately, if any Lender may not lawfully continue to maintain such Term SOFR Loans to such day. (c) Benchmark Replacement Setting. (i) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of βBenchmark Replacementβ for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of βBenchmark Replacementβ for such Benchmark Replacement Date, the Administrative Agent and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Majority Lenders. (ii) Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent (in consultation with the Borrower) will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
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LEGAL_US_W # 117975371.5 92 4885-6545-0631v.4 (ii) Upon any Scheduled Redetermination of the Borrowing Base or Interim Redetermination of the Borrowing Base, in each case in accordance with Section 2.07(b), or adjustment to the amount of the Borrowing Base in accordance with Section 8.12(c), if any Borrowing Base Deficiency exists, then, after receiving a New Borrowing Base Notice in accordance with Section 2.07(d) or a notice of adjustment pursuant to Section 8.12(c), as the case may be (the date of receipt of any such notice, the βDeficiency Notification Dateβ), the Borrower shall, within ten (10) Business Days after the Deficiency Notification Date, notify the Administrative Agent of the Borrowerβs election to (such notice of election, an βElection Noticeβ; and the date on which the Borrower notifies the Administrative Agent of such election, an βElection Notification Dateβ), and the Borrower shall take one of the following actions: (A) (1) if no Term Loans are then outstanding, within thirty (30) days following such Election Notification Date, prepay the Revolving Borrowings in an aggregate principal amount equal to such Borrowing Base Deficiency (and to the extent that any Borrowing Base Deficiency remains after prepaying all of the Revolving Borrowings as a result of an LC Exposure, pay to the Administrative Agent on behalf of the Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.08(j)); or (2) if there are any Term Loans and any Revolving Loans and/or LC Exposure then outstanding, then within thirty (30) days following such Election Notification Date, (x) first, prepay the Revolving Borrowings in an aggregate principal amount equal to the Required Revolving Loan Prepayment Amount and (y) second, if any Borrowing Base Deficiency remains after prepaying the Revolving Borrowings in an amount equal to the Required Revolving Loan Prepayment Amount, subject to Section 3.04(c)(vii), prepay (i) the Revolving Borrowings (and if any Revolving Credit Exposures remain after prepaying all of the Revolving Borrowings as a result of an LC Exposure, pay to the Administrative Agent on behalf of the Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.08(j)) and (ii) the Term Borrowings, on a pro rata basis, in proportion to the Total Revolving Credit Exposures and the Total Term Loan Exposures outstanding at such time, in an aggregate amount equal to such Borrowing Base Deficiency; provided that any Term Loans may be prepaid on a less (but not greater) than a pro rata basis pursuant to this clause (y) if agreed to by the Term Lenders holding such Term Loans, in which case payments made to the Term Lenders and the Revolving Lenders pursuant to this clause (y) shall be adjusted to take into account such agreement by the Term Lendersβ to receive prepayments on a less (but not greater) than pro rata basis; (B) (1) if no Term Loans are then outstanding, prepay the Revolving Borrowings in an aggregate principal amount equal to such Borrowing Base Deficiency (and to the extent that any Borrowing Base Deficiency remains after prepaying all of the Revolving Borrowings as a result of an LC Exposure, pay to the Administrative Agent on behalf of the Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.08(j)) in six consecutive equal monthly installments, the first installment being due and payable on the 30th day after the Election Notification Date and each subsequent installment being due and payable on the same day in each of the subsequent calendar months, with each payment being equal to one-sixth (1/6th) of such Borrowing Base Deficiency, so that the Borrowing Base Deficiency is reduced to zero within six months of the Deficiency Notification Date; or (2) if there are any Term Loans and any Revolving Loans and/or LC Exposure then outstanding, then (x) first, prepay Revolving Borrowings in an aggregate principal amount equal to the Required Revolving Borrowing Prepayment Amount and (y) and second, if any Borrowing Base Deficiency remains after prepaying the Revolving Borrowings in an amount equal to the Required Revolving Loan Prepayment Amount, subject to Section 3.04(c)(vii), prepay (i) the Revolving Borrowings (and if any Revolving Exposure remains after prepaying all of the
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LEGAL_US_W # 117975371.5 93 4885-6545-0631v.4 Revolving Borrowings as a result of an LC Exposure, pay to the Administrative Agent on behalf of the Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.08(j)) and (ii) the Term Borrowings, on a pro rata basis, in proportion to the Total Revolving Credit Exposures and the Total Term Loan Exposures outstanding at such time, in an aggregate amount equal to such Borrowing Base Deficiency; provided that any Term Loans may be prepaid on a less (but not greater) than a pro rata basis pursuant to this clause (y) if agreed to by the Term Lenders holding such Term Loans, in which case payments made to the Term Lenders and the Revolving Lenders pursuant to this clause (y) shall be adjusted to take into account such agreement by the Term Lendersβ to receive prepayments on a less (but not greater) than pro rata basis, in six consecutive equal monthly installments, the first installment being due and payable on the 30th day after the Election Notification Date and each subsequent installment being due and payable on the same day in each of the subsequent calendar months, with each payment being equal to one- sixth (1/6th) of such Borrowing Base Deficiency, so that the Borrowing Base Deficiency is reduced to zero within six months of the Election Notification Date (and for the avoidance of doubt, in the case of this clause (y), each such installment shall be applied in its entirety (a) first, to the prepayment of Revolving Borrowings in an aggregate principal amount equal to the Required Revolving Borrowing Prepayment Amount and (b) thereafter, to the prepayment of (i) the Revolving Borrowings (and if any Revolving Exposure remains after prepaying all of the Revolving Borrowings as a result of an LC Exposure, pay to the Administrative Agent on behalf of the Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.08(j)) and (ii) the Term Borrowings, on a pro rata basis, in proportion to the Total Revolving Credit Exposures and the Total Term Loan Exposures outstanding at such time (as adjusted to the extent Term Loans are prepaid on a less than pro rata basis if agreed to by the Term Lenders holding such Term Loans)); (C) within thirty (30) days following the Election Notification Date, mortgage additional Oil and Gas Properties not evaluated in the most recently delivered Reserve Report acceptable to the Administrative Agent in its sole discretion (together with title information with respect thereto acceptable to the Administrative Agent in its sole discretion) having a Borrowing Base Value (as confirmed by the Required Lenders) sufficient, after giving effect to any other actions taken pursuant to this Section 3.04(c), to cure such Borrowing Base Deficiency; or (D) combine the options provided in clauses (A), (B) and/or (C) above, and indicating in the Election Notice the amount to be prepaid and the amount to be provided as additional Collateral, and (ii) make such payment and deliver such additional Collateral within the time required under clauses (A), (B) and/or (C) above; provided that, the options set forth above shall not prejudice the occurrence of any Maturity Date and the principal payments required on any such date; and provided, further, that (x) if the Borrowing Base equals or exceeds the sum of (1) the Total Revolving Credit Exposures plus (2) the Total Term Loan Exposures (as a result of any Scheduled Redetermination or Interim Redetermination or adjustment to the amount of the Borrowing Base in accordance with Section 8.12(c)) after the Deficiency Notification Date, the requirements of clauses (A), (B) and/or (C) above shall cease to apply to the Borrower upon receipt of the relevant New Borrowing Base Notice in accordance with Section 2.07(d) or a notice of adjustment pursuant to Section 8.12(c), as the case may be and (y) in case the amount of the Borrowing Base Deficiency is reduced (as a result of any Scheduled Redetermination or Interim Redetermination or adjustment to the amount of the Borrowing Base in accordance with Section 8.12(c)) after the Deficiency Notification Date, upon receipt of the relevant New Borrowing Base Notice in accordance with Section 2.07(d) or a notice of adjustment pursuant to Section 8.12(c), as the case may be, any reference in clauses (A), (B) and/or (C) to the amount of the Borrowing Base Deficiency shall be
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LEGAL_US_W # 117975371.5 94 4885-6545-0631v.4 deemed to be the reference to the amount of the Borrowing Base Deficiency reduced as set forth in this proviso (y). In the event the Borrower fails to provide an Election Notice to the Administrative Agent within ten (10) Business Days after the Deficiency Notification Date indicating which of the options specified in clauses (A), (B) or (C) the Borrower elects to take in order to eliminate the Borrowing Base Deficiency, the Borrower shall be deemed to have irrevocably elected the option set forth in clause (B) above (and to the extent there are any Term Loans and any Revolving Loans and/or LC Exposure then outstanding, the Borrower shall be deemed to have irrevocably elected the option set forth in clause (B)(2) above) The failure of the Borrower to comply with any of the options elected (including any deemed election) pursuant to the provisions of this Section 3.04(c)(ii) and specified in such notice (or relating to such deemed election) shall constitute an Event of Default. (iii) Upon any adjustments to the Borrowing Base pursuant to Section 9.12(d), if a Borrowing Base Deficiency exists, then the Borrower shall: (A) if no Term Loans are then outstanding, (1) prepay the Borrowings in an aggregate principal amount equal to such excess, and (2) if any excess remains after prepaying all of the Borrowings as a result of an LC Exposure, pay to the Administrative Agent on behalf of the Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.08(j) and (B) if there are any Term Loans and any Revolving Loans and/or LC Exposure then outstanding, (1) first, prepay Revolving Borrowings in an aggregate principal amount equal to the Required Revolving Loan Prepayment Amount and (2) second, if any Borrowing Base Deficiency remains after prepaying the Revolving Borrowings in an amount equal to the Required Revolving Loan Prepayment Amount, subject to Section 3.04(c)(vii), prepay (i) the Revolving Borrowings (and if any Revolving Credit Exposures remain after prepaying all of the Revolving Borrowings as a result of an LC Exposure, pay to the Administrative Agent on behalf of the Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.08(j)) and (ii) the Term Borrowings, on a pro rata basis, in proportion to the Total Revolving Credit Exposures and the Total Term Loan Exposures outstanding at such time, in an aggregate amount equal to such Borrowing Base Deficiency; provided that any Term Loans may be prepaid on a less (but not greater) than a pro rata basis pursuant to this clause (2) if agreed to by the Term Lenders holding such Term Loans, in which case payments made to the Term Lenders and the Revolving Lenders pursuant to this clause (2) shall be adjusted to take into account such agreement by the Term Lendersβ to receive prepayments on a less (but not greater) than pro rata basis. The Borrower shall be obligated to make such prepayment and/or deposit of cash collateral in the case of an adjustment as a result of a Disposition or Liquidation in accordance with Section 9.12(d), on the second (2nd) Business Day succeeding the date of the consummation of such Disposition and/or Liquidation; provided that all payments required to be made pursuant to this Section 3.04(c)(iii) must be made on or prior to the Termination Date. (iv) Upon any adjustments to the Borrowing Base pursuant to Section 2.07(e), if a Borrowing Base Deficiency exists, then the Borrower shall: (A) if no Term Loans are then outstanding, (1) prepay the Borrowings in an aggregate principal amount equal to such excess, and (2) if any excess remains after prepaying all of the Borrowings as a result of an LC Exposure, pay to the Administrative Agent on behalf of the Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.08(j) and (B) if there are any Term Loans and any Revolving Loans and/or LC Exposure then outstanding, (1) first, prepay Revolving Borrowings in
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LEGAL_US_W # 117975371.5 95 4885-6545-0631v.4 an aggregate principal amount equal to the Required Revolving Loan Prepayment Amount and (2) second, if any Borrowing Base Deficiency remains after prepaying the Revolving Borrowings in an amount equal to the Required Revolving Loan Prepayment Amount, subject to Section 3.04(c)(vii), prepay (i) the Revolving Borrowings (and if any Revolving Credit Exposures remain after prepaying all of the Revolving Borrowings as a result of an LC Exposure, pay to the Administrative Agent on behalf of the Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.08(j)) and (ii) the Term Borrowings, on a pro rata basis, in proportion to the Total Revolving Credit Exposures and the Total Term Loan Exposures outstanding at such time, in an aggregate amount equal to such Borrowing Base Deficiency; provided that any Term Loans may be prepaid on a less (but not greater) than a pro rata basis pursuant to this clause (2) if agreed to by the Term Lenders holding such Term Loans, in which case payments made to the Term Lenders and the Revolving Lenders pursuant to this clause (2) shall be adjusted to take into account such agreement by the Term Lendersβ to receive prepayments on a less (but not greater) than pro rata basis. The Borrower shall be obligated to make such prepayment and/or deposit of cash collateral, if required, on the first (1st) Business Day succeeding the date the Parent, the Borrower and/or Finance Co issues or incurs the applicable New Debt; provided that all payments required to be made pursuant to this Section 1.01(a)(iv) must be made on or prior to the Termination Date. (v) Each prepayment of Borrowings pursuant to this Section 3.04(c) shall be applied, first, ratably to any ABR Borrowings then outstanding, and, second, to any Term SOFR Borrowings then outstanding, and if more than one Term SOFR Borrowing is then outstanding, to each such Term SOFR Borrowing in order of priority beginning with the Term SOFR Borrowing with the least number of days remaining in the Interest Period applicable thereto and ending with the Term SOFR Borrowing with the most number of days remaining in the Interest Period applicable thereto; provided that, in the case of a prepayment of Revolving Loans, such prepayment shall be applied first ratably to any Swingline Loans then outstanding. (vi) Each prepayment of Borrowings pursuant to this Section 3.04(c) shall be applied ratably to the Loans included in the prepaid Borrowings. Prepayments pursuant to this Section 3.04(c) shall be accompanied by accrued and unpaid interest to the extent required by Section 3.02. (vii) Notwithstanding anything to the contrary contained in this Section 3.04(c) or anywhere else in this Agreement, if, at the time any prepayment of Term Loans is required to be made by the Borrower pursuant to this Section 3.04(c) (any such required prepayment of Term Loans, a βRequired Mandatory Term Loan Prepaymentβ, and the aggregate principal amount of Term Loans required to be so prepaid, the βRequired Mandatory Term Loan Prepayment Amountβ, and the date on which such Required Mandatory Term Loan Prepayment is required to be made pursuant to this Section 3.04(c), the βRequired Mandatory Term Loan Prepayment Dateβ), any of the Specified Conditions are not satisfied, then in lieu of making the Required Mandatory Term Loan Prepayment, the Borrower shall instead prepay the Revolving Loans in an aggregate amount equal to the Required Mandatory Term Loan Prepayment Amount (and if any Revolving Credit Exposures remain after prepaying all of the Revolving Borrowings as a result of an LC Exposure, pay to the Administrative Agent on behalf of the Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.08(j)) on the Required Mandatory Term Loan Prepayment Date.
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LEGAL_US_W # 117975371.5 98 4885-6545-0631v.4 receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender (other than, in the case of Swingline Loans, the Swingline Lenders), then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this Section 4.01(c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this Section 4.01(c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. Section 4.02 Presumption of Payment by the Borrower. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. Section 4.03 Certain Deductions by the Administrative Agent. If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b), Section 2.08(d), Section 2.08(e) or Section 4.02, or otherwise hereunder, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lenderβs obligations under such Sections until all such unsatisfied obligations are fully paid. If at any time prior to the acceleration or maturity of the Loans, the Administrative Agent shall receive any payment in respect of principal of a Loan or a reimbursement of an LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its Applicable Revolving Percentage of all Loans then outstanding.
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LEGAL_US_W # 117975371.5 102 4885-6545-0631v.4 (f) Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.03(f)(ii)(A) and Section 5.03(f)(ii)(B) and Section 5.03(g) below) shall not be required if in the Lenderβs reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. (ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person, (A) any Lender that is a βUnited States personβ as defined in Section 7701(a)(3) of the Code shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable: (1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the βinterestβ article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or IRS Form W-8BEN-E, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding tax pursuant to the βbusiness profitsβ or βother incomeβ article of such tax treaty;
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LEGAL_US_W # 117975371.5 103 4885-6545-0631v.4 (2) executed copies of IRS Form W-8ECI; (3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit I-1 to the effect that such Foreign Lender is not a βbankβ within the meaning of Section 881(c)(3)(A) of the Code, a β10 percent shareholderβ of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a βcontrolled foreign corporationβ described in Section 881(c)(3)(C) of the Code (a βU.S. Tax Compliance Certificateβ) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or (4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-2 or Exhibit I-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-4 on behalf of each such direct and indirect partner; and (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Withholding Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made. Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so. (g) FATCA. If a payment made to a Lender under this Agreement would be subject to United States federal withholding tax imposed by FATCA if such Lender fails to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Withholding Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Withholding Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Withholding Agent as may be necessary for the Withholding Agent to comply with its obligations under FATCA, to determine that such Xxxxxx has complied with
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LEGAL_US_W # 117975371.5 106 4885-6545-0631v.4 (g) The Administrative Agent shall have received from each of the parties thereto duly executed counterparts (in such number as may be requested by the Administrative Agent) of the Security Instruments described on Exhibit E-1. In connection with the execution and delivery of the Security Instruments, the Administrative Agent shall (a) be reasonably satisfied that the Security Instruments create first priority, perfected Liens (subject only to Liens permitted under Section 9.03) on at least 85% of the Proved Reserves evaluated in the Initial Reserve Reports and on all other Property purported to be pledged as collateral pursuant to the Security Instruments and (b) have received certificates, together with undated, blank stock powers for each such certificate, representing all of the issued and outstanding Equity Interests of each of the Guarantors (other than the Parent) to the extent any such Equity Interest is certificated. (h) The Administrative Agent shall have received the executed legal opinions of (i) Xxxxxxxx & Xxxxx LLP, as New York and Delaware counsel to the Credit Parties and (ii) local counsel to the Credit Parties in the States of North Dakota and Montana, in each case in form and substance reasonably satisfactory to the Administrative Agent. The Borrower, the Guarantors and the Administrative Agent hereby instruct such counsel to deliver such legal opinions. (i) The Administrative Agent shall have received a certificate of insurance coverage of the Credit Parties evidencing that the Credit Parties are carrying insurance in accordance with Section 7.12 (provided that to the extent such certificate of insurance coverage does not include the New Guarantors, the Borrower shall deliver a certificate of insurance coverage with respect to the New Guarantors pursuant to Section 8.18). (j) The Administrative Agent shall have received a certificate of a Responsible Officer of each member of the Parent Group certifying that each member of the Parent Group has received all consents and approvals required by Section 7.03. (k) The Administrative Agent shall have received (i) the financial statements referred to in Section 7.04(a) and (ii) the Initial Reserve Reports accompanied by a certificate covering the matters described in Section 8.11(c). (l) The Administrative Agent shall have received appropriate UCC search certificates reflecting no prior Liens encumbering the Properties of each Credit Party (other than Liens being assigned or released on or prior to the Effective Date or Liens permitted by Section 9.03) from the Secretary of State in the state in which such Credit Party is organized and any other jurisdiction reasonably requested by the Administrative Agent. (m) The Administrative Agent shall have received reasonably satisfactory evidence that (i) all loans and other amounts owing under the Xxxxxxx Credit Agreement have been (or contemporaneously with the Effective Date are being) repaid in full and all commitments thereunder have been terminated or cancelled and (ii) all Liens on the Properties of the New Guarantors associated with the Xxxxxxx Credit Agreement have been released or terminated subject only to the filing of applicable terminations, releases or assignments (and the Administrative Agent shall have received duly executed recordable releases and terminations reasonably acceptable to the Administrative Agent with respect thereto).
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LEGAL_US_W # 117975371.5 111 4885-6545-0631v.4 received any written notice or, to the knowledge of the Parent Group, oral notice that any such existing Environmental Permit will be revoked or that any application for any new Environmental Permit or renewal of any existing Environmental Permit will be protested or denied; (c) there are no claims, demands, suits, orders, inquiries, or proceedings concerning any violation of, or any liability (including as a potentially responsible party) under, any applicable Environmental Laws that is pending or to the knowledge of the Parent Group, threatened in writing against the Borrower or the Subsidiaries, including with respect to any of their respective Properties or as a result of any operations at the Properties; (d) none of the Properties of any Credit Party contain or have contained any: (i) underground storage tanks for Hazardous Materials; (ii) asbestos-containing materials; or (iii) landfills or dumps; (iv) hazardous waste management units as defined pursuant to RCRA or any comparable state law; or (v) sites on or proposed for the National Priority List promulgated pursuant to CERCLA or any state remedial priority list promulgated or published; pursuant to any comparable state law, in each case that would reasonably be expected to result in liability under Environmental Law for the Parent Group under Environmental Law; (e) there has been no Release or threatened Release of Hazardous Materials at, on, under or from any of Borrowerβs or the Subsidiariesβ Properties, there are no investigations, remediations, abatements, removals, or monitorings of Hazardous Materials required under applicable Environmental Laws at such Properties and, to the knowledge of the Parent Group, none of such Properties are adversely affected by any Release or threatened Release of a Hazardous Material originating or emanating from any other real property, in each case that could reasonably be expected to result in liability for the Parent Group under Environmental Law; (f) neither the Borrower nor the Subsidiaries has received any written notice asserting an alleged liability or obligation under any applicable Environmental Laws with respect to the investigation, remediation, abatement, removal, or monitoring of any Hazardous Materials at, under, or Released or threatened to be Released from any real properties offsite the Borrowerβs or the Subsidiariesβ Properties; (g) there has been no exposure of any Person to any Hazardous Materials as a result of or in connection with the operations and businesses of any of the Borrowerβs or the Subsidiariesβ Properties that would reasonably be expected to form the basis for a claim against the Parent Group for damages or compensation under Environmental Law; and (h) the Borrower and the Subsidiaries have provided to Lenders copies of all environmental site assessment reports, investigations, studies and analyses in the Borrowerβs or Subsidiariesβ custody, possession or control bearing on any alleged non-compliance with or liability under Environmental Laws (including with respect to any Environmental Permits required for the operation of the Properties of the Borrower and the Subsidiaries) that are in any of the Borrowerβs or the Subsidiariesβ possession or control and relating to their respective Properties or operations thereon.
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LEGAL_US_W # 117975371.5 114 4885-6545-0631v.4 restricts or purports to restrict its ability to grant Liens to the Administrative Agent for the benefit of the Secured Parties on or in respect of their Properties constituting Collateral to secure the Indebtedness and the Loan Documents, other than as permitted under Section 9.16. Section 7.14 Subsidiaries. Except as set forth on Schedule 7.14, as of the Effective Date, the Parent has no Subsidiaries. The Parent has no Foreign Subsidiaries. As of the Effective Date, Schedule 7.14 identifies each Subsidiary as either βRestrictedβ or βUnrestrictedβ, and each Restricted Subsidiary on such schedule is a Wholly-Owned Subsidiary. Section 7.15 Location of Business and Offices. As of the Effective Date, the Borrowerβs jurisdiction of organization is the State of Delaware; the name of the Borrower as listed in the public records of its jurisdiction of organization is βOasis Petroleum North America LLCβ; and the organizational identification number of the Borrower in its jurisdiction of organization is 4354265. As of the Effective Date, the Borrowerβs principal place of business and chief executive offices are located at the address specified in Section 12.01. As of the Effective Date, the jurisdiction of organization of OP LLC is the State of Delaware; the name of OP LLC as listed in the public records of its jurisdiction of organization is βOasis Petroleum LLCβ, and the organizational identification number of OP LLC in its jurisdiction of organization is 4307625. As of the Effective Date, the principal place of business and chief executive offices of OP LLC are located at the address specified in Section 12.01. As of the Effective Date, the jurisdiction of organization of the Parent is the State of Delaware; the name of the Parent as listed in the public records of its jurisdiction of organization is βChord Energy Corporationβ, and the organizational identification number of the Parent in its jurisdiction of organization is 4793429. As of the Effective Date, the principal place of business and chief executive offices of the Parent are located at the address specified in Section 12.01. As of the Effective Date, each other Guarantorβs jurisdiction of organization, name as listed in the public records of its jurisdiction of organization, organizational identification number in its jurisdiction of organization, and the location of its principal place of business and chief executive office is stated on Schedule 7.14. Section 7.16 Properties; Titles, Etc. (a) Except as set forth in Schedule 7.16, each of the Borrower and the Restricted Subsidiaries has good and defensible title to the Borrowing Base Properties (except for those Oil and Gas Properties that have been Disposed of since the date of the most recently delivered Reserve Report in accordance with this Agreement or leases which have expired in accordance with their terms) and good title to all its material personal Properties, in each case, free and clear of all Liens except Liens permitted by Section 9.03. After giving full effect to the Excepted Liens, the Borrower or the Restricted Subsidiary specified as the owner in the most recently delivered Reserve Report owns the net interests in production attributable to the Hydrocarbon Interests as reflected therein, other than reductions in such interests resulting from any actions permitted under Section 9.12 or from the election of the Borrower to not participate in any operation in respect of an Oil and Gas Property, and the ownership of such Properties shall not in any material respect obligate the Borrower or such Restricted Subsidiary to bear the costs and expenses relating to the maintenance, development and operations of each such Property in an amount in excess of the working interest of such Property set forth in the most recently delivered Reserve Report that is not offset by a corresponding proportionate increase in the Borrowerβs or such Restricted Subsidiaryβs net revenue interest in such Property, other than excesses (A) relating
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LEGAL_US_W # 117975371.5 120 4885-6545-0631v.4 Subsidiary owning Oil and Gas Properties constituting Proved Reserves pursuant to Section 9.12(d), in which such single Disposition or Liquidation or series of Dispositions or Liquidations pursuant to such provisions as of such date, since the later of the last Redetermination Date and the last date on which the Borrowing Base was adjusted pursuant to such provisions, exceeds 5.0% of the then-effective Borrowing Base, written notice of such disposition, the anticipated price thereof and the anticipated date of closing and any other details thereof reasonably requested by the Administrative Agent or any Lender. (k) Notice of Sales of Crestwood Common Units. Promptly after the Disposition of any Crestwood Common Units pursuant to Section 9.12(j), written notice of such disposition, the price thereof and the date of closing and any other details thereof reasonably requested by the Administrative Agent or any Lender. (l) Information Regarding Borrower and Guarantors. Prompt written notice of (and in any event at least thirty (30) days after the occurrence thereof) any change (i) in the Borrowerβs or any Guarantorβs corporate name, (ii) in the location of the Borrowerβs or any Guarantorβs chief executive office or principal place of business, (iii) in the Borrowerβs or any Guarantorβs corporate structure or in the jurisdiction in which such Person is incorporated or formed, and (iv) in the Borrowerβs or any Guarantorβs federal taxpayer identification number. (m) Production Report and Lease Operating Statements. Within sixty (60) days after the end of each of the first three fiscal quarters for each calendar month during the then- current fiscal year to date, and within ninety (90) days after the end of the fiscal year (or in each case, such later date as the Administrative Agent may agree in its sole discretion), a report setting forth the volume of production and sales attributable to production (and the prices at which such sales were made and the revenues derived from such sales) for each such calendar month during such period from the Oil and Gas Properties described therein. (n) Notice of Certain Changes. Promptly after the execution thereof, copies of any amendment, modification or supplement to the certificate or articles of incorporation, by-laws or any other organic document of any Restricted Party, or any amendment, modification or supplement to any material Permitted Secured Loan Documents, if any. (o) Other Requested Information. Promptly following any reasonable request therefor, (i) such other information regarding the operations, business affairs and financial condition of the Parent Group or any Restricted Subsidiary (including, without limitation, any Plan, and any reports or other information required to be filed with respect thereto under the Code or under ERISA, and any Multiemployer Plan), or compliance with the terms of this Agreement or any other Loan Document, as the Administrative Agent or any Lender may reasonably request, (ii) information and documentation requested by the Administrative Agent or any Lender for purposes of compliance with applicable βknow your customerβ rules and regulations or any Anti- Money Laundering Laws and (iii) to the extent the Borrower qualifies as a βlegal entity customerβ under the Beneficial Ownership Regulation and any Lender has requested a Beneficial Ownership Certification in a written notice to the Borrower, a Beneficial Ownership Certification. (p) Issuance of Senior Notes, Permitted Secured Term Debt and Permitted Refinancing Debt. In the event the Parent, the Borrower and/or Finance Co decides to issue or
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LEGAL_US_W # 117975371.5 128 4885-6545-0631v.4 Parties not already subject to a Lien of the Security Instruments such that after giving effect thereto, the total value of the Mortgaged Properties will satisfy the Mortgage Coverage Requirement. All such Liens will be created and perfected by and in accordance with the provisions of deeds of trust, security agreements and financing statements or other Security Instruments, all in form and substance reasonably satisfactory to the Administrative Agent and in sufficient executed (and acknowledged where necessary or appropriate) counterparts for recording purposes. In order to comply with the foregoing, if any Restricted Subsidiary places a Lien on its Oil and Gas Properties and such Restricted Subsidiary is not a Guarantor, then it shall become a Guarantor and comply with Section 8.13(b). (b) In the event that (i) the Borrower or any other Credit Party creates or acquires any Subsidiary (in each case other than an Excluded Subsidiary), (ii) any Domestic Subsidiary incurs or guarantees any Debt or (iii) any Excluded Subsidiary ceases to be an Excluded Subsidiary, the Parent Group shall promptly cause such Subsidiary to guarantee the Indebtedness pursuant to the Guaranty and Security Agreement. In connection with any such guarantee, the Parent Group shall (A) cause such Domestic Subsidiary to execute and deliver the Guaranty and Security Agreement or a supplement thereto, as applicable, and the Intercompany Subordination Agreement or a supplement thereto, as applicable, (B) cause the Credit Party that owns Equity Interests in such Subsidiary to pledge all of the Equity Interests of such new Subsidiary pursuant to the Guaranty and Security Agreement (including, without limitation, delivery (if applicable) of original certificates evidencing the Equity Interests of such Subsidiary, together with an appropriate undated stock powers for each certificate duly executed in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent. The Parent Group shall cause any Subsidiary (other than the Borrower) that guarantees the obligations with respect to any Senior Notes, Permitted Junior Lien Term Loan Debt, Permitted Pari Term Loan Debt or Permitted Refinancing Debt in respect thereof to contemporaneously become a Guarantor by executing and delivering to the Administrative Agent an assumption agreement with respect to the Guaranty and Security Agreement. (c) Notwithstanding any provision in any of the Loan Documents to the contrary, in no event is any Building (as defined in the applicable Flood Insurance Regulations) or Manufactured (Mobile) Home (as defined in the applicable Flood Insurance Regulations) owned by any Credit Party included in the Mortgaged Property and no Building or Manufactured (Mobile) Home shall be encumbered by any Security Instrument; provided, that (i) the applicable Credit Partyβs interests in all lands and Hydrocarbons situated under any such Building or Manufactured (Mobile) Home shall be included in the Mortgaged Property and shall be encumbered by the Security Instruments and (ii) the Parent Group shall not, and shall not permit any of their respective Restricted Subsidiaries to, permit to exist any Lien on any Building or Manufactured (Mobile) Home except Excepted Liens. (d) Notwithstanding anything to the contrary in this Agreement, the Guaranty and Security Agreement, or any other Loan Document, (i) Property may be excluded from the Collateral for all purposes of the Loan Documents if the Administrative Agent has determined in its sole discretion (and has designated in writing) that such Property is immaterial for oil and gas mineral interest owners and the costs of obtaining such a security interest or perfection thereof are excessive in relation to the benefit of the Lenders of the security to be afforded thereby, (ii) the
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LEGAL_US_W # 117975371.5 133 4885-6545-0631v.4 or indirect acquisition of Oil and Gas Properties, such Senior Notes may contain mandatory prepayment or redemption provisions providing for the repayment or redemption of such Senior Notes in the event that such acquisition is not consummated by a certain date in an amount not to exceed the principal amount of such Senior Notes and any accrued interest thereon through the prepayment or redemption date, (I) neither the Parent nor any Subsidiary of the Parent (other than the Borrower or a Guarantor or a Person who becomes a Guarantor in connection therewith) is an obligor under such Debt, (J) if such Debt is senior subordinated or subordinated Debt, the terms of such Debt provide for customary subordination of such Debt to the Indebtedness and (K) no such Debt shall be secured by any Lien on any Property. (j) Debt constituting Investments permitted by Section 9.04(b) (other than Section 9.05(l)). (k) Debt under Swap Agreements permitted pursuant to Section 9.18. (l) Debt owed to insurance companies for premiums on policies required by Section 8.06. (m) Debt in respect of netting services, automatic clearing house arrangements, employeesβ credit or purchase cards, overdraft protections and similar arrangements. (n) (i) Debt of a Person or Debt attaching to the assets of a Person that, in either case, becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives a merger with such Person or any of its Subsidiaries) or Debt attaching to the assets that are acquired by the Borrower or any Restricted Subsidiary, in each case, after the Effective Date as the result of an Investment permitted under Section 9.05; provided that: (A) such Debt existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof; (B) such Debt is not guaranteed in any respect by the Borrower or any other Restricted Subsidiary; (C) (1) the Equity Interests of such Person are pledged to the Administrative Agent to the extent required under Section 8.13 and (2) such Person executes a supplement to the Guaranty and Security Agreement, to the extent required under Section 8.13; (D) the property acquired shall not constitute Borrowing Base Properties (and any Person acquired in such Investment (or any Restricted Subsidiary that survives a merger with such Person or any of its Subsidiaries) shall not own or hold any Borrowing Base Properties); and (E) immediately after giving effect to the assumption of any such Debt, such acquisition and any related transactions, the Borrower shall be in compliance with Section 9.01(b) on Pro Forma Basis; and
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LEGAL_US_W # 117975371.5 136 4885-6545-0631v.4 than 3.0 to 1.0 and (C) the Total Revolving Credit Exposures after giving effect thereto are not greater than 80% of the Total Revolving Commitments then in effect, and (ix) the Credit Parties may make the Ohm Special Dividend (as defined in the Merger Agreement) pursuant to and in accordance with the Merger Agreement. (b) Repayment of Permitted Debt; Amendment to Terms of Permitted Debt. The Parent Group will not, and will not permit any Restricted Subsidiary to, prior to the date that is ninety-one (91) days after the Maturity Date: (i) call, make or offer to make any optional or voluntary Redemption of or otherwise optionally or voluntarily Redeem (whether in whole or in part) any Permitted Debt; provided that: (A) the Parent may Redeem Permitted Debt in one or more transactions in an aggregate amount not to exceed the net cash proceeds of any sale of Equity Interests (other than Disqualified Capital Stock) of the Parent to the extent that (x) such Redemption is consummated within one hundred eighty (180) days of the consummation of such sale of Equity Interests and (y) after giving effect to such Redemption, no Default, Event of Default or Borrowing Base Deficiency shall have occurred and be continuing, (B) the Parent may Redeem Permitted Debt with the proceeds of any Permitted Refinancing Debt substantially concurrently with the incurrence of such Permitted Refinancing Debt, and (C) the Parent, the Borrower and/or Finance Co may Redeem any Permitted Debt so long as at the time of such Redemption, and after giving effect to such Redemption, each of the Specified Conditions is satisfied; (ii) call, make or offer to make any mandatory Redemption of any Permitted Pari Term Loan Debt or make any scheduled amortization payments on respect of any Permitted Pari Term Loan Debt unless at the time of such Redemption or scheduled amortization payment, after giving effect thereto, each of the Specified Conditions is satisfied; (iii) amend, modify, waive or otherwise change, consent or agree to any amendment, modification, waiver or other change to, any of the terms of the Senior Notes or the Senior Notes Documents or the terms of any Permitted Refinancing Debt with respect thereto and the agreements governing any Permitted Refinancing Debt with respect thereto or the terms of the Convertible Notes or the Convertible Notes Indenture if (A) the effect thereof would be to shorten its maturity or average life or increase the amount of any payment of principal thereof or increase the rate or shorten any period for payment of interest thereon or (B) such action requires the payment of a consent fee (howsoever described), provided that the foregoing shall not prohibit the execution of supplemental indentures associated with the incurrence of additional Senior Notes, Convertible Notes or Permitted Refinancing Debt with respect thereto to the extent permitted by Section 9.02 or
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LEGAL_US_W # 117975371.5 138 4885-6545-0631v.4 (g) Investments (i) made by any Credit Party in or to any other Credit Party (or any Person that will, upon making such Investment, become a Guarantor) or (ii) made by any Restricted Party that is not a Credit Party in or to any other Restricted Party. (h) subject to the limits in Section 9.06, Investments (including, without limitation, capital contributions) in general or limited partnerships or other types of entities (each a βventureβ) entered into by the Borrower or a Restricted Subsidiary with others in the ordinary course of business; provided that (i) any such venture is engaged exclusively in oil and gas exploration, development, production, processing and related activities, including transportation, (ii) the interest in such venture is acquired in the ordinary course of business and on fair and reasonable terms and (iii) such venture interests acquired and capital contributions made (valued as of the date such interest was acquired or the contribution made) do not exceed, in the aggregate at any time outstanding an amount equal to $30,000,000. (i) subject to the limits in Section 9.06, Investments in direct ownership interests in additional Oil and Gas Properties and gas gathering systems related thereto or related to farm-out, farm-in, participation agreements, joint operating, joint venture or area of mutual interest agreements, gathering systems, pipelines or other similar arrangements which are usual and customary in the oil and gas exploration and production business located within the geographic boundaries of the United States of America. (j) loans or advances to employees, officers or directors in the ordinary course of business of the Borrower or any Restricted Subsidiary, in each case only as permitted by applicable law, including Section 402 of the Sarbanes Oxley Act of 2002, but in any event not to exceed $5,000,000 in the aggregate at any time. (k) Investments in stock, obligations or securities received in settlement of debts arising from Investments permitted under this Section 9.04(b) owing to any Restricted Party as a result of a bankruptcy or other insolvency proceeding of the obligor in respect of such debts or upon the enforcement of any Lien in favor of any Restricted Party. (l) guarantees of Debt permitted by Section 9.02(a), (h) or (i). (m) Investments in Crestwood Common Units acquired by the Credit Parties as a result of the Crestwood Merger. (n) Investments made by the Credit Parties in any Unrestricted Subsidiaries or any Restricted Subsidiaries that are not then Credit Parties in an aggregate amount not to exceed $60,000,000 at any time; provided that, (1) the Borrower shall be in compliance with the covenants contained in Section 9.01 on a Pro Forma Basis after giving effect to such Investment and (2) after giving effect to such Investment, (x) no Default or Event of Default shall have occurred and be continuing and (y) the Total Revolving Credit Exposures after giving effect thereto are not greater than 85% of the Total Revolving Credit Exposures then in effect. (o) to the extent constituting an Investment, Swap Agreements permitted under Section 9.18 and guarantees thereof.
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LEGAL_US_W # 117975371.5 143 4885-6545-0631v.4 (as set forth in the most recently delivered Reserve Report) of all Oil and Gas Properties exchanged or swapped for newly acquired Oil and Gas Properties since the last Redetermination Date does not exceed five percent (5%) of the Borrowing Base then in effect and (B) notwithstanding the foregoing, the Borrower and its Restricted Subsidiaries shall be permitted to Liquidate any Swap Agreements with respect to which the Borrower or such Restricted Subsidiary, as applicable, is βout-of-the-moneyβ, so long as (1) no Default or Event of Default is continuing or would result therefrom, (2) the Leverage Ratio, calculated on a Pro Forma Basis, is less than 3.0 to 1.0 and (3) the Total Revolving Credit Exposures after giving effect thereto are not greater than 80% of the Total Revolving Commitments then in effect; (ii) the consideration or settlement proceeds received in respect of such Disposition or the Liquidation of any Swap Agreement in respect of commodities shall be equal to or greater than the fair market value of the Oil and Gas Property, interest therein or Restricted Subsidiary subject of such Disposition, or Swap Agreement subject of such Liquidation (as reasonably determined by a Responsible Officer of the Borrower or by the appropriate governing body of the Parent and/or the Borrower, as applicable); (iii) if such Disposition of Oil and Gas Properties constituting Proved Reserves or Restricted Subsidiaries owning Oil and Gas Properties constituting Proved Reserves, and Swap Agreements Liquidated pursuant to this Section 9.12(d), when aggregated with any other Disposition of Oil and Gas Properties constituting Proved Reserves or Restricted Subsidiaries owning Oil and Gas Properties constituting Proved Reserves and Swap Agreements Liquidated, in each case pursuant to this Section 9.12(d), since the last Redetermination Date has a Borrowing Base Value individually or in the aggregate in excess of seven-and-one-half percent (7.5%) of the then effective Borrowing Base (after taking into account the value (as determined by the Administrative Agent) of Swap Agreements executed since the last Redetermination Date, including those executed substantially concurrently with the taking of any such action), the Borrowing Base shall be reduced, effective immediately upon such Disposition or Liquidation, by an amount equal to the Borrowing Base Value of such Properties Disposed of, or Swap Agreements in respect of commodities Liquidated, in each case since the last Redetermination Date; provided that if a Borrowing Base Deficiency would result from such reduction in the Borrowing Base, the Borrower shall make a prepayment to the extent required by, and subject to the terms of, Section 1.01(a)(iii); and (iv) if any such Disposition is of a Restricted Subsidiary owning Oil and Gas Properties constituting Proved Reserves, such Disposition shall include all the Equity Interests of such Restricted Subsidiary; (e) Dispositions of Properties not regulated by Section 9.12(d) having a fair market value not to exceed $50,000,000 during any 12-month period; provided that if any such Disposition is of the Equity Interests of a Restricted Subsidiary, such Disposition shall include all the Equity Interests of such Restricted Subsidiary; (f) exchanges, swaps or trades of Oil and Gas Properties not constituting Proved Reserves or other Property not regulated by Section 9.12(d); provided that (i) no Event of
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LEGAL_US_W # 117975371.5 146 4885-6545-0631v.4 Section 9.18 Swap Agreements. (a) The Parent Group will not, and will not permit any Restricted Subsidiary to, enter into any Swap Agreements with any Person other than (i) Swap Agreements in respect of commodities (A) with an Approved Counterparty and (B) the notional volumes for which (when aggregated with other commodity Swap Agreements then in effect other than basis differential swaps on volumes already hedged pursuant to other Swap Agreements) do not exceed, as of the date such Swap Agreement is executed (and for each month during the period during which such Swap Agreement is in effect), for each full calendar month during the forthcoming sixty (60) consecutive full calendar months following the date of determination, eighty-five percent (85%) of the reasonably anticipated production for each of crude oil and natural gas, calculated separately, in each case, as such production is projected from the Borrowerβs and its Restricted Subsidiariesβ Oil and Gas Properties as set forth on the most recent Reserve Report delivered pursuant to the terms of this Agreement; provided, that (x) the Borrower may update such projections by providing the Administrative Agent an internal report prepared by or under the supervision of the chief engineer of the Borrower and any additional informational reasonably requested by the Administrative Agent that is, in each case, reasonably satisfactory to the Administrative Agent (and shall include new reasonably anticipated Hydrocarbon production from new xxxxx or other production improvements and any dispositions, well shut-ins and other reductions of, or decreases to, production) and (y) the Borrower may purchase puts and floors the notional volumes for which exceed the foregoing percentage limitations (but which do not cause all notional volumes hedged to exceed 100% of the Current Production for any period beyond the last day of the second calendar year following the calendar year in which such puts and/or floors are purchased) (the Swap Agreements described in this clause (i), the βOngoing Commodity Xxxxxxβ), (ii) Swap Agreements in respect of interest rates with an Approved Counterparty, as follows: (A) Swap Agreements effectively converting interest rates from fixed to floating, the notional amounts of which (when aggregated with all other Swap Agreements of the Borrower and its Restricted Subsidiaries then in effect effectively converting interest rates from fixed to floating) do not exceed 50% of the then outstanding principal amount of the Borrowerβs Debt for borrowed money which bears interest at a fixed rate and (B) Swap Agreements effectively converting interest rates from floating to fixed, the notional amounts of which (when aggregated with all other Swap Agreements of the Borrower and its Restricted Subsidiaries then in effect effectively converting interest rates from floating to fixed) do not exceed 75% of the then outstanding principal amount of the Borrowerβs Debt for borrowed money which bears interest at a floating rate, (iii) any Permitted Bond Hedge Transaction(s), and (iv) any Permitted Warrant Transaction. In no event shall any Swap Agreement contain any requirement for the Borrower or any Restricted Subsidiary to post, during the term of this Agreement, collateral or margin to secure their obligations under such Swap Agreement or to cover market exposures and in no event shall (1) any Swap Agreements in respect of interest rates have a term beyond 48 months from the date of execution thereof or (2) any Swap Agreements in respect of commodities have a term beyond 60 months from the date of execution thereof. (b) In addition to the Ongoing Commodity Xxxxxx, in connection with a proposed acquisition or merger permitted hereunder (a βProposed Acquisitionβ), the Credit Parties may also enter into Swap Agreements in respect of commodities with an Approved Counterparty, the notional volumes for which do not exceed, as of the date such Swap Agreement is executed,
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LEGAL_US_W # 117975371.5 148 4885-6545-0631v.4 due and payable, whether at the due date thereof or at a date fixed for prepayment thereof, by acceleration or otherwise. (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in Section 10.01(a)) payable under any Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five (5) Business Days. (c) any representation or warranty made or deemed made by or on behalf of the Parent Group or any Subsidiary in or in connection with any Loan Document or any amendment or modification of any Loan Document or waiver under such Loan Document, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made (or, if already qualified by materiality, Material Adverse Effect or a similar qualification, true and correct in all respects). (d) the Parent Group or any Restricted Subsidiary shall fail to observe or perform any covenant, condition or agreement applicable to it contained in (x) Section 8.01(i), Section 8.01(l), Section 8.02(a), Section 8.03, Section 8.13, Section 8.18 or in Article IX or (y) Section 5.09 of the Guaranty and Security Agreement. (e) the Parent Group or any Restricted Subsidiary shall fail to observe or perform any covenant, condition or agreement contained in this Agreement applicable to it (other than those specified in Section 10.01(a), Section 10.01(b) or Section 10.01(d)) or any other Loan Document, and such failure shall continue unremedied for a period of thirty (30) days after the earlier to occur of (i) notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of the Majority Lenders) or (ii) a Responsible Officer of the Borrower or such Restricted Subsidiary otherwise becoming aware of such default. (f) Any Credit Party or any Restricted Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable and such failure continues beyond any applicable grace period. (g) any event or condition (other than customary change of control or asset sale tender offer provisions of any agreement governing any Debt permitted under Section 9.02 which would require a mandatory prepayment or redemption of the Debt arising thereunder) occurs that results in any Material Indebtedness of the Credit Parties or any Restricted Subsidiary becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the Redemption thereof or any offer to Redeem to be made in respect thereof, prior to its scheduled maturity or require any Credit Party or any Restricted Subsidiary to make an offer in respect thereof and such event or condition continues beyond any applicable grace period. (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Parent Group
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LEGAL_US_W # 117975371.5 149 4885-6545-0631v.4 or any Restricted Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Parent Group or any Restricted Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for thirty (30) days or an order or decree approving or ordering any of the foregoing shall be entered. (i) the Parent Group or any Restricted Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 10.01(h), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for each member of the Parent Group or any Restricted Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing. (j) the Parent Group or any Restricted Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due. (k) (i) one or more judgments for the payment of money in an aggregate amount in excess of $75,000,000 (to the extent not covered by independent third party insurance provided as to which the insurer does not dispute coverage and is not subject to an insolvency proceeding) or (ii) any one or more non-monetary judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, shall be rendered against the Parent Group, any Restricted Subsidiary or any combination thereof and the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Parent Group or any Restricted Subsidiary to enforce any such judgment. (l) the Loan Documents after delivery thereof shall for any reason, except to the extent permitted by the terms thereof or as otherwise acceptable to the Administrative Agent in its sole discretion, cease to be in full force and effect and valid, binding and enforceable in accordance with their terms against the Borrower or a Guarantor or shall be repudiated by any of them, or cease to create a valid and perfected Lien of the priority required thereby on any of the Collateral purported to be covered thereby with a fair market value greater than $15,000,000, except to the extent permitted by the terms of this Agreement, or the Parent Group or any Restricted Subsidiary or any of their Affiliates shall so state in writing. (m) an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, would reasonably be expected to result in liability of the Borrower, its Subsidiaries and the ERISA Affiliates in an aggregate amount in excess of $75,000,000. (n) a Change in Control shall occur.
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LEGAL_US_W # 117975371.5 159 4885-6545-0631v.4 and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any other Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default at the time. In the case of any waiver, the Borrower, the other Credit Parties, the Lenders and the Administrative Agent shall be restored to their former positions and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; it being understood that no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. (b) Neither this Agreement nor any provision hereof nor any Security Instrument nor any other Loan Document nor any provision thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Majority Lenders or by the Borrower and the Administrative Agent with the consent of the Majority Lenders; provided that no such agreement shall (i) increase the Maximum Credit Amount or Elected Revolving Commitment of any Lender without the written consent of such Lender (provided that any Lender may increase the amount of its Elected Revolving Commitment without the consent of any other Lender, including the Majority Lenders, in accordance with Section 2.06(c)(i)), (ii) increase the Borrowing Base without the written consent of each Lender, decrease or maintain the Borrowing Base without the consent of the Required Lenders, or modify Section 2.07 in any manner that results in an increase in the Borrowing Base without the consent of each Lender, (iii) reduce the principal amount of any Loan or LC Disbursement without the written consent of each Lender affected thereby, (iv) reduce the rate of interest thereon (it being understood that only the consent of the Majority Lenders shall be necessary to waive any obligation of the Borrower to pay default interest), or reduce, or waive or excuse the payment of, any fees or any other Indebtedness hereunder or under any other Loan Document owed to any Lender, without the written consent of such Lender, (v) postpone the scheduled date of payment or prepayment of the principal amount of any Loan or LC Disbursement, or any interest thereon, or the scheduled date of any fees or any other Indebtedness payable hereunder or under any other Loan Document, or reduce the amount of, waive or excuse any such payment (it being understood that only the consent of the Majority Lenders shall be necessary to waive any obligation of the Borrower to pay default interest), or postpone or extend the Termination Date or amend Section 2.08(c) in a manner that would permit the expiration of any Letter of Credit to occur after the Maturity Date without the written consent of each Lender affected thereby, (vi) change Section 4.01(b) or Section 4.01(c) or any other term or condition hereof in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender, (vii) waive or amend Section 2.11, Section 2.12, Section 3.04(c), Section 6.01, Section 8.13, Section 10.02(c) or Section 12.14 or change the definition of the terms βDomestic Subsidiaryβ, βForeign Subsidiaryβ, βMaterial Subsidiaryβ or βSubsidiaryβ, without the written consent of each Lender (other than any Defaulting Lender), (viii) release any Guarantor (except as set forth in the Guaranty and Security Agreement or as provided for in Section 11.10), release all or substantially all of the collateral or subordinate the Liens on all or substantially all of the collateral (in each case other than as provided in Section 11.10), or reduce the percentage set forth in Section 8.13, without the written consent of each Lender (other than any Defaulting Lender), (ix) subordinate the Indebtedness to any other Debt, without the written consent of each Lender directly affected thereby, (x) lengthen the term of any
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LEGAL_US_W # 117975371.5 160 4885-6545-0631v.4 Revolving Loan Extension Period without the written consent of each affected Lender (other than any Defaulting Lender), (xi) change any of the provisions of this Section 12.02(b) or the definitions of βApplicable Revolving Percentageβ, βApplicable Term Loan Percentageβ, βMajority Lendersβ, βMajority Revolving Lendersβ, βMajority Term Lendersβ or βRequired Lendersβ or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or under any other Loan Documents or make any determination or grant any consent hereunder or any other Loan Documents, without the written consent of each Lender, (xii) (A) amend, modify or waive any condition precedent set forth in Section 2.08 or Section 6.02 without the consent of the Majority Revolving Lenders or (B) amend or modify the definition of βAvailable Borrowing Baseβ, βBorrowing Baseβ, βBorrowing Base Deficiencyβ, βBorrowing Base Propertiesβ, βExcess Cashβ, βTotal Revolving Commitments Utilization Percentageβ, Section 8.11, Section 8.12 or Section 8.13, in each case without the consent of the Majority Revolving Lenders and the Majority Lenders, (xiii) amend, modify or otherwise affect in any adverse manner, the interests, rights or obligations of the Revolving Lenders hereunder if such waiver, amendment or modification affects the interests, rights or obligations of the Revolving Lenders in a manner substantially different from and more adverse than the effect of such waiver, amendment or modification on the Term Lenders without the written consent of the Majority Revolving Lenders and the Majority Lenders, (xiv) amend, modify or otherwise affect in any adverse manner, the interests, rights or obligations of the Term Lenders hereunder if such waiver, amendment or modification affects the interests, rights or obligations of the Term Lenders in a manner substantially different from and more adverse than the effect of such waiver, amendment or modification on the Revolving Lenders without the written consent of the Majority Term Lenders and the Majority Lenders; provided, further that (i) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any other Agent, the Swingline Lender or the Issuing Bank hereunder or under any other Loan Document without the prior written consent of the Administrative Agent, such other Agent, the Swingline Lender or the Issuing Bank, as the case may be and (ii) the consent of Lenders holding more than 50% of any Class of Commitments or Loans shall be required with respect to any amendment that by its terms adversely affects the rights of such Class in respect of payments or Collateral hereunder in a manner different than such amendment affects other Classes. Notwithstanding the foregoing, any supplement to Schedule 7.14 (Subsidiaries) shall be effective simply by delivering to the Administrative Agent a supplemental schedule clearly marked as such and, upon receipt, the Administrative Agent will promptly deliver a copy thereof to the Lenders; provided that no redesignation of any Subsidiary as βRestrictedβ or βUnrestrictedβ shall be effective unless such redesignation is in compliance with Section 9.04(b). Notwithstanding anything herein to the contrary, the Administrative Agent and the Borrower may, without the consent of any Lender, (u) enter into amendments or modifications to this Agreement or any of the other Loan Documents or enter into additional Loan Documents in order to incorporate any more restrictive terms set forth in any Permitted Pari Term Loan Debt or Permitted Junior Lien Term Loan Debt (in each case as contemplated by each of the definitions thereof), (v) enter into amendments or modifications to this Agreement or any of the other Loan Documents or enter into additional Loan Documents in order to implement any Benchmark Replacement or any Conforming Changes or otherwise effectuate the terms of Section 3.02(g) or Section 3.03(c) in accordance with the terms of such section, as applicable, (w) effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional Property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest
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LEGAL_US_W # 117975371.5 162 4885-6545-0631v.4 the other Loan Documents and any amendments, modifications or waivers of or consents related to the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all costs, expenses, Other Taxes, assessments and other charges incurred by any Agent or any Lender in connection with any filing, registration, recording or perfection of any security interest contemplated by this Agreement or any Security Instrument or any other document referred to therein, (iii) all reasonable and documented out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder, and (iv) all documented out-of- pocket expenses incurred by any Agent, the Swingline Lender, the Issuing Bank or any Lender, including the reasonable fees, charges and disbursements of one firm of primary legal counsel and one firm of local counsel in any relevant jurisdiction for any Agent, the Swingline Lender, the Issuing Bank or any Lender, in connection with the enforcement or protection of its rights in connection with this Agreement or any other Loan Document, including its rights under this Section 12.03, or in connection with the Loans made or Letters of Credit issued hereunder, including, without limitation, all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit, except in the case of out-of-pocket expenses described in this clause (iv) to the extent that Section 12.03(b) expressly provides that the Borrower shall not indemnify such party for such out-of-pocket expenses. (b) THE BORROWER SHALL INDEMNIFY EACH AGENT, THE ARRANGER, THE SWINGLINE LENDER, THE ISSUING BANK AND EACH LENDER, AND EACH RELATED PARTY OF ANY OF THE FOREGOING PERSONS (EACH SUCH PERSON BEING CALLED AN βINDEMNITEEβ) AGAINST, AND HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND RELATED EXPENSES, INCLUDING THE REASONABLE FEES, CHARGES AND DISBURSEMENTS OF ONE FIRM OF LEGAL COUNSEL FOR ALL INDEMNITEES (AND, IF NECESSARY BY A SINGLE FIRM OF LOCAL COUNSEL IN EACH APPROPRIATE JURISDICTION FOR ALL INDEMNITEES, TAKEN AS A WHOLE (AND, IN THE CASE OF AN ACTUAL OR PERCEIVED CONFLICT OF INTEREST WHERE THE INDEMNITEES AFFECTED BY SUCH CONFLICT INFORM THE BORROWER OF SUCH CONFLICT, OF ANOTHER FIRM OF COUNSEL FOR SUCH AFFECTED INDEMNITEES)), INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF (i) THE EXECUTION OR DELIVERY OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY (OTHER THAN EXPENSES IN CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS DATED OF EVEN DATE HEREWITH, WHICH EXPENSES SHALL ONLY BE PAID BY THE BORROWER TO THE EXTENT PROVIDED IN SECTION 12.03(A)), (ii) THE PERFORMANCE BY THE PARTIES HERETO OR THE PARTIES TO ANY OTHER LOAN DOCUMENT OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER OR THEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR BY ANY OTHER LOAN DOCUMENT, (iii) THE FAILURE OF THE BORROWER OR ANY RESTRICTED SUBSIDIARY TO COMPLY WITH THE TERMS OF ANY LOAN DOCUMENT, INCLUDING THIS AGREEMENT, OR WITH ANY GOVERNMENTAL REQUIREMENT, (iv) ANY INACCURACY OF ANY REPRESENTATION OR ANY BREACH OF ANY WARRANTY OR
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LEGAL_US_W # 117975371.5 163 4885-6545-0631v.4 COVENANT OF THE BORROWER OR ANY GUARANTOR SET FORTH IN ANY OF THE LOAN DOCUMENTS OR ANY INSTRUMENTS, DOCUMENTS OR CERTIFICATIONS DELIVERED IN CONNECTION THEREWITH, (v) ANY LOAN OR LETTER OF CREDIT OR THE USE OF THE PROCEEDS THEREFROM, INCLUDING, WITHOUT LIMITATION, ANY REFUSAL BY THE ISSUING BANK TO HONOR A DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT IF THE DOCUMENTS PRESENTED IN CONNECTION WITH SUCH DEMAND DO NOT STRICTLY COMPLY WITH THE TERMS OF SUCH LETTER OF CREDIT, OR THE PAYMENT OF A DRAWING UNDER ANY LETTER OF CREDIT NOTWITHSTANDING THE NON-COMPLIANCE, NON-DELIVERY OR OTHER IMPROPER PRESENTATION OF THE DOCUMENTS PRESENTED IN CONNECTION THEREWITH, (vi) ANY OTHER ASPECT OF THE LOAN DOCUMENTS, (vii) THE OPERATIONS OF THE BUSINESS OF THE BORROWER AND ITS SUBSIDIARIES BY THE BORROWER AND ITS SUBSIDIARIES, (viii) ANY ASSERTION THAT THE LENDERS WERE NOT ENTITLED TO RECEIVE THE PROCEEDS RECEIVED PURSUANT TO THE SECURITY INSTRUMENTS, (ix) ANY LIABILITY UNDER ENVIRONMENTAL LAW ARISING OUT OF THE OPERATIONS OF BORROWER OR ANY SUBSIDIARY OR ANY OF THEIR PROPERTIES, INCLUDING WITHOUT LIMITATION, THE PRESENCE, GENERATION, STORAGE, RELEASE, THREATENED RELEASE, USE, TRANSPORT, DISPOSAL, ARRANGEMENT OF DISPOSAL OR TREATMENT OF HAZARDOUS MATERIALS ON ANY OF THEIR PROPERTIES, (x) THE BREACH OR NON- COMPLIANCE BY THE BORROWER OR ANY SUBSIDIARY WITH ANY ENVIRONMENTAL LAW APPLICABLE TO THE BORROWER OR ANY SUBSIDIARY, (xi) THE PAST OWNERSHIP BY THE BORROWER OR ANY SUBSIDIARY OF ANY OF THEIR PROPERTIES OR PAST ACTIVITY ON ANY OF THEIR PROPERTIES WHICH, THOUGH LAWFUL AND FULLY PERMISSIBLE AT THE TIME, COULD RESULT IN PRESENT LIABILITY, (xii) THE PRESENCE, USE, RELEASE, STORAGE, TREATMENT, DISPOSAL, GENERATION, THREATENED RELEASE, TRANSPORT, ARRANGEMENT FOR TRANSPORT OR ARRANGEMENT FOR DISPOSAL OF HAZARDOUS MATERIALS BY BORROWER OR ANY SUBSIDIARY ON OR AT ANY OF THE PROPERTIES OWNED OR OPERATED BY THE BORROWER OR ANY SUBSIDIARY OR ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED BY THE BORROWER OR ANY OF ITS SUBSIDIARIES, (xiii) ANY LIABILITY UNDER ENVIRONMENTAL LAW RELATED IN ANY WAY TO THE BORROWER OR ANY OF ITS SUBSIDIARIES, (xiv) ANY OTHER ENVIRONMENTAL, HEALTH OR SAFETY CONDITION IN CONNECTION WITH THE LOAN DOCUMENTS, OR (xv) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO, AND SUCH INDEMNITY SHALL EXTEND TO EACH INDEMNITEE NOTWITHSTANDING THE SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND OR CHARACTER WHATSOEVER, INCLUDING ITS OWN ORDINARY NEGLIGENCE, WHETHER ACTIVE OR PASSIVE, WHETHER AN AFFIRMATIVE ACT OR AN OMISSION, INCLUDING WITHOUT LIMITATION, ALL TYPES OF NEGLIGENT CONDUCT IDENTIFIED IN THE RESTATEMENT (SECOND) OF TORTS OF ONE OR MORE OF THE INDEMNITEES OR BY REASON OF STRICT LIABILITY IMPOSED WITHOUT FAULT ON ANY ONE OR
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LEGAL_US_W # 117975371.5 164 4885-6545-0631v.4 MORE OF THE INDEMNITEES; PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE; PROVIDED THAT THE BORROWER SHALL NOT INDEMNIFY ANY INDEMNITEE FOR (A) ANY FINANCIAL LIABILITIES OF A LENDER TO THE PARENT GROUP OR ANY RESTRICTED SUBSIDIARY PURSUANT TO AND IN ACCORDANCE WITH THE TERMS OF A SWAP AGREEMENT, (B) CLAIMS SOLELY BETWEEN OR AMONG INDEMNITEES TO THE EXTENT NOT RELATED TO AN ACT OR OMISSION OF ANY MEMBER OF THE PARENT GROUP OR ANY SUBSIDIARY (OTHER THAN ANY CLAIMS AGAINST AN INDEMNITEE IN ITS CAPACITY OR IN FULFILLING ITS ROLE AS AN AGENT OR ISSUING BANK UNDER THIS AGREEMENT) AND (C) LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES THAT ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO BE A DIRECT RESULT OF A MATERIAL BREACH OF THIS AGREEMENT BY SUCH INDEMNITEE. THIS SECTION 12.03(B) SHALL NOT APPLY WITH RESPECT TO TAXES OTHER THAN ANY TAXES THAT REPRESENT LOSSES, CLAIMS, OR DAMAGES ARISING FROM A NON-TAX CLAIM. (c) To the extent that the Borrower fails to pay any amount required to be paid by it to any Agent, the Arranger, the Swingline Lender or the Issuing Bank under Section 12.03(a) or (b), each Lender severally agrees to pay to such Agent, the Arranger, the Swingline Lender or the Issuing Bank, as the case may be, such Lenderβs Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent, the Arranger or the Issuing Bank in its capacity as such. (d) No party hereto shall assert, and each party hereto does hereby waive, any claim against any other party hereto and each Indemnitee on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof; provided that, nothing in this clause (d) shall relieve the Parent or the Borrower of any obligation it may have to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party. None of the Arranger, the Issuing Bank, the Swingline Lender or any Lender, or any Related Party of any of the foregoing Persons shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby except to the extent such damages result from the gross negligence or willful misconduct of such Person as determined by a court of competent jurisdiction by final and nonappealable judgment.
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LEGAL_US_W # 117975371.5 166 4885-6545-0631v.4 (ii) Assignments shall be subject to the following additional conditions: (A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Xxxxxxβs Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing; (B) each total and partial assignment shall be made as an assignment of a proportionate part of all the assigning Xxxxxxβs rights and obligations under this Agreement, with respect to the Loan or the Commitment assigned (it being understood that assignments under separate Facilities shall not be required on a pro rata basis); (C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; (E) no such assignment shall be made to an Excluded Lender; and (F) in no event may any Lender assign all or a portion of its rights and obligations under this Agreement to the Borrower or any Affiliate of the Borrower. (iii) Subject to Section 12.04(b)(iv) and the acceptance and recording thereof, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lenderβs rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 5.01, Section 5.02, Section 5.03 and Section 12.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 12.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 12.04(c).
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LEGAL_US_W # 117975371.5 167 4885-6545-0631v.4 (iv) The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Maximum Credit Amount and Elected Revolving Commitment of, and principal amount (and stated interest) of the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the βRegisterβ). The entries in the Register shall be conclusive (absent manifest error), and the Borrower, the Administrative Agent, the Issuing Bank and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable prior notice. In connection with any changes to the Register, if necessary, the Administrative Agent will reflect the revisions on Annex I and forward a copy of such revised Annex I to the Borrower, the Issuing Bank and each Lender. (v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Xxxxxx and an assignee, the assigneeβs completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in Section 12.04(b) and any written consent to such assignment required by Section 12.04(b), the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this Section 12.04(b). (c) (i) Any Lender may, without the consent of, or notice to, the Borrower, the Administrative Agent, the Swingline Lender or the Issuing Bank, sell participations to one or more banks or other entities (a βParticipantβ) in all or a portion of such Lenderβs rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that (a) such Lenderβs 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 Borrower, the Administrative Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Xxxxxxβs rights and obligations under this Agreement, and (d) no such participation may be sold to an Excluded Lender. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 12.02(b) that affects such Participant. In addition such agreement must provide that the Participant be bound by the provisions of Section 12.03. Subject to Section 12.04(c)(ii), the Borrower agrees that each Participant shall be entitled to the benefits of Section 5.01, Section 5.02 and Section 5.03 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 12.04(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 12.08 as though it were a Lender, provided such Participant agrees to be subject to Section 4.01(c) as though it were a Lender. Each Lender that
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LEGAL_US_W # 117975371.5 179 4885-6545-0631v.4 (b) If any of the Collateral shall be sold, transferred or otherwise disposed of by any Credit Party in a transaction permitted by this Agreement, then the Administrative Agent, at the request and sole expense of the Borrower, shall promptly (but in any event within five (5) Business Days) execute and deliver to the Borrower all releases or other documents reasonably necessary or desirable for the release of the Liens created under the Security Instruments on such Collateral. At the request and sole expense of the Borrower, the Administrative Agent shall promptly (but in any event within five (5) Business Days of such request) authorize the release of all Liens created under the Security Instruments that encumber the Equity Interests in, and Property of, a Subsidiary Guarantor in the event that all the Equity Interests of such Subsidiary Guarantor are sold, transferred or otherwise disposed of in a transaction permitted by this Agreement and provide all releases or other documents reasonably necessary or desirable to evidence the release of such Subsidiary Guarantor from its obligations under the Loan Documents; provided that the Borrower shall have delivered to the Administrative Agent, at least five (5) Business Days prior to the date of the proposed release (or such shorter period of time as the Administrative Agent may permit in its sole discretion), a written request for release identifying the relevant Subsidiary Guarantor and the terms of the sale or other disposition in reasonable detail, including the price thereof and any expenses in connection therewith, together with a certification by the Borrower stating that such transaction is in compliance with the Credit Agreement and the other Loan Documents. [Remainder of page intentionally left blank; signature pages follow]
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LEGAL_US_W # 117975371.5 Annex I 4885-6545-0631v.4 [Signature pages intentionally omitted]
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LEGAL_US_W # 117975371.5 Annex I 4885-6545-0631v.4 ANNEX I LIST OF MAXIMUM CREDIT AMOUNTS AND ELECTED REVOLVING COMMITMENTS Aggregate Maximum Credit Amounts and Aggregate Elected Revolving Commitment Amounts Name of Lender Applicable Percentage Maximum Credit Amount Elected Revolving Commitment Xxxxx Fargo Bank, National Association 9.500000000% $285,000,000.00 $95,000,000.00 Citibank, N.A. 9.500000000% $285,000,000.00 $95,000,000.00 Citizens Bank, N.A. 9.500000000% $285,000,000.00 $95,000,000.00 JPMorgan Chase Bank, N.A. 9.500000000% $285,000,000.00 $95,000,000.00 Mizuho Bank, Ltd. 9.500000000% $285,000,000.00 $95,000,000.00 Royal Bank of Canada 9.000000000% $285,000,000.00 $95,000,000.00 Truist Bank 9.000000000% $285,000,000.00 $95,000,000.00 BOKF, NA dba Bank of Texas 6.250000000% $187,500,000.00 $62,500,000.00 Canadian Imperial Bank Of Commerce, New York Branch 6.000000000% $187,500,000.00 $62,500,000.00 Regions Bank 6.250000000% $187,500,000.00 $62,500,000.00 Capital One, National Association 5.000000000% $150,000,000.00 $50,000,000.00 Comerica Bank 3.500000000% $105,000,000.00 $35,000,000.00 Xxxxxxx Xxxxx Bank USA 3.500000000% $105,000,000.00 $35,000,000.00 Zions Bancorporation, N.A. dba Amegy Bank 2.750000000% $82,500,000.00 $27,500,000.00 TOTAL 100.000000000% $3,000,000,000.00 $1,000,000,000.00
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LEGAL_US_W # 117975371.5 Exhibit A-1 4885-6545-0631v.4 EXHIBIT A-1 FORM OF NOTE (REVOLVING LOANS) $[ ],000,000.00 [ ], 202__ FOR VALUE RECEIVED, Oasis Petroleum North America LLC, a Delaware limited liability company (the βBorrowerβ) hereby promises to pay [ ] (the βLenderβ), at the principal office of Xxxxx Fargo Bank, National Association, as administrative agent (the βAdministrative Agentβ), the principal sum of [ ] Dollars ($[ ]) (or such lesser amount as shall equal the aggregate unpaid principal amount of the Loans made by the Lender to the Borrower under the Credit Agreement, as hereinafter defined), in lawful money of the United States of America and in immediately available funds, on the dates and in the principal amounts provided in the Credit Agreement, and to pay interest on the unpaid principal amount of each such Loan, at such office, in like money and funds, for the period commencing on the date of such Loan until such Loan shall be paid in full, at the rates per annum and on the dates provided in the Credit Agreement. The date, amount, Type, interest rate, Interest Period and maturity of each Loan made by the Lender to the Borrower, and each payment made on account of the principal thereof, shall be recorded by the Lender on its books and, prior to any transfer of this Note, may be endorsed by the Lender on the schedules attached hereto or any continuation thereof or on any separate record maintained by the Lender. Failure to make any such notation or to attach a schedule shall not affect any Lenderβs or the Borrowerβs rights or obligations in respect of such Loans or affect the validity of such transfer by any Lender of this Note. This Note is one of the Notes referred to in the Amended and Restated Credit Agreement dated as of July 1, 2022 among the Borrower, Chord Energy Corporation, Oasis Petroleum LLC, the Administrative Agent and the lenders from time to time party thereto (including the Lender), and evidences Loans made by the Lender thereunder (such Amended and Restated Credit Agreement as the same may be amended, supplemented or restated from time to time, the βCredit Agreementβ). Capitalized terms used in this Note have the respective meanings assigned to them in the Credit Agreement. This Note is issued pursuant to, and is subject to the terms and conditions set forth in, the Credit Agreement and is entitled to the benefits provided for in the Credit Agreement and the other Loan Documents. The Credit Agreement provides for the acceleration of the maturity of this Note upon the occurrence of certain events, for prepayments of Loans upon the terms and conditions specified therein and other provisions relevant to this Note. [This Note amends, restates and supersedes (but does not extinguish the indebtedness evidenced by or constitute a novation of) that certain Note dated [ ] and made by the Borrower in the original principal amount of $[ ] and payable to the Lender, and the indebtedness formerly evidenced by such prior Note shall hereafter be evidenced by this Note.]1 1 To be included in Notes issued to Lenders already in possession of Notes issued under the Existing Credit Agreement.
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LEGAL_US_W # 117975371.5 Exhibit A-2 4885-6545-0631v.4 THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. OASIS PETROLEUM NORTH AMERICA LLC By: Name: Title:
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LEGAL_US_W # 117975371.5 Exhibit A-2 4885-6545-0631v.4 EXHIBIT A-2 FORM OF NOTE (TERM LOANS) $[ ],000,000.00 [ ], 202__ FOR VALUE RECEIVED, Oasis Petroleum North America LLC, a Delaware limited liability company (the βBorrowerβ) hereby promises to pay [ ] (the βTerm Lenderβ), at the principal office of Xxxxx Fargo Bank, National Association, as administrative agent (the βAdministrative Agentβ), the principal sum of [ ] Dollars ($[ ]) (or such lesser amount as shall equal the aggregate unpaid principal amount of the Term Loans made by the Term Lender to the Borrower under the Credit Agreement, as hereinafter defined), in lawful money of the United States of America and in immediately available funds, on the dates and in the principal amounts provided in the Credit Agreement, and to pay interest on the unpaid principal amount of each such Term Loan, at such office, in like money and funds, for the period commencing on the date of such Term Loan until such Term Loan shall be paid in full, at the rates per annum and on the dates provided in the Credit Agreement. The date, amount, Type, Class, interest rate, Interest Period and maturity of each Loan made by the Term Lender to the Borrower, and each payment made on account of the principal thereof, shall be recorded by the Term Lender on its books and, prior to any transfer of this Note, may be endorsed by the Term Lender on the schedules attached hereto or any continuation thereof or on any separate record maintained by the Term Lender. Failure to make any such notation or to attach a schedule shall not affect any Term Lenderβs or the Borrowerβs rights or obligations in respect of such Term Loans or affect the validity of such transfer by any Term Lender of this Note. This Note is one of the Notes referred to in the Amended and Restated Credit Agreement dated as of July 1, 2022 among the Borrower, Chord Energy Corporation, Oasis Petroleum LLC, the Administrative Agent and the lenders from time to time party thereto (including the Term Lender), and evidences Term Loans made by the Term Lender thereunder (such Amended and Restated Credit Agreement as the same may be amended, supplemented or restated from time to time, the βCredit Agreementβ). Capitalized terms used in this Note have the respective meanings assigned to them in the Credit Agreement. This Note is issued pursuant to, and is subject to the terms and conditions set forth in, the Credit Agreement and is entitled to the benefits provided for in the Credit Agreement and the other Loan Documents. The Credit Agreement provides for the acceleration of the maturity of this Note upon the occurrence of certain events, for prepayments of Term Loans upon the terms and conditions specified therein and other provisions relevant to this Note. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. OASIS PETROLEUM NORTH AMERICA LLC By:
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LEGAL_US_W # 117975371.5 Exhibit A-2 4885-6545-0631v.4 Name: Title:
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LEGAL_US_W # 117975371.5 Exhibit H 4885-6545-0631v.4 EXHIBIT B FORM OF BORROWING REQUEST [ ], 202[ ] Oasis Petroleum North America LLC, a Delaware limited liability company (the βBorrowerβ), pursuant to Section 2.03 of the Amended and Restated Credit Agreement dated as of July 1, 2022 (together with all amendments, restatements, supplements or other modifications thereto, the βCredit Agreementβ) among the Borrower, Chord Energy Corporation, a Delaware corporation (the βParentβ), Oasis Petroleum LLC, a Delaware limited liability company (βOP LLCβ), Xxxxx Fargo Bank, National Association, as the Administrative Agent, the other agents and lenders (the βLendersβ) which are or become parties thereto (unless otherwise defined herein, each capitalized term used herein is defined in the Credit Agreement), hereby request a Borrowing as follows: (i) Aggregate amount of the requested Borrowing is $[ ]; (ii) Date of such Borrowing is [ ], 202[ ]; (iii) Requested Borrowing is to be [an ABR Borrowing] [a Term SOFR Borrowing] [a Term Borrowing]; (iv) In the case of a Term SOFR Borrowing, the initial Interest Period applicable thereto is [ ]; (v) Amount of Borrowing Base in effect on the date hereof is $[ ]; (vi) Amount of Available Borrowing Base on the date hereof is $[ ]; (vii) Amount of the Aggregate Elected Revolving Commitment Amounts on the date hereof is $[ ]; (viii) Aggregate principal amount of Permitted Pari Term Loan Debt outstanding on the date hereof is $[ ]; (ix) Total Revolving Credit Exposures on the date hereof (i.e., outstanding principal amount of all Revolving Loans and total LC Exposure plus total Swingline Exposure and without regard to the requested Borrowing) is $[ ]; (x) In the case of a Revolving Borrowing, pro forma Total Revolving Credit Exposures (giving effect to the requested Borrowing) is $[ ]; (xi) In the case of a Term Borrowing, pro forma Total Term Loan Exposures (giving effect to the requested Borrowing); and (xii) Location and number of the Borrowerβs account to which funds are to be disbursed, which shall comply with the requirements of Section 2.05 of the Credit Agreement, is as follows:
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LEGAL_US_W # 117975371.5 Exhibit B 4885-6545-0631v.4 [ ] [ ] [ ] [ ] [ ]
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LEGAL_US_W # 117975371.5 Exhibit B 4885-6545-0631v.4 The undersigned certifies that he/she is the [ ] of the Borrower, and that as such he/she is authorized to execute this certificate on behalf of the Borrower. The undersigned further certifies (only in his/her capacity as an officer and not individually), represents and warrants on behalf of the Borrower that the Borrower is entitled to receive the requested Borrowing under the terms and conditions of the Credit Agreement. OASIS PETROLEUM NORTH AMERICA LLC By: Name: Title:
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LEGAL_US_W # 117975371.5 Exhibit F 4885-6545-0631v.4 Name: Title:
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LEGAL_US_W # 117975371.5 Exhibit F 4885-6545-0631v.4 Consented to and Accepted: XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent By: Name: Title: By: Name: Title: Consented to: OASIS PETROLEUM NORTH AMERICA LLC By: Name: Title:
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LEGAL_US_W # 117975371.5 Exhibit G 4885-6545-0631v.4 EXHIBIT G FORM OF ELECTED REVOLVING COMMITMENT INCREASE CERTIFICATE [ ], 20[ ] To: Xxxxx Fargo Bank, National Association, as Administrative Agent The Borrower, the Parent, OP LLC, the Administrative Agent and certain Lenders and other agents have heretofore entered into an Amended and Restated Credit Agreement, dated as of July 1, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the βCredit Agreementβ). Capitalized terms not otherwise defined herein shall have the meaning given to such terms in the Credit Agreement. This Elected Revolving Commitment Increase Certificate is being delivered pursuant to Section 2.06(c) of the Credit Agreement. Please be advised that the undersigned Xxxxxx has agreed (a) to increase its Elected Revolving Commitment under the Credit Agreement effective [ ], 20[ ] from $[ ] to $[ ] and (b) that it shall continue to be a party in all respects to the Credit Agreement and the other Loan Documents. Very truly yours, OASIS PETROLEUM NORTH AMERICA LLC, a Delaware limited liability company By: Name: Title:
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LEGAL_US_W # 117975371.5 Exhibit G 4885-6545-0631v.4 Accepted and Agreed: XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent By: Name: Title: Accepted and Agreed: [Name of Increasing Lender] By: Name: Title:
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LEGAL_US_W # 117975371.5 Exhibit F 4885-6545-0631v.4 EXHIBIT H FORM OF ADDITIONAL LENDER CERTIFICATE [ ], 20[ ] To: Xxxxx Fargo Bank, National Association, as Administrative Agent The Borrower, the Parent, OP LLC, the Administrative Agent and certain Lenders and other agents have heretofore entered into an Amended and Restated Credit Agreement, dated as of July 1, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the βCredit Agreementβ). Capitalized terms not otherwise defined herein shall have the meaning given to such terms in the Credit Agreement. This Additional Lender Certificate is being delivered pursuant to Section 2.06(c) of the Credit Agreement. Please be advised that the undersigned Additional Lender has agreed (a) to become a Lender under the Credit Agreement effective [ ], 20[ ] with a Maximum Aggregate Credit Amount of $[ ] and an Elected Revolving Commitment of $[ ] and (b) that it shall be a party in all respects to the Credit Agreement and the other Loan Documents. This Additional Lender Certificate is being delivered to the Administrative Agent together with (i) if the Additional Lender is a Foreign Lender, any documentation required to be delivered by such Additional Lender pursuant to Section 5.03(f) of the Credit Agreement, duly completed and executed by the Additional Lender, and (ii) an Administrative Questionnaire in the form supplied by the Administrative Agent, duly completed by the Additional Lender. The [Borrower/Additional Lender] shall pay the fee payable to the Administrative Agent pursuant to Section 2.06(c)(ii)(G) of the Credit Agreement. Very truly yours, OASIS PETROLEUM NORTH AMERICA LLC, a Delaware limited liability company By: Name: Title:
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LEGAL_US_W # 117975371.5 Exhibit H 4885-6545-0631v.4 Accepted and Agreed: XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent By: Name: Title: Accepted and Agreed: [Name of Increasing Lender] By: Name: Title: