AMENDED AND RESTATED CREDIT AGREEMENT Among ABRAXAS PETROLEUM CORPORATION as Borrower, THE LENDERS PARTY HERETO FROM TIME TO TIME as Lenders, and SOCIÉTÉ GÉNÉRALE as Administrative Agent and as Issuing Lender October 5, 2009 SG Americas Securities,...
Exhibit 10.1
Execution Version
$310,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Among
ABRAXAS PETROLEUM CORPORATION
as Borrower,
THE LENDERS PARTY HERETO FROM TIME TO TIME
as Lenders,
and
SOCIÉTÉ GÉNÉRALE
as Administrative Agent and as Issuing Lender
October 5, 2009
SG Americas Securities, LLC
as Sole Bookrunner
SG Americas Securities, LLC,
Royal Bank of Canada, ING Capital LLC, and The Royal Bank of Scotland plc
as Co-Lead Arrangers
Royal Bank of Canada and ING Capital LLC
as Co-Syndication Agents
The Royal Bank of Scotland plc
as Documentation Agent
HOUSTON\2319383
i
TABLE OF CONTENTS
DEFINITIONS AND ACCOUNTING TERMS |
2 |
|
Section 1.01 |
Certain Defined Terms |
2 |
|
Section 1.02 |
Computation of Time Periods |
27 |
|
Section 1.03 |
Accounting Terms; Changes in GAAP |
27 |
|
Section 1.04 |
Types of Advances |
27 |
|
Section 1.05 |
Miscellaneous |
27 |
ARTICLE II |
CREDIT FACILITIES |
28 |
|
Section 2.01 |
Commitment for Advances |
28 |
|
Section 2.02 |
Borrowing Base |
29 |
|
Section 2.03 |
Method of Borrowing |
33 |
|
Section 2.04 |
Reduction of the Commitments |
35 |
|
Section 2.05 |
Prepayment of Advances |
36 |
|
Section 2.06 |
Repayment of Advances |
39 |
|
Section 2.07 |
Letters of Credit |
39 |
|
Section 2.08 |
Fees |
44 |
|
Section 2.09 |
Interest |
45 |
|
Section 2.10 |
Payments and Computations |
46 |
|
Section 2.11 |
Sharing of Payments, Etc |
47 |
|
Section 2.12 |
Breakage Costs |
47 |
|
Section 2.13 |
Increased Costs |
48 |
|
Section 2.14 |
Taxes |
49 |
|
Section 2.15 |
Reallocation of Defaulting Lender Commitment, Etc |
51 |
|
Section 2.16 |
Right to Give Drawdown Notices |
52 |
ARTICLE III |
CONDITIONS OF LENDING |
52 |
|
Section 3.01 |
Conditions Precedent to Initial Borrowings and the Initial Letter of Credit |
52 |
|
Section 3.02 |
Conditions Precedent to All Borrowings |
55 |
ARTICLE IV |
REPRESENTATIONS AND WARRANTIES |
56 |
|
Section 4.01 |
Existence; Subsidiaries |
56 |
|
Section 4.02 |
Power |
56 |
|
Section 4.03 |
Authorization and Approvals |
57 |
|
Section 4.04 |
Enforceable Obligations |
57 |
|
Section 4.05 |
Financial Statements |
57 |
|
Section 4.06 |
True and Complete Disclosure |
58 |
|
Section 4.07 |
Litigation; Compliance with Laws |
58 |
|
Section 4.08 |
Use of Proceeds |
58 |
|
Section 4.09 |
Investment Company Act |
59 |
|
Section 4.10 |
Federal Power Act |
59 |
|
Section 4.11 |
Taxes |
59 |
|
Section 4.12 |
Pension Plans |
59 |
|
Section 4.13 |
Title; Condition of Property; Casualties |
60 |
|
Section 4.14 |
No Burdensome Restrictions; No Defaults |
60 |
|
Section 4.15 |
Environmental Condition |
60 |
|
Section 4.16 |
Permits, Licenses, Etc |
61 |
|
Section 4.17 |
Gas Contracts |
62 |
|
Section 4.18 |
Liens, Titles, Leases, Etc |
62 |
|
Section 4.19 |
Solvency and Insurance |
62 |
|
Section 4.20 |
Hedging Agreements |
62 |
|
Section 4.21 |
Material Agreements |
62 |
|
Section 4.22 |
Canadian Abraxas |
63 |
|
Section 4.23 |
Abraxas Properties |
63 |
ARTICLE V |
AFFIRMATIVE COVENANTS |
63 |
|
Section 5.01 |
Compliance with Laws, Etc |
63 |
|
Section 5.02 |
Maintenance of Insurance |
64 |
|
Section 5.03 |
Preservation of Existence, Etc |
64 |
|
Section 5.04 |
Payment of Taxes, Etc |
65 |
|
Section 5.05 |
Visitation Rights |
65 |
|
Section 5.06 |
Reporting Requirements |
65 |
|
Section 5.07 |
Maintenance of Property |
70 |
|
Section 5.08 |
Agreement to Pledge |
70 |
|
Section 5.09 |
Use of Proceeds |
70 |
|
Section 5.10 |
Title Opinions |
70 |
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|
Section 5.11 |
Further Assurances; Cure of Title Defects |
70 |
|
Section 5.12 |
Deposit Accounts |
71 |
|
Section 5.13 |
Hedge Contracts |
71 |
ARTICLE VI |
NEGATIVE COVENANTS |
72 |
|
Section 6.01 |
Liens, Etc |
72 |
|
Section 6.02 |
Debts, Guaranties, and Other Obligations |
74 |
|
Section 6.03 |
Agreements Restricting Liens and Distributions |
75 |
|
Section 6.04 |
Merger or Consolidation; Asset Sales |
75 |
|
Section 6.05 |
Restricted Payments |
76 |
|
Section 6.06 |
Investments |
76 |
|
Section 6.07 |
Affiliate Transactions |
77 |
|
Section 6.08 |
Compliance with ERISA |
77 |
|
Section 6.09 |
Sale-and-Leaseback |
78 |
|
Section 6.10 |
Change of Business |
78 |
|
Section 6.11 |
Organizational Documents, Name Change |
78 |
|
Section 6.12 |
Use of Proceeds; Letters of Credit |
79 |
|
Section 6.13 |
Gas Imbalances, Take-or-Pay or Other Prepayments |
79 |
|
Section 6.14 |
Limitation on Hedging |
79 |
|
Section 6.15 |
Additional Subsidiaries |
80 |
|
Section 6.16 |
Account Payables |
80 |
|
Section 6.17 |
Abraxas Properties |
80 |
|
Section 6.18 |
Current Ratio |
80 |
|
Section 6.19 |
Interest Coverage Ratio |
80 |
|
Section 6.20 |
Leverage Ratio |
80 |
ARTICLE VII |
EVENTS OF DEFAULT; REMEDIES |
81 |
|
Section 7.01 |
Events of Default |
81 |
|
Section 7.02 |
Optional Acceleration of Maturity |
83 |
|
Section 7.03 |
Automatic Acceleration of Maturity |
83 |
|
Section 7.04 |
Right of Setoff |
84 |
|
Section 7.05 |
Non-exclusivity of Remedies |
84 |
|
Section 7.06 |
Application of Proceeds |
84 |
ARTICLE VIII |
THE ADMINISTRATIVE AGENT AND THE ISSUING LENDER85 |
iii
|
Section 8.01 |
Appointment and Authority |
85 |
|
Section 8.02 |
Rights as a Lender |
85 |
|
Section 8.03 |
Exculpatory Provisions |
86 |
|
Section 8.04 |
Reliance by Administrative Agent |
86 |
|
Section 8.05 |
Delegation of Duties |
87 |
|
Section 8.06 |
Successor Administrative Agent and Issuing Lender |
87 |
|
Section 8.07 |
Non-Reliance on Administrative Agent and Other Lenders |
88 |
|
Section 8.08 |
No Other Duties, Etc |
88 |
|
Section 8.09 |
Collateral Matters |
88 |
|
Section 8.10 |
Cure of Defaulting Lender |
89 |
ARTICLE IX |
MISCELLANEOUS |
89 |
|
Section 9.01 |
Amendments, Etc |
89 |
|
Section 9.02 |
Notices, Etc |
91 |
|
Section 9.03 |
No Waiver; Cumulative Remedies |
93 |
|
Section 9.04 |
Costs and Expenses |
93 |
|
Section 9.05 |
Indemnification |
93 |
|
Section 9.06 |
Reimbursement by Lenders |
94 |
|
Section 9.07 |
Waiver of Damages |
95 |
|
Section 9.08 |
Successors and Assigns |
95 |
|
Section 9.09 |
Confidentiality |
98 |
|
Section 9.10 |
Counterparts; Effectiveness |
98 |
|
Section 9.11 |
Survival of Representations, etc |
99 |
|
Section 9.12 |
Severability |
99 |
|
Section 9.13 |
Interest Rate Limitation |
99 |
|
Section 9.14 |
Governing Law |
99 |
|
Section 9.15 |
Submission to Jurisdiction; Waiver of Venue; Service of Process |
99 |
|
Section 9.16 |
Waiver of Jury Trial |
100 |
|
Section 9.17 |
USA Patriot Act; OFAC |
101 |
|
Section 9.18 |
Amendment and Restatement |
101 |
|
Section 9.19 |
Integration |
101 |
EXHIBITS:
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Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Compliance Certificate
Exhibit C - Form of Guaranty
Exhibit D - Form of Mortgage
Exhibit E - Form of Revolving Note
Exhibit F - Form of Term Note
Exhibit G - Form of Notice of Borrowing
Exhibit H - Form of Notice of Conversion or Continuation
Exhibit I - Form of Pledge Agreement
Exhibit J - Form of Security Agreement
Exhibit K - Form of Transfer Letters
SCHEDULES:
Schedule I - Addresses and Commitments
Schedule 4.01 - Subsidiaries
Schedule 4.05 - Existing Debt
Schedule 4.07 - Litigation
Schedule 4.17 - Gas Imbalances
Schedule 4.20 - Hedging Agreements
Schedule 4.21 - Material Agreements
Schedule 6.07 - Affiliate Transactions
AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement dated as of October 5, 2009 is among ABRAXAS PETROLEUM CORPORATION, a Nevada corporation ("Borrower"), the lenders party hereto from time to time as Lenders (as defined below), and SOCIÉTÉ
GÉNÉRALE, as Administrative Agent (as defined below) and as Issuing Lender (as defined below).
A. Reference is made to that certain Credit Agreement dated as of June 27, 2007 among Borrower, the lenders party thereto, including the Lenders (the "Existing APC Lenders") and Société Générale
as administrative agent (in such capacity, the "Existing APC Agent") and as issuing lender (in such capacity, the "Existing APC Issuing Lender"), as amended by that certain Amendment No. 1 dated as of February 4, 2009, as further amended by that certain Amendment No. 2 and Waiver dated as of May 13, 2009, and as further amended by that certain Amendment No. 3 and Waiver dated as of
August 7, 2009, in each case by and among Borrower, Existing APC Agent and Existing APC Issuing Lender (as so amended, the "Existing APC Credit Agreement").
B. Reference is made to that certain Amended and Restated Credit Agreement dated as of January 31, 2008 among Abraxas MLP (as defined below), the lenders party thereto, including the Lenders (the "Existing Senior MLP
Lenders") and Société Générale as administrative agent (in such capacity, the "Existing Senior MLP Agent") and as issuing lender (in such capacity, the "Existing Senior MLP Issuing Lender" and, together with the Existing APC Issuing Lender, collectively, the "Existing Issuing Lenders")), as
amended by that certain Amendment No. 1 dated as of January 16, 2009, as further amended by that certain Amendment No. 2 dated as of April 30, 2009, as further amended by that certain Amendment No. 3 dated as of May 7, 2009, as further amended by that certain Amendment No. 4 dated as of June 30, 2009, and as further amended by that certain Amendment No. 5 dated as of July 22, 2009, in each case, by and among Abraxas MLP, Existing Senior MLP Agent, Existing Senior MLP Issuing Lender and the Existing Senior MLP
Lenders party thereto (as so amended, the "Existing Senior MLP Credit Agreement").
C. Reference is made to that certain Subordinated Credit Agreement dated as of January 31, 2008 among Abraxas MLP, the lenders party thereto, including the Lenders (the "Existing Subordinated MLP Lenders" and,
together with the Existing APC Lenders and the Existing Senior MLP Lenders, collectively, the "Existing Lenders") and Société Générale as administrative agent (in such capacity, the "Existing Subordinated MLP Agent" and, together with the Existing APC Agent and the Existing Senior MLP Agent, collectively, the "Existing
Agent") as amended by that certain Amendment No. 1 dated as of January 16, 2009, as further amended by that certain Amendment No. 2 dated as of April 30, 2009, as further amended by that certain Amendment No. 3 dated as of May 7, 2009, as further amended by that certain Amendment No. 4 dated as of June 30, 2009, as further amended by that certain Amendment No. 5 dated as of July 22, 2009, as further amended by that certain Amendment No. 6 dated as of August 13, 2009, and as further amended by that certain
Amendment No. 7 dated as of August 31, 2009, in each case by and among Abraxas MLP, Existing Subordinated MLP Agent, and the Existing Subordinated MLP Lenders party thereto (as so amended, the "Existing Subordinated
1
MLP Credit Agreement" and, together with the Existing APC Credit Agreement and the Existing Senior MLP Credit Agreement, collectively, the "Existing Credit Agreements").
D. Pursuant to the Merger Agreement (as defined below), Abraxas MLP will merge with and into Merger Sub (as defined below), a wholly owned direct subsidiary of Borrower substantially simultaneously with the effectiveness of this Agreement.
E. The Borrower, Merger Sub (as successor to Abraxas MLP), the Existing Agents, the Existing Issuing Lenders and the Existing Lenders, together with the other Lenders have agreed to amend and restate (but not extinguish) each of the Existing Credit Agreements in their entirety
as hereinafter set forth through the execution of this Agreement.
F. It is the intention of the parties hereto that (i) this Agreement is an amendment and restatement of the Existing Credit Agreements and not a new or substitute credit agreement, and (ii) the Borrower will assume the full obligations of itself and of Abraxas MLP under the
Existing Credit Agreements.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms. As used in this Agreement, the terms defined above shall have the meaning set forth therein and
the following terms shall have the following meanings:
"Abraxas MLP" means Abraxas Energy Partners, L.P., a Delaware limited partnership.
"Abraxas Properties" means Abraxas Properties Incorporated, a Texas corporation.
"Acceptable Security Interest" in any Property means a Lien which (a) exists in favor of the Administrative Agent for the benefit of the Secured Parties, (b) with respect to Property that is not Borrowing Base Assets, is the only Lien on such Property other than Permitted
Subject Liens and which is superior to all Liens or rights of any other Person in the Property encumbered thereby other than Permitted Subject Liens, (c) with respect to Borrowing Base Assets, is the only Lien on such Property other than Permitted Borrowing Base Liens, and which is superior to all Liens or rights of any other Person in the Property encumbered thereby other than Permitted Borrowing Base Liens, (d) secures the Obligations, and (e) is perfected and enforceable.
"Accession Agreement" means that certain Accession Agreement dated as of August 25, 2009 among Merger Sub, Borrower, and Abraxas MLP.
"Acquisition" means the purchase by the Borrower or any of its Subsidiaries of any business, including the purchase of associated assets or operations or of stock (or other ownership interests) of a Person.
-
2
"Act" is defined in Section 9.17.
"Adjusted Reference Rate" means, for any day, the fluctuating rate per annum of interest equal to the greater of (a) the Reference Rate in effect on such day, (b) the Federal Funds Rate in effect on such day plus ½ of 1%, and (c) the Eurodollar Rate in effect
on such day for an Interest Period equal to one month.
"Administrative Agent" means Société Générale, in its capacity as agent pursuant to Article VIII, and any successor agent pursuant to Section 8.06.
"Administrative Questionnaire" means an administrative questionnaire in a form supplied by the Administrative Agent.
"Advance" means a Revolving Advance or a Term Advance.
"Affiliate" 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.
"Agreement" means this Amended and Restated Credit Agreement, as the same may be amended, supplemented, and otherwise modified from time to time.
"Applicable Lending Office" means (a) with respect to any Lender, the office, branch, subsidiary, affiliate or correspondent bank of such Lender specified in its Administrative Questionnaire or such other office, branch, subsidiary, affiliate or correspondent bank as such
Lender may from time to time specify to the Borrower and the Administrative Agent from time to time and (b) with respect to the Administrative Agent, the address specified for such Person on Schedule I or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties.
"Applicable Margin" means, with respect to any Advance, (a) during such times as any Event of Default exists, 3% per annum plus the rate per annum set forth below for the relevant Type of such Advance based on the present Utilization applicable from time to time, and (b)
at all other times, the rate per annum set forth below for the relevant Type of such Advance based on the relevant Utilization applicable from time to time. The Applicable Margin for any Advance shall change when and as the relevant Utilization changes and when and as any such Event of Default commences or terminates.
Utilization |
Eurodollar Rate Advances |
Reference Rate Advances |
Less than or equal to 25% |
2.50% |
1.50% |
Greater than 25% but less than 50% |
2.75% |
1.75% |
Equal to or greater than 50% but less than 75%. |
3.00% |
2.00% |
Equal to or greater than 75% but less than 90% |
3.25% |
2.25% |
Equal to or greater than 90%. |
3.75% |
2.75% |
3
"Approved Fund" means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
"Assignment and Acceptance" means an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in substantially the form of the attached Exhibit A or
any other form approved by the Administrative Agent.
"Borrower" shall have the meaning set forth in the preamble hereof.
"Borrowing" means a Revolving Borrowing or a Term Borrowing.
"Borrowing Base" means at any particular time, the Dollar amount determined in accordance with Section 2.02 (and adjusted from time to time pursuant to Section 2.02 or Section 6.04(b)) on account of Proven Reserves attributable to Oil and Gas Properties of the Borrower and
its Subsidiaries subject to an Acceptable Security Interest and described in the most recent Independent Engineering Report or Internal Engineering Report, as applicable, delivered to the Administrative Agent and the Lenders pursuant to Section 2.02.
"Borrowing Base Assets" means, at any time, any assets that are given value in the most recently determined Borrowing Base.
"Borrowing Base Deficiency" means the amount by which the aggregate outstanding amount of the Revolving Advances plus the Letter of Credit Exposure exceeds the lesser of (x) the Borrowing Base and (y) the aggregate
Revolving Commitments.
"Business Day" means a day of the year on which banks are not required or authorized to close in Houston, Texas and New York, New York, and, if the applicable Business Day relates to any Eurodollar Rate Advances, on which dealings are carried on by banks in the London interbank
market.
"Business Loan Agreement" means the Business Loan Agreement dated November 13, 2008 by and among Borrower, Abraxas Properties, and PlainsCapital Bank, as amended through the date of this Agreement.
"Canadian Abraxas" means Canadian Abraxas Petroleum Corporation, an Alberta, Canada corporation and wholly-owned subsidiary of Borrower.
"Capital Leases" means, as applied to any Person, any lease of any Property by such Person as lessee which would, in accordance with GAAP, be required to be classified and accounted for as a capital lease on the balance sheet of such Person.
"Cash Collateral Account" means a special interest bearing cash collateral account pledged by the Borrower to the Issuing Lender containing cash deposited pursuant to Sections 2.05(b), 2.07(d)(iii), 7.02(b), or 7.03(b) to be maintained with the Issuing Lender in accordance
with Section 2.07(g) and bear interest or be invested in the Issuing Lender's reasonable discretion.
4
"CERCLA" means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, state and local analogs, and all rules and regulations and requirements thereunder in each case as now or hereafter in effect.
"Change in Control" shall mean the occurrence of any of the following events:
(a) the occurrence of any transaction, the result of which is that the Borrower ceases to own, either directly or indirectly, 100% of the Equity Interest in any Subsidiary;
(b) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire (such right, an "option right"), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 25% or more of the Equity Interest of the Borrower; or
(c) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such
period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or
equivalent governing body.
"Change in Law" means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation
or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.
"Closing Date" means October 5, 2009.
"Code" means the Internal Revenue Code of 1986, as amended, and any successor statute.
"Collateral" means (a) all "Collateral", "Pledged Collateral" and "Mortgaged Properties" (as defined in each of the Mortgages, the Security Agreements, and the Pledge Agreement, as applicable) or similar terms used in the Security Instruments, and (b) all amounts contained
in the Borrower's and its Subsidiaries' bank accounts.
"Commitment" means, as to any Lender, the sum of its Revolving Commitment and its Term Commitment, if applicable.
"Commitment Fee Rate" means a 0.500% per annum commitment fee rate.
5
"Commitment Termination Date" means the earlier of (a) the Revolving Maturity Date and (b) the earlier termination in whole of the Commitments pursuant to Section 2.04 or Article VII.
"Company Group" shall mean Borrower and each Subsidiary.
"Compliance Certificate" means a compliance certificate in the form of the attached Exhibit B signed by a Responsible Officer of the Borrower.
"Consolidated EBITDAX" means, without duplication, for the Borrower, its consolidated Subsidiaries, and Canadian Abraxas for any period (a) consolidated Net Income for such period plus (b) to the extent
deducted in determining consolidated Net Income, Interest Expense, oil and gas exploration expenses, taxes, depreciation, amortization, depletion, and other non-cash charges for such period (including any provision for the reduction in the carrying value of assets recorded in accordance with GAAP and including non-cash charges resulting from the requirements of SFAS 133 or 143 and any non-cash expenses incurred pursuant to SFAS 123R) for such period plus (c)
all realized net cash proceeds arising from the settlement or monetization of any Hedge Contract (including any Hydrocarbon Hedge Agreement) or upon any Hedge Termination minus (d) all positive non-cash items of income which were included in determining such consolidated Net Income (including non-cash income resulting from the requirements of SFAS 133 or 143).
"Control" 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. "Controls",
"Controlled by", "Controlling" and "Controlled" have meanings correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, the power to vote 10% or more of the securities having ordinary
voting power for the election of directors, managing general partners or the equivalent.
"Controlled Group" means all members of a controlled group of corporations and all businesses (whether or not incorporated) under common control which, together with the Borrower, are treated as a single employer under Section 414 of the Code.
"Convert," "Conversion," and "Converted" each refers to a conversion of Advances of one Type into Advances of another Type pursuant to Section 2.03(b).
"Credit Extensions" means (a) an Advance made by any Lender, and (b) the issuance, increase or extension of any Letter of Credit by the Issuing Lender.
"Debt," for any Person, means without duplication: (a) indebtedness of such Person for borrowed money; (b) obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (c) obligations of such Person to pay the deferred purchase price of Property
or services (including obligations that are non-recourse to the credit of such Person but are secured by the assets of such Person, but excluding trade accounts payable); (d) obligations of such Person as lessee under Capital Leases; (e) the maximum amount of all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments; (f) obligations of
6
such Person under any Hedge Contract; (g) obligations of such Person owing in respect of mandatorily redeemable preferred stock or other mandatorily redeemable preferred equity interest of such Person; (h) any obligations of such Person owing in connection with any volumetric or production payments; (i) obligations of such Person under
direct or indirect guaranties in respect of, and obligations (contingent or otherwise) of such Person to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clauses (a) through (h) above; (j) indebtedness or obligations of others of the kinds referred to in clauses (a) through (i) secured by any Lien on or in respect of any Property of such Person; and (k) all liabilities of such Person
in respect of unfunded vested benefits under any Plan.
"Default" means (a) an Event of Default or (b) any event or condition which with notice or lapse of time or both would become an Event of Default.
"Defaulting Lender" means, at any time, a Lender as to which the Administrative Agent has notified the Borrower that (i) such Lender has failed for three or more Business Days to comply with its obligations under this Agreement to make an Advance or make a payment to the
Issuing Bank in respect of a Letter of Credit reimbursement obligation (each a “Lender Funding Obligation”), (ii) such Lender has notified the Administrative Agent, or has stated publicly, that it will not comply with any such Lender Funding Obligation hereunder, or has defaulted on its funding obligations generally under other loan agreements or credit agreements or similar
agreements, (iii) such Lender has, for five or more Business Days, failed to confirm in writing to the Administrative Agent, in response to a written request of the Administrative Agent, that it will comply with its funding obligations hereunder, or (iv) a Lender Insolvency Event has occurred and is continuing with respect to such Lender; provided that neither the reallocation of funding obligations provided for in Section 2.15 as a result of a
Lender's being a Defaulting Lender nor the performance by Non-Defaulting Lenders of such reallocated funding obligations will by themselves cause the relevant Defaulting Lender to become a Non-Defaulting Lender; and provided further that a Lender shall not be deemed a Defaulting Lender solely by virtue of the acquisition or maintenance of an ownership interest in such Lender or its Parent Company by a Governmental Authority or an instrumentality
thereof. Any determination that a Lender is a Defaulting Lender under clauses (i) through (iv) above will be made by the Administrative Agent acting in good faith. The Administrative Agent will promptly send to all parties hereto a copy of any notice to the Borrower provided for in this definition.
"Disposition" means a sale, lease, transfer, assignment, Farmout, conveyance, release, surrender, or other disposition of Property (including any working interest, overriding royalty interest, production payments, net profits interest, royalty interest, or mineral fee interest)
in any transaction or series of transactions.
"Dollars" and "$" means lawful money of the United States of America.
"Eligible Assignee" means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, (d) a commercial bank organized under the laws of the United States, or any state thereof, and having total assets in excess of $250,000,000 and approved by the Administrative
Agent and the Issuing Lender in their sole discretion, (e) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and
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Development or a political subdivision of any such country and which has total assets in excess of $250,000,000, provided that such bank is acting through a branch or agency located in the United States and such bank is approved by the Administrative Agent and the Issuing Lender in their sole discretion, (f) a finance company, insurance
company, or other financial institution or fund that is engaged in making, purchasing, or otherwise investing in commercial loans or securities in the ordinary course of its business and having (together with its Affiliates) total assets in excess of $250,000,000 and approved by the Administrative Agent and the Issuing Lender in their sole discretion, (g) any other Person (other than a natural person) approved by (i) the Administrative Agent and the Issuing Lender in their sole discretion and
(ii) unless a Default has occurred and is continuing at the time any assignment is effected pursuant to this Agreement, the Borrower; provided that notwithstanding the foregoing, "Eligible Assignee" shall not include the Borrower or any Affiliate or Subsidiary of any member of the Company Group.
"Engineering Report" means either an Independent Engineering Report or an Internal Engineering Report and includes the Initial Engineering Report where applicable.
"Environment" or "Environmental" shall have the meanings set forth in 42 U.S.C. 9601(8) (1988).
"Environmental Claim" means any third party (including governmental agencies and employees) action, lawsuit, claim, demand, regulatory action or proceeding, order, decree, consent agreement or notice of potential or actual responsibility or violation (including claims or
proceedings under the OSHA or similar laws or requirements relating to health or safety of employees) which seeks to impose liability under any Environmental Law.
"Environmental Law" means, as to the Borrower or its Subsidiaries, all Legal Requirements or common law theories applicable to the Borrower or its Subsidiaries arising from, relating to, or in connection with the Environment, health, or safety, including CERCLA, relating
to (a) pollution, contamination, injury, destruction, loss, protection, cleanup, reclamation or restoration of the air, surface water, groundwater, land surface or subsurface strata, or other natural resources; (b) solid, gaseous or liquid waste generation, treatment, processing, recycling, reclamation, cleanup, storage, disposal or transportation; (c) exposure to pollutants, contaminants, hazardous, medical and infectious, or toxic substances, materials or wastes; (d) the safety or health
of employees; or (e) the manufacture, processing, handling, transportation, distribution in commerce, use, storage or disposal of hazardous, medical and infectious, or toxic substances, materials or wastes.
"Environmental Liability" shall mean all liabilities, obligations, damages, losses, claims, actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including administrative oversight costs, natural resource damages and remediation costs), whether contingent
or otherwise, arising out of or relating to (a) compliance or non-compliance with any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
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"Environmental Permit" means any permit, license, order, approval, registration or other authorization under Environmental Law.
"Equity Interest" means, with respect to any Person, any shares, interests, participation, or other equivalents (however designated) of corporate stock, membership interests or partnership interests (or any other ownership interests) of such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time.
"ERISA Affiliate" means each member of a controlled group of corporations and all businesses (whether or not incorporated) under common control which, together with the Borrower, are treated as a single employer under Section 414 of the Code.
"Eurocurrency Liabilities" has the meaning assigned to that term in Regulation D of the Federal Reserve Board (or any successor), as in effect from time to time.
"Eurodollar Rate" means, for the Interest Period for each Eurodollar Rate Advance comprising the same Borrowing, the greater of (a) 2% per annum and (b) the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time), for deposits in Dollars at 11:00 a.m. (London, England time) two Business Days before the first day of such Interest Period and for a period equal to such Interest Period; provided, that, if such rate is not available to the Administrative Agent for any reason, the Eurodollar
Rate shall be an interest rate per annum equal to the rate per annum at which deposits in Dollars are offered by the principal office of Société Générale in London, England to prime banks in the London interbank market at 11:00 a.m. (London, England time) two Business Days before the first day of such Interest Period in an amount substantially equal to the Eurodollar Rate Advance to be maintained by the Lender that is the Administrative Agent in respect of such Borrowing and
for a period equal to such Interest Period.
"Eurodollar Rate Advance" means an Advance which bears interest as provided in Section 2.09(b).
"Eurodollar Rate Reserve Percentage" of any Lender for the Interest Period for any Eurodollar Rate Advance means the reserve percentage applicable during such Interest Period (or if more than one such percentage shall be so applicable, the daily average of such percentages
for those days in such Interest Period during which any such percentage shall be so applicable) under regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, supplemental, or other marginal reserve requirement) for such Lender with respect to liabilities or assets consisting of or including Eurocurrency Liabilities having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Excluded Taxes" means, with respect to the Administrative Agent, any Lender, the Issuing Lender or any other recipient of any payment to be made by or on account of any obligation of any Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise or "margin" or similar taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which any Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee request by the Borrower and any Lender party to this Agreement on the Closing Date), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new lending office) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 2.14(e), except to the extent that such Foreign Lender (or its assignor, if any)
was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from any Borrower with respect to such withholding tax pursuant to Section 2.14(a). Notwithstanding anything to the contrary contained in this definition, "Excluded Taxes" shall not include any withholding tax imposed at any time on payments made by or on behalf of a Borrower that is not a resident of the United States for tax purposes to any Lender, Administrative Agent or Issuing Lender
hereunder or under any other Credit Document, provided that such Lender, such Administrative Agent and such Issuing Lender shall have complied with Section 2.14(e).
"Existing Agent" has the meaning set forth in Recital C.
"Existing APC Agent" has the meaning set forth in Recital A.
"Existing APC Credit Agreement" has the meaning set forth in Recital A.
"Existing APC Issuing Lender" has the meaning set forth in Recital A.
"Existing APC Lenders" has the meaning set forth in Recital A.
"Existing Credit Agreements" has the meaning set forth in Recital C.
"Existing Credit Documents" has the meaning set forth in Section 9.18.
"Existing Issuing Lenders" has the meaning set forth in Recital B.
"Existing Lenders" has the meaning set forth in Recital C.
"Existing Letters of Credit" means the letters of credit issued and outstanding under (a) the Existing APC Credit Agreement and (b) the Existing Senior MLP Credit Agreement.
"Existing Mortgage" means that certain Deed of Trust, Security Agreement and Financing Statement dated as of November 13, 2008 by Borrower in favor of Xxx Xxxxxx, as Trustee for the benefit of PlainsCapital Bank, securing the obligations under the Business Loan Agreement
with Liens on Borrower's headquarters located at 00000 Xxxxxxx Xxxxx, Xxx Xxxxxxx, XX 00000.
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"Existing Senior MLP Agent" has the meaning set forth in Recital B.
"Existing Senior MLP Credit Agreement" has the meaning set forth in Recital B.
"Existing Senior MLP Issuing Lender" has the meaning set forth in Recital B.
"Existing Senior MLP Lenders" has the meaning set forth in Recital B.
"Existing Subordinated MLP Agent" has the meaning set forth in Recital C.
"Existing Subordinated MLP Credit Agreement" has the meaning set forth in Recital C.
"Existing Subordinated MLP Lenders" has the meaning set forth in Recital C.
"Expiration Date" means, with respect to any Letter of Credit, the date on which such Letter of Credit will expire or terminate in accordance with its terms.
"Farmout" means an arrangement pursuant to agreement whereby the owner(s) of one or more oil, gas and/or mineral lease or other oil and natural gas working interest with respect to a property from which production of Hydrocarbons is sought agrees to transfer or assign an
interest in such property to one or more Persons in exchange for (a) drilling, or participating in the cost of the drilling of (or agreeing to do so) one or more xxxxx, or undertaking other exploration or development activity or participating in the cost of such activity, to attempt to obtain production of Hydrocarbons from such property, or (b) obtaining production of Hydrocarbons from such property, or participating in the costs of such production.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers,
as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for any such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve System or any of its successors.
"Fee Letter" means that certain fee letter dated September 8, 2009 among the Borrower, Société Générale, and SG Americas Securities, LLC.
"Financial Statements" means (a) the audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at December 31, 2008 and the related audited consolidated and consolidating statements of income, cash flow, and retained earnings of the Borrower
and its consolidated Subsidiaries for the fiscal year then ended, (b) the unaudited consolidated and consolidating balance sheet of the Borrower and its consolidated Subsidiaries dated June 30, 2009 and the related unaudited consolidated and consolidating statements of income, cash flow, and retained earnings of the Borrower and its consolidated Subsidiaries for the three month
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period then ended, and (c) the pro forma unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as of June 30, 2009 (after giving effect to the Hedge Termination which occurred on July 29, 2009, the Merger and the Credit Extensions occurring on the Initial Funding Date), and including the certification of
a Responsible Officer of the Borrower, all prepared in accordance with GAAP (except for the absence of footnotes and adjustments typically made at year-end), in each case, the copies of which have been delivered to the Administrative Agent and the Lenders.
"Foreign Lender" means any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes. For purposes of this definition, the United States of America, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.
"Fund" means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means United States generally accepted accounting principles as in effect from time to time, applied on a basis consistent with the requirements of Section 1.03.
"Gas Imbalance" means (a) a sale or utilization by Borrower or other members of the Company Group of volumes of natural gas in excess of its gross working interest, (b) receipt of volumes of natural gas into a gathering system and redelivery by Borrower or other members of
the Company Group of a larger or smaller volume of natural gas under the terms of the applicable Transportation Agreement, or (c) delivery to a gathering system of a volume of natural gas produced by Borrower or a member of the Company Group that is larger or smaller than the volume of natural gas such gathering system redelivers for the account of Borrower or such member of the Company Group, as applicable.
"Governmental Authority" means the government of the United States of America or any other nation, or of 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 (including any supra-national bodies such as the European Union or the European Central Bank).
"Guarantor" means each entity, which may from time to time, execute a Guaranty or a supplement to a Guaranty, including each Subsidiary of the Borrower other than Canadian Abraxas.
"Guaranty" means a Guaranty in substantially the form of the attached Exhibit C and executed by a Guarantor.
"Hazardous Substance" means the substances identified as such pursuant to CERCLA and those regulated under any other Environmental Law, including pollutants, contaminants, petroleum, petroleum products, radionuclides, radioactive materials, and medical and infectious waste.
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"Hazardous Waste" means the substances regulated as such pursuant to any Environmental Law.
"Headquarters" means (a) the premises described as: XXXX 0 XXX 0, XXXXX 0, XXX XXXX XXXXX 17606, CREEKSIDE@CONCORD PARK (PLANNED UNIT DEVELOPMENT), IN THE CITY OF SAN ANTONIO, BEXAR COUNTY, TEXAS, ACCORDING TO PLAT THEREOF RECORDED
IN VOLUME 9562, PAGE(S) 156-157, DEED AND PLAT RECORDS OF BEXAR COUNTY, TEXAS, together with all of the easements, rights of way, privileges, liberties, hereditaments, strips and gores, streets, alleys, passages, ways, waters, watercourses, rights and appurtenances thereunto belonging
or appertaining, and all of the estate, right, title, interest, claim or demand whatsoever of Abraxas Properties therein and in the streets and ways adjacent thereto, either in law or in equity (collectively, the "Land"); (b) the structures or buildings, and all additions and improvements thereto, now or hereafter erected upon
the Land, including all building materials and Fixtures (hereinafter defined) now or hereafter forming a part of said structures or buildings, or delivered to the Land and intended to be installed in such structures or buildings (collectively, the "Improvements"); and (c) all fixtures owned by Abraxas Properties now or hereafter located on and used in connection with the Land or the Improvements, (collectively, the "Fixtures").
"Hedge Contract" means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate swaps or options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject
to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a "Master Agreement"), including any such obligations or liabilities under any Master Agreement.
"Hedge Termination" means any termination (other than a termination that occurs on the date scheduled for such termination and not as a result of an event of default or other early termination event), cancellation, novation or disposition of any Hedge Contract.
"Hedging Report" means the report described in Section 5.06(e).
"Hydrocarbon Hedge Agreement" means, as to any Person, a Hedge Contract between such Person and any financial institution or other counterparty which is intended to reduce or eliminate the risk of fluctuations in the price of Hydrocarbons.
"Hydrocarbons" means oil, gas, coal seam gas, casinghead gas, drip gasoline, natural gasoline, condensate, distillate, and all other liquid and gaseous hydrocarbons produced or to be
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produced in conjunction therewith from a well bore and all products, by-products, and other substances derived therefrom or the processing thereof, and all other minerals and substances produced in conjunction with such substances, including sulfur, geothermal steam, water, carbon dioxide, helium, and any and all minerals, ores, or substances
of value and the products and proceeds therefrom.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Independent Engineer" means XxXxxxxx and XxxXxxxxxxx or any other third party engineering firm acceptable to the Administrative Agent in its sole discretion.
"Independent Engineering Report" means a report, in form and substance satisfactory to the Administrative Agent and each of the Lenders, prepared by an Independent Engineer, addressed to the Administrative Agent and the Lenders with respect to the Oil and Gas Properties owned
by the Borrower or any of its Subsidiaries (or to be acquired by the Borrower or any of its Subsidiaries, as applicable) which are, or are to be, included in the Borrowing Base, which report shall (a) specify the location, quantity, and type of the estimated Proven Reserves attributable to such Oil and Gas Properties, (b) contain a projection of the rate of production of such Oil and Gas Properties, (c) contain an estimate of the net operating revenues to be derived from the production and sale of Hydrocarbons
from such Proven Reserves based on product price and cost escalation assumptions specified by the Administrative Agent and the Lenders which are consistent with the Administrative Agent's and the Lenders' customary internal standards and practices for valuing and redetermining the value of Oil and Gas Properties in connection with reserve based oil and gas loan transactions, and (d) contain such other information as is customarily obtained from and provided in such reports or is otherwise reasonably requested
by the Administrative Agent or any Lender.
"Information" is defined in Section 9.09.
"Initial Engineering Report" means an Internal Engineering Report dated as of June 1, 2009 and covering the Proven Reserves of the Loan Parties after giving pro forma effect to the Merger and otherwise in form acceptable to the Administrative Agent.
"Initial Funding Date" means the earlier of (a) the date on which the initial Advances are made, and (b) the date the initial Letter of Credit is issued.
"Intercompany Debt" means Debt incurred by one or more Loan Parties and owing to any other Loan Party or Loan Parties.
"Interest Expense" means, for the Borrower, its consolidated Subsidiaries, and Canadian Abraxas for any period, total interest, letter of credit fees, and other fees and expenses incurred in connection with any Debt for such period, whether paid or accrued, including, without
limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, imputed interest under Capital Leases and realized gains and losses under Interest Hedge Agreements, all as determined in conformity with GAAP.
"Interest Hedge Agreement" means, as to any Person, a Hedge Contract between such Person and one or more financial institutions providing for the exchange of nominal interest
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obligations between such Person and such financial institution or the cap of the interest rate on any Debt of such Person.
"Interest Period" means, for each Eurodollar Rate Advance comprising part of the same Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the date of the Conversion of any Reference Rate Advance into a Eurodollar Rate Advance and ending on the
last day of the period selected by the Borrower pursuant to the provisions below and Section 2.03 and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by the Borrower pursuant to the provisions below and Section 2.03. The duration of each such Interest Period shall be one, two, three, or six months, in each case as the Borrower may, upon notice received by the Administrative Agent
not later than 11:00 a.m. (New York time) on the third Business Day prior to the first day of such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period which ends after the Commitment Termination Date;
(b) Interest Periods commencing on the same date for Advances comprising part of the same Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day; provided, that,
if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the immediately preceding Business Day; and
(d) any Interest Period which begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month in which it
would have ended if there were a numerically corresponding day in such calendar month.
"Internal Engineering Report" means a report, in form and substance satisfactory to the Administrative Agent and each Lender, prepared by the Borrower and certified by a Responsible Officer of the Borrower, addressed to the Administrative Agent and the Lenders with respect
to the Oil and Gas Properties owned by the Borrower or any of its Subsidiaries (or to be acquired by the Borrower or any of its Subsidiaries, as applicable) which are, or are to be, included in the Borrowing Base, which report shall (a) specify the location, quantity, and type of the estimated Proven Reserves attributable to such Oil and Gas Properties, (b) contain a projection of the rate of production of such Oil and Gas Properties, (c) contain an estimate of the net operating revenues to be derived from the
production and sale of Hydrocarbons from such Proven Reserves based on product price and cost escalation assumptions specified by the Administrative Agent and the Lenders which are consistent with the Administrative Agent's and the Lenders' customary internal standards and practices for valuing and redetermining the value of Oil and Gas Properties in connection with reserve based oil and gas loan transactions, and (d) contain such other information as is customarily obtained from and provided in such reports
or is otherwise reasonably requested by the Administrative Agent or any Lender.
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"Issuing Lender" means Société Générale in its capacity as issuer of Letters of Credit hereunder, and any successor Issuing Lender pursuant to Section 8.06.
"Leases" means all oil and gas leases, oil, gas and mineral leases, oil, gas and casinghead gas leases, wellbore assignments or any other instruments, agreements, or conveyances under and pursuant to which the owner thereof has or obtains the right to enter upon lands and
explore for, drill, and develop such lands for the production of Hydrocarbons.
"Legal Requirement" means, as to any Person, any law, statute, ordinance, decree, requirement, order, judgment, rule, regulation (or official interpretation of any of the foregoing) of, and the terms of any license or permit issued by, any Governmental Authority, including
Regulations D, T, U, and X, which is applicable to such Person.
"Lender Funding Obligation" has the meaning set forth in the definition of Defaulting Lender.
"Lender Hedging Obligations" means all obligations arising from time to time under Hedge Contracts entered into from time to time between any Loan Party and a counterparty that is a Lender or an Affiliate of a Lender; provided that if such counterparty ceases to be a Lender
hereunder or an Affiliate of a Lender hereunder, Lender Hedging Obligations shall only include such obligations to the extent arising from transactions entered into at the time such counterparty was a Lender hereunder or an Affiliate of a Lender hereunder.
"Lender Insolvency Event" means that (i) a Lender or its Parent Company is insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors,
or (ii) such Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its Parent Company, or such Lender or its Parent Company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment.
"Lenders" means the lenders listed on the signature pages of this Agreement and each Eligible Assignee that shall become a party to this Agreement pursuant to Section 9.08.
"Letter of Credit" means, individually, any standby letter of credit issued by the Issuing Lender for the account of the Borrower in connection with the Commitments and which is subject to this Agreement, and "Letters
of Credit" means all such letters of credit collectively.
"Letter of Credit Application" means the Issuing Lender's standard form letter of credit application for standby letters of credit that has been executed by the Borrower and accepted by the Issuing Lender in connection with the issuance of a Letter of Credit.
"Letter of Credit Documents" means all Letters of Credit, Letter of Credit Applications, and agreements, documents, and instruments entered into in connection with or relating thereto.
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"Letter of Credit Exposure" means, at any time, the sum of (a) the aggregate undrawn maximum face amount of each Letter of Credit at such time plus (b) the aggregate unpaid amount of all Reimbursement
Obligations at such time.
"Letter of Credit Obligations" means any obligations of the Borrower under this Agreement in connection with the Letters of Credit, including the Reimbursement Obligations.
"Lien" means any mortgage, lien, pledge, assignment, charge, deed of trust, security interest, hypothecation, preference, deposit arrangement or encumbrance (or other type of arrangement having the practical effect of the foregoing) to secure or provide for the payment of
any obligation of any Person, whether arising by contract, operation of law, or otherwise (including the interest of a vendor or lessor under any conditional sale agreement, synthetic lease, Capital Lease, or other title retention agreement).
"Liquid Investments" means:
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States maturing within 270 days from the date of any acquisition thereof;
(b) (i) negotiable or nonnegotiable certificates of deposit, time deposits, or other similar banking arrangements maturing within 270 days from the date of acquisition thereof or which may be liquidated for the full amount
thereof without penalty or premium ("bank debt securities"), issued by (A) any Lender (or any Affiliate of any Lender), or (B) any other bank or trust company so long as either (x) such certificate of deposit is not pledged to secure the Borrower’s or any Subsidiaries’ ordinary course of business bonding requirements, and (y) the amount thereof is less than or equal to $100,000, or any other bank or trust company, if at the time of deposit or purchase, such bank debt securities are rated
A or A2 or better by either S&P or Xxxxx'x, and (ii) commercial paper issued by (A) any Lender (or any Affiliate of any Lender) or (B) any other Person if at the time of purchase such commercial paper is rated at the highest or the second highest credit rating given by either S&P or Xxxxx'x, or upon the discontinuance of both of such services, such other nationally recognized rating service or services, as the case may be, as shall be selected by the Borrower with the consent of the Required Lenders;
(c) deposits in money market funds investing exclusively in investments described in clauses (a) and (b) above;
(d) repurchase agreements relating to investments described in clauses (a) and (b) above with a market value at least equal to the consideration paid in connection therewith, with any Person who regularly engages in the business
of entering into repurchase agreements and has a combined capital and surplus and undivided profit of not less than $500,000,000.00, if at the time of entering into such agreement the debt securities of such Person are rated at the highest or the second highest credit rating given by either S&P or Xxxxx'x; and
(e) such other instruments (within the meaning of Article 9 of the Uniform Commercial Code in effect in New York) or investment property as the Borrower may request and the Administrative Agent may approve in writing.
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"Liquidity" means an amount equal to (i) the Loan Parties' unrestricted cash plus (ii) Liquid Investments plus (iii) (A) the lesser of the Borrowing Base and the Revolving Commitments minus (B) the aggregate Revolving Credit Extensions.
"Loan Documents" means this Agreement, the Notes, the Letter of Credit Documents, the Guaranties, the Security Instruments, any Hedge Contract with a Swap Counterparty, and each other agreement, instrument, or document executed by the Borrower, any Guarantor, or any of the
Borrower’s or a Guarantor’s Subsidiaries or any of their officers at any time in connection with this Agreement.
"Loan Party" means the Borrower or any Guarantor.
"Material Adverse Change" means (a) a material adverse change in the business, assets (including the Oil and Gas Properties), condition (financial or otherwise), results of operations or prospects of the Borrower individually, or the Company Group, taken as a whole or (b)
a material adverse effect on the Borrower's, individually, or the Company Group's, taken as a whole, ability to perform its obligations under this Agreement, any Note, any Guaranty, or any other Loan Document.
"Maximum Exposure Amount" means, at any time for each Lender, the sum of (a) the unfunded Revolving Commitment held by such Lender at such time; plus (b) the aggregate unpaid principal amount of the Revolving Advances held by such Lender at such time, plus (c) such Lender's
Revolving Pro Rata Share of the Letter of Credit Exposure; plus (d) the aggregate unpaid principal amount of the Term Advances held by such Lender at such time.
"Maximum Rate" means the maximum nonusurious interest rate under applicable law (determined under such laws after giving effect to any items which are required by such laws to be construed as interest in making such determination, including if required by such laws, certain
fees and other costs).
"Merger" means the merger of Abraxas MLP into Merger Sub, as more fully described in the Merger Agreement.
"Merger Agreement" means that certain Amended and Restated Agreement and Plan of Merger by and among Borrower, Abraxas MLP, and Merger Sub as defined therein, dated as of July 17, 2009, as modified by the Accession Agreement.
"Merger Sub" means Abraxas Merger Sub, LLC, a Delaware limited liability company.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor thereto.
"Mortgage" means the mortgage or deed of trust executed by any one or more of the Loan Parties in favor of the Administrative Agent for the ratable benefit of the Secured Parties in substantially the form of the attached Exhibit D or
such other form as may be requested by the Administrative Agent, together with any assumptions or assignments of the obligations thereunder by the Borrower, any Guarantor or any of their respective Subsidiaries, as may be amended, amended and restated, or otherwise modified from time to time.
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"Multiemployer Plan" means a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA.
"Net Income" means, with respect to the Borrower, its consolidated Subsidiaries, and Canadian Abraxas for any period, the net income for such period after taxes, as determined in accordance with GAAP, excluding, however, (a) extraordinary items, including (i) any
net non-cash gain or loss during such period arising from the sale, exchange, retirement or other disposition of capital assets (such term to include all fixed assets and all securities) other than in the ordinary course of business and (ii) any write-up or write-down of assets (including ceiling test write-downs) and (b) the cumulative effect of any change in GAAP.
"Non-Defaulting Lender" means, at any time, a Lender that is not a Defaulting Lender or a Potential Defaulting Lender.
"Note" means a Revolving Note or a Term Note.
"Notice of Borrowing" means a notice of borrowing in the form of the attached Exhibit G signed by a Responsible Officer of the Borrower.
"Notice of Conversion or Continuation" means a notice of conversion or continuation in the form of the attached Exhibit H signed by a Responsible Officer of the Borrower.
"Obligations" means (a) all principal, interest, fees, reimbursements, indemnifications, and other amounts payable by the Borrower, any Guarantor or any of their respective Subsidiaries to the Administrative Agent, the Issuing Lender or the Lenders under the Loan Documents
(other than the Hedge Contracts with a Swap Counterparty), including the Letter of Credit Obligations, and (b) all Lender Hedging Obligations.
"Oil and Gas Business" means (a) the acquisition, exploration, exploitation, development, operation and disposition of interests in Oil and Gas Properties and Hydrocarbons, (b) the gathering, marketing, treating, processing, storage, selling and transporting of any production
from such interests or properties, including the marketing of Hydrocarbons obtained from unrelated Persons, (c) any business relating to or arising from exploration for or development, production, treatment, processing, storage, transportation or marketing of oil, gas and other minerals and products produced in association therewith, (d) any business relating to oilfield sales and service, and (e) any activity that is ancillary or necessary or desirable to facilitate the activities described in clauses (a) through
(d) of this definition.
"Oil and Gas Properties" means fee mineral interests, term mineral interests, Leases, subleases, Farmouts, royalties, overriding royalties, net profit interests, carried interests, production payments, back-in interests and reversionary interests and similar mineral interests,
and all unsevered and unextracted Hydrocarbons in, under, or attributable to such oil and gas Properties and interests.
"OFAC" means the Office of Foreign Assets Control.
"OSHA" means the Occupational Safety and Health Act 29 U.S.C. § 651 et seq. and its implementing regulations.
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"Other Taxes" means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.
"Parent Company" means, with respect to a Lender, the bank holding company (as defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Lender.
"Participant" has the meaning assigned to such term in paragraph (d) of Section 9.08.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.
"Permit" means any approval, certificate of occupancy, consent, waiver, exemption, variance, franchise, order, permit, authorization, right or license of or from any Governmental Authority, including an Environmental Permit.
"Permitted Borrowing Base Liens" means the Liens permitted under paragraphs (a), (c), (d), (e), (f), (h), (i), and (o) of Section 6.01.
"Permitted Holder" means any holder of Equity Interest in the Borrower on the Closing Date.
"Permitted Liens" is defined in Section 6.01.
"Permitted Subject Liens" means the Liens permitted under paragraphs (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), and (p) of Section 6.01.
"Person" (whether or not capitalized) means an individual, partnership, corporation (including a business trust), joint stock company, limited liability company, limited liability partnership, trust, unincorporated association, joint venture or other entity, Governmental
Authority or other entity.
"Plan" means an employee benefit plan (other than a Multiemployer Plan) maintained for employees of the Borrower or any member of the Controlled Group and covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code.
"Pledge Agreement" means a Pledge Agreement in substantially the form of the attached Exhibit I, executed by the Borrower or any of its Subsidiaries or any of the Guarantors, if applicable,
covering 100% of the Equity Interests owned in each direct or indirect Subsidiary of Borrower.
"Potential Defaulting Lender" means, at any time, a Lender (i) as to which the Administrative Agent has notified the Borrower that an event of the kind referred to in the definition of “Lender Insolvency Event” has occurred and is continuing in respect of any
financial institution affiliate of such Lender, (ii) as to which the Administrative Agent or the Issuing Bank has in good faith determined and notified the Borrower and (in the case of the
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Issuing Bank) the Administrative Agent that such Lender or its Parent Company or a financial institution affiliate thereof has notified the Administrative Agent, or has stated publicly, that it will not comply with its funding obligations generally under other loan agreements or credit agreements or other similar financing agreements or
(iii) that has, or whose Parent Company has, a non-investment grade rating from Moody’s or S&P or another nationally recognized rating agency; provided that a Lender shall not be deemed a Potential Defaulting Lender solely by virtue of the acquisition or maintenance of an ownership interest in such Lender or its Parent Company by a Governmental Authority or an instrumentality thereof. Any determination that a Lender is a Potential
Defaulting Lender under any of clauses (i) through (iii) above will be made by the Administrative Agent or, in the case of clause (ii), the Issuing Bank acting in good faith. The Administrative Agent will promptly send to all parties hereto a copy of any notice to the Borrower provided for in this definition.
"Pro Rata Share" means, with respect to any Lender, the ratio (expressed as a percentage) of aggregate outstanding Term Advances plus aggregate Commitments of such Lender to the aggregate outstanding Term Advances plus aggregate Commitments of all the Lenders, or if all such
Commitments have been terminated, the ratio (expressed as a percentage) of Credit Extensions owing to such Lender to the aggregate Credit Extensions owing to all such Lenders.
"Production Report" means the report described in Section 5.06(d).
"Projected Oil and Gas Production" means the projected production of oil or gas (measured by volume unit or BTU equivalent, not sales price) for the term of the contracts or a particular month, as applicable, from the Loan Parties' Oil and Gas Properties which are located
in or offshore of the United States to the extent such Oil and Gas Properties have attributable to them proved developed producing oil or gas reserves, as such proved developed producing production is projected in the Initial Engineering Report or most recent Independent Engineering Report or Internal Engineering Report delivered pursuant to Section 5.06(g) below, as applicable, after deducting projected production from any properties or interests sold or under contract for sale that had been included in such
report and, other than as to the Initial Engineering Report, after adding projected production from any properties or interests that had not been reflected in such report but that are reflected in separate or supplemental Independent Engineering Reports or Internal Engineering Reports meeting the requirements of such Section 5.06(g) and that are otherwise satisfactory to Administrative Agent.
"Projections" means, for each of the fiscal years 2009, 2010 and 2011, Borrower’s and the Company Group’s forecasted (a) balance sheets, (b) profit and loss statements, and (c) cash flow statements, based on good faith estimates and assumptions made by the management
of the Borrower.
"Property" of any Person means any property or assets (whether real, personal, or mixed, tangible or intangible) of such Person.
"Proven Reserves" means, at any particular time, the estimated quantities of Hydrocarbons which geological and engineering data demonstrate with reasonable certainty to be recoverable in future years from known reservoirs attributable to Oil and Gas Properties
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included or to be included in the Borrowing Base under then existing economic and operating conditions (i.e., prices and costs as of the date the estimate is made).
"PV-10" means estimated future net revenue, discounted at a rate of 10% per annum, after income Taxes and with no price or cost escalation or de-escalation in accordance with guidelines promulgated by the SEC, using the Administrative Agent's price deck.
"Reference Rate" means a fluctuating interest rate per annum as shall be in effect from time to time equal to the rate of interest publicly announced by Société Générale as its reference rate, whether or not the Borrower has notice thereof.
"Reference Rate Advance" means an Advance which bears interest as provided in Section 2.09(a).
"Register" has the meaning set forth in of Section 9.08(c).
"Regulations D, T, U, and X" mean Regulations D, T, U, and X of the Federal Reserve Board, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof.
"Reimbursement Obligations" means all of the obligations of the Borrower to reimburse the Issuing Lender for amounts paid by the Issuing Lender under Letters of Credit as established by the Letter of Credit Applications and Section 2.07(d).
"Related Parties" means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
"Release" shall have the meaning set forth in CERCLA or under any other Environmental Law.
"Reportable Event" means a "reportable event" described in Section 4043 of ERISA and the regulations issued thereunder.
"Required Lenders" means (a) other than as provided in clause (b) below, two or more Lenders holding at least 66 2/3% of the aggregate Maximum Exposure Amounts of all Lenders, and (b) at any time when there is only one Lender, such Lender.
"Required Revolving Lenders" means, at any time, Revolving Lenders holding at least 66 2/3% of the Revolving Commitments or, if the Revolving Commitments have been terminated or expired, the outstanding amount of the Revolving Credit Extensions with the aggregate amount of
each Revolving Lender's risk participation and funded participation in Letter of Credit Obligations being deemed to be "held" by such Revolving Lender for purposes of this definition).
"Required Term Lenders" means, at any time, Term Lenders holding at least 66 2/3% of the unpaid principal amount of the Term Advances.
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"Response" shall have the meaning set forth in CERCLA or under any other Environmental Law.
"Responsible Officer" means (a) with respect to any Person that is a corporation, such Person's Chief Executive Officer, President, Chief Financial Officer, or Vice President, (b) with respect to any Person that is a limited liability company, if such Person has officers,
then such Person's Chief Executive Officer, President, Chief Financial Officer, or Vice President, and if such Person is managed by members, then a Responsible Officer of such Person’s managing member, and if such Person is managed by managers, then a manager (if such manager is an individual) or a Responsible Officer of such manager (if such manager is an entity), and (c) with respect to any Person that is a general partnership or a limited liability partnership, the Responsible Officer of such Person’s
general partner or partners.
"Restricted Payment" means, with respect to any Person, (a) any direct or indirect dividend or distribution (whether in cash, securities or other Property) with respect to any Equity Interests, including any payment of any kind or character (whether in cash, securities or
other Property) in consideration for or otherwise in connection with any retirement, purchase, redemption or other acquisition of any Equity Interest of such Person, or any options, warrants or rights to purchase or acquire any such Equity Interest of such Person or (b) principal or interest payments (in cash, Property or otherwise) on, or redemptions of, subordinated debt of such Person; provided, that, the term "Restricted Payment" shall not include
any dividend or distribution payable solely in Equity Interests of such Person or warrants, options or other rights to purchase such Equity Interests or to exchange such warrants, options or other rights for such Equity Interests.
"Revolving Advance" means any advance by a Revolving Lender to the Borrower as part of a Revolving Borrowing and refers to a Reference Rate Advance or a Eurodollar Rate Advance.
"Revolving Borrowing" means, subject to Section 2.03(c)(ii), a borrowing consisting of simultaneous Revolving Advances of the same Type made by each Revolving Lender pursuant to Section 2.03(a), continued by each Lender pursuant to Section 2.03(b), or Converted by each
Lender to Advances of a different Type pursuant to Section 2.03(b).
"Revolving Commitment" means, for any Revolving Lender, the amount set opposite such Revolving Lender's name on Schedule I as its Revolving Commitment, or if such Revolving Lender has entered
into any Assignment and Acceptance, as set forth for such Revolving Lender as its Revolving Commitment in the Register maintained by the Administrative Agent pursuant to Section 9.08(c), as such amount may be reduced or terminated pursuant to Section 2.04 or Article VII or otherwise under this Agreement. The initial amount of the aggregate Revolving Commitments is $300,000,000, subject to the Borrowing Base.
"Revolving Credit Extension" means (a) a Revolving Advance made by any Revolving Lender, and (b) the issuance, increase or extension of any Letter of Credit by the Issuing Lender.
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"Revolving Lenders" means Lenders having a Revolving Commitment, or if such Revolving Commitments have been terminated, Lenders that are owed repayments of Revolving Advances.
"Revolving Maturity Date" means October 5, 2012.
"Revolving Note" means a promissory note of the Borrower payable to the order of any Revolving Lender in an amount not to exceed the Revolving Commitment of such Revolving Lender, in substantially the form of the attached Exhibit
E, evidencing indebtedness of the Borrower to such Revolving Lender resulting from Revolving Advances owing to such Revolving Lender.
"Revolving Pro Rata Share" means, with respect to any Lender, (a) with respect to amounts owing under the Revolving Commitments, (i) if such Revolving Commitments have not been canceled, the ratio (expressed as a percentage) of such Lender's uncancelled Revolving Commitment
at such time to the aggregate uncancelled Revolving Commitments at such time, or (ii) if the aggregate Revolving Commitments have been terminated, the ratio as determined pursuant to the preceding clause (i) immediately prior to such termination or (b) with respect to amounts owing generally under this Agreement and the other Loan Documents, the ratio (expressed as a percentage) of aggregate Revolving Commitments of such Lender to the aggregate Revolving Commitments of all the Lenders (or if such Revolving Commitments
have been terminated, the ratio (expressed as a percentage) of Revolving Credit Extensions owing to such Lender to the aggregate Revolving Credit Extensions owing to all such Lenders.
"S&P" means Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., and any successor thereto.
"Sandia" means Sandia Operating Corp., a Texas corporation.
"SEC" means the United States Securities and Exchange Commission.
"Secured Parties" means the Administrative Agent, the Issuing Lender, the Lenders, and the Persons that are owed Lender Hedging Obligations.
"Security Agreements" means the Security Agreements, each in substantially the form of the attached Exhibit J, executed by the Borrower, any of its Subsidiaries, or any of the Guarantors.
"Security Instruments" means, collectively: (a) the Mortgages, (b) the Transfer Letters, (c) the Pledge Agreement, (d) the Security Agreements, (e) each other agreement, instrument or document executed at any time in connection with the Pledge Agreement, the Security
Agreements, or the Mortgages, (f) each agreement, instrument or document executed in connection with the Cash Collateral Account, and (g) each other agreement, instrument or document executed at any time in connection with securing the Obligations.
"Solvent" means, with respect to any Person as of the date of any determination, that on such date (a) the fair value of the Property of such Person (both at fair valuation and at present fair saleable value) is greater than the total liabilities, including contingent liabilities,
of such
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Person, (b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person is able to realize upon its assets and pay its debts and other liabilities, contingent obligations, and
other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as such debts and liabilities mature, and (e) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person's Property would constitute unreasonably small capital after giving due consideration to current and anticipated future capital requirements
and current and anticipated future business conduct and the prevailing practice in the industry in which such Person is engaged. In computing the amount of contingent liabilities at any time, such liabilities shall be computed at the amount which, in light of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
"Subsidiary" means, with respect to any Person (the "parent") at any date, any other Person the accounts of which would be consolidated with those of the parent in the parent's consolidated financial statements
if such financial statements were prepared in accordance with GAAP as of such date, as well as any Person, a majority of whose outstanding Voting Securities (other than directors' qualifying shares) shall at any time be owned by such parent or one or more Subsidiaries of such parent. Unless otherwise specified (a) all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Borrower and (b) Canadian Abraxas shall not be considered a Subsidiary of the
Borrower for purposes of this Agreement or any other Loan Document.
"Swap Counterparty" means any Lender (or Affiliate of a Lender) that is party to any Hedge Contract with the Borrower or any of its Subsidiaries.
"Taxes" means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
"Term Advance" means a one-time advance by a Term Lender to the Borrower as a part of a Term Borrowing and refers to a Reference Rate Advance or a Eurodollar Rate Advance.
"Term Borrowing" means the Borrowing consisting of simultaneous Term Advances made pursuant to Section 2.01(a), continued by each Term Lender pursuant to Section 2.03(b), or Converted by each Term Lender to Term Advances of a different Type pursuant to Section 2.03(b).
"Term Commitment" means for any Term Lender, the amount set opposite such Term Lender's name on Schedule I as its Term Commitment or if such Term Lender has entered into any Assignment and
Acceptance, as set forth for such Term Lender as its Term Commitment in the Register maintained by the Administrative Agent pursuant to Section 9.08(c); provided that, after the Closing Date, the Term Commitment of each Term Lender shall be zero. The aggregate Term Commitments on the date hereof are equal to $10,000,000.
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"Term Lenders" means Lenders having a Term Commitment or after such Term Commitments have been terminated, Lenders that are owed Term Advances.
"Term Loan" means the loans evidenced by Term Notes to be made by the Term Lenders to the Borrower hereunder.
"Term Maturity Date" means December 31, 2010.
"Term Note" means a promissory note of the Borrower payable to the order of a Term Lender in the amount of such Term Lender's initial Term Commitment (or if such Term Lender has entered into any Assignment and Acceptance, as set forth for such Term Lender as its outstanding
Term Advances in the Register maintained by the Administrative Agent pursuant to Section 9.08(c)), in substantially the same form as Exhibit F, evidencing indebtedness of the Borrower to such Term Lender resulting from any Term Advances owing to such Term Lender.
"Termination Event" means (a) a Reportable Event described in Section 4043 of ERISA and the regulations issued thereunder (other than a Reportable Event not subject to the provision for 30-day notice to the PBGC under such regulations), (b) the withdrawal of the
Borrower or any of its Affiliates from a Plan during a plan year in which it was a "substantial employer" as defined in Section 4001(a)(2) of ERISA, (c) 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, (d) the institution of proceedings to terminate a Plan by the PBGC, or (e) any other event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Plan.
"Total Debt" means, as of any date of determination, the outstanding principal amount of the Debt of the Borrower, its Subsidiaries, and Canadian Abraxas on a consolidated basis, excluding (a) Debt under the Business
Loan Agreement that is permitted under Section 6.02, (b) obligations in respect of surety bonds, and (c) the net obligations of the Borrower and its Subsidiaries under Hedge Contracts, in each case to the extent included in Debt.
"Total Debt to Consolidated EBITDAX Ratio" means, as of any date of determination, the ratio of (a) Total Debt as of such date to (b) Consolidated EBITDAX for the period of the four fiscal quarters most recently ended.
"Transfer Letters" means, collectively, the letters in lieu of transfer orders in substantially the form of the attached Exhibit K and executed by the Borrower, any Guarantor or any of their
respective Subsidiaries executing a Mortgage.
"Type" has the meaning set forth in Section 1.04.
"Unreallocated Portion" has the meaning set forth in Section 2.15(b).
"Unused Revolving Commitment Amount" means, with respect to a Lender at any time, the lesser of (a) such Lender’s Revolving Commitment at such time and (b) such Lender’s Revolving Pro Rata Share of the Borrowing Base then in effect at such time minus,
in each case, the sum of (i) the aggregate outstanding principal amount of all Revolving Advances owed
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to such Lender at such time plus (ii) such Lender’s Revolving Pro Rata Share of the aggregate Letter of Credit Exposure at such time.
"Utilization" means the percentage obtained by dividing (a) the outstanding principal amount of the Advances and the Letter of Credit Exposure at such time by (b) the lesser of (i) the Commitments and (ii) the Borrowing Base in effect at such time.
"Voting Securities" means (a) with respect to any corporation (including any unlimited liability company), capital stock of such corporation having general voting power under ordinary circumstances to elect directors of such corporation (irrespective of whether at the time
stock of any other class or classes shall have or might have special voting power or rights by reason of the happening of any contingency), (b) with respect to any partnership, any partnership interest or other ownership interest having general voting power to elect the general partner or other management of the partnership or other Person, and (c) with respect to any limited liability company, membership certificates or interests having general voting power under ordinary circumstances to elect managers
of such limited liability company.
Section 1.02 Computation of Time Periods. In this Agreement, with respect to the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including" and the words "to" and "until" each means "to but excluding".
Section 1.03 Accounting Terms; Changes in GAAP. Except as otherwise expressly provided herein, all accounting terms used herein shall
be interpreted, and all financial statements and certificates and reports as to financial matters required to be delivered to the Lenders hereunder shall (unless otherwise disclosed to the Lenders in writing at the time of delivery thereof) be prepared, in accordance with GAAP applied on a basis consistent with those used in the preparation of the latest financial statements furnished to the Lenders hereunder (which prior to the delivery of the first financial statements under Section 5.06, shall mean the Financial
Statements). All calculations made for the purposes of determining compliance with this Agreement shall (except as otherwise expressly provided herein) be made by application of GAAP applied on a basis consistent with that used in the preparation of the annual or quarterly financial statements furnished to the Lenders pursuant to Section 5.06 most recently delivered prior to or concurrently with such calculations (or, prior to the delivery of the first financial statements under Section 5.06, used
in the preparation of the Financial Statements). In addition, all calculations and defined accounting terms used herein shall, unless expressly provided otherwise, when referring to any Person, where applicable, refer to such Person on a consolidated basis and mean such Person and its consolidated Subsidiaries.
Section 1.04 Types of Advances. Advances are distinguished by "Type." The
"Type" of an Advance refers to the determination whether such Advance is a Eurodollar Rate Advance or Reference Rate Advance.
Section 1.05 Miscellaneous. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation." The word "will" shall be construed to have the same meaning and effect as the word "shall."
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Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words "herein," "hereof" and "hereunder," and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, paragraphs, Exhibits and Schedules shall be construed to refer to Articles, Sections and paragraphs, of, and Exhibits
and Schedules to, this Agreement, (e) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time and (f) the words "asset" and "property" shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
ARTICLE II
Section 2.01 Commitment for Advances.
(a) Term Advances. Each Term Lender severally agrees, on the terms and conditions set forth in this Agreement (including without limitation, the terms set forth in Section 3.01), to make to the Borrower on the
Initial Funding Date a Term Advance in an amount not to exceed such Lender's Term Commitment. The Borrower may not reborrow any Term Advances that have been repaid.
(b) Revolving Advances. Each Revolving Lender severally agrees, on the terms and conditions set forth in this Agreement (including without limitation, the terms set forth in Section 3.01), to make
Revolving Advances to the Borrower from time to time on any Business Day during the period from the date of this Agreement until the Revolving Commitment Termination Date in an amount for each Revolving Lender not to exceed such Revolving Lender’s Unused Revolving Commitment Amount. Each Revolving Borrowing shall, in the case of Revolving Borrowings consisting of Reference Rate Advances, be in an aggregate amount not less than $250,000 and in integral multiples of $100,000 in excess thereof,
and in the case of Revolving Borrowings consisting of Eurodollar Rate Advances, be in an aggregate amount not less than $500,000 and in integral multiples of $100,000 in excess thereof, and in each case shall consist of Revolving Advances of the same Type made on the same day by the Revolving Lenders ratably according to their respective Revolving Commitments. Within the limits of each Revolving Lender's Revolving Commitment, and subject to the terms of this Agreement, the Borrower may from time to
time borrow, prepay, and reborrow Revolving Advances.
(c) Evidence of Debt.
(i) The Advances made by each Lender shall be evidenced by the records maintained by the Administrative Agent in the ordinary course of business. The records maintained by the Administrative Agent shall be conclusive absent manifest error of the amount of the Advances
made by the Lenders to the Borrower and the interest and payments thereon.
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Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender to Borrower made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence the obligation of the Borrower to repay to such Lender’s Advances to such Borrower in addition to such records maintained by the Administrative Agent. Each
Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount, currency and maturity of its Loans and payments with respect thereto, but such action or the failure to do so shall not control over the records thereof maintained by the Administrative Agent.
(ii) In addition to the accounts and records referred to in subsection (i), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of
Credit. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
Section 2.02 Borrowing Base.
(a) Borrowing Base. The initial Borrowing Base with respect to the Revolving Commitment in effect as of the date of this Agreement has been set by the Administrative Agent and the Revolving Lenders
and acknowledged by the Borrower as $145,000,000. Such initial Borrowing Base shall remain in effect until the next redetermination made pursuant to this Section 2.02 or Section 6.04(b). The Borrowing Base shall be determined in accordance with the standards set forth in Section 2.02(d) and is subject to periodic redetermination pursuant to Sections 2.02(b), 2.02(c) and 6.04(b).
(b) Calculation of Borrowing Base.
(i) The Borrower shall deliver to the Administrative Agent and each of the Lenders on or before each February 28 or February 29, as applicable (beginning February 28, 2010) an Independent Engineering Report dated effective as of the immediately preceding December 31, and
such other information as may be reasonably requested by any Revolving Lender with respect to the Oil and Gas Properties included or to be included in the Borrowing Base. Within thirty (30) days after receipt of the Independent Engineering Report and such other information, the Administrative Agent shall make an initial determination of the new Borrowing Base and upon such initial determination shall promptly notify the Revolving Lenders in writing of its initial determination of the proposed Borrowing
Base. Subject to the last sentence of this Section 2.02(b)(i), the Required Revolving Lenders shall approve or reject the Administrative Agent’s initial determinations of the proposed Borrowing Base by written notice to the Administrative Agent within fifteen (15) days of the Administrative Agent’s notification of its initial determinations; provided, however that, the failure by any Revolving Lender to confirm in writing the Administrative Agent’s determination of the proposed Borrowing
Base within such
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fifteen (15) day period shall be deemed an approval of such proposed Borrowing Base by such Revolving Lender. If the Required Revolving Lenders fail to approve any such proposed Borrowing Base determined by the Administrative Agent hereunder in such fifteen (15) day period, then the Administrative Agent shall poll the Revolving
Lenders to ascertain the highest proposed Borrowing Base then acceptable to the Required Revolving Lenders for purposes of this Section 2.02(b)(i) and, subject to the last sentence of this Section 2.02(b)(i), such amounts shall become the new Borrowing Base, effective on the date specified in this Section 2.02(b)(i). Until such approval or deemed approval, the Borrowing Base in effect before the proposed Borrowing Base shall remain in effect. Upon agreement by the Administrative Agent and
the Required Revolving Lenders of the new Borrowing Base, the Administrative Agent shall, by written notice to the Borrower and the Revolving Lenders, designate the new Borrowing Base available to the Borrower. Such designation shall be effective as of the Business Day specified in such written notice (or, if no effective date is specified in such written notice, the next Business Day following delivery of such written notice) and such new Borrowing Base shall remain in effect until the next determination
or redetermination of the Borrowing Base in accordance with this Agreement. Notwithstanding anything contained herein to the contrary, (A) any determination or redetermination of the Borrowing Base resulting in any increase of the Borrowing Base in effect immediately prior to such determination or redetermination shall require the written approval (and not deemed approval) of all the Revolving Lenders in their sole discretion but subject to paragraph (d) of this Section 2.02, (B) in no event shall
the determined or redetermined Borrowing Base exceed the aggregate Commitments of the Revolving Lenders, and (C) any determination or redetermination of the Borrowing Base resulting in any decrease of the Borrowing Base in effect immediately prior to such determination or redetermination shall not require the approval of any Defaulting Lender (and the definition of "Required Revolving Lenders" will automatically be deemed modified accordingly with respect to any such determination or redetermination).
(ii) The Borrower shall deliver to the Administrative Agent and each Lender on or before each August 31, beginning August 31, 2010, an Internal Engineering Report dated effective as of the immediately preceding June 30, and such other information as may be reasonably requested
by the Administrative Agent or any Lender with respect to the Oil and Gas Properties included or to be included in the Borrowing Base. Within thirty (30) days after receipt of the Internal Engineering Report and such other information, the Administrative Agent shall make an initial determination of the new Borrowing Base and upon such initial determination shall promptly notify the Revolving Lenders in writing of its initial determination of the proposed Borrowing Base. Subject to the last
sentence of this Section 2.02(b)(ii), the Required Revolving Lenders shall approve or reject the Administrative Agent’s initial determinations of the proposed Borrowing Base by written notice to the Administrative Agent within fifteen (15) days of the Administrative Agent’s notification of its initial determinations; provided, however that, the failure by any Revolving Lender to confirm in writing the Administrative Agent’s determination of the proposed Borrowing Base within such fifteen (15)
day period shall be deemed an approval of the such proposed Borrowing Base by such Revolving Lender. If the Required Revolving Lenders fail to approve any such proposed Borrowing Base determined by the Administrative Agent hereunder in such fifteen (15) day period, then the Administrative Agent shall poll the Revolving Lenders to ascertain the highest proposed Borrowing Base then acceptable to the Required Revolving Lenders for purposes of this Section 2.02(b)(ii) and, subject to the last sentence
of this Section 2.02(b)(ii), such amounts shall become
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the new Borrowing Base, effective on the date specified in this Section 2.02(b)(ii). Until such approval or deemed approval, the Borrowing Base in effect before the proposed Borrowing Base shall remain in effect. Upon agreement by the Administrative Agent and the Required Revolving Lenders of the new Borrowing Base,
the Administrative Agent shall, by written notice to the Borrower and the Revolving Lenders, designate the new Borrowing Base available to the Borrower. Such designation shall be effective as of the Business Day specified in such written notice (or, if no effective date is specified in such written notice, the next Business Day following delivery of such written notice) and such new Borrowing Base shall remain in effect until the next determination or redetermination of the Borrowing Base in accordance
with this Agreement. Notwithstanding anything contained herein to the contrary, (A) any determination or redetermination of the Borrowing Base resulting in any increase of the Borrowing Base in effect immediately prior to such determination or redetermination shall require the written approval (and not deemed approval) of all the Revolving Lenders in their sole discretion but subject to paragraph (d) of this Section 2.02, (B) in no event shall the determined or redetermined Borrowing Base exceed the
aggregate Commitments of the Revolving Lenders, and (C) any determination or redetermination of the Borrowing Base resulting in any decrease of the Borrowing Base in effect immediately prior to such determination or redetermination shall not require the approval of any Defaulting Lender (and the definition of "Required Revolving Lenders" will automatically be deemed modified accordingly with respect to any such determination or redetermination).
(iii) In the event that the Borrower does not furnish to the Administrative Agent and the Revolving Lenders the Independent Engineering Report, Internal Engineering Report or other information specified in clauses (i) and (ii) above by the date specified therein, the Administrative
Agent and the Revolving Lenders may nonetheless redetermine the Borrowing Base and redesignate the Borrowing Base from time to time thereafter in their sole discretion until the Administrative Agent and the Revolving Lenders receive the relevant Independent Engineering Report, Internal Engineering Report, or other information, as applicable, whereupon the Administrative Agent and the Revolving Lenders shall redetermine the Borrowing Base as otherwise specified in this Section 2.02.
(iv) Each delivery of an Engineering Report by the Borrower to the Administrative Agent and the Revolving Lenders shall constitute a representation and warranty by the Borrower to the Administrative Agent and the Revolving Lenders that (A) the Borrower and its Subsidiaries,
as applicable, own the Oil and Gas Properties specified therein subject to an Acceptable Security Interest and free and clear of any Liens (except Permitted Liens), and (B) on and as of the date of such Engineering Report each Oil and Gas Property described as "proved developed" therein was developed for oil and/or gas, and the xxxxx pertaining to such Oil and Gas Properties that are described therein as producing xxxxx ("Xxxxx"), were each producing oil and/or gas in paying quantities, except for Xxxxx that
were utilized as water or gas injection xxxxx or as water disposal xxxxx. Additionally, the Borrower shall deliver with each such Engineering Report a list of any Proven Reserves that have been sold or acquired by the Borrower and its Subsidiaries since the date of the last Engineering Report delivered to the Administrative Agent; provided that, such requirement shall not constitute nor be construed as a consent to any sale or proposed sale that would not be permitted under the terms of this Agreement.
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(c) Interim Redetermination. In addition to the Borrowing Base redeterminations provided for in Section 2.02(b), the Administrative Agent and the Revolving Lenders may (i) in their sole discretion
make one additional redetermination of the Borrowing Base during any six-month period between scheduled redeterminations and (ii) at the request of the Borrower make one additional redetermination of the Borrowing Base during any six-month period between scheduled redeterminations, and in any case, based on such information as the Administrative Agent and the Revolving Lenders deem relevant (but in accordance with Section 2.02(d)). Additionally, the Administrative Agent and the Revolving Lenders may
request (A) an additional redetermination in connection with any sale or proposed sale of Oil and Gas Properties of the Borrower or any of its Subsidiaries having a market value that would, when aggregated with all other such sales that have been consummated since the date of the last redetermination, equal or exceed an amount equal to 5% of the Borrowing Base then in effect; provided that, such request shall not constitute nor be construed as a consent to any sale or proposed sale that would not be permitted
under the terms of this Agreement, (B) an additional redetermination in connection with any Hedge Termination if such Hedge Termination, when aggregated with all other such Hedge Terminations that have been consummated since the date of the last redetermination, could reasonably be expected to result in a decrease of 5% or more to the collateral value of the Oil and Gas Properties which are given value in the Borrowing Base most recently in effect, as determined by the Administrative Agent in its sole discretion;
provided that, such request shall not constitute nor be construed as a consent to any Hedge Termination that would not be permitted under the terms of this Agreement, and (C) an additional redetermination if the net aggregate amount of Gas Imbalances with respect to the Oil and Gas Properties of the Borrower and its Subsidiaries exceeds at any time an amount equal to 1% of the Proven Reserves that are categorized as "proved, developed and producing" on the most recently delivered Engineering Report; provided
that, such request shall not constitute nor be construed as a consent to or a waiver of any Default or Event of Default occurring as a result of any such Gas Imbalance. The party requesting the redetermination shall give the other parties at least 10 days' prior written notice that a redetermination of the Borrowing Base pursuant to this paragraph (c) is to be performed. In connection with any redetermination of the Borrowing Base under this Section 2.02(c), the Borrower shall provide the
Administrative Agent and the Revolving Lenders with such information regarding the Borrower and its Subsidiaries' business (including its Oil and Gas Properties, the Proven Reserves, and production relating thereto) as the Administrative Agent or any Revolving Lender may request, including, without limitation, an updated Independent Engineering Report. The Administrative Agent shall promptly notify the Borrower in writing of each redetermination of the Borrowing Base pursuant to this Section 2.02(c)
and the amount of the Borrowing Base as so redetermined.
(d) Standards for Redetermination. Each redetermination of the Borrowing Base by the Administrative Agent and the Revolving Lenders pursuant to this Section 2.02 shall be made (i) in the sole discretion
of the Administrative Agent and the Revolving Lenders (but in accordance with the other provisions of this Section 2.02(d)), (ii) in accordance with the Administrative Agent's and the Revolving Lenders' customary internal standards and practices for valuing and redetermining the value of Oil and Gas Properties in connection with reserve based oil and gas loan transactions, (iii) in conjunction with the most recent Independent Engineering Report or Internal Engineering Report, as applicable, or other information
received by the Administrative Agent and the Revolving Lenders relating to the Proven Reserves of the Borrower and its Subsidiaries, and (iv) based upon the estimated value of the Proven Reserves
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owned by the Borrower and its Subsidiaries as determined by the Administrative Agent and the Revolving Lenders. In valuing and redetermining the Borrowing Base, the Administrative Agent and the Revolving Lenders may also consider the business, financial condition, and Debt obligations of the Borrower and its Subsidiaries and
such other factors as the Administrative Agent and the Revolving Lenders customarily deem appropriate. In that regard, the Borrower acknowledges that the determination of the Borrowing Base reflects a loan amount to market value percentage differential which is essential for the adequate protection of the Administrative Agent and the Revolving Lenders. No Proven Reserves shall be included or considered for inclusion in the Borrowing Base unless the Administrative Agent and the Revolving
Lenders shall have received, at the Borrower's expense, evidence of title satisfactory in form and substance to the Administrative Agent that the Administrative Agent has an Acceptable Security Interest in the Oil and Gas Properties relating thereto pursuant to the Security Instruments. At all times after the Administrative Agent has given the Borrower notification of a redetermination of the Borrowing Base under this Section 2.02, the Borrowing Base shall be equal to the redetermined amount or such
lesser amount designated by the Borrower and disclosed in writing to the Administrative Agent and the Revolving Lenders until the Borrowing Base is subsequently redetermined in accordance with this Section 2.02.
Section 2.03 Method of Borrowing.
(a) Notice. Each Revolving Borrowing shall be made pursuant to a Notice of Borrowing (or by telephone notice promptly confirmed in writing by a Notice of Borrowing), given not later than 11:00 a.m. (New
York time) (i) on the third Business Day before the date of the proposed Revolving Borrowing, in the case of a Revolving Borrowing comprised of Eurodollar Rate Advances or (ii) on the Business Day of the proposed Revolving Borrowing, in the case of a Revolving Borrowing comprised of Reference Rate Advances, by the Borrower to the Administrative Agent, which shall in turn give to each Revolving Lender prompt notice of such proposed Revolving Borrowing by facsimile. Each Notice of Borrowing
shall be in writing (by facsimile or otherwise) specifying the information required therein. In the case of a proposed Revolving Borrowing comprised of Eurodollar Rate Advances, the Administrative Agent shall promptly notify each Revolving Lender of the applicable interest rate under Section 2.09(b). Each Revolving Lender shall, before 12:00 noon (New York time) on the date of such Revolving Borrowing, make available for the account of its Applicable Lending Office to the Administrative
Agent at its address referred to in Section 9.02, or such other location as the Administrative Agent may specify by notice to the Revolving Lenders, in same day funds, in the case of a Revolving Borrowing, such Revolving Lender's Revolving Pro Rata Share of such Revolving Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent shall make such funds available to the Borrower at its
account with the Administrative Agent.
(b) Conversions and Continuations. The Borrower may elect to Convert or continue any Revolving Borrowing or Term Borrowing under this Section 2.03 by delivering an irrevocable Notice of Conversion
or Continuation to the Administrative Agent at the Administrative Agent's office no later than 11:00 a.m. (New York time) (i) on the date which is at least three Business Days in advance of the proposed Conversion or continuation date in the case of a Conversion to or a continuation of a Borrowing comprised of Eurodollar Rate Advances and (ii) on the Business Day of the proposed Conversion, in the case of a Conversion
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to a Borrowing comprised of Reference Rate Advances. Each such Notice of Conversion or Continuation shall be in writing (by facsimile or otherwise) specifying the information required therein. Promptly after receipt of a Notice of Conversion or Continuation under this Section, the Administrative Agent shall provide
each Lender with a copy thereof and, in the case of a Conversion to or a continuation of a Borrowing comprised of Eurodollar Rate Advances, notify each Lender of the applicable interest rate under Section 2.09(b).
(c) Certain Limitations. Notwithstanding anything to the contrary contained in paragraphs (a) and (b) above:
(i) at no time shall there be more than six Interest Periods applicable to outstanding Eurodollar Rate Advances and the Borrower may not select Eurodollar Rate Advances for any Borrowing at any time that a Default has occurred and is continuing;
(ii) if any Lender shall, at least one Business Day before the date of any requested Borrowing, Conversion, or continuation, notify the Administrative Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that
any central bank or other Governmental Authority asserts that it is unlawful, for such Lender or its Applicable Lending Office to perform its obligations under this Agreement to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances, the right of the Borrower to select Eurodollar Rate Advances from such Lender shall be suspended until such Lender shall notify the Administrative Agent that the circumstances causing such suspension no longer exist, and the Advance made by such Lender in respect
of such Borrowing, Conversion, or continuation shall be a Reference Rate Advance;
(iii) if the Administrative Agent is unable to determine the Eurodollar Rate for Eurodollar Rate Advances comprising any requested Borrowing, the right of the Borrower to select Eurodollar Rate Advances for such Borrowing or for any subsequent Borrowing shall be suspended
until the Administrative Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist, and each Advance comprising such Borrowing shall be a Reference Rate Advance;
(iv) if the Required Revolving Lenders shall, at least one Business Day before the date of any requested Revolving Borrowing, notify the Administrative Agent that the Eurodollar Rate for Eurodollar Rate Advances comprising such Revolving Borrowing will not adequately reflect
the cost to such Revolving Lenders of making or funding their respective Eurodollar Rate Advances, as the case may be, for such Revolving Borrowing, the right of the Borrower to select Eurodollar Rate Advances for such Revolving Borrowing or for any subsequent Revolving Borrowing shall be suspended until the Administrative Agent shall notify the Borrower and the Revolving Lenders that the circumstances causing such suspension no longer exist, and each Revolving Advance comprising such Revolving Borrowing shall
be a Reference Rate Advance; and
(v) if the Borrower shall fail to select the duration or continuation of any Interest Period for any Eurodollar Rate Advances in accordance with the provisions contained in the definition of "Interest Period" in Section 1.01 and paragraph (b) of this Section 2.03,
the Administrative Agent shall forthwith so notify the Borrower and the Lenders and such Advances
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shall be made available to the Borrower on the date of such Borrowing as Reference Rate Advances or, if an existing Advance, Convert into Reference Rate Advances.
(d) Notices Irrevocable. Each Notice of Borrowing and Notice of Conversion or Continuation shall be irrevocable and binding on the Borrower. In the case of any Borrowing for which the related
Notice of Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each Lender against any loss, out-of-pocket cost, or expense incurred by such Lender as a result of any failure by the Borrower to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III including any loss (including any loss of anticipated profits), cost, or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Advance to be made by such Lender as part of such Borrowing when such Advance, as a result of such failure, is not made on such date.
(e) Funding by Lenders; Presumption by Administrative Agent. 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 available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section 2.03 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 a payment to be made by such Lender, the greater of the Federal Funds Rate
and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) in the case of a payment to be made by the Borrower, the interest rate applicable to Reference Rate Advances. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Advance included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(f) Lender Obligations Several. The failure of any Lender to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, to make its Advance
on the date of such Borrowing. No Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
Section 2.04 Reduction of the Commitments.
(a) Revolving Commitments. The Borrower shall have the right, upon at least three Business Days' irrevocable notice to the Administrative Agent, to terminate in whole or reduce ratably in part the unused portion
of the Revolving Commitments; provided, that, each partial
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reduction shall be in the aggregate amount of $5,000,000 or in integral multiples of $1,000,000 in excess thereof. Any reduction and termination of the Revolving Commitments pursuant to this Section 2.04 shall be applied ratably to each Revolving Lender's Revolving Commitment and shall be permanent, with no obligation of the Lenders
to reinstate such Revolving Commitments.
(b) Term Commitments. On the making of the Term Advances on the Closing Date, each Lender's Term Commitment shall be reduced to zero. Any reduction or termination of the Term Commitments pursuant to this Section
2.04(b) shall be permanent, with no obligation of the Lenders to reinstate such Term Commitments.
(c) Defaulting Lender. The Borrower may terminate the unused amount of the Revolving Commitment of a Defaulting Lender upon not less than three Business Days’ prior notice to the Administrative Agent (which
will promptly notify the Lenders thereof), and in such event the provisions of Section 2.15(c) will apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, or any
Lender may have against such Defaulting Lender.
Section 2.05 Prepayment of Advances.
(a) Optional. The Borrower may prepay the Revolving Advances and the Term Advances, after giving by 11:00 a.m. (New York time): (i) in the case of Eurodollar Rate Advances, at
least three Business Days' or (ii) in the case of Reference Rate Advances, same Business Day's, irrevocable prior written notice to the Administrative Agent stating the proposed date and aggregate principal amount of such prepayment. If any such notice is given, the Borrower shall prepay the Advances in accordance with Borrower's notice in whole or ratably in part in an aggregate principal amount equal to the amount specified in such notice, together with accrued interest to the date of such prepayment
on the principal amount prepaid and amounts, if any, required to be paid pursuant to Section 2.12 as a result of such prepayment being made on such date; provided, however, that each partial prepayment with respect to: (A) any amounts prepaid in respect of Eurodollar Rate Advances shall be applied to Eurodollar Rate Advances comprising part of the same Borrowing; (B) any prepayments made in respect of Reference Rate Advances
shall be made in minimum amounts of $250,000 and in integral multiples of $100,000 in excess thereof, and (C) any prepayments made in respect of any Borrowing comprised of Eurodollar Rate Advances shall be made in an aggregate principal amount of at least $500,000 and in integral multiples of $100,000 in excess thereof and in an aggregate principal amount such that after giving effect thereto such Borrowing shall have a remaining principal amount outstanding with respect to such Borrowing of at least $100,000. Full
prepayments of any Borrowing are permitted without restriction of amounts.
(b) Mandatory.
(i) Borrowing Base Deficiency. Subject to Section 2.05(b)(ii), if a Borrowing Base Deficiency exists, then after receipt of written notice from the Administrative Agent regarding such deficiency,
the Borrower shall,
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(A) (1) within 3 Business Days after the date such deficiency notice is received by the Borrower, deliver a written notice to the Administrative Agent indicating its intent to prepay Revolving Advances or, if the Revolving Advances have been repaid in full, make deposits into the Cash Collateral Account to provide cash collateral for the
Letter of Credit Exposure, such that the Borrowing Base Deficiency is cured, and (2) make such payments and deposits within 10 days after the date such deficiency notice is received by the Borrower;
(B) (1) within 3 Business Days after the date such deficiency notice is received by the Borrower, deliver a written notice to the Administrative Agent indicating its intent to pledge as Collateral for the Obligations additional Oil and Gas Properties acceptable to the Required Revolving Lenders in their sole discretion such that the Borrowing
Base Deficiency is cured, and (2) deliver such additional Collateral within 30 days after the date such deficiency notice is received by the Borrower;
(C) (1) within 3 Business Days after the date such deficiency notice is received by the Borrower, deliver a written notice to the Administrative Agent indicating the Borrower's election to repay the Revolving Advances and make deposits into the Cash Collateral Account to provide cash collateral for the Letters of Credit, each in three
equal consecutive monthly installments equal to one-third of such Borrowing Base Deficiency with the first such installment due 30 days after the date such deficiency notice is received by the Borrower from the Administrative Agent and each following installment due 30 days after the preceding installment due date, and (2) make such payments and deposits within such time periods; or
(D) (1) within 3 Business Days after the date such deficiency notice is received by the Borrower to the Administrative Agent, deliver a written notice to the Administrative Agent indicating the Borrower's election to combine the options provided in clause (B) and clause (C) above, and also indicating the amount to be prepaid in installments
and the amount to be provided as additional Collateral, and (2) make such three equal consecutive monthly installments and deliver such additional Collateral within the time required under clause (B) and clause (C) above.
The failure of the Borrower to deliver any such election notice or to perform the actions chosen to remedy a Borrowing Base Deficiency under this Section 2.05(b)(i) shall constitute an Event of Default.
(ii) Asset Disposition or Hedge Termination. Upon any adjustments to the Borrowing Base pursuant to Section 2.02(c) in connection with a Disposition or Hedge Termination, if a Borrowing Base Deficiency
exists, then the Borrower shall prepay Revolving Advances or, if the Revolving Advances have been repaid in full, make deposits into the Cash Collateral Account to provide cash collateral for the Letter of Credit Exposure, such that the Borrowing Base Deficiency is cured. The Borrower shall be obligated to make such prepayment and/or deposit of cash collateral on the date it or any Subsidiary receives cash proceeds as a result of such Disposition or Hedge Termination; provided that all payments required
to be made
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pursuant to this Section 2.05(b)(ii) must be made on or prior to the Commitment Termination Date.
(iii) Reduction of Commitments. On the date of each reduction of the aggregate Revolving Commitments pursuant to Section 2.04, the Borrower agrees to make a prepayment in respect of the outstanding
amount of the Revolving Advances to the extent, if any, that the aggregate unpaid principal amount of all Revolving Advances plus the Letter of Credit Exposure exceeds the lesser of (A) the aggregate Revolving Commitments, as so reduced, and (B) the Borrowing Base. Each prepayment pursuant to this Section 2.05(b)(iii) shall be accompanied by accrued interest on the amount prepaid to the date of such prepayment and amounts, if any,
required to be paid pursuant to Section 2.12 as a result of such prepayment being made on such date. Each prepayment under this Section 2.05(b)(iii) shall be applied to the Revolving Advances as determined by the Administrative Agent and agreed to by the Lenders in their sole discretion, subject to Section 2.15(c).
(iv) Illegality. If any Lender shall notify the Administrative Agent and the Borrower that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful,
or that any central bank or other Governmental Authority asserts that it is unlawful for such Lender or its Applicable Lending Office to perform its obligations under this Agreement to maintain any Eurodollar Rate Advances of such Lender then outstanding hereunder, (i) the Borrower shall, no later than 11:00 a.m. (New York time) (A) if not prohibited by law, on the last day of the Interest Period for each outstanding Eurodollar Rate Advance made by such Lender or (B) if required
by such notice, on the second Business Day following its receipt of such notice, prepay all of the Eurodollar Rate Advances made by such Lender then outstanding (or, in the case of the principal of the Term Advance, be deemed to have prepaid), together with accrued interest on the principal amount prepaid (or deemed prepaid) to the date of such prepayment and amounts, if any, required to be paid pursuant to Section 2.12 as a result of such prepayment being made on such date, (ii) such Lender shall simultaneously
make (or, in the case of the Term Advance, be deemed to have made) a Reference Rate Advance to the Borrower on such date in an amount equal to the aggregate principal amount of the Eurodollar Rate Advances prepaid (or deemed prepaid) to such Lender, and (iii) the right of the Borrower to select Eurodollar Rate Advances from such Lender for any subsequent Borrowing shall be suspended until such Lender shall notify the Administrative Agent that the circumstances causing such suspension no longer exist.
(c) Interests, Costs and Application of Payments. Each prepayment pursuant to any provision of this Section 2.05 shall be accompanied by accrued interest on the amount prepaid to the date of
such prepayment and amounts, if any, required to be paid pursuant to Section 2.12 as a result of such prepayment being made on such date. Except for prepayments under Section 2.05(a), which shall be applied in accordance with Borrower's notice of prepayment, each prepayment under this Section 2.05 (other than paragraph (iv) above) shall be applied to the Advances as determined by the Administrative Agent and agreed to by the Lenders in their sole discretion, subject to Section 2.15(c).
(d) No Additional Right; Ratable Prepayment. The Borrower shall have no right to prepay any principal amount of any Advance except as provided in this Section 2.05, and all notices given pursuant
to this Section 2.05 shall be irrevocable and binding upon the Borrower.
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Each payment of any Advance pursuant to this Section 2.05 shall be made in a manner such that all Advances comprising part of the same Borrowing are paid in whole or ratably in part, subject to Section 2.15(c).
Section 2.06 Repayment of Advances.
(a) Revolving Advances. The Borrower shall repay to the Administrative Agent for the ratable benefit of the Revolving Lenders the outstanding principal amount of each Revolving Advance, together with any accrued
interest thereon, on the Revolving Maturity Date or such earlier date as is required pursuant to Section 7.02 or Section 7.03.
(b) Term Advances. The Borrower shall repay to the Administrative Agent for the ratable benefit of the Term Lenders the aggregate outstanding principal amount of the Term Advances in installments equal to $1,000,000
on January 31, 2010, $3,000,000 on March 31, 2010, $2,000,000 on June 30, 2010, $2,000,000 on September 30, 2010, and a final installment of the remaining, unpaid principal balance of the Term Advance payable on the Term Maturity Date or such earlier date as is required pursuant to Section 7.02 or Section 7.03. The amounts and dates set forth in the foregoing sentence may be modified by the Administrative Agent in its sole discretion after receipt of the approval of each Term Lender and the Borrower.
Section 2.07 Letters of Credit.
(a) Commitment. From time to time from the date of this Agreement until 30 days prior to the Revolving Maturity Date, at the request of the Borrower, the Issuing Lender shall, on the terms and conditions
set forth in this Agreement (including without limitation, the terms of Section 3.01), issue, increase, or extend the Expiration Date of, Letters of Credit for the account of the Borrower on any Business Day. No Letter of Credit will be issued, increased, or extended:
(i) if such issuance, increase, or extension would cause the Letter of Credit Exposure to exceed the lesser of (A) $5,000,000 and (B) the lesser of (1) the aggregate Revolving Commitments minus the aggregate outstanding principal amount of all Revolving Advances at such time
and (2) the Borrowing Base in effect at such time minus the aggregate outstanding principal amount of all Revolving Advances at such time;
(ii) if such Letter of Credit has an Expiration Date later than the earlier of (A) one year after the date of issuance thereof and (B) 30 days prior to the Revolving Maturity Date;
(iii) unless such Letter of Credit Documents are in form and substance acceptable to the Issuing Lender in its sole discretion;
(iv) unless such Letter of Credit is a standby letter of credit not supporting the repayment of indebtedness for borrowed money of any Person;
(v) unless the Borrower has delivered to the Issuing Lender a completed and executed Letter of Credit Application;
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(vi) unless such Letter of Credit is governed by (1) the ICC Uniform Customs and Practice for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600, or (2) the International Standby Practices (ISP98), International Chamber
of Commerce Publication No. 590, in either case, including any subsequent revisions thereof approved by a Congress of the International Chamber of Commerce and adhered to by the Issuing Lender; and
(vii) if any Lender becomes, and during the period it remains a Defaulting Lender or Potential Defaulting Lender, unless the Issuing Bank is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Revolving Commitments of the Non-Defaulting
Lenders or by deposits in the Cash Collateral Account or a combination thereof satisfactory to the Issuing Bank.
If the terms of any Letter of Credit Application referred to in the foregoing clause (v) conflicts with the terms of this Agreement, the terms of this Agreement shall control.
(b) Participations. Upon the date of the issuance or increase of a Letter of Credit, the Issuing Lender shall be deemed to have sold to each other Revolving Lender having a Revolving Commitment and
each other Revolving Lender having a Revolving Commitment shall have been deemed to have purchased from the Issuing Lender a participation in the related Letter of Credit Obligations equal to such Revolving Lender's Revolving Pro Rata Share at such date and such sale and purchase shall otherwise be in accordance with the terms of this Agreement. The Issuing Lender shall promptly notify each such participant Revolving Lender having a Revolving Commitment by telephone, or telecopy of each Letter of Credit
issued, increased, or extended or converted and the actual dollar amount of such Revolving Lender's participation in such Letter of Credit.
(c) Issuing. Each Letter of Credit shall be issued, increased, or extended pursuant to a Letter of Credit Application (or by telephone notice promptly confirmed in writing by a Letter of Credit Application),
given not later than 11:00 a.m. (New York time) on the third Business Day before the date of the proposed issuance, increase, or extension of the Letter of Credit, and the Issuing Lender shall give to each other Revolving Lender prompt notice thereof by telephone, or telecopy. Each Letter of Credit Application shall be delivered by facsimile or by mail specifying the information required therein; provided, that, if such
Letter of Credit Application is delivered by facsimile, the Borrower shall follow such facsimile with an original by mail. After the Issuing Lender’s receipt of such Letter of Credit Application (by facsimile or by mail) and upon fulfillment of the applicable conditions set forth in Article III, the Issuing Lender shall issue, increase, or extend such Letter of Credit for the account of the Borrower. Each Letter of Credit Application shall be irrevocable and binding on the Borrower.
(d) Reimbursement.
(i) Obligation. The Borrower hereby agrees to pay on demand to the Issuing Lender an amount equal to any amount paid by the Issuing Lender under any Letter of Credit. In the event the Issuing
Lender makes a payment pursuant to a request for draw presented under a Letter of Credit and such payment is not promptly reimbursed by the Borrower upon demand, the Issuing Lender shall give the Administrative Agent notice of the Borrower's failure to make such reimbursement and the Administrative Agent shall promptly notify each Revolving Lender
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having a Revolving Commitment of the amount necessary to reimburse the Issuing Lender. Upon such notice from the Administrative Agent, each Revolving Lender shall promptly reimburse the Issuing Lender for such Revolving Lender's Revolving Pro Rata Share of such amount, and such reimbursement shall be deemed for all purposes of
this Agreement to be a Revolving Advance to the Borrower transferred at the Borrower's request to the Issuing Lender. If such reimbursement is not made by any Revolving Lender to the Issuing Lender on the same day on which the Administrative Agent notifies such Revolving Lender to make reimbursement to the Issuing Lender hereunder, such Revolving Lender shall pay interest on its Revolving Pro Rata Share thereof to the Issuing Lender at a rate per annum equal to the Federal Funds Rate. The
Borrower hereby unconditionally and irrevocably authorizes, empowers, and directs the Administrative Agent and the Revolving Lenders to record and otherwise treat such reimbursements to the Issuing Lender as Reference Rate Advances under a Revolving Borrowing requested by the Borrower to reimburse the Issuing Lender which have been transferred to the Issuing Lender at the Borrower's request.
(ii) Lenders' Obligations. Each Revolving Lender's obligation to make Revolving Advances or to purchase and fund risk participations in Letters of Credit pursuant to this Section 2.07(d) shall
be absolute and unconditional and shall not be affected by any circumstance, including (a) any setoff, counterclaim, recoupment, defense or other right which such Revolving Lender may have against the Issuing Lender, any Loan Party, or any other Person for any reason whatsoever, (b) the occurrence or continuance of a Default, or (c) any other occurrence, event or condition, whether or not similar to any of the foregoing. No such funding of risk participations shall relieve or otherwise
impair the obligation of the Borrower to pay the Reimbursement Obligations together with interest as provided herein. Nothing herein is intended to release the Borrower's obligations under any Letter of Credit Application, but only to provide an additional method of payment therefor. The making of any Borrowing under Section 2.07(d)(i) shall not constitute a cure or waiver of any Default or Event of Default, other than the payment Default or Event of Default which is satisfied by the
application of the amounts deemed advanced hereunder, caused by a Borrower's failure to comply with the provisions of this Agreement or the Letter of Credit Application.
(iii) Cash Collateral Call. If any Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, if any Letter of Credit is at the time outstanding, the Issuing Bank
may (except, in the case of a Defaulting Lender, to the extent the Commitments have been fully reallocated pursuant to Section 2.15), by notice to the Borrower and such Defaulting Lender or Potential Defaulting Lender through the Administrative Agent, require the Borrower to deposit into the Cash Collateral Account the obligations of the Borrower to the Issuing Bank in respect of such Letter of Credit in amount at least equal to the aggregate amount of the unreallocated obligations (contingent or otherwise) of
such Defaulting Lender or such Potential Defaulting Lender in respect thereof, or to make other arrangements satisfactory to the Administrative Agent and to the Issuing Bank, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender.
(e) Obligations Unconditional. The obligations of the Borrower under this Agreement in respect of each Letter of Credit shall be unconditional and irrevocable, and shall be
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paid strictly in accordance with the terms of this Agreement under all circumstances, including the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit Documents;
(ii) any amendment or waiver of, or any consent to or departure from, any Letter of Credit Documents;
(iii) the existence of any claim, set-off, defense, or other right which the Borrower may have at any time against any beneficiary or transferee of such Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), the Issuing Lender,
or any other Person, whether in connection with this Agreement, the transactions contemplated in this Agreement or in any Letter of Credit Documents, or any unrelated transaction;
(iv) any statement or any other document presented under such Letter of Credit proving to be forged, fraudulent, invalid, or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(v) payment by the Issuing Lender under such Letter of Credit against presentation of a draft or certificate which does not comply with the terms of such Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing;
provided, however, that nothing contained in this paragraph (e) shall be deemed to constitute a waiver of any remedies of the Borrower in connection with the Letters of Credit or the Borrower's rights under
Section 2.07(f).
(f) Liability of Issuing Lender. The Borrower assumes all risks of the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect to its use of such Letter of Credit. Neither
the Issuing Lender nor any of its officers or directors shall be liable or responsible for:
(i) the use which may be made of any Letter of Credit or any acts or omissions of any beneficiary or transferee in connection therewith;
(ii) the validity, sufficiency, or genuineness of documents, or of any endorsement thereon, even if such documents should prove to be in any or all respects invalid, insufficient, fraudulent, or forged;
(iii) payment by the Issuing Lender against presentation of documents which do not comply with the terms of a Letter of Credit, including failure of any documents to bear any reference or adequate reference to the relevant Letter of Credit; or
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(iv) any other circumstances whatsoever in making or failing to make payment under any Letter of Credit (INCLUDING THE ISSUING LENDER'S OWN NEGLIGENCE),
except that, notwithstanding the provisions in paragraphs (e) or (f) of this Section 2.07, the Borrower shall have a claim against the Issuing Lender, and the Issuing Lender shall be liable to the Borrower, to the extent of any direct, as opposed to consequential, damages
suffered by the Borrower which the Borrower proves were caused by the Issuing Lender's willful misconduct or gross negligence. In furtherance and not in limitation of the foregoing, the Issuing Lender may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary.
(g) Cash Collateral Account.
(i) If the Borrower is required to deposit funds in the Cash Collateral Account pursuant to Section 2.05(b), 2.07(d)(iii), 7.02(b), or 7.03(b), then the Borrower and the Issuing Lender shall establish the Cash Collateral Account and the Borrower shall execute any documents
and agreements, including the Administrative Agent's standard form assignment of deposit accounts, that the Administrative Agent requests in connection therewith to establish the Cash Collateral Account and grant the Administrative Agent a first priority security interest in such account and the funds therein. The Borrower hereby pledges to the Administrative Agent and grants the Administrative Agent a security interest in the Cash Collateral Account, whenever established, all funds held in the Cash
Collateral Account from time to time, and all proceeds thereof as security for the payment of the Obligations.
(ii) So long as no Default or Event of Default exists, (A) the Administrative Agent may apply the funds held in the Cash Collateral Account only to the reimbursement of any Letter of Credit Obligations, and (B) the Administrative Agent shall release to the Borrower at the
Borrower's written request any funds held in the Cash Collateral Account in an amount up to but not exceeding the excess, if any (immediately prior to the release of any such funds), of the total amount of funds held in the Cash Collateral Account over the Letter of Credit Exposure. During the existence of any Event of Default, the Administrative Agent may apply any funds held in the Cash Collateral Account to the Obligations in any order determined by the Administrative Agent, regardless of any Letter
of Credit Exposure that may remain outstanding. The Administrative Agent may in its sole discretion at any time release to the Borrower any funds held in the Cash Collateral Account.
(iii) The Administrative Agent shall exercise reasonable care in the custody and preservation of any funds held in the Cash Collateral Account and shall be deemed to have exercised such care if such funds are accorded treatment substantially equivalent to that which the Administrative
Agent accords its own Property, it being understood that the Administrative Agent shall not have any responsibility for taking any necessary steps to preserve rights against any parties with respect to any such funds.
(h) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary of
a Loan Party, the Borrower shall be obligated to reimburse the Issuing Lender hereunder for any and all drawings under such Letter of Credit issued hereunder by the Issuing
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(i) Existing Letters of Credit. The Issuing Lender, the Lenders and the Borrower agree that effective as of the Closing Date, the Existing Letters of Credit shall be deemed to have been issued and maintained
under, and to be governed by the terms and conditions of, this Agreement.
Section 2.08 Fees.
(a) Commitment Fee. The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender having a Revolving Commitment a commitment fee at a per annum rate equal to the Commitment
Fee Rate on the average daily Unused Revolving Commitment Amount of such Revolving Lender, from the date of this Agreement until the Commitment Termination Date. The commitment fees shall be due and payable quarterly in arrears on the last day of each March, June, September, and December commencing on December 31, 2009, and continuing thereafter through and including the Commitment Termination Date.
(b) Letter of Credit Fees.
(i) The Borrower agrees to pay (A) to the Administrative Agent for the pro rata benefit of the Revolving Lenders having a Revolving Commitment a per annum letter of credit fee for each Letter of Credit issued hereunder in an amount equal to the greater of (y) a per annum
rate equal to the Applicable Margin then in effect for Eurodollar Rate Advances on the average daily face amount of such Letter of Credit for the period such Letter of Credit is to be outstanding and (z) $500.00, and (B) to the Issuing Lender, a fronting fee for each Letter of Credit equal to .125% per annum on the face amount of such Letter of Credit. Each such fee shall be payable annually in advance on the date of the issuance of the Letter of Credit, and, in the case of an increase or extension
only, on the date of such increase or such extension.
(ii) The Borrower also agrees to pay to the Issuing Lender such other usual and customary fees associated with any transfers, amendments, drawings, negotiations or reissuances of any Letters of Credit.
(c) Other Fees. The Borrower agrees to pay the fees described in the Fee Letter to the Administrative Agent for the benefit of the parties specified in the Fee Letter.
(d) Defaulting Lender's Fees. Anything herein to the contrary notwithstanding, during such period as a Lender is a Defaulting Lender, such Defaulting Lender will not be entitled to any fees accruing during such
period pursuant to this Section 2.08 (without prejudice to the rights of the Lenders other than Defaulting Lenders in respect of such fees), provided that (a) to the extent that a portion of the Letter of Credit Exposure of such Defaulting Lender is reallocated to the Non-Defaulting Lenders pursuant to Section 2.15, such fees that would have accrued for the benefit of such Defaulting Lender will instead accrue for the benefit of and be payable to
such Non-Defaulting Lenders, pro rata in accordance with their respective Revolving Commitments, and (b) to the extent any portion of such Letter of Credit Exposure cannot be so
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reallocated, such fees will instead accrue for the benefit of and be payable to the Issuing Bank as its interest appears (and the pro rata payment provisions of Section 2.10 will automatically be deemed adjusted
to reflect the provisions of this Section).
Section 2.09 Interest. The Borrower shall pay interest on the unpaid principal amount of each Advance made by each Lender from the
date of such Advance until such principal amount shall be paid in full, at the following rates per annum:
(a) Reference Rate Advances. If such Advance is a Reference Rate Advance, a rate per annum equal at all times to the Adjusted Reference Rate in effect from time to time plus (i)
in the case of a Revolving Advance, the Applicable Margin in effect from time to time, and (ii) in the case of a Term Advance, 4.75%, in each case payable quarterly in arrears on the last day of each March, June, September, and December and on the date such Reference Rate Advance shall be paid in full.
(b) Eurodollar Rate Advances. If such Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during the Interest Period for such Advance to the Eurodollar Rate for such Interest
Period plus (i) in the case of a Revolving Advance, the Applicable Margin in effect from time to time and (ii) in the case of a Term Advance, 5.75%, in each case payable on the last day of such Interest Period and, in the case of any Interest Period longer than three months in duration, on the third monthly anniversary of the beginning of such Interest Period as well as the last day of such Interest Period.
(c) Additional Interest on Eurodollar Rate Advances. The Borrower shall pay to each Lender, so long as any such Lender shall be required under regulations of the Federal Reserve Board to maintain
reserves with respect to liabilities or assets consisting of or including Eurocurrency Liabilities, additional interest on the unpaid principal amount of each Eurodollar Rate Advance of such Lender, from the effective date of such Advance until such principal amount is paid in full, at an interest rate per annum equal at all times to the remainder obtained by subtracting (i) the Eurodollar Rate for the Interest Period for such Advance from (ii) the rate obtained by dividing such Eurodollar Rate by a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period, payable on each date on which interest is payable on such Advance. Such additional interest payable to any Lender shall be determined by such Lender and notified to the Borrower through the Administrative Agent (such notice to include the calculation of such additional interest, which calculation shall be conclusive in the absence of manifest error).
(d) Usury Recapture.
(i) If, with respect to any Lender or the Issuing Lender, the effective rate of interest contracted for under the Loan Documents, including the stated rates of interest and fees contracted for hereunder and any other amounts contracted for under the Loan Documents which are
deemed to be interest, at any time exceeds the Maximum Rate, then the outstanding principal amount of the loans made by such Lender or Issuing Lender, as applicable, hereunder shall bear interest at a rate which would make the effective rate of interest for such Lender or Issuing Lender, as applicable, under the Loan Documents equal the Maximum Rate until the difference between the amounts which would have been due at the stated rates and the amounts which were
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due at the Maximum Rate (the "Lost Interest") has been recaptured by such Lender or Issuing Lender, as applicable.
(ii) If, when the loans and reimbursement obligations made hereunder are repaid in full, the Lost Interest has not been fully recaptured by such Lender or Issuing Lender, as applicable, pursuant to the preceding paragraph, then, to the extent permitted by law, for the loans
and other credit extensions made hereunder by such Lender or Issuing Lender, as applicable, the interest rates charged under Section 2.09 hereunder shall be retroactively increased such that the effective rate of interest under the Loan Documents was at the Maximum Rate since the effectiveness of this Agreement to the extent necessary to recapture the Lost Interest not recaptured pursuant to the preceding sentence and, to the extent allowed by law, the Borrower shall pay to such Lender or Issuing Lender, as applicable,
the amount of the Lost Interest remaining to be recaptured by such Lender or Issuing Lender, as applicable.
Section 2.10 Payments and Computations.
(a) Payment Procedures. The Borrower shall make each payment under this Agreement not later than 11:00 a.m. (New York time) on the day when due in Dollars to the Administrative Agent
at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or such other location as the Administrative Agent shall designate in writing to the Borrower) in same day funds without deduction, setoff, or counterclaim of any kind. The Administrative Agent shall promptly thereafter cause to be distributed like funds relating to the payment of principal, interest or fees ratably (other than amounts payable solely to the Administrative Agent, the Issuing Lender, or a specific Lender pursuant to Section 2.08(c),
2.08(d), 2.09(c), 2.12, 2.13, 2.14, 9.04, 9.05, or 9.06, but after taking into account payments effected pursuant to Section 7.04) in accordance with each Lender's pro rata share to the Lenders for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender or the Issuing Lender to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement.
(b) Computations. All computations of interest based on the Reference Rate and of fees (other than Letter of Credit fees) shall be made by the Administrative Agent on the basis of a year of 365 or
366 days, as the case may be, and all computations of interest based on the Eurodollar Rate and the Federal Funds Rate and Letter of Credit fees shall be made by the Administrative Agent, on the basis of a year of 360 days, in each case for the actual number of days (including the first day, but excluding the last day) occurring in the period for which such interest or fees are payable. Each determination by the Administrative Agent of an interest rate or fee shall be conclusive and binding for all
purposes, absent manifest error.
(c) Non-Business Day Payments. Whenever any payment shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension
of time shall in such case be included in the computation of payment of interest or fees, as the case may be; provided, however, that if such extension would cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next following calendar month, such payment shall be made on the immediately preceding Business Day.
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(d) Payments by Borrower; Presumptions by Administrative Agent. 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 Lender hereunder 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 Lender, 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 Lender, as the case may be, severally agrees
to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the Issuing Lender, 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 Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
Section 2.11 Sharing of Payments, Etc. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of its Advances or other obligations hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of its Advances and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Advances and such
other obligations of the other Lenders, or make such other adjustments as shall be equitable, 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 Advances and other amounts owing them, subject to Section 2.15(c), 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 shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement, or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Advances or participations in the Letter of Credit Obligations to any assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this Section shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable Legal Requirement, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff 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.
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nonpayment, including any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected
in the Eurodollar Rate Reserve Percentage) or the Issuing Lender;
(ii) subject any Lender or the Issuing Lender to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Eurodollar Rate Advance made by it, or change the basis of taxation of payments to such Lender
or the Issuing Lender in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.14 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or the Issuing Lender); or
(iii) impose on any Lender or the Issuing Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Rate Advances made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Rate Advance (or of maintaining its obligation to make any such Advance), or to increase the cost to such Lender or the Issuing Lender of participating in, issuing or maintaining any Letter of Credit (or of maintaining
its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the Issuing Lender hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the Issuing Lender, the Borrower will pay to such Lender or the Issuing Lender, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Lender, as the case may be, for such additional costs incurred or reduction
suffered.
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be, such additional amount or amounts as will compensate such Lender or the Issuing Lender or such Lender’s or the Issuing Lender's holding company for any such reduction suffered.
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Administrative Agent on its own behalf or on behalf of a Lender or the Issuing Lender, shall be conclusive absent manifest error.
Without limiting the generality of the foregoing, in the event that the Borrower is resident for tax purposes in the United States of America, any Foreign Lender shall 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 request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States of America is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) 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 to the effect that such Foreign Lender is not (A) a "bank" within the meaning of section 881(c)(3)(A) of the Code, (B) a
"10 percent shareholder" of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation" described in section 881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower to determine
the withholding or deduction required to be made.
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(a) the Letter of Credit Exposure of such Defaulting Lender will, subject to the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in
accordance with their respective Revolving Commitments; provided that (i) the sum of each Non-Defaulting Lender’s total Revolving Credit Extensions after giving effect thereto may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (ii) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release
of any claim the Borrower, the Administrative Agent, the Issuing Bank or any other Revolving Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(b) to the extent that any portion (the "Unreallocated Portion") of the Defaulting Lender’s Letter of Credit Exposure cannot be so reallocated, whether by reason of the first proviso in clause (a) above
or otherwise, the Borrower will, not later than three Business Days after demand by the Administrative Agent (at the direction of the Issuing Bank), (i) deposit into the Cash Collateral Account an amount equal to at least the aggregate amount of the Unreallocated Portion of such Letter of Credit Exposure, or (ii) make other arrangements satisfactory to the Administrative Agent and the Issuing Bank, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender; and
(c) if any payment made by the Borrower under this Agreement includes amounts in respect of Obligations owing to any Defaulting Lender, the portion of such payment that would be for the account of such Defaulting Lender under this Agreement (whether on account of principal,
interest, fees, indemnity payments or other amounts) will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from
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time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement, second to the payment of any amounts
owing by such Defaulting Lender to the Issuing Bank under this Agreement, third to the payment of any costs or expenses of Administrative Agent or Issuing Bank incurred as a result of such Defaulting Lender's being a Defaulting Lender, and fourth to pay amounts owing under this Agreement to such Defaulting Lender, or as a court of competent jurisdiction may otherwise direct.
ARTICLE III
(i) this Agreement, a Term Note payable to the order of each requesting Term Lender in the amount of its Term Commitment, a Revolving Note payable to the order of each requesting Revolving Lender in the amount of its Revolving Commitment, the Security Agreements, the Guaranties,
the Pledge Agreements, and Mortgages encumbering substantially all of the Borrower's and its Subsidiaries' personal property and encumbering at least 90% of all of the Loan Parties' Proven Reserves (as set forth in the Initial Engineering Report) and Oil and Gas Properties in connection therewith, account control agreements required pursuant to Section 5.12 and each of the other Loan Documents, and all attached exhibits and schedules;
(ii) a favorable opinion of the Borrower's and the Guarantors' primary counsel dated as of the date of this Agreement in form and covering such matters as the Administrative Agent may reasonably request;
(iii) a favorable opinion of local counsel in each jurisdiction where a Mortgage will be filed in such form and covering such matters as the Administrative Agent may reasonably request;
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(iv) copies, certified as of the date of this Agreement by a Responsible Officer or the secretary or an assistant secretary of the Borrower of (A) the resolutions of the Board of Directors of the Borrower approving the Loan Documents to which the Borrower is a party,
(B) the articles or certificate of incorporation and the bylaws of the Borrower, and (C) all other documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement, the Notes, and the other Loan Documents;
(v) certificates of the secretary or assistant secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement, the Notes, Notices of Borrowing, Notices of Conversion or Continuation, and the other Loan
Documents to which the Borrower is a party;
(vi) copies, certified as of the date of this Agreement by a Responsible Officer or the secretary or an assistant secretary of each Guarantor of (A) the resolutions of the Board of Directors (or other applicable governing body) of such Guarantor approving the Loan Documents
to which it is a party, (B) the articles or certificate (as applicable) of incorporation (or organization or formation) and bylaws (or partnership or company agreement) of such Guarantor, and (C) all other documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the Guaranty, the Security Instruments, and the other Loan Documents to which such Guarantor is a party;
(vii) a certificate of the secretary or an assistant secretary of each Guarantor certifying the names and true signatures of officers of such Guarantor authorized to sign the Guaranty, Security Instruments and the other Loan Documents to which such Guarantor is a party;
(viii) a certificate dated as of the Initial Funding Date from a Responsible Officer of the Borrower stating that (A) all representations and warranties of the Borrower set forth in this Agreement are true and correct in all material respects; (B) no Default has
occurred and is continuing; (C) the conditions in this Section 3.01 have been met; (D) that after giving effect to the Credit Extensions occurring on the Initial Funding Date and the Merger, the Borrower shall have Liquidity in excess of $10,000,000; (E) attached to such certificate are true, correct and complete copies of the Merger Agreement and the Accession Agreement as in full force and effect as of the date of such certificate; and (F) the Merger is being consummated substantially simultaneously
with delivery of such certificate, in compliance with applicable law and regulatory approvals, and substantially in accordance with the Merger Agreement;
(ix) appropriate UCC-1 and UCC-3, as applicable, Financing Statements covering the Collateral for filing with the appropriate authorities and any other documents, agreements or instruments necessary to create an Acceptable Security Interest in such Collateral;
(x) property insurance certificates naming the Administrative Agent loss payee and liability insurance certificates and endorsements naming the Administrative Agent as additional insured, as applicable, and evidencing insurance which meets the requirements of this Agreement
and the Security Instruments, and otherwise satisfactory to the Administrative Agent;
(xi) the Initial Engineering Report;
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(xii) stock, membership or partnership certificates required in connection with the Pledge Agreements and stock powers executed in blank for each such stock certificate;
(xiii) a Compliance Certificate completed and executed by a Responsible Officer of the Borrower showing the calculation of, and Borrower’s pro forma compliance with Section 6.18, 6.19 and 6.20 as of the Initial Funding Date after giving effect to the Credit Extensions
requested and made on the Initial Funding Date;
(xiv) certificates of good standing and existence for each Loan Party in (a) the state, province or territory in which each such Person is organized and (b) each state, province or territory in which such good standing is necessary, which certificates shall be dated a date
not earlier than 30 days prior to the date hereof; and
(xv) such other documents, governmental certificates, agreements and lien searches as the Administrative Agent or any Lender may reasonably request.
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(i) The Merger Agreement shall not have been materially altered, amended, or otherwise changed, or supplemented or any material condition or requirement therein waived, in each case without the prior written consent of the Lenders.
(ii) The Merger shall be consummated substantially simultaneously with the funding of the initial Advances hereunder, in compliance with applicable law and regulatory approvals, and substantially in accordance with the Merger Agreement.
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on the date of such Borrowing or the date of the issuance, increase, or extension of such Letter of Credit:
(a) the following statements shall be true (and each of the giving of the applicable Notice of Borrowing, Notice of Conversion or Continuation, or Letter of Credit Application and the acceptance by the Borrower of the proceeds of such Borrowing or the issuance, increase,
or extension of such Letter of Credit shall constitute a representation and warranty by the Borrower that on the date of such Borrowing or on the date of such issuance, increase, or extension of such Letter of Credit, as applicable, such statements are true):
(i) the representations and warranties contained in Article IV of this Agreement and the representations and warranties contained in the Security Instruments, the Guaranties, and each of the other Loan Documents are true and correct in all material respects on and as
of the date of such Borrowing or the date of the issuance, increase, or extension of such Letter of Credit, before and after giving effect to such Borrowing or to the issuance, increase, or extension of such Letter of Credit and to the application of the proceeds from such Borrowing, as though made on and as of such date; and
(ii) no Default has occurred and is continuing or would result from such Borrowing or from the application of the proceeds therefrom, or would result from the issuance, increase, or extension of such Letter of Credit; and
(b) the Administrative Agent shall have received such other approvals, opinions, or documents reasonably deemed necessary or desirable by any Lender as a result of circumstances occurring after the date of this Agreement, as any Lender through the Administrative Agent may
reasonably request.
ARTICLE IV
The Borrower represents and warrants as follows:
Section 4.01 Existence; Subsidiaries. The Borrower is a corporation duly incorporated, validly existing and in good standing under
the laws of Nevada and in good standing and qualified to do business in each other jurisdiction where its ownership or lease of Property or conduct of its business requires such qualification. Each Subsidiary of the Borrower is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation and in good standing and qualified to do business in each jurisdiction where its ownership or lease of Property or conduct of its business requires such qualification. As
of the date of this Agreement, Schedule 4.01 sets forth the capital structure of the Borrower and the Subsidiaries of the Borrower.
Section 4.02 Power. The execution, delivery, and performance by the Borrower of this Agreement, the Notes, and the other Loan Documents
to which it is a party and by the Guarantors of the Guaranties and the other Loan Documents to which they are a party and the consummation of the transactions contemplated hereby and thereby (a) are within the Borrower's and such Guarantors' governing powers, (b) have been duly authorized by all necessary governing action, (c) do not contravene (i) the Borrower's or any Guarantor's certificate or
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articles of incorporation, bylaws, limited liability company agreement, or other similar governance documents or (ii) any law or any contractual restriction binding on or affecting the Borrower or any Guarantor, and (d) will not result in or require the creation or imposition of any Lien prohibited by this Agreement. At
the time of each Advance and the issuance, extension or increase of a Letter of Credit, such Advance and such Letter of Credit, and the use of the proceeds of such Advance and such Letter of Credit, will be within the Borrower's governing xxxxxx, xxxx have been duly authorized by all necessary governing action, will not contravene (i) the Borrower's articles or certificate of incorporation or other organizational documents or (ii) any law or any contractual restriction binding on or affecting the Borrower
and will not result in or require the creation or imposition of any Lien prohibited by this Agreement.
(a) The Borrower has delivered to the Administrative Agent and the Lenders copies of the Financial Statements, and the Financial Statements present fairly the financial condition of Borrower and its Subsidiaries as of their respective dates and for their respective periods
in accordance with GAAP. As of the date of the Financial Statements, there were no material contingent obligations, liabilities for taxes, unusual forward or long-term commitments, or unrealized or anticipated losses of the Borrower, except as disclosed therein in accordance with GAAP and adequate reserves for such items have been made in accordance with GAAP.
(b) All projections, estimates, and pro forma financial information furnished by the Borrower were prepared on the basis of assumptions, data, information, tests, or conditions believed to be reasonable at the time such projections, estimates, and pro forma financial information
were furnished.
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(c) Since September 8, 2009, no event or circumstance that could reasonably be expected to cause a Material Adverse Change has occurred.
(d) As of the date of this Agreement, neither the Borrower nor any of its Subsidiaries has any Debt other than the Debt listed on Schedule 4.05.
(a) Other than as set forth in Schedule 4.07, there is no pending or, to the best knowledge of the Borrower, threatened action or proceeding affecting the Borrower or any of the Guarantors before any court,
Governmental Authority or arbitrator which could reasonably be expected to cause a Material Adverse Change or which purports to affect the legality, validity, binding effect or enforceability of this Agreement, any Note, or any other Loan Document. Additionally, there is no pending or, to the best knowledge of the Borrower, threatened action or proceeding instituted against the Borrower or any of the Guarantors which seeks to adjudicate the Borrower or any of the Guarantors as bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its Property.
(b) The Borrower and its Subsidiaries have complied in all material respects with all material statutes, rules, regulations, orders and restrictions of any Governmental Authority having jurisdiction over the conduct of their respective businesses or the ownership of their
respective Property.
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unpaid minimum required contribution exists, and there has been no excise tax imposed under Section 4971 of the Code. No Reportable Event has occurred with respect to any Multiemployer Plan, and each Multiemployer Plan has complied with and been administered in all material respects in accordance with applicable provisions
of ERISA and the Code. The present value of all benefits vested under each Plan (based on the assumptions used to fund such Plan) did not, as of the last annual valuation date applicable thereto, exceed the value of the assets of such Plan allocable to such vested benefits by more than $1,000,000. Neither the Borrower nor any member of the Controlled Group has had a complete or partial withdrawal from any Multiemployer Plan for which there is any withdrawal liability in excess of $1,000,000. As
of the most recent valuation date applicable thereto, neither the Borrower nor any member of the Controlled Group would become subject to any liability under ERISA in excess of $1,000,000 if the Borrower or any member of the Controlled Group has received notice that any Multiemployer Plan is insolvent or in reorganization. Based upon GAAP existing as of the date of this Agreement and current factual circumstances, the Borrower has no reason to believe that the annual cost during the term of this Agreement
to the Borrower or any member of the Controlled Group for post-retirement benefits to be provided to the current and former employees of the Borrower or any member of the Controlled Group under Plans that are welfare benefit plans (as defined in Section 3(1) of ERISA) could, in the aggregate, reasonably be expected to cause a Material Adverse Change.
(a) Neither the Borrower nor any Guarantor is a party to any indenture, loan, or credit agreement or any lease or other agreement or instrument or subject to any charter or corporate restriction or provision of applicable Legal Requirement that could reasonably be expected
to cause a Material Adverse Change. Neither the Borrower nor any of its Subsidiaries is in default (i) under or with respect to any contract, agreement, lease, or other instrument to which the Borrower or any Subsidiary is a party and which default could reasonably be expected to cause a Material Adverse Change or (ii) under any agreement in connection with any Debt. Neither the Borrower nor any of its Subsidiaries has received any notice of default under any material contract, agreement,
lease, or other instrument to which the Borrower or such Subsidiary is a party.
(b) No Default has occurred and is continuing.
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and such list correctly sets forth the names of the debtor or lessee and creditor or lessor with respect to the Debt or lease obligations outstanding or to be outstanding and the Property subject to any Lien securing such Debt or lease obligation. Also set forth on Schedule
4.21 is a complete and correct list of all material agreements and other instruments of the Borrower and the Guarantors relating to the purchase, transportation by pipeline, gas processing, marketing, sale and supply of natural gas and other Hydrocarbons. Except as detailed otherwise in Schedule 4.21, the Borrower has heretofore delivered to the Administrative Agent and the Lenders a complete and correct copy of all such material
credit agreements, indentures, purchase agreements, contracts, letters of credit, guarantees, joint venture agreements, or other instruments, including any modifications or supplements thereto, as in effect on the date hereof and as of the Initial Funding Date.
ARTICLE V
So long as any Obligation or any Letter of Credit shall remain outstanding, any Letter of Credit Exposure shall exist, or any Lender shall have any Commitment hereunder, the Borrower agrees, unless the Required Lenders shall otherwise consent in writing, to comply with the following covenants:
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Governmental Authorities) necessary to grant the Administrative Agent an Acceptable Security Interest in the Borrower's and its Subsidiaries' Oil and Gas Properties.
(a) The Borrower shall, and shall cause each of its Subsidiaries to, procure and maintain or shall cause to be procured and maintained continuously in effect policies of insurance in form and amounts and issued by companies, associations or organizations reasonably satisfactory
to the Administrative Agent covering such casualties, risks, perils, liabilities and other hazards reasonably required by the Administrative Agent. In addition, the Borrower shall, and shall cause each of its Subsidiaries to, comply with all requirements regarding insurance contained in the Security Instruments.
(b) All certified copies of policies or certificates thereof, and endorsements and renewals thereof shall be delivered to and retained by the Administrative Agent. All policies of insurance shall either have attached thereto a Lender's loss payable endorsement
for the benefit of the Administrative Agent, as loss payee in form reasonably satisfactory to the Administrative Agent or shall name the Administrative Agent as an additional insured, as applicable. The Borrower shall furnish the Administrative Agent with a certificate of insurance and, if applicable, an endorsement, or a certified copy of all policies of insurance required at closing, and simultaneously with the effectiveness of any new or replacement policy. All policies or certificates
of insurance shall set forth the coverage, the limits of liability, the name of the carrier, the policy number, and the period of coverage. In addition, all policies of insurance required under the terms hereof shall contain an endorsement or agreement by the insurer that any loss shall be payable in accordance with the terms of such policy notwithstanding any act of negligence of the Borrower, or a Subsidiary or any party holding under the Borrower or a Subsidiary which might otherwise result in a
forfeiture of the insurance and the further agreement of the insurer waiving all rights of setoff, counterclaim or deductions against the Borrower and its Subsidiaries. Without limiting the generality of the foregoing provisions, Administrative Agent will be named as an additional insured and will be provided a waiver of subrogation on the Borrower's general liability and umbrella policies. All such policies shall contain a provision that notwithstanding any contrary agreements between the Borrower,
its Subsidiaries, and the applicable insurance company, such policies will not be canceled, allowed to lapse without renewal, surrendered or amended (which provision shall include any reduction in the scope or limits of coverage) without at least 30 days' prior written notice to the Administrative Agent and Borrower unless such is cancelled for non-payment of premium and then the Administrative Agent and Borrower will be given 10 days notice of cancellation. In the event that, notwithstanding the "lender's
loss payable endorsement" requirement of this Section 5.02, the proceeds of any insurance policy described above are paid to the Borrower or a Subsidiary and any Obligations are outstanding, the Borrower shall deliver such proceeds to the Administrative Agent immediately upon receipt.
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desirable in view of its business and operations or the ownership of its Properties, and, in each case, where failure to qualify or preserve and maintain its rights and franchises could reasonably be expected to cause a Material Adverse Change.
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thereof, all credit support agreements relating thereto (including any margin required or supplied), and the counterparty to each such agreement, and (iii) demonstrating the Borrower's compliance with Section 5.13 and Section 6.14(b) hereof.
(i) As soon as available but in any event on or before February 28th (or 29th, as applicable) of each year, an Independent
Engineering Report dated effective as of December 31 for the immediately preceding year;
(ii) As soon as available but in any event on or before August 31st of each year, an Internal Engineering Report dated effective as of the immediately preceding June 30;
(iii) Such other information as may be reasonably requested by the Administrative Agent or any Lender with respect to the Oil and Gas Properties included or to be included in the Borrowing Base;
(iv) With the delivery of each Engineering Report, a certificate from a Responsible Officer of the Borrower certifying that, to the best of his knowledge and in all material respects: (a) the information contained in the Engineering Report and any other information delivered
in connection therewith is true and correct in all material respects, (b) the Borrower or its Subsidiary, as applicable, owns good and defensible title to the Oil and Gas Properties evaluated in such Engineering Report, and such Properties are subject to an Acceptable Security Interest and are free of all Liens except for Permitted Liens, (c) except as set forth on an exhibit to the certificate, on a net basis there are no Gas Imbalances, take or pay or other prepayments with respect to its Oil and Gas Properties
evaluated in such Engineering Report which would require the Borrower or any of its Subsidiaries to deliver Hydrocarbons produced from such Oil and Gas Properties at some future time without then or thereafter receiving full payment therefor, (d) none of its Oil and Gas Properties have been sold since the date of the last Borrowing Base determination except as set forth on an exhibit to the certificate, which certificate shall list all of its Oil and Gas Properties sold and in such detail as reasonably required
by the Required Lenders, (e) attached to the certificate is a list of its Oil and Gas Properties added to and deleted from the immediately prior Engineering Report and a list showing any change in working interest or net revenue interest in its Oil and Gas Properties occurring and the reason for such change, (f) attached to the certificate is a list of all Persons disbursing proceeds to the Borrower or to its Subsidiary, as applicable, from its Oil and Gas Properties, (g) except as set forth on a schedule attached
to the certificate, 90% of the PV-10 of the Proven Reserves evaluated by such Engineering Report are pledged as Collateral for the Obligations and attached to the certificate is a schedule detailing compliance with Section 5.08, and (h) attached to the certificate is a monthly cash flow budget for the 12 months following the
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delivery of such certificate setting forth the Borrower's projections for production volumes, revenues, expenses, taxes and budgeted capital expenditures during such period;
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Borrower or any Subsidiary or their former Subsidiaries, or any of their leased or owned Property, wherever located;
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The Administrative Agent agrees to provide the Lenders with copies of any material notices and information delivered solely to the Administrative Agent pursuant to the terms of this Agreement.
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without the signature of the Borrower to the extent permitted by applicable Legal Requirements in order to perfect or maintain the perfection of any security interest granted under any of the Loan Documents. Borrower shall ensure that the Administrative Agent at all times has an Acceptable Security Interest in Oil and Gas Properties
of the Borrower and its Subsidiaries in an amount not less than 90% of the PV-10of the Proven Reserves of the Borrower and its Subsidiaries as reasonably determined by the Administrative Agent. If any certificate delivered pursuant to Section 5.06(g) demonstrates that the Oil and Gas Properties of the Borrower and its Subsidiaries in which the Administrative Agent has an Acceptable Security Interest is less than 90% of the PV-10 of the Proven Reserves of the Borrower and its Subsidiaries, the Borrower shall,
or shall cause its Subsidiaries to (i) promptly, but in any event within 30 days of the delivery of such certificate, grant to the Administrative Agent an Acceptable Security Interest in additional Oil and Gas Properties of the Borrower or the Subsidiaries as necessary to cause the PV-10 of the Proven Reserves of the Borrower and its Subsidiaries in which Administrative Agent has an Acceptable Security Interest to equal or exceed 90% of the PV-10 of the Proven Reserves of the Borrower and its Subsidiaries. The
Borrower at its expense will, and will cause each Subsidiary to, promptly execute and deliver to the Administrative Agent upon request all such other documents, agreements and instruments to comply with or accomplish the covenants and agreements of the Borrower or any Subsidiary, as the case may be, in the Security Instruments and this Agreement, or to further evidence and more fully describe the collateral intended as security for the Obligations, or to correct any omissions in the Security Instruments, or to
state more fully the security obligations set out herein or in any of the Security Instruments, or to perfect, protect or preserve any Liens created pursuant to any of the Security Instruments, or to make any recordings, to file any notices or obtain any consents, all as may be necessary or appropriate in connection therewith or to enable the Administrative Agent to exercise and enforce its rights and remedies with respect to any Collateral. Within 30 days after (a) a request by the Administrative
Agent or the Lenders to cure any title defects or exceptions which are not Permitted Liens raised by such information or (b) a notice by the Administrative Agent that the Borrower has failed to comply with Section 5.10, the Borrower shall (i) cure such title defects or exceptions which are not Permitted Liens or substitute acceptable Oil and Gas Properties with no title defects or exceptions except for Permitted Liens covering Collateral of an equivalent value and (ii) deliver to the Administrative Agent satisfactory
title evidence (including supplemental or new title opinions meeting the foregoing requirements) in form and substance acceptable to the Administrative Agent in its reasonable business judgment as to the Borrower's and its Subsidiaries' ownership of such Oil and Gas Properties and the Administrative Agent's Liens and security interests therein as are required to maintain compliance with Section 5.10.
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"proved, developed and producing" of the Loan Parties as shown on the Initial Engineering Report and (b) for the period from January 1, 2013 through December 31, 2013, notional volumes equal to or greater than 70% of the anticipated production volumes of crude oil and natural gas, calculated separately, attributable to Proven Reserves categorized
as "proved, developed and producing" of the Loan Parties as shown on the Initial Engineering Report.
ARTICLE VI
So long as any Obligation or any Letter of Credit shall remain outstanding, any Letter of Credit Exposure shall exist, or any Lender shall have any Commitment hereunder, the Borrower agrees, unless the Required Lenders shall otherwise consent in writing, to comply with the following covenants:
(a) Liens securing the Obligations;
(b) purchase money Liens or purchase money security interests upon or in any equipment acquired or held by the Borrower or any of its Subsidiaries in the ordinary course of business prior to or at the time of, or within 20 days after, the Borrower's or such Subsidiary's acquisition
of such equipment; provided, that, the Debt secured by such Liens (i) was incurred solely for the purpose of financing the acquisition of such equipment, and does not exceed the aggregate purchase price of such equipment, (ii) is secured only by such equipment and not by any other assets of the Borrower and its Subsidiaries, and (iii) is not increased in amount;
(c) Liens for Taxes, assessments, or other governmental charges or levies not yet due or that (provided foreclosure, sale, or other similar proceedings shall not have been initiated) are being contested in good faith by appropriate proceedings, and such reserve as may be
required by GAAP shall have been made therefor;
(d) Liens in favor of vendors, carriers, warehousemen, repairmen, mechanics, workmen, materialmen, suppliers, laborers, construction, or similar Liens arising by operation of law in the ordinary course of business in respect of obligations that are not yet due or that are
being contested in good faith by appropriate proceedings, provided, that, such reserves as may be required by GAAP shall have been made therefor;
(e) Liens to operators and non-operators under joint operating agreements arising in the ordinary course of the business of the Borrower or the relevant Subsidiary to secure amounts owing, which amounts are not yet due or are being contested in good faith by appropriate proceedings,
if any reserves as may be required by GAAP shall have been made therefor;
(f) royalties, overriding royalties, net profits interests, production payments, reversionary interests, calls on production, preferential purchase rights and other burdens on or
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deductions from the proceeds of production, that do not secure Debt for borrowed money and that are taken into account in computing the net revenue interests and working interests of the Borrower or any of its Subsidiaries warranted in the Security Instruments;
(g) Liens arising in the ordinary course of business out of pledges or deposits under workers' compensation laws, unemployment insurance, old age pensions or other social security or retirement benefits, or similar legislation or to secure public or statutory obligations
of the Borrower;
(h) Liens arising under operating agreements, unitization and pooling agreements and orders, Farmout agreements, gas balancing agreements and other similar agreements, in each case that are customary in the Oil and Gas Business and that are entered into in the ordinary course
of business that are taken into account in computing the net revenue interests and working interests of the Borrower or any of its Subsidiaries warranted in the Security Instruments, to the extent that any such Lien referred to in this clause does not materially impair the use of the Property covered by such Lien for the purposes for which such Property is held by the Borrower or any Subsidiary or materially impair the value of such Property subject thereto;
(i) easements, rights-of-way, and other similar encumbrances, and minor defects in the chain of title that are customarily accepted in the oil and gas financing industry, none of which interfere with the ordinary conduct of the business of Borrower or any Subsidiary or materially
detract from the value or use of the Property to which they apply;
(j) Liens in favor of landlords or lessors under operating leases or Capital Leases of a Loan Party; provided that (i) any such Lien shall secure only the obligations of such Loan Party arising under the applicable operating lease or Capital Lease, (ii) the Debt under such
Capital Leases is permitted under Section 6.02 below, and (iii) any such Lien extends only to the assets that are financed by or leased pursuant to such operating lease or Capital Lease (or in the case of a Lease of premises, the Borrower's assets located on such premises);
(k) Liens on cash or securities pledged to secure performance of bids, tenders, performance bonds, surety and appeals bonds, or regulatory compliance or other obligations of a like nature incurred in the ordinary course of business and not in connection with the borrowing
of money;
(l) Liens in favor of collecting or payor banks having a right of setoff, revocation, refund or chargeback with respect to money or instruments of any of the Company Group on deposit with or in possession of such bank;
(m) Liens on cash and Liquid Investments securing the performance obligations of Borrower under any Hedge Contract (subject to the limitations set forth in Section 6.14);
(n) Liens in favor of Persons financing unpaid insurance premiums so long as (i) such Liens are limited to insurance policies with respect to which such premiums are financed, and (ii) the obligations secured by such Liens do not exceed $500,000 in the aggregate;
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(o) Subject to paragraphs (c) and (d) of this Section 6.01, non-consensual statutory Liens on pipeline or pipeline facilities, Hydrocarbons or Properties of the Company Group which arise out of operation of law and are not in connection with the borrowing of money;
(p) Liens in the Property of Abraxas Properties arising under the Existing Mortgage, as in effect on the date hereof, securing Debt permitted by Section 6.02(i), for so long as Abraxas Properties owns the Headquarters; provided that the Property subject to such Liens shall
not include any Oil and Gas Properties or any assets related to Oil and Gas Properties (including without exclusion seismic data and accounts receivable from the Oil and Gas Properties); and
(q) Liens not otherwise permitted under this Agreement incurred in the ordinary course of business securing Debt in an aggregate principal amount at any time outstanding not to exceed $1,000,000.
In addition, the Borrower shall not create, assume, incur, or suffer to exist, or permit any of its Subsidiaries or Canadian Abraxas to create, assume, incur, or suffer to exist, any Lien on or in respect of any of the Equity Interests in Canadian Abraxas or any Property owned by Canadian Abraxas, whether now owned or hereafter acquired,
or assign any right of Canadian Abraxas to receive income.
(a) Debt of the Borrower and its Subsidiaries under the Loan Documents;
(b) Debt in the form of obligations for the deferred purchase price of Property or services incurred in the ordinary course of business which are not yet due and payable or are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance
with GAAP have been established;
(c) Debt secured by the Liens permitted under Section 6.01(b); provided that the sum of such Debt and the unsecured Debt permitted under Section 6.02(j) does not exceed $1,000,000 at any time;
(d) Debt under Hydrocarbon Hedge Agreements or Interest Hedge Agreements which are not prohibited by the terms of Section 6.14;
(e) Debt consisting of sureties or bonds provided to any Governmental Authority or other Person and assuring payment of contingent liabilities of the Borrower in connection with the operation of the Oil and Gas Properties, including with respect to plugging, facility removal
and abandonment of its Oil and Gas Properties;
(f) Intercompany Debt;
(g) Debt constituting letters of credit for the account of any member of the Company Group provided as security (i) for any matter in connection with which a Lien would be permitted but has not been granted under paragraphs , (k), (m) or (n) of Section 6.01; provided
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that the amount of such Debt shall not exceed the underlying obligations that would be secured by such Lien, and (ii) to secure payment obligations in connection with self-insurance or similar requirements in the ordinary course of business;
(h) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business if such Debt is extinguished within two (2) Business Days of incurrence and does not exceed
$50,000;
(i) Debt under the Business Loan Agreement secured by the Existing Mortgage and not to exceed $5,350,000, for so long as Borrower owns the Headquarters; and
(j) Debt not otherwise permitted under this Section 6.02, provided, that (i) such Debt is not secured by any Lien, and (ii) the aggregate of amount of such Debt plus the aggregate amount of Debt permitted under
Section 6.02(c) shall not exceed $1,000,000 at any time.
In addition, the Borrower shall not permit Canadian Abraxas to create, assume, suffer to exist, or in any manner become or be liable in respect of, any Debt.
(a) The Borrower shall not, nor shall it permit any of its Subsidiaries, to merge or consolidate with or into any other Person other than the merger of a Loan Party with and into the Borrower or another Loan Party.
(b) The Borrower shall not, nor shall it permit any of its Subsidiaries to enter into or effect a Disposition of any of its Properties or to effect a Hedge Termination other than:
(i) the sale of Hydrocarbons in the ordinary course of business,
(ii) the Disposition of equipment that is (A) obsolete, worn out, depleted or uneconomic and disposed of in the ordinary course of business, (B) no longer necessary for the business of such Person or (C) contemporaneously replaced by equipment of at least comparable use,
(iii) Farmouts of undeveloped acreage and assignments in connection with such Farmouts,
(iv) Dispositions of Oil and Gas Properties or any interest therein or Subsidiaries owning Oil and Gas Properties provided that (A) the consideration received in respect of
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such Disposition shall be equal to or greater than the fair market value of the Oil and Gas Property, interest therein or Subsidiary subject of such Disposition (as reasonably determined by the Board of Directors of the Borrower and, if requested by the Administrative Agent, the Borrower shall deliver a certificate of a Responsible Officer
of the Borrower certifying to that effect), (B) the PV-10 of the Oil and Gas Properties that are the subject of such Disposition or that are owned by the Subsidiary that is the subject of such Disposition, individually or when aggregated with those that are the subjects of all such other Dispositions effected during any period between two successive scheduled redeterminations of the Borrowing Base, shall not be in excess of 5% of the Borrowing Base in effect at the time such Disposition is effected, and (C) if
any such Disposition is of a Subsidiary owning Oil and Gas Properties, such Disposition shall include all the Equity Interests of such Subsidiary (or such Subsidiary shall be dissolved substantially simultaneously with such Disposition);
(v) Hedge Terminations, provided that (A) the Borrower shall give Administrative Agent 15 Business Days, prior written notice of any such Hedge Termination, (B) the Administrative Agent and the Revolving Lenders shall have the right to redetermine the Borrowing Base if such a right is provided with respect to such Hedge Termination under
Section 2.02(c), and (C) after giving effect to such Hedge Termination, the Borrower shall be in compliance with Section 5.13; and
(vi) any Disposition of Properties not otherwise regulated by Section 6.04(b) and having a fair market value not to exceed $1,000,000 during any 12-month period.
(a) Liquid Investments;
(b) trade and customer accounts receivable which are for goods furnished or services rendered in the ordinary course of business and are payable in accordance with customary trade terms;
(c) creation of any additional Subsidiaries in compliance with Section 6.15;
(d) investments in negotiable instruments for collection in the ordinary course of business;
(e) investments made in the ordinary course of business and of a nature that is customary in the Oil and Gas Business as a means of actively exploiting, exploring for, acquiring, developing, processing, gathering, marketing or transporting oil and gas through agreements,
transactions, interests or arrangements which provide for the sharing of risks or costs or satisfy other objectives of the Oil and Gas Business, jointly with third parties, including
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entering into operating agreements, working interests, royalty interests, mineral leases, processing agreements, Farmouts, farm-in agreements, division orders, contracts for the sale, transportation or exchange of oil and natural gas, unitization and pooling declarations and agreements and area of mutual interest agreements, production
sharing agreements or other similar or customary agreement, transactions, properties, interest and investments and expenditures in connection therewith; provided that (i) no such investments includes an investment in any Equity Interest in a Person, (ii) any Debt incurred or Lien granted or permitted to exist pursuant to such Investments is otherwise permitted under Section 6.01 and Section 6.02, respectively, and (iii) such investments are taken into account in computing the net revenue interests and working
interests of the Borrower or any of its Subsidiaries warranted in the Security Instruments;
(f) Investments in Intercompany Debt; and
(g) Investments not otherwise permitted under this Section 6.06 in an aggregate amount not to exceed $1,000,000.
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assume an obligation to contribute to, or permit any Subsidiary or ERISA Affiliate to contribute to or assume an obligation to contribute to, any Multiemployer Plan in excess of $1,000,000; (g) acquire, or permit any Subsidiary or ERISA Affiliate to acquire, an interest in any Person that causes such Person to become an ERISA Affiliate
with respect to the Borrower, any Subsidiary or any ERISA Affiliate if such Person sponsors, maintains or contributes to, or at any time in the six-year period preceding such acquisition has sponsored, maintained, or contributed to, (1) any Multiemployer Plan under which any Subsidiary or ERISA Affiliate would have an obligation to contribute more than $1,000,000, or (2) any other Plan that is subject to Title IV of ERISA under which the actuarial present value of the benefit liabilities under such Plan exceeds
the current value of the assets (computed on a plan termination basis in accordance with Title IV of ERISA) of such Plan allocable to such benefit liabilities by more than $1,000,000; (h) incur, or permit any Subsidiary or ERISA Affiliate to incur, a liability to or on account of a Plan under section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA; (i) contribute to or assume an obligation to contribute to, or permit any Subsidiary or ERISA Affiliate to contribute to or assume an obligation to contribute to, any
employee welfare benefit plan, as defined in section 3(1) of ERISA, including any such plan maintained to provide benefits to former employees of such entities, that may not be terminated by such entities in their sole discretion at any time without any material liability; (j) amend or permit any Subsidiary or ERISA Affiliate to amend, a Plan resulting in an increase in current liability such that the Borrower, any Subsidiary or any ERISA Affiliate is required to provide security to such Plan under section 401(a)(29)
of the Code; or (k) permit to exist any occurrence of any Reportable Event (as defined in Title IV of ERISA), or any other event or condition, which presents a material (in the opinion of the Required Lenders) risk of such a termination by the PBGC of any Plan.
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(a) purchase, assume, or hold a speculative position in any commodities market or futures market or enter into any Hedge Contract for speculative purposes, or
(b) be party to or otherwise enter into any Hydrocarbon Hedge Agreement, Interest Hedge Agreement or any other Hedge Contract which (i) is entered into for reasons other than as a part of its normal business operations as a risk management strategy and/or hedge against changes
resulting from market conditions related to the Borrower’s operations, (ii) fixes a price for a term of more than 5 years, (iii) covers an aggregate monthly production (determined, in the case of contracts that are not settled on a monthly basis, by a monthly proration acceptable to Administrative Agent) for any single month which exceeds 90% of such Loan Party's aggregate Projected Oil and Gas Production for such month, (iv) except for the Collateral under the Security Documents with respect to Lender
Hedging Obligations and letters of credit up to $500,000 in the aggregate with respect to Hedge Contracts entered into from time to time with a counterparty that is not a Lender or an Affiliate of a Lender, requires such Loan Party to put up money, assets, or other security against the event of its nonperformance prior to actual default by such Loan Party in performing its obligations thereunder, or (v) is with a counterparty or has a guarantor of the obligation of the counterparty who (unless such counterparty
is a Lender or one of its Affiliates) at the time the contract is made has long-term obligations rated less than A- or A3, respectively, by S&P or Xxxxx'x.
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for the four fiscal quarters then ended to be less than 4.50 to 1.00; and (b) shall not permit, as of the last day of each fiscal quarter ending thereafter, the Total Debt to Consolidated EBITDAX Ratio of the Borrower to be less than 4.00 to 1.00; provided that, for each such four fiscal quarter period that began prior to the effectiveness
of the Merger, such amounts shall be adjusted to give pro forma effect to the Merger.
ARTICLE VII
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the Borrower, any Guarantor, or any such Subsidiary so in default, shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof; provided that, for purposes of this paragraph
(d), the "principal amount" of the obligations in respect of Hedging Contracts at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that would be required to be paid if such Hedging Contracts were terminated at such time;
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(m) Material Adverse Change. An event resulting in a Material Adverse Change shall have occurred; or
(a) the Administrative Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the obligation of each Lender and the Issuing Lender to make extensions of credit hereunder, including making Advances and issuing,
increasing or extending Letters of Credit, to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare all principal, interest, fees, reimbursements, indemnifications, and all other amounts payable under this Agreement, the Notes, and the other Loan Documents to be forthwith due and payable, whereupon all such amounts shall become and be forthwith due and payable in full, without notice of intent
to demand, demand, presentment for payment, notice of nonpayment, protest, notice of protest, grace, notice of dishonor, notice of intent to accelerate, notice of acceleration, and all other notices, all of which are hereby expressly waived by the Borrower;
(b) the Borrower shall, on demand of the Administrative Agent at the request or with the consent of the Required Revolving Lenders, deposit with the Administrative Agent into the Cash Collateral Account an amount of cash equal to the Letter of Credit Exposure as security
for the Obligations; and
(c) the Administrative Agent shall at the request of, or may with the consent of, the Required Lenders proceed to enforce its rights and remedies under the Security Instruments, the Guaranties, and any other Loan Document for the ratable benefit of Secured Parties by appropriate
proceedings.
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(a) (i) the obligation of each Lender and the Issuing Lender to make extensions of credit hereunder, including making Advances and issuing, increasing or extending Letters of Credit, shall terminate, and (ii) all principal, interest, fees, reimbursements, indemnifications,
and all other amounts payable under this Agreement, the Notes, and the other Loan Documents shall become and be forthwith due and payable in full, without notice of intent to demand, demand, presentment for payment, notice of nonpayment, protest, notice of protest, grace, notice of dishonor, notice of intent to accelerate, notice of acceleration, and all other notices, all of which are hereby expressly waived by the Borrower;
(b) the Borrower shall deposit with the Administrative Agent into the Cash Collateral Account an amount of cash equal to the outstanding Letter of Credit Exposure as security for the Obligations; and
(c) the Administrative Agent shall at the request of, or may with the consent of, the Required Lenders proceed to enforce its rights and remedies under the Security Instruments, the Guaranties, and any other Loan Document for the ratable benefit of Secured Parties by appropriate
proceedings.
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this Agreement or any other Loan Document, the exercise of any rights or remedies under any Security Instrument or any other agreement with the Borrower, any Guarantor or any of their respective Subsidiaries which secures any of the Obligations, shall be applied in the following order:
(a) First, to the payment of all amounts, including costs and expenses incurred in connection with the collection of such proceeds and the payment of any part of the Obligations, due to the Administrative Agent under any of the expense reimbursement or indemnity provisions
of this Agreement or any other Loan Document, any Security Instrument or other collateral documents, and any applicable Legal Requirement;
(b) Second, ratably, according to the then unpaid amounts thereof, without preference or priority of any kind among them, to the payment of the Obligations then due and payable, including Obligations with respect to Letters of Credit, including any Lender Hedging Obligations
of any Loan Party, in each case subject to Section 2.15(c); and
(c) Third, the remainder, if any, to the Borrower or its Subsidiaries, or its respective successors or assigns, or such other Person as may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.
Administrative Agent shall have no responsibility to determine the existence or amount of Lender Hedging Obligations and may reserve from the application of amounts under this Section amounts distributable in respect of Lender Hedging Obligations until it has received evidence satisfactory to it of the existence and amount of such Lender
Hedging Obligations. Subject to paragraph (a) of the first sentence of this Section, Administrative Agent and Lenders hereby acknowledge and confirm that the Liens in the Collateral secure the Obligations and the Lender Hedging Obligations on a ratable basis.
ARTICLE VIII
Section 8.01 Appointment and Authority. Each of the Lenders and the Issuing Lender hereby irrevocably appoints Société Générale
to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Lender, and neither the Borrower nor any
other Loan Party shall have rights as a third party beneficiary of any of such provisions.
Section 8.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in
its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind
of business with
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the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
Section 8.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing
by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the
Person serving as the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided
in Sections 9.01 and 7.02, and 7.03 or (ii) in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent by the Borrower, a Lender or the Issuing Lender. The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or
in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument
or document or (v) the satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
Section 8.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The
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Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of an Advance, or the issuance of a Letter of Credit, that
by its terms must be fulfilled to the satisfaction of a Lender or the Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or the Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or the Issuing Lender prior to the making of such Advance or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants
and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
Section 8.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers
hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities
in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
Section 8.06 Successor Administrative Agent and Issuing Lender. The Administrative Agent and the Issuing Lender may at any time give
notice of its resignation to the Lenders, the Issuing Lender and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a bank with an office in New York City or Houston, Texas or an Affiliate of any such bank with an office in New York City or Houston, Texas. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment
within 60 days after the retiring Administrative Agent or Issuing Lender gives notice of its resignation, then the retiring Administrative Agent or Issuing Lender, as applicable, may on behalf of the Lenders, appoint a successor Administrative Agent or Issuing Lender, as applicable, meeting the qualifications set forth above provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring Administrative Agent or Issuing Lender, as applicable, shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that (A) in the case of any Collateral held by the Administrative Agent on behalf of the Lenders or the Issuing Lender under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such Collateral until such time as a successor Administrative Agent is appointed,
and (B) the retiring Issuing Lender shall remain the Issuing Lender with respect to any Letters of Credit outstanding on the effective date of its resignation and the provisions affecting the Issuing Lender with respect to such Letters of Credit shall inure to the benefit of the retiring Issuing Lender until the termination of all such Letters of Credit) and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent or Issuing Lender, as applicable,
shall instead be made by or to each Lender directly, until such time as the Required Lenders appoint a successor Administrative Agent or Issuing Lender, as provided for
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above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent or Issuing Lender hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent or Issuing Lender, and the retiring Administrative
Agent or Issuing Lender shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section and except that the retiring Issuing Lender shall remain the Issuing Lender with respect to any Letters of Credit outstanding on the effective date of its resignation and the provisions affecting the Issuing Lender with respect to such Letters of Credit shall inure to the benefit of the retiring Issuing Lender until
the termination of all such Letters of Credit). The fees payable by the Borrower to a successor Administrative Agent or Issuing Lender shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative Agent’s or Issuing Lender's resignation hereunder and under the other Loan Documents, the provisions of this Article and Sections 9.04 and 9.05 shall continue in effect for the benefit of such retiring
Administrative Agent or Issuing Lender, as applicable, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent or Issuing Lender, as applicable was acting as Administrative Agent or Issuing Lender, as applicable.
(a) The Administrative Agent is authorized on behalf of the Secured Parties, without the necessity of any notice to or further consent from such Secured Parties, from time to time, to take any actions with respect to any Collateral or Security Documents which may be necessary
to perfect and maintain the Liens upon the Collateral granted pursuant to the Security Documents. The Administrative Agent is further authorized (but not obligated) on behalf of the Secured Parties, without the necessity of any notice to or further consent from the Secured Parties, from time to time, to take any action in exigent circumstances as may be reasonably necessary to preserve any rights or privileges of the Secured Parties under the Loan Documents or applicable Legal Requirements. Persons
that are owed any Lender Hedging Obligations by accepting the
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benefit of the Liens granted pursuant to the Security Documents hereby agrees to the terms of this paragraph (a).
(b) The Lenders hereby, and Persons that are owed any Lender Hedging Obligations by accepting the benefit of the Liens granted pursuant to the Security Documents, irrevocably authorize the Administrative Agent to (i) release any Lien granted to or held by the Administrative
Agent upon any Collateral (a) upon termination of this Agreement, termination of all Hedge Contracts with such Persons, termination of all Letters of Credit, and the payment in full of all outstanding Advances, Letter of Credit Obligations and all other Obligations payable under this Agreement and under any other Loan Document; (b) constituting property sold or to be sold or disposed of as part of or in connection with any disposition permitted under this Agreement or any other Loan Document; (c) constituting
property in which the Borrower or any Subsidiary owned no interest at the time the Lien was granted or at any time thereafter; or (d) constituting property leased to the Borrower or any Subsidiary under a lease which has expired or has been terminated in a transaction permitted under this Agreement or is about to expire and which has not been, and is not intended by the Borrower or such Subsidiary to be, renewed or extended; and (ii) release a Guarantor from its obligations under a Guaranty and any
other applicable Loan Document if such Person ceases to be a Subsidiary as a result of a transaction permitted under this Agreement. Upon the request of the Administrative Agent at any time, the Secured Parties will confirm in writing the Administrative Agent's authority to release particular types or items of Collateral pursuant to this Section 8.09.
ARTICLE IX
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Borrower or any Subsidiary therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders and the Borrower, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver, or consent shall:
(a) without the consent of each Lender: (i) waive any of the conditions specified in Article III; (ii) change any provision of this Section or the definition of "Required Lenders" or any other provision hereof specifying the number or percentage of Lenders required to amend,
waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder; (iii) amend Section 2.11 or any other provision of this Agreement in a manner that would alter the pro rata sharing of payments or the pro rata allocation of disbursements required thereby; (iv) release any Guarantor from its obligations under any Guaranty unless such Guarantor ceases to be a Subsidiary of the Borrower under a transaction permitted by the terms hereof; (v) permit the Borrower or any Subsidiary
to enter into any merger or consolidation with or into any other Person or amend Section 6.04(a); (vi) release any Collateral securing the Obligations, except as provided in Section 8.09 above; (vii) change Section 7.06 or any other provision of this Agreement in a manner that would alter the order of application of proceeds set forth in Section 7.06; or (viii) increase the aggregate Commitments;
(b) without the consent of each Revolving Lender (i) increase the Borrowing Base, or (ii) change the definition of "Required Revolving Lenders";
(c) without the consent of each Term Lender, change the definition of "Required Term Lenders";
(d) without the written consent of each Lender directly affected thereby, (i) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 7.02), (ii) reduce the principal of, or interest on, the Obligations or any fees or other
amounts payable hereunder or under any other Loan Document, or (iii) postpone any date fixed for any payment of principal of, or interest on, the Obligations or any fees or other amounts payable hereunder;
(e) without the written consent of the Required Revolving Lenders, make any amendment or waiver that would disproportionately affect the Revolving Lenders, including without limitation extending the Revolving Maturity Date or the Revolving Commitment Termination Date; or
(f) without the written consent of the Required Term Lenders, make any amendment or waiver that would disproportionately affect the Term Lenders, including without limitation extending the Term Maturity Date;
and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the Issuing Lender in addition to the Lenders required above, affect the rights or duties of the Issuing Lender under this Agreement or any Letter of Credit Application relating
to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
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Document; and (iii) the Administrative Agent’s Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto.
Anything herein to the contrary notwithstanding, during such period as a Lender is a Defaulting Lender, to the fullest extent permitted by applicable law, such Lender will not be entitled to vote in respect of amendments and waivers hereunder, and the Revolving Commitment and the outstanding Advances or other Credit Extensions of such Lender
hereunder will not be taken into account in determining whether the Required Lenders, Required Revolving Lenders, Required Term Lenders or all of the Lenders, as required, have approved any such amendment or waiver (and the definition of "Required Lenders", "Required Revolving Lenders", or "Required Term Lenders" will automatically be deemed modified accordingly for the duration of such period); provided that (i) any such amendment or waiver that
would increase or extend the term of the Revolving Commitment of such Defaulting Lender, extend the date fixed for the payment of principal or interest owing to such Defaulting Lender hereunder, reduce the principal amount of any obligation owing to such Defaulting Lender, reduce the amount of or the rate or amount of interest on any amount owing to such Defaulting Lender or of any fee payable to such Defaulting Lender hereunder, take any of the actions described in Section 9.01(a)(ii), 9.01(a)(iii), 9.01(a)(iv),
or 9.01(a)(vii), or alter the terms of this proviso, will require the consent of such Defaulting Lender; (ii) if such Defaulting Lender is a Revolving Lender, any such amendment or waiver that would increase the Borrowing Base or change the definition of "Required Revolving Lenders" will require the consent of such Defaulting Lender; and (iii) if such Defaulting Lender is a Term Lender, any such amendment that would change the definition of "Required Term Lenders" will require the consent of such Defaulting Lender. If
a Defaulting Lender's consent to an amendment or waiver is required pursuant to this Section 9.01, and such Defaulting Lender has failed to respond to a written request from the Administrative Agent to approve such waiver or amendment for 30 days after such Defaulting Lender's receipt of such request, such Defaulting Lender will be deemed to have approved such amendment or waiver.
(i) if to any Borrower or any other Loan Party, the Administrative Agent, or the Issuing Lender, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule I or
to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such
party in a notice to the Administrative Agent.
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(b) Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours
for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications to the extent provided in paragraph (c) below, shall be effective as provided in said paragraph (c). In no event shall a voicemail message be effective as a notice, communication or confirmation hereunder.
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All telephonic notices to and other communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
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Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, (ii) any Advance or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the Issuing Lender 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), (iii) 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, or
any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto, 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. All amounts due under this Section 9.05 shall be payable within ten (10) Business Days after demand therefor. The agreements in this Section shall survive the resignation
of the Administrative Agent, the Resignation of the Issuing Lender, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations.
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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, the transactions contemplated hereby or thereby, any Advance or Letter of Credit or the use of the proceeds thereof. No Indemnitee 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.
(i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Advances being assigned at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect
to a Lender, the aggregate amount of the Commitments and Advances of such Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall not be less than $5,000,000.00;
(ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Advances or the Commitment assigned;
(iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance; and
(iv) each Eligible Assignee (other than an Eligible Assignee that is a Lender or an Affiliate of a Lender) shall pay to the Administrative Agent a $3,500 processing and
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recording fee and shall, if it is not a Lender, deliver to the Administrative Agent an Administrative Questionnaire.
Upon such execution, delivery, acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, from and after the effective date specified in each Assignment and Acceptance, (A) the Eligible Assignee thereunder shall be a party hereto for all purposes and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (B) such assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of such Lender’s 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 Sections 2.13, 2.14, 9.04 and 9.05 with respect to facts and circumstances occurring prior to the effective date of such assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph 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 paragraph (d) of this Section.
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were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 7.04 as though it were a Lender, provided such Participant agrees
to be subject to Section 2.11 as though it were a Lender. A Participant shall not be entitled to receive any greater payment under Section 2.13 or 2.14 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant that would be a Foreign Lender if
it were a Lender shall not be entitled to the benefits of Section 2.14 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.14 as though it were a Lender.
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extent required by applicable Legal Requirements or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder
or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent or any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower. For purposes of this Section, "Information" means all information received from any Loan Party relating to any Loan Party or any of their respective businesses including, without limitation, any information obtained from Borrower or any of the Subsidiaries in connection with Borrower's
compliance with Section 5.05 or Section 5.06 of this Agreement, other than any such information that is available to the Administrative Agent or any Lender or any of its Affiliates on a nonconfidential basis prior to disclosure by any Loan Party, provided that, in the case of information received from a Loan Party after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information in accordance with safe and sound banking practices.
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shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision
in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
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hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
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Existing Agreements; together with each of the Existing Agreements, the "Existing Credit Documents") and all accrued and unpaid interest thereon and (b) all accrued and unpaid fees under the Existing Credit Documents, shall be deemed to be outstanding under and governed by
this Agreement. Borrower hereby acknowledges, warrants, represents and agrees that this Agreement is not intended to be, and shall not be deemed or construed to be, a novation or release of the Existing Credit Documents. Each Lender which is a Lender under the Existing Credit Documents hereby waives any requirements for notice of prepayment, minimum amounts of prepayments of the loans thereunder, ratable reductions of the commitments of Lenders under the Existing Credit Documents and ratable payments
on account of the principal or interest of any loan under the Existing Credit Documents to the extent that any such prepayment, reductions or payments are required to ensure that, upon the effectiveness of this Agreement, the loans of the Lenders shall be outstanding on a ratable basis in accordance with their respective Pro Rata Share. Each Lender hereby authorizes Administrative Agent and Borrower to request Borrowings from Lenders, to make prepayment of the loans under the Existing Credit Documents
and to reduce the commitments under the Existing Credit Documents among Lenders in order to ensure that, upon the effectiveness of this Agreement, the loans of Lenders shall be outstanding on a ratable basis in accordance with their respective Pro Rata Share.
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