附件10.1对修订和重述的信贷协议的执行版本1第六修正案本修订和重述的信贷协议的第六修正案(本“修正案”)，日期为2024年6月12日(“第六修正案的生效日期”)，是特拉华州的一家公司Civitas Resources，Inc.(“借款人”)；每个签署的担保人(“担保人”，与借款人一起，“信贷方”)；每个贷款人(包括下文提到的新贷款人)是本协议的签字人；和摩根大通银行，N.A.作为贷款人的行政代理人(以该身分，连同其以该身分的继任者，称为“行政代理人”)。摘要A.借款人、行政代理、贷款人和开证行均为该于2021年11月1日生效的经修订及重订的信贷协议(经修订、重述、修订及重述、补充或以其他方式修改的“信贷协议”)的当事各方，根据该协议，贷款人在符合本协议所载条款及条件的情况下，向借款人及其代表提供若干信贷。B.借款人已要求丰业银行休斯敦分行和瑞穗银行有限公司(各自为“新贷款人”，统称为“新贷款人”)成为信贷协议项下的贷款人，最高贷款额自“信贷协议第六修正案”生效之日起生效，金额如信贷协议附表1.2所示(现予修订)。C.双方希望订立本修正案，以(I)修改本修正案第2节所述的信贷协议，(Ii)本修正案第3.1节所述借款基数从3,000,000,000美元增加到3,400,000,000美元的证据，以及(Iii)本修正案第3.2节所述的所选贷款限额从1,850,000,000美元增加到2,200,000,000美元的证据，在每种情况下，均如本文所述并在第六修正案生效日期生效。因此，现在，考虑到本合同所载的前提和相互契诺，出于良好和有价值的代价，特此确认该契诺的收据和充分性，本合同各方同意如下：第1节定义的术语。在信贷协议中定义但在本修正案中没有定义的每个大写术语，应具有信贷协议中该术语的含义，并在此进行修订。除非另有说明，本修正案中的所有条款均指信贷协议的条款。第二节修正案自第六修正案生效之日起生效。根据本修正案中包含的陈述、保证、契诺和协议，在满足本修正案第4节规定的先决条件的前提下，信贷协议应按本修正案第2节规定的方式进行修订。
2 2.1《信贷协议》修正案。现将《信贷协议》(签名页、附表和附件除外)全部修改为附件A所列内容。2.2取代附表1.1。附表1.1万亿现以本信贷协议所附附表1.1的形式对其全文进行修订和重述，本协议所附的附表1.1应被视为作为信贷协议的附表1.1所附。2.3取代附表1.2。附表1.2万亿现将《信贷协议》全部替换为本协议的附表1.2，本协议的附表1.2应被视为作为《信贷协议》的附表1.2所附。本修正案生效后，以及在第六修正案生效日进行的任何借款后，(A)持有贷款总额低于其适用的循环信贷占所有贷款的百分比的每个贷款人(包括每个新贷款人)应垫付新贷款，这些新贷款应支付给行政代理，并用于向持有贷款总额大于其适用的循环信贷占所有贷款的百分比的每个贷款人偿还未偿还贷款，(B)每个贷款人(包括每个新贷款人)在每个信用证(如果有)中的参与度应自动调整为等于其适用的循环信贷百分比，(C)应根据行政代理的具体规定进行其他调整，以使适用于每个贷款人(包括每个新贷款人)的循环信贷敞口等于其适用的循环信贷占所有贷款人循环信贷敞口总额的百分比；及(D)应每个适用贷款人的要求，借款人应被要求向该贷款人支付因本第2.3节所述的贷款重新分配和调整而根据信贷协议第5.02节所要求的任何分期付款。第三节借款基数和选定贷款限额的选择。3.1借款基数。依据本修正案中包含的陈述、担保、契诺和协议，并在满足本修正案第4节规定的先决条件的前提下，行政代理和每一贷款人(包括新贷款人)特此同意，自第六修正案生效之日起，借款基数从3,000,000,000美元增加到3,400,000,000美元，并应保持在3,400,000,000美元，直至下一次预定重新确定、中期重新确定或此后对借款基数进行其他调整为止，以信贷协议的条款为准。就信贷协议第2.06(B)节而言，本3.1节规定的借款基数的重新确定应构成预定于2024年5月1日或前后进行的重新确定。本修正案是信贷协议第2.06(D)节所指的新借款基准通知，适用于计划于2024年5月1日或前后进行的重新确定。3.2选定贷款限额的选举。行政代理、贷款人(包括新贷款人)和借款人依据本修正案中包含的陈述、担保、契诺和协议，在满足本修正案第4节规定的先决条件的前提下，就本修正案第3.1节规定的借款基数增加，同意将选定的贷款限额从1,850,000,000美元增加到2,200,000,000美元，并保持在2,200,000,000美元，直至随后根据信贷协议第2.01(B)节减少或增加贷款基数。
3第四节条件先例。本修正案的效力取决于下列条件：4.1对应方。行政代理应从(A)每一贷方和(B)每一贷方(包括新贷方)收到本修正案的副本。4.2费用。行政代理应在第六修正案生效日期或之前收到所有到期和应付的费用和其他金额(包括贷款人账户的到期和应付费用)。4.3备注。行政代理应已收到已正式签立的循环信贷票据(或其任何修订和重述，视情况而定)，应付给申请循环信贷票据的每个循环信贷贷款人(包括新贷款人)(在第六修正案生效日期前至少两(2)个工作日的请求范围内)，本金金额等于其截至本修正案生效日期的最高信贷金额(经修订)。第5节新的贷款人每名新贷款人特此加入、成为信贷协议一方，并同意作为贷款人遵守信贷协议的条款及条件并受其约束，而任何贷款人须受信贷协议约束的每份其他贷款文件，犹如该新贷款人是信贷协议的原始签署人一样。各新贷款人特此委任并授权行政代理代表其采取行政代理的行动，并行使信贷协议条款授予行政代理的权力和酌情决定权，以及合理附带的权力和酌情决定权。每一新贷款人表示并保证：(A)其拥有执行和交付本修正案的全部权力和权力，并已采取一切必要行动，以执行和交付本修正案，完成本修正案拟进行的交易，并成为信贷协议项下的贷款人；(B)其已收到信贷协议副本和根据第8.01节交付的最新财务报表副本，以及其认为适当的其他文件和信息，可自行作出征信分析和决定，以订立本修正案并成为贷款人，并在此基础上独立作出分析和决定，而不依赖行政代理或任何其他贷款人。和(C)从第六修正案生效之日起及之后，它应是信贷协议和其他贷款文件的一方，并受其约束，并根据该协议享有贷款人的权利和义务。第6条杂项6.1确认和生效。在本修订生效后，信贷协议(经本修订修订)的条文将根据其条款保持十足效力及效力，而本修订并不构成放弃信贷协议或任何其他贷款文件的任何条文。在信贷协议中，凡提及“本协议”、“本协议”或类似含义的词语，均指经本协议修订的信贷协议，并在签署和/或交付的任何其他文件、文书或协议中提及信贷协议。
4与信贷协议的关系指的是现修订的信贷协议，也是对信贷协议的引用。6.2信用证方的批准和确认。每一信贷方在此明确(A)承认本修正案的条款，(B)批准并确认其在其所属的贷款文件下的义务，(C)承认、续期并扩大其在其所属的贷款文件下的持续责任，(D)就作为担保人的每一贷方同意其在《担保协议》下的担保对经修订的义务保持完全效力。(E)向贷款人和行政代理表示并保证，在信贷协议及其所属的其他贷款文件中包含的该贷款方的每项陈述和保证，在本协议之日以及在实施本协议第2节所述修订后，在所有重要方面均属真实和正确，除非(I)任何该等陈述和保证明确限于较早的日期，在此情况下，在本协议规定的较早日期，该等陈述和保证应继续在所有重要方面真实和正确，和(Ii)在任何该等陈述和担保因重要性或参考重大不利影响而明确限定的范围内，该陈述和担保(如此限定)应继续在各方面真实和正确，(F)向贷款人和行政代理陈述并保证，该信用方执行、交付和履行本修正案属于该信用方的法人、有限合伙企业或有限责任公司的权力范围(视情况而定)，已通过所有必要的行动正式授权，并且该修正案构成该信用方的有效和具有约束力的义务，可根据其条款强制执行。但其可执行性可能受到影响债权的破产法、无力偿债法或类似法律的限制，以及(G)向贷款人和行政代理表示并保证，在本修正案生效后，不存在违约或违约事件。6.3对应方。本修正案可由本修正案的一方或多方以任何数量的单独副本签署，所有这些副本加在一起应被视为构成同一份文书。通过传真或电子传输(例如，“.pdf”)交付本修正案应与手动签署的原始副本一样有效。本修正案的执行和交付应被视为包括由行政代理批准的电子平台上的电子签名，其法律效力、有效性或可执行性应与交付手动签署的签名相同，范围和任何适用法律，包括《全球和国家商法中的联邦电子签名》、《纽约州电子签名和记录法案》或基于《统一电子交易法》的任何其他类似州法律所规定的范围和范围；但如果本修正案的任何一方提出请求，电子签名的正本应立即在电子签名之后出现。6.4无口头协议。本书面修改、信贷协议和与本协议及相关条款相关的其他贷款文件代表双方之间的最终协议，不得与双方先前的、同时的或不书面的口头协议相矛盾。当事人之间没有修改信贷协议和其他贷款文件中当事人协议的后续口头协议。
5 6.5适用法律。本修正案(包括但不限于本修正案的有效性和可执行性)应受纽约州法律管辖，并按纽约州法律解释。6.6费用的支付。借款人同意向行政代理支付或偿还其与本修正案、与本修正案相关的任何其他文件以及本协议预期进行的交易所产生的所有合理的自付费用和开支，包括但不限于行政代理律师的合理费用和支出。6.7可分割性。在任何司法管辖区被禁止或不能执行的本修正案的任何条款，在不使本修正案其余条款无效的情况下，在该等禁止或不可强制执行的范围内应对该司法管辖区无效，而在任何司法管辖区内的任何此类禁止或不可强制执行不得使该条款在任何其他司法管辖区失效或无法执行。6.8继任者和受让人。本修正案对本合同双方及其各自的继承人和允许受让人的利益具有约束力和约束力。[签名页在后面。]
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。本修正案自上述第一年生效之日起，双方已正式签署。借款人：Civitas Resources，Inc.作者：S/Marianella Foschi姓名：Marianella Foschi标题：首席财务官
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。担保人：Bonanza Creek能源运营公司、Civitas North有限责任公司、Holmes东方有限责任公司、落基山基础设施有限责任公司、Highpoint Resources公司、第五口袋生产公司、LLC开采石油和天然气公司。采掘金融公司。山顶矿产，LLC表山资源，LLC西北走廊控股，LLC XTR中游，LLC 7N，LLC 8 North，LLC Axis勘探，LLC XOG服务，LLC猛禽秃鹰合并Sub2，LLC Crestone Peak Resources GP Inc.作者：S/Marianella Foschi姓名：Marianella Foschi职务：首席财务官
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。Civitas DE盆地资源公司，Civitas DE盆地控股公司，Civitas DE盆地中游公司，Civitas DE盆地矿产公司，Civitas DE盆地资源公司，Civitas DE盆地控股公司II，Civitas DE盆地矿产公司，Civitas DE盆地Nm控股公司，Civitas DE盆地Nm矿产公司，Civitas中盆地能源公司，Civitas中盆地能源公司，Civitas二叠纪经营公司，LLC by：/S/Marianella Foschi公司名称：Marianella Foschi
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。摩根大通银行，N.A.，作为行政代理和贷款人：/S/奥马尔·哈桑姓名：奥马尔·哈桑
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。美国银行，N.A.，作为贷款人：S/Alia Qaddumi姓名：Alia Qaddumi标题：董事
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。花旗银行，N.A.作为贷款人：S/克里夫·瓦兹姓名：克里夫·瓦兹标题：副总裁
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。第五第三银行，国家协会，作为贷款人/S/乔纳森·H·李姓名：乔纳森·H·李标题：管理董事
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。出借人：S/乔治·E·麦基恩姓名：乔治·E·麦基恩标题：高级副总裁
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。PNC银行，全国协会，作为贷款人：/S/罗伯特·唐尼姓名：罗伯特·唐尼标题：副总裁
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。加拿大皇家银行，作为贷款人/S/埃米莉·斯科特姓名：埃米莉·斯科特标题：授权签字人
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。真实的银行，作为贷款人/S/格雷格·克拉布林姓名：格雷格·克拉布林标题：董事
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。美国银行协会，作为贷款人/S/布鲁斯·埃尔南德斯姓名：布鲁斯·埃尔南德斯标题：高级副总裁
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。富国银行，国家协会，作为贷款人/S/乔纳森·赫里克姓名：乔纳森·赫里克标题：管理董事
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。资本一号，国家协会，作为贷款人/S/克里斯托弗·库纳姓名：克里斯托弗·库纳标题：高级董事
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。多伦多道明银行纽约分行，作为贷款人/S/埃文斯·斯旺姓名：埃文斯·斯旺标题：授权签字人
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。出借人：S/本杰明·H·阿德勒姓名：本杰明·H·阿德勒
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。姓名：威廉·古德里奇姓名：威廉·古德里奇职务：总裁助理
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。高盛美国银行，作为贷款人：/S/安德鲁·弗农姓名：安德鲁·弗农标题：授权签字人
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。姓名：悉尼G.丹尼斯名称：悉尼G.丹尼斯标题：董事
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。瑞穗银行作为新贷款人：S/爱德华·萨克斯姓名：爱德华·萨克斯标题：管理董事
修改和重述信贷协议Civitas Resources，Inc.第六修正案的签名页。丰业银行，休斯顿分行，作为新的贷款人：S/萨姆·卡特勒姓名：萨姆·卡特勒标题：董事
附件A[见附件]
经修订和重新签署的信贷协议第六修正案附件A：Civitas Resources，Inc.作为借款人、作为行政代理和开证行的北卡罗来纳州摩根大通银行与贷款人和其他开证行签订的日期为2021年11月1日的经修订和重述的信贷协议附件A_N.A.、KeyBanc Capital Markets Inc.、美国银行、N.A.、Five Third Bank、National Association、U.S.Bank National Association、Truist Securities，Inc.、加拿大皇家银行、PNC Bank、National Association、Goldman Sachs bank USA、Barclays bank PLC、Capital One、National Association和TD Securities(USA)LLC为联合牵头安排人和联合簿记管理人
I目录第I页第I条定义和会计事项第1.01节以上.........................................................................................定义的术语2第1.02节某些定义的术语........................................................................................2第1.03节贷款和借款类型.......................................................................43第1.04节一般术语；施工规则..........................................................44第1.05节会计术语和确定；公认会计准则...............................................44第1.06分部...........................................................................................................45第二条循环信贷安排第2.01节承诺....................................................................................................45第2.02节循环信贷贷款和借款.........................................................46第2.03节循环信贷借款申请......................................................48第2.04节循环信贷借款的资金........................................................49第2.05节终止和减少总最高贷方金额......51第2.06节借款基准................................................................................................51第2.07节................................................................................................信用证55第三条循环信贷本金和利息的支付；循环信贷贷款的预付；费用第3.01节循环信贷贷款的偿还.............................................................第3.02节循环信用贷款利息..................................................................第3.03节循环信用贷款提前还款..........................................................65第3.04节费用...................................................................................................................68第四条付款；按比例处理；抵销的分摊第4.01条一般付款；按比例计算的处理；抵销的分摊......69第4.02节由行政代理作出的扣减；违约贷款人......70第4.03节收益处置....................................................................................72第五条费用增加；预付款费用的偿还；税费第5.01节增加费用.................................................................................................72第5.02节预付款费用的报销...............................................................74第5.03节税收.................................................................................................................75第5.04节缓解义务；指定不同的贷款办事处.79第5.05节更换贷款人...................................................................................79第5.06节非法............................................................................................................80第5.07条贷款人透过分行及联营公司取得资金的权利......................80第5.08节替代利率..................................................................................80
II第5.09节利率；基准通知..........................................................83条第六条条件第6.01节生效日期...................................................................................................84第6.02节每个信用事件.............................................................................................88第七条陈述和保证第7.01节组织；授权........................................................................................89第7.02节授权；可执行性..................................................................................89第7.03节批准；无冲突...................................................................................第7.04节财务状况；无重大不利变化..89第7.05节诉讼...........................................................................................................90第7.06节环境Matters......................................................................................90第7.07节遵守法律和协议；无违约行为.....................91第7.08节投资公司法.................................................................................92第7.09节税收.................................................................................................................92第7.10节ERISA...............................................................................................................92第7.11节披露；没有重大错误陈述............................................................93第7.12节保险...........................................................................................................93第7.13节对留置权的限制..........................................................................................93第7.14节附属公司.......................................................................................................93第7.15节企业和办公室的位置.....................................................................94第7.16节财产、头衔等.......................................................................................94第7.17节物业保养................................................................................94第7.18节生产...................................................................................的营销95第7.19节互换协议.............................................................................................第7.20节贷款和信用证的使用...................................................................95第7.21节偿付能力............................................................................................................95第7.22节反腐败法和Sanctions................................................................96第7.23节受影响的金融机构..........................................................................96第7.24节安全工具.........................................................................................96第7.25节计划资产；禁止的交易................................................................96第八条平权公约第8.01节财务报表；其他资料..........................................................97第8.02节材料通知Events................................................................................99第8.03节存在；业务行为......................................................................100第8.04节Obligations...................................................................................的付款第8.05节Documents......................................贷款项下债务的履行100第8.06节Properties.......................................................的操作和维护第8.07节保险.........................................................................................................第8.08节图书和记录；检查权...........................................................第8.09节遵守法律...................................................................................102第8.10节环境Matters....................................................................................一百零二
III第8.11节进一步的Assurances..........................................................................................第8.12节储备报告..............................................................................................第8.13节标题信息.............................................................................................第8.14节额外抵押品；额外担保人.................................................第8.15节ERISA合规性.........................................................................................第8.16节营销活动.......................................................................................第8.17节非限制性附属公司................................................................................第8.18节帐户控制协议.........................................................................第108条第九条消极公约第9.01条金融公约........................................................................................第9.02节债务.................................................................................................................第9.03条留置权................................................................................................................111第9.04节限制支付........................................................................................第9.05节投资、贷款和垫款..................................................................第9.06节业务性质..........................................................................................第9.07节贷款收益...........................................................................................114第9.08条合并等...................................................................................................第9.09节出售或贴现应收款.....................................................................第9.10节出售物业............................................................................................第9.11节与关联公司............................................................................的交易第9.12节附属公司.....................................................................................................117第9.13节负质押协议；股息限制.....117第9.14节互换协议...........................................................................................117第9.15条允许额外的债务限制..........................................................第9.16节对组织文件...................................................的修订第9.17节财政期变动...............................................................................第119条违约事件；补救措施第10.01条违约事件............................................................................................第119条第10.02条补救措施.........................................................................................................第121条xi代理第11.01条授权和行动................................................................................123第11.02条行政代理人的信赖、赔偿等.126第11.03节发布通信............................................................................127第11.04节管理代理单独..........................................................128第11.05节后续管理代理.....................................................................128第11.06条贷款人及开证行的认可......第11.07节抵押品Matters............................................................................................130第11.08节信用投标.................................................................................................第131节第11.09条ERISA的某些事项...................................................................................133第11.10节错误的Payments........................................................................................一百三十五
第四条第十二条杂项第12.01节通知............................................................................................................第136条第12.02条的豁免；修订....................................................................................第136节12.03费用，赔偿；损害豁免...........................................................13812.04节继承人和Assigns...................................................................................141第12.05条生存；复活；恢复...................................................................第144条12.06对应方；集成；有效性.........................................................145第12.07节可分割性.....................................................................................................145节12.08 Setoff.................................................................................................的权利145第12.09条管限法律；司法管辖权；同意送达法律程序文件；放弃由陪审团................................................进行审讯145第12.10节标题.........................................................................................................147第12.11节保密................................................................................................147第12.12节利率限制..................................................................................147第12.13条免责条文....................................................................148第12.14条抵押品事宜；掉期协议；现金管理......150第12.15节无第三方受益人..........................................................................150第12.16条美国爱国者法案公告..................................................................................第151节12.17 Keepwell.........................................................................................................第151节第12.18节承认并同意受影响金融机构的自救第151节第12.19节洪水保险...............................................................................................152第12.20节债权人间协议。...............................................................................152第12.21节关于任何受支持的QFC的确认.....................................第153节12.22现有信贷协议.............................................................................附表1.1适用保证金附表1.2分配附表1.3合规信息附表1.4附表1.5附表7.04(C)现有指定信用证其他有担保互换协议重要债务及负债附表7.05诉讼附表7.06环境事宜附表7.14子公司附表7.18营销协议附表7.19互换协议附表9.05投资附表9.11关联交易附表12.01通知A表格循环信贷票据表格B循环信贷借款申请表格C
V附件D证券文书附件E转让和假设表格F签发信用证通知表格附件G-1表格美国税务合规证书(外国贷款人；非合伙企业)证物G-2表格美国税务合规证书(外国参与者；非合伙企业)证物G-3表格美国税务合规证书(外国参与者；合伙企业)证物G-4表格美国税务合规证书(外国贷款人；合伙企业)
1修订和重述信贷协议这份修订和重述的信贷协议日期为2021年11月1日，属于特拉华州的Civitas Resources，Inc.(前身为Bonanza Creek Energy，Inc.)借款人(以下简称“借款人”)、每一贷款人作为贷款人的行政代理(以该身份，连同其在该身份的继任者，称为“行政代理人”)，以及每一其他各方不时作为本协议的当事人。摘要A.借款人、行政代理、贷款人和开证行是截至2018年12月7日的该特定信贷协议(在此日期之前修订、重述、补充或以其他方式修改的“现有信贷协议”)的当事各方，根据该协议，贷款人在符合其中规定的条款和条件的情况下，向借款人及其代表提供某些信贷。B.借款人已通知行政代理和贷款人，它已于2021年5月9日签订了该协议和合并计划(已签署，不对随后的任何修订或修改生效，但本协议条款不禁止的范围除外，“采掘合并协议”除外)，借款人中的“母公司”、特拉华州的公司和借款人的全资国内子公司Raptor Eagle Merger Sub，Inc.(“Eagle Merge Sub”)，以及特拉华州的采掘石油和天然气公司(“采掘”)，作为“公司”。根据采掘合并协议，鹰合并子公司将与采掘合并，并并入采掘，而采掘作为借款人的全资境内附属公司(该交易在采掘合并协议中有进一步描述，称为“采掘合并”)。C.此外，借款人已通知行政代理和贷款人，它已于2021年6月6日签订了该协议和合并计划(已签署，除本协议条款不禁止的范围外，不影响对其进行的任何后续修订或修改)，作为借款人中的“母公司”、Raptor Condor Merge Sub 1，Inc.、特拉华州公司和借款人的全资国内子公司(“Condor Merge Sub 1”)，作为“Merge Sub 1”、Raptor Condor Merge Sub 2，LLC，一家特拉华州有限责任公司和借款人的全资国内子公司(“秃鹰合并子2”)，作为“合并子2”，Crestone Peak Resources LP，特拉华州有限合伙企业，作为“CPR”，CPPIB Crestone Peak Resources America Inc.，特拉华州一家公司(“Crestone”)，作为“公司”，Crestone Peak Resources Management LP，特拉华州有限合伙企业，作为“CPR Management LP”，并在某些有限的身份下，采掘。根据Crestone合并协议，(I)Condor Merge Sub 1将与Crestone合并并并入Crestone，Crestone为尚存法团，为借款人的全资国内附属公司(“尚存公司”，该等交易，一如Crestone合并协议中进一步描述，为“尚存公司合并”)及(Ii)尚存公司将与Condor Merge Sub 2合并并并入Condor Merge Sub 2，Condor Merge Sub 2为尚存实体，作为借款人的全资国内附属公司(该交易，如Crestone合并协议进一步描述为“Condor Merge”)
2子2合并“，并连同尚存的公司合并，统称为”Crestone合并“)。D.本协议双方希望以本协议的形式修订和重述现有信贷协议，以(I)反映抽取合并和Crestone合并，以及(Ii)在本协议规定的某些方面修订现有信贷协议的某些其他条款。E.考虑到本协议所载的相互契诺和协议以及下文提及的贷款、信贷延期和承诺，双方同意按照本协议规定的条款和条件对现有信贷协议进行整体修订和重述。第一条定义和会计事项第1.01节以上定义的术语。如本协议所用，上述定义的每个术语均具有上述含义。第1.02节某些定义的术语。本协议中使用的下列术语的含义如下：“5.00%优先票据”是指借款人于2026年10月15日到期的5.00%优先票据，原始本金总额为400,000,000美元，可根据第9.15节的允许范围不时进行修订、重述、补充或以其他方式修改。“7.50%优先票据”指借款人于2026年4月30日到期、本金总额为100,000,000美元的特定7.50%优先票据，可根据第9.15节的规定不时修订、重述、补充或以其他方式修改。“ABR”用于任何贷款或借款时，是指此类贷款或构成此类借款的贷款是否按参考备用基本利率确定的利率计息。“调整后每日简单SOFR”指就任何RFR借款而言，等于(A)每日简单SOFR加(B)0.10%的年利率；但如果如此确定的调整后每日简单SOFR将低于下限，则就本协议而言，该利率应被视为等于下限。“调整期限SOFR”是指，对于任何利息期间的任何期限基准借款或基于调整期限SOFR的任何ABR借款，年利率等于(A)该利息期间的期限SOFR加上(B)0.10%；但如果如此确定的调整期限SOFR将低于下限，则就本协议而言，该利率应被视为等于下限。
3“行政调查问卷”是指行政代理人提供的形式的行政调查问卷。“受影响的金融机构”指(A)任何欧洲经济区金融机构或(B)任何英国金融机构。“附属公司”是指，就特定个人而言，直接或间接通过一个或多个中间人控制或受其控制或与其共同控制的另一人。“代理人”统称为行政代理人和文件代理人；根据上下文需要，“代理人”指行政代理人或文件代理人中的任何一个。在任何时候，“合计最高贷方金额”应等于最高贷方金额的总和，因为最高贷方金额可根据第2.05节减少或终止。截至第四修正案生效日期，循环信贷贷款人的最高信贷总额为4,000,000,000美元。“协议”是指本信贷协议，该协议可能会不时被修改、修改、补充或重述。“备用基本利率”是指任何一天的年利率，等于(A)该日生效的最优惠利率、(B)该日生效的NYFRB利率加1%的1/2和(C)公布的一个月利息期间的调整后期限SOFR中最大的一个(或如果该日不是营业日，则为紧接的前一个营业日)加1%(1%)；但就本定义而言，任何一天的经调整术语SOFR应以凌晨5点左右的术语SOFR参考汇率为基础。(芝加哥时间)在该日(或CME术语SOFR管理人在术语SOFR参考利率方法中指定的术语SOFR参考利率的任何修订发布时间)。因最优惠利率、NYFRB利率或经调整期限SOFR的变化而导致的替代基本利率的任何变化，应分别自基本利率、NYFRB利率或经调整期限SOFR的该等变化的生效日期起生效。如果根据第5.08节将备用基本利率用作备用利率(为免生疑问，仅在根据第5.08(B)节确定基准替代利率之前)，则备用基本利率应为上文(A)款和(B)款中的较大者，并且应在不参考上文(C)款的情况下确定。为免生疑问，如果根据上述规定确定的备用基本利率将低于1.5%(1.50%)，则就本协议而言，该利率应被视为1.5%(1.50%)。“年化EBITDAX”是指截至2021年12月31日、2022年3月31日和2022年6月30日的每个滚动期，(A)该滚动期的EBITDAX乘以(B)下表所列的该滚动期的系数：滚动期结束系数2021年12月31日4
4滚动期截止因素2022年3月31日2 2022年6月30日4/3“反腐败法”是指任何司法管辖区不时适用于借款人或其任何子公司的与贿赂、腐败或洗钱有关的所有法律、规则和条例。“适用保证金”就任何ABR循环信贷贷款、定期基准循环信贷贷款或(如当时可用)RFR贷款(视属何情况而定)而言，指(I)在借款基期内任何一天，(I)第(I)款下附表1.1所载承诺使用率网格所载的年利率，并根据当时有效的承诺使用率百分比及(Ii)投资级期间内任何一天，第(Ii)条下附表1.1所载指数债务评级网格内所载的年利率及当时有效的适用评级水平。“适用评级水平”指在任何投资级别期间内的任何一天，穆迪或S分别在该日适用于该指数债务的较高评级。就前述而言，如穆迪或S就指数债所确立的评级须予更改(但因穆迪或S的评级制度更改而更改的情况除外)，则该更改自穆迪或S(视何者适用而定)首次公布之日起生效，而不论借款人何时已将该更改通知行政代理及贷款人。适用评级水平的每一变化应适用于自该变化生效之日起至下一次该变化生效日期前一日止的期间。如果穆迪或S的评级体系发生变化，或如果穆迪或S停止为公司债务评级业务，借款人和贷款人应真诚协商修改这些条款，以反映该变化的评级体系或无法从该评级机构获得评级，在任何该等修订生效之前，适用的评级水平应参考在该变化或停止之前最近生效的评级来确定。“适用循环信贷百分比”是指，就任何循环信贷贷款人而言，该循环信贷贷款人的最高信贷金额占总最高信贷金额的百分比(可计算至小数点后七位)载于附表1.2，但如承诺已终止或到期，则应根据最近生效的承诺厘定各循环信贷贷款人的适用循环信贷百分比。“认可对手方”指(A)任何有担保互换方，(B)任何其他人士(如该人士或其信贷支持提供者拥有S或穆迪(或其同等评级)或更高的长期高级无担保债务评级或公司评级A-/A3)及(C)有担保非贷款人互换方，仅就有担保非贷款人互换方附表1.5所列的现有有担保互换协议而言。“核准基金”是指从事发放、购买、持有或投资循环银行贷款和类似信贷延伸的任何人(自然人除外)。
5在其正常业务过程中，并由贷款人、贷款人的关联公司或经营或管理贷款人的实体或实体的关联公司管理或管理。“认可石油工程师”是指Cawley，Gillesbie&Associates，Inc.，DeGolyer and MacNaughton Corp.，荷兰Sewell&Associates，Inc.，Ryder Scott Company Petroleum Consulters，L.P.，以及行政代理和所需贷款人合理接受的任何其他独立石油工程师。“安排人”统称为摩根大通银行、富国证券、花旗银行、KeyBanc Capital Markets Inc.、美国银行、第五第三银行、全国银行协会、美国银行全国协会、Truist证券公司、加拿大皇家银行银行、PNC银行、全国银行协会、高盛银行美国公司、巴克莱银行、Capital One、全国银行协会和道明证券(美国)有限责任公司，每种情况下均以其在本协议下的联合牵头安排人和联合簿记管理人的身份。“ASC 805”系指财务会计准则委员会发布的会计准则编撰第805号(企业合并)。“ASC 815”系指财务会计准则委员会发布的会计准则汇编第815号(衍生工具和套期保值)。“转让和承担”是指贷款人和受让人(经第12.04(B)节要求其同意的任何一方同意)订立的转让和承担，并由行政代理以附件E或行政代理批准的任何其他形式接受。“可用期”是指自生效日期起至终止日期(但不包括终止日期)的期间。在借款基期内的任何时候的“可用借款基数”是指当时的借款基数减去当时未偿还的允许定期贷款债务的本金余额。“可用期限”指，在任何确定日期，就当时的基准(如适用)而言，该基准(或其组成部分)的任何期限或参照该基准(或其组成部分)计算的利息付款期(如适用)，用于或可用于确定任何期限利率或其他利率的利息期长度，用于确定支付根据本协议计算的截至该日期的利息的任何频率，但为免生疑问，不包括：根据第5.08(E)节从“利息期”的定义中删除的该基准的任何基准期。“自救行动”是指适用的决议机构对受影响的金融机构的任何负债行使任何减记和转换权力。“自救立法”是指(A)就执行欧洲议会和欧洲联盟理事会第2014/59/EU号指令第55条的任何欧洲经济区成员国而言，从
6欧盟自救立法附表及(B)就联合王国而言，指《2009年联合王国银行法》(经不时修订)第I部及适用于联合王国的任何其他法律、规例或规则，涉及清盘不健全或倒闭的银行、投资公司或其他金融机构或其联营公司(透过清盘、行政管理或其他破产程序除外)。“银行价格表”是指行政代理不时向借款人提供的每种石油、天然气和其他碳氢化合物的远期曲线基础上的最新内部价格表。“破产法”是指现在和今后生效的题为“破产”的美国法典第11章，或任何后续法规。“基准”最初指的是SOFR；但如果就SOFR或当时的基准发生了基准转换事件和相关的基准替换日期，则“基准”是指适用的基准替换，前提是该基准替换已根据第5.08(B)节的规定替换了先前的基准利率。“基准替换”是指，对于任何可用的基准期，可由行政代理为适用的基准替换日期确定的下列顺序中所列的第一个替换：(A)经调整的每日简易SOFR；或(B)(I)行政代理及借款人选定的替代基准利率，以取代当时适用的相应期限的基准利率，并已充分考虑(A)任何替代基准利率的选择或建议，或有关政府机构厘定该利率的机制，或(B)任何演变中或当时盛行的市场惯例，以厘定基准利率以取代当时以美元计价的银团信贷安排的现行基准利率，以及(Ii)相关的基准取代调整。如果根据上文(B)款确定的基准替换将低于下限，则就本协议和其他贷款文件而言，基准替换将被视为下限。“基准替代调整”是指，就任何适用的利息期间和该未调整基准替代的任何设定的可用基准期替代当时的基准、利差调整或计算或确定该利差调整(可以是正值、负值或零)的方法而言，由行政代理和借款人为适用的相应基期选择的，并适当考虑(A)利差调整的任何选择或建议，或用于计算或确定该利差调整的方法，有关政府机构在适用的基准替换日期以适用的未经调整的基准替换此类基准和/或(B)确定利差调整的任何演变或当时的市场惯例；
7或计算或厘定该等利差调整的方法，以取代该基准，以取代当时适用的美元银团信贷安排的未经调整基准。对于任何基准置换和/或任何术语基准贷款，“符合变更的基准置换”是指任何技术、行政或操作变更(包括对“备用基本利率”的定义、“营业日”的定义、“美国政府证券营业日”的定义、“利息期”的定义、确定利率和支付利息的时间和频率、借款请求或提前还款的时间、转换或继续通知、回顾期限的长度、中断条款的适用性，以及其他技术方面的变更，行政或操作事项)，行政代理在其合理的酌情权下决定可能是适当的，以反映该基准的采用和实施，并允许行政代理以与市场惯例基本一致的方式管理该基准(或者，如果行政代理决定采用该市场惯例的任何部分在行政上不可行，或者如果行政代理确定不存在用于管理该基准的市场惯例，则按照行政代理决定的与本协议和其他贷款文件的管理相关的合理必要的其他管理方式)。“基准更换日期”就任何当时的基准而言，是指下列事件中较早发生的一种：(A)在“基准过渡事件”的定义(A)或(B)款的情况下，(1)其中提及的公开声明或信息的公布日期，以及(2)该基准的管理人永久或无限期停止提供该基准的所有可用基准期(或其组成部分)的日期；或(B)在“基准过渡事件”定义第(C)款的情况下，该基准(或用于计算该基准的已公布组成部分)已由监管机构确定并宣布该基准(或其组成部分)的管理人不再具有代表性的第一个日期；但这种不具代表性将参照该(C)款中提及的最新声明或出版物来确定，即使在该日期继续提供该基准(或其组成部分)的任何可用基准期。为免生疑问，(X)如果导致基准更换日期的事件发生在与任何确定的基准时间相同但早于基准时间的同一天，则基准更换日期将被视为发生在该确定的基准时间之前，以及(Y)在(A)或(B)款的情况下，对于任何基准，当(A)或(B)款所述的适用事件发生时，该基准将被视为已经发生，该事件涉及该基准的所有当时可用的承诺人(或在计算该基准时使用的已公布的组成部分)。
28根据第8.01(A)节的规定，截至2021年12月31日的会计季度的EBITDAX应视为13亿美元。“贷款”统称为循环信用贷款。“多数贷款人”是指在任何时候(A)只要信贷总额的最高限额尚未终止，非违约贷款人持有超过50%(50%)的总承诺额，以及(B)如果信贷总额已经终止(无论是通过到期、加速或其他方式)，非违约贷款人持有循环信贷贷款项下当时未偿还本金总额的50%以上；但为了确定本协议项下的多数贷款人，偿还义务应根据循环信贷贷款人各自适用的循环信贷百分比进行分配；“重大不利影响”是指贷方整体的业务、经营、财产或财务状况发生重大不利变化或产生重大不利影响，任何贷方根据任何贷款文件履行其任何付款义务的能力，任何贷款文件的有效性或可执行性，或行政代理、任何其他代理、开证行或任何贷款机构根据任何贷款文件可获得的权利和补救或利益的重大不利影响。对于借款方或任何其他贷款方作为一方的所有天然气平衡协议，或借款方或另一贷款方拥有的任何石油和天然气财产受其约束的所有天然气平衡协议，“材料天然气失衡”是指借款方和其他贷款方作为一个整体产生的超过110,000立方英尺的净过剩天然气不平衡。“重大债务”是指任何一个或多个贷方的债务(贷款和信用证除外)，或与一项或多项互换协议有关的债务，本金总额超过(A)50,000,000美元和(B)(X)在借款基期内、当时有效借款基数的5%(5%)或(Y)在借款基期内的较大者。
29投资级期间，指截至可提供财务报表的最近滚动期的最后一天的综合有形资产净额的千分之一(1.6%)。为了确定重大债务，任何贷款方在任何时候就任何掉期协议承担的债务的“本金”应为掉期终止价值。对于每个循环信贷贷款人而言，“最高信贷额度”是指在附表1.2“最高信贷额度”标题下与该循环信贷贷款人名称相对的金额，可根据第2.05(B)节的规定减少或终止信贷总额，或根据第12.04(B)节允许的任何转让而不时修改。“穆迪”是指穆迪投资者服务公司及其任何继任者，即国家认可的评级机构。“抵押财产”是指贷方拥有的任何不动产或不动产，受担保文书条款下现有和将存在的留置权的约束。“多雇主计划”是指ERISA第4001(A)(3)节所界定的多雇主计划。“现金净收益”是指任何贷方从任何转让、发行股权或发行债务(视情况而定)中收到的现金总额，扣除与此类出售或发行有关的普通和惯例直接成本(视情况而定)，如法律、会计和投资银行费用、销售佣金和其他第三方费用，并扣除贷方就任何出售或发行支付或应付的物业税、转让税和任何其他税项。“新借款基数通知”具有第2.06(D)节中赋予该术语的含义。“新的负有义务的当事人”具有第四修正案中赋予该术语的含义。“非违约贷款人”是指在任何时候并非违约贷款人的每个贷款人。“票据”统称为循环信用证。“纽约联邦储备银行”指纽约联邦储备银行。“NYFRB利率”指，就任何一天而言，指(A)在该日生效的联邦基金有效利率和(B)在该日(或在美国政府证券营业日之前的任何非美国政府证券营业日的任何一天)有效的隔夜银行资金利率中的较大者；如果没有公布任何营业日的此类利率，则术语“NYFRB利率”是指在上午11：00报价的联邦基金交易利率。在行政代理收到由其选定的具有公认地位的联邦基金经纪人的当天；此外，如果上述任何一项利率小于零，则就本协议而言，该利率应被视为零。
30“NYFRB的网站”是指NYFRB的网站，网址为http://www.newyorkfed.org，或任何后续来源。“债务”是指贷方欠下或将要欠下的任何和所有金额(无论是直接或间接的(包括通过假设获得的)、绝对的或有的、到期的或即将到期的、目前存在的或今后产生的)：根据任何贷款文件对行政代理、开证行、任何贷款人或任何贷款人的任何关联公司；对任何担保互换协议项下的任何担保互换当事人；根据附表1.5所述的任何现有有担保互换协议向有担保非贷款人互换一方支付，但不包括在生效日期(I)与有担保非贷款人互换当事人订立的任何额外交易或确认，但与附表1.5所列现有有担保互换协议或(Ii)在生效日期之后订立的任何其他交易、交易或确认除外；根据任何有担保现金管理协议向任何现金管理银行支付利息和费用，包括根据任何联邦、州、外国破产、接管或类似法律在任何联邦、州、外国破产、接管或类似法律下根据任何联邦、州、外国破产、破产、接管或类似法律在该程序中指定该人为债务人的利息和费用；以及上述任何条款的所有续展、延期和/或重新安排；但“义务”应不包括任何除外的互换义务。“石油和天然气属性”是指所有碳氢化合物权益，现在或以后与碳氢化合物权益合并或合并的所有财产，以及可能影响全部或任何部分碳氢化合物权益的所有现有或未来的单位、集合单位和由此创建的单位(包括但不限于根据任何政府当局的命令、法规和规则创建的所有单位)。除非本合同另有说明，否则所提及的术语“石油和天然气资产”应指信用方的石油和天然气资产。“其他关联税”是指，就(A)行政代理、(B)任何贷款人和(C)任何开证行(视情况而定)而言，由于此人与征收该税的司法管辖区之间目前或以前的联系而征收的税款(不包括因此人签立、交付、成为当事人、履行其义务、根据任何贷款文件接受付款、接受或完善担保权益、根据或强制执行任何其他交易、或出售或转让任何贷款或贷款文件的权益而产生的联系)。“其他税”是指任何和所有现在或将来的印花税或单据税，或任何其他消费税或财产税、收费或类似的征税，这些税是因根据本协议支付的任何款项，或因本协议和任何其他贷款文件的签署、交付或执行，或与本协议和任何其他贷款文件有关的其他方面而产生的，但对转让征收的任何此类税收除外(根据第5.05节进行的转让除外)。“隔夜银行融资利率”是指在任何一天，由存款机构在美国管理的银行办事处以美元计价的隔夜联邦基金和隔夜欧洲美元交易的利率(综合利率由NYFRB不时在NYFRB网站上公布)，并在下一个营业日由NYFRB公布为隔夜银行融资利率。
31“同等担保债权人间协议”是指，就任何允许的定期贷款债务而言，一项债权人间协议，其形式和实质令行政代理和借款人合理满意，其中所包含的条款和条件符合债权人间协议惯常使用的条款和条件的范围，而债权人间协议的类型支配优先担保信贷安排的持有人和与允许的准定期贷款债务相同类型债务的持有人之间的债权人间关系，由行政代理和借款人合理确定。“参与者”具有第12.04(B)(Vi)节规定的含义。“参与者名册”具有第12.04(B)节()中赋予该术语的含义。“付款”具有第11.10(A)节规定的含义。“付款通知”具有第11.10(B)节规定的含义。“PBGC”是指养老金福利担保公司。“准许额外债务”指与7.50%优先债券、5.00%优先债券有关的债务，以及根据第9.02(F)节发行或产生的任何其他债务，包括第9.02(D)节允许的此类债务的担保。“允许留置权”是指根据第9.03节允许的任何留置权。“允许定期贷款债务”是指以高级担保定期贷款或其他债务证券(无论是登记的还是私募的)形式的担保债务(债务除外)，只要(A)在形式上使这种债务的产生(及其收益的使用)生效后，担保杠杆率不应超过2.00至1.00，(B)在这种债务产生时和紧接发生之后，没有违约或违约事件发生，并且没有违约或违约事件正在发生或将由此产生，(C)在产生这类债务时及紧接该债务产生后，可供借用的未用承诺额不少于当时有效的承诺额总额的20%；。(D)这类债务的规定到期日不早于发行该等准许定期贷款债务时所述的循环信贷到期日后一百八十(180)天；。前提是此类债务可能具有惯常的弹性到期机制；(E)此类债务在发行时有效的循环信贷到期日后一百八十(180)天之前没有任何预定的预付款、摊销或赎回条款(以下情况除外)：(I)控制权的惯常变更或资产出售要约条款；(Ii)与特定收购和第五修正案收购相关的特别强制性赎回条款未能在指定日期之前完成，和(Iii)按计划摊销，每年不超过此类债务原始本金金额的5%(5%)；(F)此类债务不包含任何比本协议规定的任何金融契诺更具限制性的金融契诺(习惯抵押品覆盖率除外)；(G)鉴于当时的市场条件，借款人合理确定的每种情况下，此类债务的条款对借款人及其受限制附属公司的有利程度不会比类似规模和信用质量借款人的类似优先担保定期贷款的市场条款低很多；(H)
32该等债务以全部或部分抵押品上的留置权作担保，而抵押品上的留置权则作为该等债务的抵押品的留置权(不言而喻，在厘定该等留置权是否以同等权益为基础时，须不考虑对补救办法的控制)，并且不以借款人或任何附属公司的资产作为抵押品以外的任何抵押(亦不是以按照本协议提供的任何现金抵押品作为抵押)，(I)该等债务并非由借款人的任何附属公司担保，但贷方或任何就该债务的产生而成为信贷方的人除外。(J)代表该债务持有人行事的行政代理人、抵押品代理人、受托人及/或任何相类的代表应已成为一项对等债权人间协议的当事一方，该协议规定，担保该债务的抵押品上的留置权应优先于担保该等债务的抵押品上的留置权(有一项理解，即在决定该等留置权是否具有同等优先权时，须不考虑对补救办法的控制)，(K)如该等债务是在完成任何一项指明收购的日期之前发生的，而根据该等债务的条款，该等债务所得款项拟用作支付一项或两项指明收购的部分代价，而该两项指明收购均未于指定日期完成，则借款人或受限制附属公司必须负有不可撤销的偿债责任。双方理解并同意，即使本协议有任何相反规定，允许的定期贷款债务只能根据第9.02(J)节和/或第9.02(G)节的规定产生，且仍未偿还。“允许再融资”是指任何信用方的任何债务，以及任何信用方为交换或其净现金收益用于延长、再融资、续期、替换、作废或退款而不时产生或发行的、本协议允许的现有债务的全部或部分债务；但条件是(A)该项许可再融资的本金额(或如该项许可再融资是以折扣价发行的，则该项许可再融资的初始发行价)不超过再融资债务的本金额(加上任何保费、应计和未付利息以及与此相关的费用和开支的数额)，(B)此类许可再融资不规定任何预定偿还，强制性赎回或在发行这类新债务时有效的循环信贷到期日后一百八十(180)天之前强制赎回或支付偿债基金债务(因出售资产或在适用协议下发生“控制权变更”而要求赎回这类债务的任何要约除外)，(C)如果再融资的债务是无担保的，则允许的再融资是无担保的，(D)如果再融资的债务是有担保的，(E)借款人的任何附属公司无须担保该项获准再融资，除非该附属公司是(或与任何该等担保同时成为)担保人，及(F)在该项准许再融资是或拟明确从属于清偿所有债务的范围内，其中所载的居次规定或者(X)至少与再融资债务中所载的居次规定一样有利于担保当事人，或者(Y)行政代理人和多数贷款人合理地满意；但如发生或发行任何债务，而该等已产生或已发行的债务中只有一部分符合上述条件，则即使该等已产生或已发行的债务的其他部分并不构成许可再融资，其符合上述条件的部分亦须当作构成许可再融资。
33“人”是指任何自然人、公司、有限责任公司、信托、合资企业、协会、公司、合伙企业、政府主管部门或其他实体。“计划”系指ERISA第3(2)节所界定的任何雇员退休金计划，该计划须受ERISA第四章或守则第412节或ERISA第302节所规限，而该计划目前或以后由借款人、附属公司或ERISA联属公司赞助、维持或出资，或借款人、附属公司或ERISA联营公司是(或如该计划终止，则根据ERISA第4069条将被视为)ERISA第3(5)节所界定的“雇主”，或在本条例生效日期前六个历年的任何时间，由借款人、子公司或ERISA附属公司维持或出资。“计划资产管理条例”系指美国联邦法规第29编2510.3-101节及以后的规定，经ERISA第3(42)节修改，并经不时修订。“最优惠利率”指JPMorgan Chase Bank，N.A.在其位于纽约Park Avenue 270号的办事处不时公布的最优惠年利率；最优惠利率的每一次变动均应自公开宣布该变动生效之日起生效(包括该日在内)。“财产”是指对任何种类的财产或资产的任何利益，无论是不动产、动产或混合财产，或有形或无形的财产或资产，包括但不限于现金、证券、账户和合同权利。“建议借款基数”具有第2.06(C)(I)节中赋予该术语的含义。“建议借款基数通知”具有第2.06(C)(Ii)节中赋予该术语的含义。“探明的已开发生产储量”或“PDP储量”是指“已探明的已开发的石油和天然气储量”，这一术语由SPE在其标准和指南中定义。“已探明储量”或“已探明储量”是指“已探明油气储量”和(A)“已探明已开发生产油气储量”、(B)“已探明已开发非生产油气储量”(包括已探明已开发的关井油气储量和已探明已开发的管道后油气储量)或(C)“已探明未开发油气储量”的储量，这些术语在SPE的标准和指南中有定义。“购货款负债”是指债务，其收益用于购买、建造或改善库存、设备或其他财产。“PV-9”是指，就最近提交的储量报告中评估的借款人及其受限制子公司的任何石油和天然气资产预计将生产的任何已探明储量，按9%的年利率贴现的未来净现值，即在该已探明储量的剩余预期经济寿命期间，借款人和其他贷款方在这些已探明储量的剩余预期经济寿命内预期应计的未来净收入的净现值，按照行政代理向借款人提供的最新银行价格甲板计算(并实施：(A)估计获得的未
34这种储量报告所反映的：(B)自这种储量报告之日起，由于勘探、开发或开采、生产或其他活动而对已探明储量的估计值进行了扩展、发现和其他增加以及向上修正的估计已探明储量，按照标准的行业惯例，这将导致这种修正(包括对已探明储量和未来净收入的影响，以及自该年终以来估计的开发成本和增加的折让)，(C)自该储备报告的日期以来生产或处置的估计已探明储量，但该等估计折现的未来净收入已包括在该储备报告或上述(A)或(B)项下的该等估计储量内，及。(D)自该储备报告的日期以来，因地质条件的改变或其他因素而向下修订已探明储量的估计已探明储量的估计已探明储量)；。但可归因于(B)款或(C)款定义中描述的已探明储量的合计PV-9在任何情况下都不得超过合计PV-9的35%(35%)。“PV-9承保比率”指于任何厘定日期(A)于厘定日期前呈交的最近一份储备报告所反映的PV-9与(B)借款人及综合受限制附属公司于厘定日期的综合净债务总额的比率。“合格财务合同”的含义与“美国法典”第12编第5390(C)(8)(D)条中“合格财务合同”一词的含义相同。“QFC信用支持”具有第12.21节中赋予该术语的含义。“合格的ECP担保人”是指，在任何时候总资产超过10,000,000美元的每个信用方，或在商品交易法下有资格成为“有资格的合同参与者”的每个信用方，并且可以导致另一个人在这个时候根据商品交易法的第1a(18)(A)(A)(V)(Ii)条有资格成为“有资格的合同参与者”。“合格中游资产”是指用于收集、分发、营销、处理、加工、运输或储存、处置或以其他方式处理碳氢化合物、水、沙、矿物、化学品或在经营石油天然气业务中通常产生、使用、回收、生产或加工的其他产品或物质的资产，包括压缩、泵送、处理和处置设施、集输管线和系统，以及其他通常被认为是中游资产或对开展中游业务有用的资产，为免生疑问，合格中游资产不包括借用基地中包括的任何石油和天然气资产。“赎回”指就任何债务而言，该等债务的回购、赎回、预付、偿还、失败或任何其他收购或报废，包括支付现金以代替与此相关的零碎股份。“赎回”对此有相关的含义。“重新确定日期”，就任何预定的重新确定或任何临时重新确定而言，是指与之相关的重新确定的借款基数根据第2.06(D)节生效的日期。
35关于当时基准的任何设置的“参考时间”是指(A)如果该基准是术语SOFR，则为上午5：00。(芝加哥时间)在设定日期的前两(2)个工作日，(B)如果该基准是Daily Simple Sofr，则为上午5：00。(C)如果该基准既不是术语SOFR也不是每日简单SOFR，则由行政代理以其合理的酌情决定权确定的时间。“登记册”具有第12.04(B)(Iv)节中赋予该术语的含义。“规则D”指可不时修订、补充或取代的董事会规则D。“偿付义务(S)”是指所有信用证项下所有未偿付提款的总金额(为免生疑问，不包括根据第2.07(F)(Iii)条规定的被视为已支付的偿付义务)。“关联方”，就任何特定的人而言，是指该人的关联公司，以及该人和该人的关联公司各自的董事、高级职员、雇员、代理人和顾问(包括律师、会计师和专家)。“释放”是指任何沉积、溢出、泄漏、泵送、浇注、排放、排空、排放、注入、泄漏、淋滤、倾倒或处置。“相关债务”具有第8.17(G)节中赋予该术语的含义。“相关政府机构”指董事会和/或NYFRB、CME术语SOFR管理人(视情况而定)或由董事会和/或NYFRB正式认可或召集的委员会，或在任何情况下，其任何继任者。“相关利率”指(A)就任何期限基准借款而言，调整后期限SOFR或(B)就任何RFR借款而言，调整后每日简单SOFR(视情况而定)。“补救工作”具有第8.10(A)节中赋予该术语的含义。“所需贷款人”是指在任何时候(A)只要总最高贷款额尚未终止，持有总承诺额超过66%和三分之二(66-2/3%)的非违约贷款人，以及(B)如果总最高贷款额已经终止(无论是以到期、加速或其他方式)，非违约贷款人持有当时循环信贷贷款项下未偿还本金总额的66%和23%(66-2/3%)以上；但为了确定本合同项下所要求的贷款人，偿还义务应根据循环信贷贷款人各自适用的循环信贷百分比在循环信贷贷款人之间分配；此外，此类计算应不考虑非违约贷款人根据第12.04(B)(Vi)条出售任何贷款参与权的情况。“备用报告”是指在第8.12节规定的日期(或第8.12节中的其他日期)提出的、形式和实质合理地令行政代理满意的报告
36中期重新确定的情况下)贷方石油和天然气资产的石油和天然气储量，以及根据与行政代理当时的贷款要求一致的定价假设，对截至该日期的石油和天然气储量及其未来净收入、税收、运营费用和资本支出的预测。“决议机构”指欧洲经济区决议机构，或就任何英国金融机构而言，指联合王国决议机构。“负责人”对任何人来说，是指该人的总裁、任何财务主管或任何副总裁。除另有说明外，凡提及责任高级人员，均指借款人的责任高级人员。“限制性支付”是指因购买、赎回、报废、收购、注销或终止任何信用方的任何股权或任何期权、认股权证或其他权利而支付的任何股息或其他分派(无论是现金、证券或其他财产)，或任何付款(无论是现金、证券或其他财产)，包括任何偿债基金或类似的存款。“受限子公司”是指借款人不是非受限子公司的任何国内子公司。“循环信用借款”是指借入循环信用贷款。“循环信用借款请求”是指借款人按照第2.03节的规定提出的借款请求，其形式为本合同附件b。“循环信贷风险”指，就任何循环信贷贷款人而言，(A)该循环信贷贷款人的循环信贷贷款的未偿还本金金额，以及(B)其适用的循环信贷在任何未偿还信用证债务中所占的百分比的总和。“循环信用贷款人”是指不时作为循环信用贷款出借人的金融机构。根据第12.22节的规定，“循环信用贷款”是指借款人根据本协议第2.01(A)节要求并由循环信用贷款人进行的借款，包括但不限于根据第2.07(F)(Iii)节对该借款进行的任何再垫付、退款或转换，以及根据第2.07(F)(Iii)节对信用证所作的任何贷款的视为支付，并可在符合本协议条款的情况下，包括定期基准贷款和ABR贷款。“循环信贷到期日”指(A)任何获准额外债务的预定到期日之前一百八十(180)天及(B)2028年8月2日(“所述循环信贷到期日”)中较早的日期。
“循环信用票据”是指第2.02(D)节所述的借款人的本票，基本上采用附件A的形式，及其所有的修改、修改、替换、延长和重新安排。“RFR借款”，就任何借款而言，是指构成此类借款的RFR贷款。“RFR贷款”是指以调整后的每日简单SOFR为基准计息的贷款。“滚动期”是指(A)截至2021年12月31日、2022年3月31日和2022年6月30日的财政季度，从2021年10月1日开始，至该适用财政季度的最后一天结束；(B)对于任何其他财政季度，指在该适用财政季度的最后一天结束的连续四(4)个财政季度的期间。“受制裁国家”是指在任何时候作为任何制裁对象或目标的国家、地区或领土(截至第四修正案生效日期，包括但不限于所谓的顿涅茨克人民共和国、所谓的卢甘斯克人民共和国、克里米亚、扎波里日日亚和乌克兰、古巴、伊朗、朝鲜和叙利亚的Kherson地区)。“受制裁人员”是指，在任何时候，(A)美国财政部、美国国务院外国资产管制办公室维护的与制裁有关的指定人员名单中所列的任何人，(B)在受制裁国家经营、组织或居住的任何人，或(C)由上述(A)或(B)款所述的任何一人或多人拥有或控制的任何人。“制裁”是指美国政府不时实施、管理或执行的所有经济或金融制裁或贸易禁运，包括由美国财政部外国资产控制办公室、美国国务院或其他相关制裁机构实施的制裁或贸易禁运。“预定重新确定”具有第2.06(B)节中赋予该术语的含义。“预定重新确定日期”是指第2.06(D)节规定的、已根据预定重新确定重新确定的借款基数生效的日期。“美国证券交易委员会”系指美国证券交易委员会或任何继任的政府机构。“第二修正案”是指在第二修正案生效之日，借款人、担保方、行政代理和贷款方之间对修订和重新签署的信贷协议的某些第二修正案。“第二修正案生效日期”指2022年4月20日。“担保现金管理协议”是指任何信用方和任何现金管理银行之间签订的任何现金管理协议。
38“担保杠杆率”是指在任何确定日期，(A)以任何抵押品的留置权担保的净债务总额与(B)最近结束的滚动期的EBITDAX(可获得财务报表)的比率。“有担保的非贷款人互换方”是指多伦多道明银行，作为附表1.5所列现有有担保互换协议项下贷方的交易对手，只要该交易对手不是贷款人或贷款人的关联公司。“担保方”系指行政代理、各开证行、任何贷款人、任何担保互换协议项下的任何担保互换方、任何现有担保互换协议项下的有担保非贷款人互换方、任何担保现金管理协议项下的任何现金管理银行以及任何其他债务持有人。“有担保互换协议”是指(A)现有的有担保互换协议，以及(B)任何贷款方与任何贷款人或贷款人的关联方(本条(B)项所述的前述人员，“有担保互换方”)之间的任何互换协议，该人在成为贷款人或贷款人的关联方之前或期间与该贷款方订立了此类互换协议，即使该人后来因任何原因不再是贷款人(或其关联方)；但为免生疑问，“有担保互换协议”一词不应包括(I)任何有担保互换协议或在该有担保互换当事人不再是贷款人或其联营公司后订立的任何互换协议下的交易，或(Ii)在生效日期(A)与有担保非贷款人互换当事人订立的任何互换协议下的任何互换协议或交易，但与附表1.5或(B)生效日期后所列现有有担保互换协议有关的任何通知、交易或确认书除外。“有担保的互换当事人”具有在有担保的互换协议定义中赋予该术语的含义。“证券账户”的含义与UCC中赋予此类术语的含义相同。“担保协议”是指贷方在生效日期签署的某些经修订和重新签署的担保协议，其形式和实质令行政代理人满意(行政代理人在此通过签署本协议确认其满意)。“担保工具”指抵押、信托契约、质押协议、担保协议，包括但不限于担保协议、控制协议和附件D中描述或提及的其他协议、文书和补充，以及贷方现在或以后签署和交付的任何和所有其他协议、文书和补充(贷款人与任何其他贷款人或债权人之间关于本协议项下任何义务的担保互换协议或参与或类似协议除外)，作为支付或履行债务、票据、本协议或偿还义务的担保，此类协议可不时修订、修改、补充或重述。
39“第六修正案”是指借款人、担保方、行政代理和贷款方之间在第六修正案生效之日对修订和重新签署的信贷协议所作的某些第六修正案。“第六修正案生效日期”指2024年6月12日。“S”是指标准普尔评级集团，麦格劳-希尔公司的一个部门，及其任何继任者，是一家国家公认的评级机构。“SOFR”是指相当于SOFR管理人在SOFR管理人网站上公布的有担保隔夜融资利率的年利率。“SOFR管理人”是指NYFRB(或有担保隔夜融资利率的继任管理人)。“SOFR管理人网站”是指纽约林业局的网站，目前位于http://www.newyorkfed.org，或SOFR管理人不时确定的担保隔夜融资利率的任何后续来源。“SOFR日”具有在“每日简单SOFR”的定义中赋予此类术语的含义。“SPE”指石油工程师协会。“特定收购”具有“第三修正案”中赋予这一术语的含义。“指定信用方”指不是商品交易法(在第12.17条生效之前确定)下的“合格合同参与者”的任何信用方。
40“指定合并前EBITDAX金额”是指(A)截至2024年6月30日的滚动期，为550,000,000美元；(B)截至2024年9月30日的滚动期，为200,000,000美元。“所述循环信贷到期日”具有“循环信贷到期日”定义中赋予该术语的含义。“子公司”指在任何日期的任何人(“母公司”)，如果在该日期的合并财务报表是按照公认会计原则编制的，其帐目将与母公司的合并财务报表中的母公司的帐目合并的任何其他人，以及拥有超过50%(50%)的股权或超过50%(50%)的普通投票权的任何其他人(不论该人的任何其他类别的股权在当时是否因任何或有事项的发生而具有或可能具有投票权)，或如属合伙，则任何普通合伙的权益在该日期是拥有、控制或持有的，或在该日期是以其他方式控制的，母公司或母公司的一个或多个子公司，或母公司和母公司的一个或多个子公司。“子公司”是指借款人的任何子公司。“受支持的QFC”具有第12.21节中赋予该术语的含义。“掉期协议”是指与任何掉期、远期、期货或衍生品交易或期权或类似协议有关的任何协议，不论是交易所交易、“场外交易”或其他交易，涉及或参照一种或多种利率、货币、商品、股权或债务工具或证券，或经济、金融或定价指数或经济、金融或定价风险或价值的衡量，或任何类似交易或这些交易的任何组合；但任何只因任何贷款方的现任或前任董事、高级职员、雇员或顾问所提供的服务而支付款项的虚拟股票或类似计划，均不属于互换协议。“互换义务”是指就任何信用方而言，构成商品交易法第1a(47)节所指的“互换”的任何协议、合同或交易项下的任何付款或履行义务。就任何一项或多项掉期协议而言，“掉期终止价值”就任何一项或多项掉期协议而言，在计入与该等掉期协议有关的任何可依法强制执行的净额结算协议的效力后，指在该等掉期协议完成当日或之后的任何日期，以及据此厘定的终止价值(S)，即上述掉期协议的终止价值(S)及上述日期之前的任何日期，由该等掉期协议的对手方(任何信贷方除外)厘定为该等掉期协议的市值(S)的金额(S)。“合成租赁”是指就任何人而言，在负有支付租金责任的人的财务报表上(无论是或有或有或以其他方式)本应或本应被视为经营性租赁的所有租赁，并且就美国联邦所得税而言，该等租赁被适当地视为借款的债务，但承租人有义务以超过的金额购买。
41提前终止，或在提前终止时支付超过该经营租赁到期或提前终止时受该经营租赁约束的财产剩余价值的80%(80%)。“税”是指任何政府当局目前或将来征收的任何或所有税收、征费、征收、关税、扣除、收费或扣缴。“期限基准”用于任何贷款或借款时，指的是此类贷款或构成此类借款的贷款是否按调整后期限SOFR确定的利率计息。“SOFR期限”指，就任何期限基准借款及与适用利息期间相若的任何期限而言，于凌晨5时左右的SOFR期限参考利率。(芝加哥时间)，在该期限开始前两(2)个美国政府证券营业日，该利率由CME Term Sofr署长公布，与适用的利息期相当。“术语SOFR确定日”具有在“术语SOFR参考汇率”的定义中赋予该术语的含义。“期限SOFR参考利率”是指，在任何日期和时间(该日为“期限SOFR确定日”)，对于以美元计价的任何期限基准借款，以及对于与适用利息期限相当的任何期限，由行政代理确定为基于SOFR的前瞻性期限利率的年利率。如果在下午5：00之前(纽约时间)在该条款SOFR确定日，CME条款SOFR管理人尚未公布适用期限的“SOFR参考利率”，并且尚未出现关于SOFR条款的基准替换日期，则该条款SOFR确定日的SOFR参考利率将是CME条款SOFR管理人就其公布的第一个美国政府证券营业日公布的SOFR参考利率，只要该首个美国政府证券营业日不超过该条款SOFR确定日之前五(5)个工作日。“终止日期”是指循环信贷到期日和承诺终止日期中较早的一个。“第三修正案”是指在第三修正案生效之日，借款人、担保方、行政代理和贷款方之间对修订和重新签署的信贷协议的某些第三修正案。“第三修正案生效日期”指2023年6月23日。“总资产”是指在任何时候，按照公认会计原则，在贷方的合并资产负债表上与“总资产”(或任何类似的标题)相对列出的金额。“总债务”是指在任何时候，就任何人而言，(A)该人的债务总额，不包括根据ASC 815产生的或有债务，也不包括
42定义第(C)、(I)和(J)款所述类型的债务加上(B)当时未计入“流动负债”计算的任何生产税负债的当期部分；但此种定义第(B)款所指的信用证所涉债务仅应视为“总债务”，前提是此类信用证已提取或已获得资金。为免生疑问，借款人的总债务为贷款方的综合总债务，根据公认会计原则确定。“总净债务”是指截至任何日期，(A)借款人和其他贷方的合并总债务和(B)以行政代理为受益人的、受完善的、优先留置权约束的任何不受限制的现金和现金等价物的差额；但如在确定日期仍有任何贷款或信用证未清偿，则本条(B)项中的数额不得超过(A)借款基期内的1.7亿美元和(B)(X)期间借款基数的5%(5%)，或(Y)投资级期间内可获得财务报表的最近滚动期最后一天的综合有形资产净额的千分之零点六(1.6%)；此外，本文第一个但书中规定的上限不适用于代表任何(I)指定收购的额外债务或(Ii)第五修正案收购的额外债务的任何无限制现金和现金等价物，并且在每种情况下，该等现金和现金等价物均受以行政代理为受益人的完善的优先留置权的约束。“交易”指，就每一适用的信用方而言，(A)本协议的签署、交付和履行、其所属的其他贷款文件、借款和签发本协议项下的信用证，(B)由该信用方担保担保协议项下的义务和其他义务，以及该信用方授予担保工具项下的担保权益和提供抵押品，(C)根据担保工具授予抵押财产的留置权，以及(D)完成提取合并和Crestone合并。“转让”的含义与第9.10节中赋予该术语的含义相同。“类型”用于任何贷款或借款时，是指此类贷款或构成此类借款的贷款的利率是参照调整后期限SOFR、备用基本利率还是调整后每日简单SOFR(如果适用)来确定的。“UCC”系指纽约州或任何其他州的统一商法典，其法律要求适用于完善任何抵押品上的担保权益。“英国金融机构”是指任何BRRD业务(根据英国审慎监管局颁布的PRA规则手册(不时修订)下的定义)，或属于英国金融市场行为监管局颁布的FCA手册(不时修订)IFPRU 11.6范围内的任何个人，包括某些信贷机构和投资公司，以及这些信贷机构或投资公司的某些附属公司。
43“英国清算机构”是指英格兰银行或任何其他负责英国金融机构清算的公共行政机构。“未调整基准置换”是指适用的基准置换，不包括相关基准置换调整。“非限制性附属公司”指借款人根据第8.17节以书面形式指定借款人为“非限制性附属公司”的任何人及其每一附属公司。“美国爱国者法”系指经修订的“与敌贸易法”，或美国财政部的任何外国资产管制条例(31 CFR，副标题b，第五章，经修订)或与之有关的任何授权立法或行政命令，或美国联邦法律，通过提供拦截和阻挠恐怖主义所需的适当工具，加强和加强美国。“美国政府证券营业日”是指除(A)周六、(B)周日或(C)证券业和金融市场协会建议其成员的固定收益部门全天关闭以进行美国政府证券交易的任何一天。“美国人”系指“守则”第7701(A)(30)节所指的“美国人”。“美国特别决议制度”具有第12.21节中赋予该术语的含义。“美国纳税证明”具有第5.03(E)(Ii)(B)(3)节中赋予该术语的含义。“扣缴代理人”是指任何贷方或行政代理人。“减记和转换权力”是指：(A)就任何欧洲经济区决议机构而言，该欧洲经济区决议机构根据适用的欧洲经济区成员国的自救立法不时具有的减记和转换权力，这些减记和转换权力在欧盟自救立法附表中有描述；以及(B)对于联合王国，适用的自救立法规定的任何决议机构在自救立法下取消、减少、修改或改变任何英国金融机构或产生该责任的任何合同或文书的负债形式的任何权力，将该法律责任的全部或部分转换为该人或任何其他人的股份、证券或义务，并规定任何该等合约或文书具有效力，犹如已根据该合约或文书行使权利一样，或暂时吊销与该等权力有关或附属于该等权力的任何法律责任或该自救法例所赋予的任何权力的任何义务。第1.03节贷款和借款的类型。就本协定而言，贷款和借款可分别按类型分类和指代(例如，“定期基准贷款”或“定期基准借款”)。
44第1.04节一般术语；施工规则。本协议中术语的定义应同样适用于所定义术语的单数和复数形式。只要上下文需要，任何代词都应包括相应的阳性、阴性和中性形式。本协定中使用的“包括”、“包括”和“包括”应视为后跟“但不限于”一词。“或”这个词并不是排他性的。“将”一词应解释为与“遗嘱”一词具有相同的含义和效力。除文意另有所指外，本协议、文书或其他文件的任何定义或提及，应解释为指不时修订、补充或以其他方式修改的协议、文书或其他文件(但须受贷款文件所载对此等修订、补充或修改的任何限制所规限)，此处对任何法律的任何提及，应解释为指经修订、修改、编纂或重新制定的、全部或部分且不时有效的法律，本协议中对任何人的任何提及应解释为包括此人的继任者和受让人(在符合贷款文件所载限制的情况下)。本协议中的“万亿”、“此处”和“此处”以及类似含义的词语应被解释为指本协议的整体，而不是本协议中关于任何时间段的确定的任何特定规定，“从”一词指的是“从并包括”，“到”一词应被解释为指“到并包括”，以及本协议中对条款、节、附件、证物和附表的任何提及应被解释为指下列条款和章节：以及本协定的附件、证物和附表。本协议或任何其他贷款文件的任何规定不得仅仅因为任何人或其法定代表人起草了本协议或任何其他贷款文件而被解释或解释为对该人不利。第1.05节会计术语和定义；公认会计原则。除非本协议另有规定，否则本协议中使用的所有会计术语应予以解释，应作出与本协议项下会计事项有关的所有决定，并应根据公认会计原则编制与本协议项下要求提供给管理机构或贷款人的财务事项有关的所有财务报表和证书及报告，其适用基础应与财务报表一致，但借款人的独立注册会计师同意的变更除外，该变更应作为根据第8.01(A)节提交给贷款人的经审计年度财务报表的一部分或与经审计的年度财务报表一起向行政代理机构披露；但除非借款人和多数贷款人另有书面协议，否则此类变更不得改变或影响计算第9.01节所列公约的遵守情况的方式，以使所有此类计算均应使用与以前期间一致的财务信息进行。尽管本协议有任何相反规定，为了计算根据第9.01节测试的任何比率以及每个比率的组成部分，所有非限制性子公司(包括其资产、负债、收入、亏损、现金流及其要素)应不包括在内，但任何非限制性子公司向任何贷款方实际支付的任何现金股息或分配除外，这些现金股息或分配在贷款方实际收到时应被视为该贷款方的收入。尽管本协议或任何其他贷款文件中有任何相反的规定，为了遵守本协议或任何其他贷款文件的条款，GAAP将被视为以与其在“生效日期”(如现有信贷协议中的定义)根据GAAP目前的处理方式一致的方式对待经营租赁和资本租赁，即使在此之后可能发生的任何修改或解释性变更，包括为免生疑问，在“生效日期”(如现有信贷协议中的定义)采用的GAAP修正案所预期的任何未来逐步实施的GAAP变更
45信贷协议)(不言而喻，财务报表的编制不应使本句生效)。第1.06节划分。第二条循环信贷安排第2.01节承诺。(A)承诺。借款人可在上述限额及本协议所列条款及条件的规限下，借入、偿还及再借循环信贷贷款。(B)借款人可选择较低的贷款限额。低于该等新借款基准通知所载金额(或低于投资级期间的总最高信贷金额)。借款人根据第2.01(B)(I)条发出的通知是不可撤销的，但不影响其根据第2.06条启动临时重新确定或随后根据第2.01(B)条降低或增加选定贷款限额的权利。无论本条款第2.01(B)节规定的任何通知要求或任何其他相反规定，截至第六修正案生效日期的选定贷款限额为2,200,000,000美元。(Ii)在借款基准期内、可用借款基准期内或(Y)投资级期间内的任何时间，所选择的贷款限额少于(X)可用借款基数，或(Y)在投资级期间内，借款人此后可就借款基数的任何预定重新厘定或中期重新厘定(或在投资级期间，在任何5月1日或11月1日的三(3)个营业日内)增加所选择的贷款限额至不超过重新厘定的数额
46在发出相关的新借款基数通知之前(在任何借款基期内)，通过向行政代理和贷款人发出书面通知(在任何借款基期内)，可获得可用借款基数(或在投资级期间，最高可达总最高信用额度)，但须满足以下条件：(A)如果每个贷款人同意并同意接受其适用的循环信贷百分比，则所选择的贷款限额应按借款人要求的金额增加(贷款人根据每个贷款人的适用循环信贷百分比按比例增加)；或(B)如任何贷款人不同意接受该项增加的适用循环信贷百分比，则(1)所选择的贷款限额须予提高，以每名贷款人已同意接受该项增加的全部或部分为限，(2)所有贷款人的最高信贷金额及适用的循环信贷百分比将予重新分配，以反映每名贷款人愿意接受的该项增加的金额，及(3)附表1.2将被视为修订，以反映该项重新分配。(C)行政代理应将有关此类增加的信息记录在登记册中，并在必要时分发经修订的附表1.2。(Iii)即使第2.01(B)(Ii)节有任何相反规定，未经任何贷款人书面同意，不得增加任何贷款人当时有效的选定贷款限额的适用循环信贷百分比。第2.02节循环信贷贷款和借款。(A)循环信贷借款；若干债务。每笔循环信贷贷款应作为循环信贷借款的一部分，循环信贷借款由循环信贷贷款人根据各自的承诺按比例发放循环信贷贷款。任何循环信贷贷款人未能按规定发放任何循环信贷贷款，不解除任何其他循环信贷贷款人在本协议项下的义务；只要承诺是多项的，任何循环信贷贷款人均不对任何其他循环信贷贷款人未能按要求提供循环信贷贷款负责。根据第5.06节和第5.08节的规定，每笔循环信用借款应完全由借款人根据本协议要求提供的ABR循环信用贷款或定期基准循环信用贷款组成。每一循环信贷贷款人可自行选择促使该循环信贷贷款人的任何国内或外国分支机构或关联公司发放循环信贷贷款；但该选择权的任何行使不影响借款人按照本协议条款偿还该循环信贷贷款的义务。为免生疑问，自第二修正案生效之日起，借款人可获得的借款类型应仅包括ABR循环信贷贷款或定期基准循环信贷贷款。(C)最低金额；对循环信贷借款次数的限制。在任何期限基准循环的每个利息期开始时
47信贷借款，这种循环信贷借款的数额应不少于500,000美元，并在此基础上增加500,000美元。在进行每笔ABR循环信贷借款(或如果当时适用的话，RFR借款)时，此类循环信贷借款的金额应不少于500,000美元，且增量应超过500,000美元；但尽管有上述规定，ABR循环信贷借款的总金额可以等于总承诺额的全部未用余额，或第2.07(F)(Iii)节所规定的偿还义务所需的资金。超过一种类型的循环信贷借款可以同时未偿还，但在任何时候不得有超过六(6)个期限基准循环信贷借款或RFR借款未偿还。尽管本协议有任何其他规定，如果就任何循环信贷借款请求的利息期限将在循环信贷到期日之后结束，则借款人无权请求、或选择转换或继续进行任何循环信贷借款。(D)循环信用票据。应该循环信贷贷款人的要求，循环信贷贷款人发放的循环信贷贷款应由借款人的一张本票证明，该本票基本上采用附件A的形式，并且，(I)对于本协议的任何一方而言，该循环信贷票据的日期应自本协议之日起生效，或(Ii)对于根据转让和假设成为本协议一方的任何循环信贷贷款人，该循环信贷票据的日期应自转让和假设的生效日期起生效，在每种情况下，应支付给该循环信贷贷款人的本金金额等于其在该日期有效的最高信贷金额，并以其他方式妥为完成。如任何循环信贷贷款人的最高信贷金额因任何原因而增加或减少(不论是否根据第2.05节、第12.04(B)节或其他规定)，借款人应应该循环信贷贷款人的要求，在该项增加或减少的生效日期，向该循环信贷贷款人交付或安排交付一张新的循环信贷票据，其本金金额等于该循环信贷贷款人在实施该项增加或减少后的最高信贷金额，并以其他方式妥为填写，以备退还被替换的循环信贷票据给借款人。每一循环信用贷款人发放的每笔循环信贷贷款的日期、金额、类型、利率和利息期限，以及因其本金而支付的所有款项，应由该循环信用贷款人记录在其循环信用票据的账簿上。任何循环信贷贷款人或借款人对该等循环信贷贷款的权利或义务，不应因未能作出任何该等批注或未附上附表而受影响。(E)注册。行政代理人应根据第12.04(B)(Iv)条为每个循环信贷贷款人保存登记册和其中的一个子账户，其中应记录(I)根据本协议进行的每笔循环信贷借款的金额、其类型和适用于任何期限基准借款的每个利息期。(Ii)借款人就循环信贷借款而到期应付或即将到期应付的任何本金或利息的款额，及(Iii)行政代理根据本协议就循环信贷借款从借款人收到的任何款项的款额及每名循环信贷贷款人在其中所占的份额。在根据第2.02(E)节保存的登记册中登记的事项，如无明显错误，在适用法律允许的范围内，应为其中记录的借款人债务的存在和数额的表面证据；但是，任何循环信贷贷款人或
88(W)行政代理人应已收到行政代理人或行政代理人的特别律师合理要求的其他文件。行政代理应将生效日期通知借款人和贷款人，该通知具有决定性和约束力。第6.02节每个信用事件。每家贷款人在任何借款(包括初始资金，但不包括循环信用借款，以继续或转换任何未偿还的循环信用借款)时发放贷款的义务，以及开证行开具、修改、续期或延期任何信用证的义务(但不包括任何信用证的自动续期或延期，其唯一目的是延长或续期任何信用证和根据第2.07(A)节被视为签发的任何现有指定信用证的修改)须满足下列条件(或根据第12.02节的豁免)：(A)在该等借款或该等信用证的签发、修改、续期或延期(视情况而定)生效之时及之后，(I)不会发生任何违约或借款基础不足，并且(Ii)综合现金余额不得超过(A)150,000,000美元或(B)在正常业务过程中由行政代理人在信贷事件发生时同意的借款人在石油和天然气资产方面的支出，但须受行政代理人根据第2.03节或第2.07(B)节在适用的循环信贷借款申请交付之日或之前收到关于该项申请的事先书面通知的限制。(B)本协议和其他贷款文件中规定的信用证各方的陈述和担保，在该借款之日或该信用证的开具、修改、续展或延期之日(视情况而定)，在所有重要方面均应真实和正确(除非在该情况下，该适用的陈述和担保应为真实和正确的)，但如任何该等陈述和担保明确限于较早的日期，则在该借款之日或该信用证的签发、修改、续展或延期之日(以适用者为准)为限，自指定的较早日期起，该等陈述和保证在所有重大方面应继续真实和正确(除非已受到重大程度的限制，在这种情况下，适用的陈述和保证应为真实和正确)。(C)贷款的发放或信用证的签发、修改、续展或延期(视情况而定)不会与任何贷款人或任何开证行违反或超过任何适用的政府要求，或导致任何贷款人或开证行违反或超过任何适用的政府要求。(D)行政代理收到根据第2.03节提出的循环信贷借款请求或根据第2.07(B)节提出的信用证申请(视情况而定)。每次借款请求和每次开立、修改、续展或延期任何信用证的请求，应视为借款人在信用证发出之日就第6.02(A)和(B)款规定的事项作出的陈述和保证。
89第七条借款人向贷款人作出的陈述和保证：第7.01节组织；权力。每一贷方均按其组织所在司法管辖区的法律正式组织、有效存在和信誉良好，拥有所有必要的公司或其他组织权力和权力，并拥有所有必要的政府许可、授权、同意和批准，拥有其资产和开展目前所进行的业务，并有资格在需要此类资格的每个司法管辖区开展业务，且信誉良好，除非不具备此类许可、授权、同意、批准和/或资格将不会合理地产生重大不利影响。第7.02节授权；可执行性。该等交易属每一信贷方的法人、有限责任公司或合伙企业的权力范围内，并已获得所有必要的法人、有限责任公司或合伙企业的正式授权，以及(如有需要)其股权的任何持有人的诉讼(包括但不限于任何类别的董事、经理或监管人，不论是否有利害关系，或任何其他人士为确保交易获得适当授权而须采取的任何行动)。信用方作为一方当事人的每份贷款文件均已由该信用方正式签署和交付，并构成该信用方的一项法律、有效和具有约束力的义务，可根据其条款强制执行，但须遵守适用的破产、破产、重组、暂停或其他一般影响债权人权利的法律和一般衡平法原则，无论是否在衡平法诉讼或法律上予以考虑。第7.03节批准；无冲突。交易(A)不需要任何政府当局或任何其他第三人的任何同意或批准、登记或备案，或任何其他行动，也不是任何贷款文件的有效性或可执行性或交易完成所必需的任何此类同意、批准、登记、备案或其他行动，但已取得或作出且完全有效的交易除外，按本协议的要求对证券工具进行记录和备案，以及如未作出或获得，(B)不会违反或导致附表1.5所列任何现有有担保互换协议、契约、协议或其他证明对任何贷款方或其各自资产具有约束力的重大债务的文书项下的违约，或产生要求任何贷款方支付任何款项的权利。第7.04节财务状况；无重大不利变化。(A)借款人迄今已向贷款人提供(I)德勤律师事务所报告的借款人及其综合子公司截至2020年12月31日的财政年度的经审计综合资产负债表，以及均富律师事务所报告的借款人及其综合子公司截至2020年12月31日的财政年度及截至2020年12月31日的经审计的营业、股东权益和现金流量报表
90 LLP及(Ii)截至2021年6月30日借款人及其综合附属公司的未经审计简明综合资产负债表及相关经营报表及全面收益(亏损)及股东权益及现金流量。前述第(I)及(Ii)条所述财务报表在各重大方面均公平地反映借款人及其综合附属公司于该等日期及期间的财务状况及经营业绩及现金流量，并须受年终审核调整及上文第(Ii)条所述报表无附注所规限。(二)自2020年12月31日以来，未发生任何造成实质性不利影响的事件、发展或情况。(C)除附表7.04(C)所列或第9.02节所允许的情况外，任何贷款方在交易生效之日起，不得有任何重大债务或任何表外负债、逾期税款的负债或任何不寻常的远期或长期承诺，而该等债务或负债、或任何不寻常的远期或长期承诺，在整体上对贷款方或就借款人的综合财务状况而言是重大的，根据公认会计原则要求须予显示，但未在第7.04(A)(I)节所述借款人的最新经审核综合财务报表中显示。第7.05节诉讼。除附表7.05所列外，没有任何诉讼、诉讼、调查或程序涉及任何贷款文件或任何仲裁员或政府当局的交易，而据借款人所知，这些诉讼、诉讼、调查或程序对未完全投保保险(免赔额除外)的任何贷款方悬而未决，或对其构成威胁或影响，且有合理的可能性作出不利判定，即如果不利判定，将合理地个别或总体地导致重大不利影响(在考虑到实际收到的保险收益或其他第三方赔偿后)。第7.06条环境事宜。(C)没有任何关于违反任何适用环境法的索赔、要求、诉讼、命令或法律程序(包括作为潜在责任方)悬而未决，或据借款人所知，有可能对
91借款人或其任何附属公司或其各自的任何物业，或因在该等物业的任何业务而合理地预期将被确定为不利的；(D)借款人及其附属公司的任何物业均不包含或据借款人所知不包含任何：地下储藏罐；含石棉材料；垃圾填埋场或倾倒场；根据RCRA或任何类似的州法律定义的危险废物管理单位；或列入或提名列入根据CERCLA颁布的国家优先名单或根据任何类似的州法律颁布或公布的任何国家补救优先名单的地点；(E)在借款人或其附属公司的任何物业上、之上、之下或从借款人或其附属公司的任何物业中，没有或据借款人所知，没有危险物质的释放或威胁释放，要求或合理地预期会导致在该等财产根据适用的环境法对危险材料进行任何调查、补救、减少、移走或监测，且据借款人所知，任何该等财产均不会因源自或来自任何其他不动产的危险物质的任何释放或威胁释放而受到不利影响；(F)任何贷款方或其各自子公司均未收到任何书面通知，表明根据任何适用的环境法，在借款人或其任何子公司的财产中调查、补救、减少、清除或监测任何有害物质，或从任何非现场不动产释放或威胁释放任何有害物质的所谓责任或义务，且据借款人所知，不存在任何合理预期会导致收到该书面通知的条件或情况；(G)据借款人所知，没有任何人或财产因借款人或其任何附属公司对其财产的经营而暴露于任何危险材料或与之相关，而该等经营可合理地预期构成损害或赔偿要求的依据；和(H)在行政代理要求的范围内，借款人已向行政代理提供所有非特权环境现场评估报告的完整和正确副本，以及借款人拥有或控制的与借款人或其任何子公司的财产或业务有关的重大环境事项(包括与任何据称不遵守环境法或环境法下的责任有关的事项)的非特权研究报告。第7.07节遵守法律和协议；没有违约。(A)每一贷方均遵守适用于其或其财产的所有政府要求以及对其或其财产具有约束力的所有协议和其他文书，并拥有其财产所有权和业务开展所需的所有许可证、许可证、特许经营权、豁免、批准和其他政府授权，除非未能单独或整体遵守规定不会导致重大不利影响。
92(B)没有信用方违约，也没有发生任何事件或情况，如果没有任何适用的宽限期到期或发出通知，或两者兼而有之，就会构成违约或要求任何信用方根据任何契约、票据、信贷协议或工具赎回或提出赎回任何重大债务，或任何信用方或其任何财产受到约束的事件或情况。(C)没有违约发生，而且仍在继续。第7.08节投资公司法。任何信用方都不是1940年修订后的《投资公司法》所指或受其监管的“投资公司”。第7.09节税项。每个信用方都及时提交或促使提交所有联邦所得税申报单和报告，以及所有其他重要的纳税申报单和报告，要求提交并且已经支付或导致支付其必须支付的所有税款，但正在通过适当的程序真诚地提出异议的税款除外，并且该信用方已根据公认会计准则在其账面上为其留出了充足的准备金，或者如果没有这样做将合理地预期不会导致实质性的不利影响。借款人合理地认为，贷方账面上有关税收和其他政府收费的费用、应计项目和准备金是足够的。除例外留置权外，(A)没有提出任何税收留置权，(B)据借款人所知，没有就任何此类税收或其他此类政府收费提出索赔。第7.10节ERISA。(A)贷方和各ERISA关联公司已在所有重要方面遵守了ERISA，并在适用的情况下，遵守了有关每个计划的守则。(B)每项计划均基本上符合其条款、雇员补偿标准及(如适用)守则的规定而制定及维持。(C)并无发生任何作为、不作为或交易，以致借款人、任何其他信贷方或任何ERISA联营公司直接或间接被施加根据《ERISA》第502条(C)、(I)、(L)或(M)款评估的民事罚款，或根据《ERISA》小标题D第43章征收税项，或违反《ERISA》第409条下的受信责任责任。(D)在到期时全额支付贷方或任何ERISA关联公司根据每个计划或适用法律的条款，截至本计划之日作为对该计划的缴款而支付的所有金额。(E)未单独或与任何其他ERISA事件一起发生ERISA事件，或合理地预期将发生ERISA事件。(F)没有贷款方和ERISA附属公司发起、维持或贡献ERISA第3(1)节所界定的员工福利计划，包括但不限于为向此类实体的前雇员提供福利而维持的任何此类计划，
93适用贷方或任何ERISA关联公司不得在任何时间自行决定终止对其的赞助、维持或出资，除终止生效日期前到期的福利或发生的索赔外，不承担任何责任。第7.11节披露；没有重大失实陈述。由信贷方或其代表就任何贷款文件(经如此提供的其他信息修改或补充)向行政代理和贷款人提供的证书、书面声明和报告以及其他书面信息作为一个整体，不包含任何重大事实错误陈述，或遗漏陈述其中陈述所需的任何重大事实，根据其作出或作出陈述的情况，截至该等信息的日期或证明之日，不具有误导性；只要(A)任何该等证书、书面声明、书面报告或书面信息是基于或构成一项预测或预测，则每一贷方仅表示该证书、书面声明、书面报告或书面信息是基于在交付时被认为是合理的假设善意编制的(然而，贷款人承认，对于(A)对未来事件的预测不被视为事实，且该等预测涵盖的期间(S)内的结果可能与预测结果不同，且该等差异可能是实质性的，且贷款人并不表示该等预测将会实现)及(B)对于第三方代表贷款人就任何贷款文件(经如此提供的其他信息修改或补充)而提供的任何该等书面陈述、书面资料及书面报告，借款人仅表示其并不知悉其中有任何重大失实陈述或遗漏。第7.12节保险。借款人拥有并已促使其所有其他信贷方拥有足以使每个信贷方遵守所有重大政府要求、所有重大协议和至少金额的保险范围的所有保单，以及针对此类风险(包括但不限于公共责任)的保险，这些风险通常由处于相同位置并从事相同或类似业务的公司为信贷方的资产和业务投保。行政代理和贷款人已被指定为此类责任保险单的额外承保人，行政代理已代表贷款人被指定为财产损失保险的贷款人损失收款人。第7.13节对留置权的限制。任何信用方均不是任何重大协议或安排的一方，或受制于任何命令、判决、令状或法令，该等协议或安排限制或旨在限制其就其物业或就其物业向行政代理及贷款人授予留置权以担保债务及贷款文件的能力，或限制任何信用方就其股权向任何其他信用方支付股息或作出任何其他分配，或限制任何信用方向任何其他信用方发放贷款或垫款，或须征得其他人的同意，但第9.12节所准许的此等产权负担或限制除外。第7.14节附属公司。但附表7.14所列或以书面形式向行政代理披露的除外(行政代理应立即向出借人提供副本)，该行政代理应
94作为附表7.14的补编，借款人没有受限制的子公司。借款人没有外国子公司。第7.15节营业和办公地点。贷方的正确法定名称、营业地址、组织类型和管辖范围、税务识别号和其他相关识别号列于本合同附表1.3(在每种情况下，均在根据第8.01(I)节按照第12.01节向行政代理提交的通知中阐明)。第7.16节财产、头衔等(A)每个贷方对最近提交的储量报告中评估的各自的石油和天然气财产拥有良好的、可辩护的所有权，并对其所有重大个人财产拥有良好的所有权，在每种情况下，除允许留置权外，没有任何留置权。贷方在各重大方面拥有最近交付的储量报告所反映的碳氢化合物权益所应占的生产净权益，而该等物业的所有权在任何重大方面均不会使贷方有义务承担与每项该等物业的维护、发展及营运有关的成本及开支超过最近交付的储备报告所载的每项物业的营运权益，而贷方对该等物业的净收入权益的至少相应比例增加并未抵销该等权益。(B)信贷方开展业务所需的所有租约和协议均为有效和存续的，且完全有效，且任何信贷方不会违约超过任何该等租约或协议下所有适用的宽限期或治疗期，而违约将合理地预期会产生重大不利影响。(C)信贷方目前拥有、租赁或许可的权利和财产，包括但不限于所有地役权和通行权，包括允许信贷方在所有重要方面开展业务所必需的所有权利和财产，其方式与其在本合同日期前12个月的业务方式相同。(D)贷方对其业务运营合理必需的所有财产均处于良好的工作状态，正常损耗除外，并按照审慎的商业标准进行维护。(E)每个信用方拥有或被许可使用其业务的所有商标、商号、版权、专利和其他知识产权材料，信用方使用这些材料不会侵犯任何其他人的权利，但不包括任何此类侵权行为，无论是个别侵权行为，还是总体侵权行为，都不会合理地预期会导致重大不利影响。贷方拥有或拥有有效的许可证或其他权利，可以使用目前在其业务中使用的所有数据库、地质数据、地球物理数据、工程数据、地震数据、地图、解释和其他技术信息，但须遵守管理其使用的协议中所载的限制。第7.17节物业的保养。除不能合理预期会产生重大不利影响的作为或不作为外，石油和天然气财产(和
(95)贷方的油气物业在所有重大方面均以良好及熟练的方式维护、营运及发展，并在所有重大方面符合政府的所有要求，并在所有重大方面符合构成碳氢化合物权益一部分的所有租约、分租或其他合约的条文，以及构成贷方石油及天然气物业一部分的其他合约及协议的条文。第7.18节产品营销。除附表7.18所列并在本合同日期生效的合同，以及此后以书面形式披露给行政代理或包括在最近提交的储备报告中的合同外，对于贷方碳氢化合物生产的销售(包括但不限于要求或其他购买、生产或其他权利)，不存在不能在六十(60)天或更短的时间内取消而不受处罚或损害的重大协议。与以固定价格出售产品有关，且到期日或到期日自本报告日期或该储备报告日期(视何者适用而定)超过六(6)个月。第7.19节互换协议。附表7.19自本报告之日起及之后，根据第8.01(E)节规定借款人必须交付的每份报告、截至该报告之日(或截至报告中另有规定的日期(S))的每份报告，均真实而完整地列出了贷方的所有互换协议及其实质性条款(包括类型、期限、生效日期、终止日期和名义金额或数量)，其按市值计价的净值(截至生效日期前最近一个财政季度的最后一个营业日，且按市值计价是合理的)、与之相关的所有信贷支持协议(包括要求或提供的任何保证金)以及每项此类协议的交易对手。第7.20节贷款和信用证的使用。贷款及信用证所得款项将用于(A)支付与交易有关的任何费用、成本及开支；(B)偿还采掘信贷协议及Crestone信贷协议项下的债务及与终止该等信贷安排有关的任何费用、成本及开支；及(C)用作营运资金、租赁收购、勘探及生产经营、开发(包括钻井及完井)、支付与本协议有关的费用及开支以及任何其他一般业务用途。贷方并无主要或作为其或其重要活动之一，为购买或持有保证金股票(董事会第T、U或X条所指)而提供信贷的业务，不论是即时、附带或最终的目的。任何贷款或信用证的收益不得用于违反董事会规则T、U或X的任何目的。第7.21节偿付能力。在实施交易(包括本合同项下任何信用证的每次借款或签发)后，贷方的总资产(在实施因赔偿、抵销、保险或任何类似安排而合理预期收到的金额后)以公允估值计算，在综合基础上超过贷方的总债务，贷方作为一个整体没有发生也不打算发生，也不相信它们已经发生，超出其偿债能力的债务(在考虑到他们合理预期可以收到的现金的时间和数额以及他们合理预期的金额之后
96须就其负债支付或就其负债支付，并使因弥偿、抵销、保险或任何类似安排而可合理预期收到的款项生效)，因为该等债务成为绝对债务并到期，而贷方整体而言并无(亦无理由相信其后会有)不合理的小额资本来进行其业务。第7.22节反腐败法律和制裁。借款人已实施并有效维持旨在确保借款人、其子公司及其各自的董事、官员、雇员和代理人遵守反腐败法律和适用制裁的政策和程序，借款人、其子公司及其各自的官员和董事，据借款人所知，其雇员和代理人在所有实质性方面都遵守反腐败法律和适用的制裁。(A)借款人、任何附属公司或其各自的任何董事、高级职员或雇员，或(B)据借款人所知，借款人、借款人的任何代理人或其任何附属公司将以任何身份与本协议设立的信贷安排相关或从中受益，均不是受制裁的人。任何借款或信用证、使用收益或本协议设想的其他交易都不会违反反腐败法或适用的制裁措施。第7.23节受影响的金融机构。没有信用方是受影响的金融机构。第7.24节安全工具。担保文书有效地为担保当事人的利益在抵押财产及其抵押品和收益(如适用)上设定合法、有效和可强制执行的担保权益。在符合第8.18节的但书的情况下，债务以合法、有效和可强制执行的以行政代理为受益人的第一优先权留置权为担保，涵盖和扣押(A)抵押财产和(B)根据担保协议授予的抵押品，包括质押股权和存款账户、证券账户和商品账户，在每种情况下，只要通过记录抵押贷款、提交UCC财务报表，或在存款账户、证券账户和商品账户的情况下，通过获得“控制权”或，对于证书所代表的股权，通过占有(在每一种情况下，在适用的司法管辖区内适用的范围内)；但除质押股权外，允许留置权可以存在。7.25计划资产；禁止的交易。任何贷款方或其任何附属公司均不是被视为持有“计划资产”(按计划资产条例的含义)的实体，本协议项下拟进行的交易的执行、交付或履行，包括发放任何贷款和签发本协议项下的任何信用证，都不会导致根据ERISA第406条或本准则第4975条的规定进行非豁免的禁止交易。承诺期满或终止前的肯定契诺，每笔贷款的本金和利息，以及本协议项下应支付的所有费用和贷款项下应支付的所有其他金额
97单据应已全额支付，所有信用证应已到期或终止，所有偿还义务应已偿还，借款人与贷款人约定并同意：第8.01节财务报表；其他信息。借款人将向行政代理和每个贷款人提供：(A)年度财务报表。借款人从截至2021年12月31日的财政年度开始的每个财政年度结束后九十(90)天内，借款人及其合并子公司的经审计的综合资产负债表和相关经营报表、成员权益和现金流量，以比较形式列出上一财政年度的数字，均由具有公认国家地位的独立公共会计师报告(无“持续经营”或类似的资格或例外(但“持续经营”或类似的资格或例外情况除外，该等资格或例外完全是由于未来365天内到期的贷款而产生的)，且对该项审计的范围没有任何限制或例外)，大意是该等综合财务报表根据一贯适用的公认会计原则在综合基础上公平地列报借款人及其综合附属公司的财务状况及经营结果；(B)季度财务报表。借款人从截至2021年9月30日的财政季度开始的每个财政年度的前三个财政季度结束后四十五(45)天内，借款人及其合并子公司的综合资产负债表和相关的经营报表、成员权益和现金流量，截至该财政季度末和该财政年度当时已过去的部分，以比较形式列出上一财政年度的相应一个或多个期间(或就资产负债表而言，截至上一财政年度结束时)的数字。均经其一名财务主任核证，根据一贯适用的公认会计原则，在所有重要方面公平地列报借款人及其综合附属公司的财务状况和经营结果，但须作正常的年终审计调整，并无脚注；(C)财务干事证书--合规。在根据第8.01(A)节或第8.01(B)节交付任何财务报表的同时，财务主任的合规证书，基本上采用本合同附件C的形式，以证明当时是否存在违约，如果存在违约，则指明违约的细节和就此采取或建议采取的任何行动，列出合理详细的计算，证明符合第9.01节的规定，并说明自根据第8.01(A)节最近提交的借款人经审计的年度财务报表编制以来，对借款人财务报表的应用是否发生了任何变化(或如该等经审计财务报表尚未交付，则须于编制财务报表后(如已发生任何该等变更)，列明该等变更对该证明书所附财务报表的影响。对于截至2024年6月30日和2024年9月30日的每个会计期间，该合规性证书应包括Civitas EBITDAX的合理详细计算和与此相关的合理支持信息；
98(D)综合附属公司财务主任证书。如在任何时候，借款人的所有合并附属公司并非合并的限制性附属公司，则在根据第8.01(A)或第8.01(B)节提交任何财务报表的同时，须出具一份财务主任证书，列出显示所有合并的非限制性子公司的合并电子表格，并以借款人的审计师可出示的形式注销分录；(E)财务主任证书-掉期协议。在根据第8.12(A)节每次提交储备报告的同时，财务主管的证书，其形式和实质应由行政代理人根据其合理的酌情决定权满意，列出截至最近结束的财政年度或财政期间(如适用)的最后一个营业日，(I)贷方的所有互换协议、其实质条款(包括类型、期限、生效日期、终止日期和名义金额或数量)、按市值计价的净值(截至该财政年度或财政期间的最后一个营业日，(I)未列入附表7.19的任何新的信贷支持协议，任何信贷支持文件要求或提供的保证金，以及每项此类协议的对手方，以及(Ii)未来五年期间石油和天然气资产的预计总产量；(F)保险人证书--保险范围。在适用保单续期后三十(30)天或之前，贷方的保险经纪人或保险人就第8.07节要求的保险出具的一份或多份保险承保证书，其形式和实质应行政代理以其合理的酌情决定权满意，并在行政代理提出要求时，还包括适用保单的副本；(G)美国证券交易委员会和其他文件；提交给股东的报告。在行政代理有权访问的公共网站或内联网网站上不容易获得的范围内，则在其公开可用后立即提供任何信用方向美国证券交易委员会或任何国家证券交易所提交的或由借款人分发给其股东的所有定期报告和其他报告、委托书和其他材料的副本(视情况而定)。根据第8.01(A)节、第8.01(B)节和本第8.01(G)节规定必须交付的文件可以电子方式交付，并且应被视为在借款人向EDGAR(或美国证券交易委员会可能建立和维护的替代或继承EDGAR的其他免费、可公开访问的互联网数据库)张贴该等文件之日已交付；(H)实质性仪器项下的通知。任何贷款方收到违约通知后，应立即向贷款方提供：(I)关于借款人和担保人的信息；(I)借款人和担保人的信息。及时书面通知(无论如何在五(5)个工作日内)任何信用方的公司名称、任何信用方首席执行官办公室的所在地、信用方的身份或法人、有限责任公司或合伙企业的结构或其注册成立或组成的司法管辖区在信用方的管辖范围内发生的任何变化
99组织或此人在该组织管辖范围内的组织识别号，并在贷款方的联邦纳税人识别号中；(J)生产报告和租赁经营报表。在提交第8.12(A)节规定的每一份储量报告的同时，一份报告列出本财政年度迄今每个历月的石油和天然气资产的可归因于生产的产量和销售量(以及销售价格和销售所得收入)，并列出每个历月的相关从价、遣散费、生产税和租赁运营费用，以及每个历月的钻探和作业情况；(K)某些变化的通知。迅速，但无论如何，在签署后五(5)个工作日内，任何贷款方的成立证书、有限责任公司协议、公司章程、章程、任何优先股指定或任何其他组织文件的任何重大修订、修改或补充的副本，在每种情况下均未按照第8.01(G)节交付(或被视为已交付)；(L)现金流量预测。与根据第8.12(A)节(A)截至2021年11月30日及(Ii)其后每年12月31日及6月30日提交的每一份储备报告同时，借款人在该日期后每个财政季度的计划及预测(包括预计综合资产负债表、损益表及资金流量表)副本一份，其格式令行政代理人合理满意；(M)指数债务评级的变动。在任何投资级期间，在穆迪、S或惠誉任何人宣布改变指数债务的评级后，应立即发出关于该评级变化的书面通知；及(N)其他要求提供的信息。第8.02节重大事件通知。借款人将向行政代理和每个贷款人及时提供以下书面通知：(A)任何违约的发生；
100(B)任何仲裁员或政府当局对借款人或其任何附属公司提起或展开任何针对借款人或其任何附属公司或影响借款人或其任何附属公司的任何诉讼、诉讼、法律程序、调查或仲裁的任何诉讼、诉讼、法律程序、调查或仲裁的任何书面威胁，或在任何诉讼、诉讼、法律程序、调查或仲裁(不论先前是否向贷款人披露)中的任何重大不利发展，而在上述任何一种情况下，该等诉讼、诉讼、法律程序、调查或仲裁相当可能会被不利裁定，以及如经裁定，合理地预期会导致重大不利影响；(C)任何ERISA事件的发生，导致或将会导致重大不利影响；(D)向任何贷款人交付的实益所有权证书(如有的话)中提供的信息发生任何变化，从而导致该证书中确定的实益拥有人名单发生变化，而该变化将合理地预期该变化将导致重大不利影响；及(E)导致或合理预期将导致重大不利影响的任何其他事态发展。根据第8.02节提交的每份通知应附有一名负责官员的声明，说明需要发出通知的事件或发展的细节，以及就此采取或拟采取的任何行动。第8.03节存在；业务行为。借款人将，并将促使对方信用方作出或促使对方作出一切必要的事情，以保存、更新和保持充分的效力：(A)作为根据美国、任何州、哥伦比亚特区或其任何领土组织或存在的人的合法存在，以及(B)对其业务的开展具有重要意义的权利、许可证、许可、特权和特许经营权，并在必要时保持其在其石油和天然气资产所在的其他司法管辖区开展业务的资格，或其资产的所有权需要此类资格，但如不符合上述资格，则不会合理地预期会产生重大不利影响；但上述规定不应禁止9.08节允许的任何合并、合并、清算或解散。第8.04节债务的偿付。借款人将，并将导致对方信用方在债务违约或违约之前支付其债务，包括信用方的税务责任，除非有关程序真诚地对其有效性或金额提出异议，且该等信用方已根据公认会计准则为其预留了充足的准备金，在该争议期间不付款不会合理地预期会导致重大不利影响或导致任何信用方的任何物质财产被扣押或征收。第8.05节履行贷款文件项下的义务。借款人将根据本协议的条款支付贷款，借款人将，并将促使对方信用方在贷款文件(包括但不限于本协议)下，按照规定的时间和方式，作出和履行每一行为，并履行其应履行和解除的所有义务。
101第8.06节物业的操作和维护。借款人将自费并将促使对方贷方：(A)经营其石油和天然气财产及其他材料财产，或(如果借款人不是其经营者)使用商业上合理的努力，使该等石油和天然气财产及其他材料财产按照业界普遍接受的做法以谨慎和有效的方式经营，并在所有实质性方面遵守所有适用的合同和协议，但在每一种情况下，不这样做不会合理地预期会产生实质性不利影响的情况除外；(B)为其业务的进行而备存和维持所有财产材料，使其处于良好的运作状况及状况(普通损耗除外)，并将其所有石油及天然气财产保存、维持和保持在良好的维修、运作状况及效率(普通损耗及耗尽除外)，但如在每一情况下不这样做会合理地预期不会有重大的不利影响，则属例外；(C)迅速支付和清偿，或作出合理和惯常的努力，促使支付和清偿根据影响或与其石油和天然气财产有关的租约或其他协议而产生的所有延迟租金、特许权使用费、费用和债务，并采取一切其他必要措施，以保持其权利不受损害，并防止贷方根据这些权利被没收或违约，除非不这样做不会合理地预期会导致实质性的不利影响；(D)按照习惯行业标准，迅速履行或作出合理和惯常的努力，促使履行影响其在其石油和天然气财产及其他材料财产的权益的转让、契据、租赁、分租、合同和协议所要求的义务，除非在每一种情况下，不这样做将不会产生实质性的不利影响；及(E)如果借款人不是任何财产的经营者，贷方应采取商业上合理的努力，促使经营者遵守本第8.06节。第8.07节保险。借款人将并将促使对方信用方与财务稳健和信誉良好的保险公司维持保险，其金额和风险通常由在相同或相似地点经营相同或类似业务的公司维持。行政代理人和贷款人应被指定为此类责任保险单的附加被保险人，在借款基准期内，行政代理人应代表贷款人被指定为承保抵押品的财产损失保险的贷款人损失收款人，此类保险单应规定行政代理人应收到三十(30)天的取消或不续期通知。每次借款基准期在生效日期之后开始时，借款人将在借款基准期开始后90天内(或行政代理可自行决定的较长时间内)遵守本第8.07节的要求，并将促使对方贷款方遵守该借款基准期开始后90天内适用的要求。
102第8.08节书籍和记录；检查权。借款人将并将促使对方贷方按照公认会计准则保存记录和帐簿。借款人将允许行政代理或多数贷款人指定的任何代表在合理的事先通知下访问和检查其物业、审查和摘录其账簿和记录，并与其高级职员和独立会计师讨论其事务、财务和状况，借款人将并将促使对方相互允许；但除非违约事件当时存在且仍在继续，否则每一历年不得超过一次此类检查，费用由借款人承担。第8.09节遵守法律。借款人将并将促使对方信贷方遵守适用于其或其财产的任何政府当局的所有法律、规则、法规和命令，除非未能单独或整体遵守的情况下，合理地预计不会导致实质性的不利影响。借款人应保持有效并执行旨在确保其自身、其子公司及其各自的董事、官员、员工和代理人遵守反腐败法律和适用制裁的政策和程序。第8.10节环境事宜。(A)借款人应自费：遵守、促使其每一家子公司及其每一家子公司的物业和业务遵守，或如果借款人不是其经营者，则采取商业上合理的努力，使其物业和业务遵守所有适用的环境法，违反这些法律将合理地预期会产生实质性的不利影响；不释放或威胁释放，并应促使其每个子公司不释放或威胁释放在其或其子公司的任何财产或任何其他财产上、在其或其子公司的财产或任何其他异地财产上、在其或其子公司的财产或任何其他财产上的任何有害物质，除非遵守适用的环境法，其释放或威胁释放将合理地预期会产生实质性的不利影响；及时获取或提交，并应促使其每个子公司及时获取或提交适用环境法要求的与其子公司的财产的运营或使用有关的所有环境许可证(如果有)，如果未能获取或提交将合理地预期会产生重大不利影响；迅速开始并勤奋地起诉直至完成，并应促使其每一子公司迅速开始并勤奋地起诉任何评估、评估、调查、监测、遏制、清理、移除、修复、恢复、补救或其他补救义务(统称为“补救工作”)，如果根据适用的环境法，由于或与任何其或其子公司的物业上、其下、关于或从其任何子公司的物业上、之下、有关或威胁释放任何有害物质的实际或疑似泄漏或威胁泄漏有关的任何补救工作，而不开始并勤奋地起诉直至完成，则合理地预期该等工作将产生重大不利影响；开展并促使其子公司开展各自的经营和业务，使任何财产或个人不会使任何财产或个人暴露在危险材料之下，从而合理预期借款人或其子公司欠下实质性损害或赔偿；并建立和实施必要的程序，并应促使其子公司建立和实施必要的程序，以确定并确保借款人及其子公司根据本条款第8.10(A)条承担的义务得到及时和充分的履行。
103.如果不能制定和实施，可以合理地预期会产生重大的不利影响。(B)如借款人或其任何附属公司收到任何政府当局的书面通知，或任何人对借款人或其任何附属公司或其财产采取的任何行动或调查，或任何人针对借款人或其任何附属公司或其财产提出的任何威胁要求或诉讼，在每一情况下，借款人应在任何负责官员获悉后十五(15)天内，向行政代理发出书面通知，条件是借款人合理地预期该等行动将导致(不论个别或合计)在任何借款基期内的责任超过(I)$50,000,000或(Ii)(A)两者中较大者，借款基础的5%(5%)或(B)在任何投资级期间，占截至可编制财务报表的最近结束滚动期最后一天的综合有形资产净额的千分之一(1.6%)(每种情况下均不包括在内(可扣除金额除外))。第8.11节进一步保证。(A)借款人自费将迅速签立并向行政代理交付行政代理合理要求的所有其他文件、协议和文书，并促使对方将其提交给行政代理，以遵守、纠正贷款文件中的任何缺陷或完成任何贷方的契诺和协议(视情况而定)，或在借款基期内，或在借款基期内，进一步提供证据并更全面地描述拟用作债务担保的抵押品，或更正本协议或证券文书中的任何遗漏，或更充分地说明其中担保的义务，或在任何借款基期内，完善、保护或保留根据本协议或任何证券文书或其优先权而设立的任何留置权，或进行任何记录、提交任何通知或取得任何同意，所有与此相关的合理必要或适当的事项由行政代理全权酌情决定。(B)借款人特此授权行政代理在借款基准期内的任何时间，在法律允许的情况下，无需任何贷款方的签字，即可提交与全部或部分抵押财产有关的一份或多份融资或延续声明及其修正案。在法律允许的情况下，证券文书的复印件、照片或其他复制品或涵盖抵押财产或其任何部分的任何融资报表应足以作为融资报表。第8.12节储备报告。(A)在(I)2022年3月1日或之前，借款人应向行政代理和循环信贷贷款人提交一份评估借款人及其子公司截至2021年11月30日的石油和天然气属性的储备报告，以及(Ii)自每年10月1日、2022年4月1日和10月1日起，借款人应分别向行政代理和循环信贷贷款人提交一份评估借款人及其子公司截至紧接前一年12月31日或6月30日的石油和天然气属性的储备报告。截至每年12月31日的储量报告应由一名或多名认可石油工程师编制或审计，截至每年6月30日的储量报告应由认可石油工程师或
104借款人的内部储备工程人员，他们应证明该储备报告在所有重要方面都是真实和准确的(预测和成本估计除外)，并且是按照紧接在12月31日之前的储备报告中使用的程序编制的。(B)如进行中期重新厘定，借款人应向行政代理人及循环信贷贷款人提交一份由借款人的内部储备金工程人员拟备的储备金报告，该报告须证明该储备金报告在所有重要方面均属真实及准确(预测及成本估计除外)，并已按照紧接在12月31日之前的储备金报告所采用的程序拟备。对于行政代理或借款人根据第2.06(B)条要求的任何临时重新决定，借款人应尽快向该储备报告提供行政代理所要求的“截止”日期，但无论如何不得迟于收到该请求或借款基准期开始后三十(30)天(视情况而定)。(C)在交付每份储备报告时，借款人应向行政代理人和循环信贷贷款人提供一份由负责官员提供的证书：(I)证明(A)储备报告中所载信息和与之相关的任何其他信息是真实和正确的，(B)每一贷款方对该储备报告中评估的石油和天然气财产拥有良好和可抗辩的所有权，并且该等财产没有任何留置权，但允许留置权除外；(C)除证书的证物中所列明的外，与该储备报告中评估的石油和天然气财产不存在重大的天然气失衡，(D)自上次借款基地厘定日期以来，除该证明书的证物所列者外，并无出售其已探明的石油及天然气财产，该证书应列出出售并随附的所有此类油气资产，是该储备报告评估的抵押资产的油气资产明细表，(E)附件是在本合同日期较晚的日期之后签订的所有营销协议的清单，或根据第8.12(C)节交付的最近交付的证书，如果该协议在本合同的日期生效，且(Ii)如果在借款基准期内，则合理地预期借款人有义务在附表7.18中列出该销售协议，根据第8.14(A)节的规定，证明已探明的石油和天然气资产的总价值所代表的抵押资产的价值所占的百分比。第8.13节标题信息。(A)在借款基准期内的任何时候，在第8.12(A)节要求的每一份储备报告提交给行政代理和循环信贷贷款人后的三十(30)天内，借款人应以行政代理合理接受的形式和实质提交所有权信息，涵盖该储备报告所评估的未包括在前一份储备报告中的足够石油和天然气资产，以便行政代理应已收到先前提交给行政代理的所有权信息，至少(I)该储量报告评估的石油和天然气财产总值的90%(90%)和(Ii)石油和天然气财产总值的90%(90%)的合理令人满意的所有权信息
该储量报告评价的已探明开发未动用储量和已探明已开发生产储量共105个。(B)如果借款人已根据第8.13(A)条提供了附加物业的所有权信息，则借款人应在收到行政代理关于该等附加物业存在所有权缺陷或例外情况的通知后六十(60)天内，(I)纠正因该等信息引起的不允许留置权的任何该等所有权缺陷或例外情况(包括关于优先权的缺陷或例外情况)，(Ii)代以没有所有权缺陷或例外的可接受抵押物业，但具有合计等值价值的例外留置权(该定义(E)和(J)条所述的例外留置权除外)，或(Iii)以行政代理合理要求的形式和实质交付所有权信息，以便行政代理应已收到符合第8.13(A)节要求的令人满意的所有权信息以及先前交付给行政代理的所有权信息。(C)如果借款人不能纠正行政代理或贷款人要求在60天期限内补救的任何所有权缺陷，或借款人不遵守第8.13(A)节规定的提供合理可接受的所有权信息的要求，这种违约不应是违约或违约事件，相反，行政代理和/或所要求的贷款人有权在借款基准期内的任何时间行使其不时全权酌情决定的下列补救措施：任何未能在任何时候行使该补救办法的行为，并不代表行政代理人或所需贷款人放弃日后行使补救办法：该等不可接受的抵押财产不得计入第8.13(A)节所规定的要求，而行政代理人可向借款人和贷款人发出通知，通知当时未偿还的借款基数应按所需贷款人所决定的数额减少，以使借款人遵守第8.13(A)节所要求提供可接受的所有权资料的要求。新的借款基数在收到通知后立即生效。第8.14节附加抵押品；附加担保人。(A)在借款基准期内每次重新确定借款基数时，借款人应审阅储量报告和当前抵押财产清单(如第8.12(C)节所述)，以确定抵押财产是否至少占最近完成的储量报告中评估的石油和天然气财产在勘探和生产活动、收购、处置和生产后总价值的90%。如果在借款基准期内，抵押财产不代表行政代理确定的总价值的至少90%(90%)，则借款人应在第8.12(C)条所要求的证书交付后三十(30)天内，或应促使其他贷款方向行政代理授予担保，作为债务的担保，担保工具涵盖不受担保工具留置权约束的其他石油和天然气财产，从而在生效后，抵押财产将至少占该总价值的90%(90%)。所有此类留置权将根据信托契约、担保协议和融资声明或其他担保文书的规定设立和完善，其形式和实质都是合理的
106令行政代理满意，并为记录目的而充分执行(并在必要或适当时确认)对应的副本。如果借款人的任何子公司为了遵守前述规定而对其石油和天然气资产进行留置权，而该子公司不是担保人，则其应成为担保人并遵守第8.14(B)节。(B)借款人应迅速安排不是不受限制的子公司的每一家国内子公司担保担保协议所规定的债务。就任何此类担保而言，借款人应迅速、但无论如何不迟于子公司成立或收购(或其他类似事件)后三十(30)天(或行政代理经其合理酌情决定同意的较晚日期)，签署并交付(I)该子公司签署的担保协议补充文件，(Ii)仅在借款基准期内，由该附属公司于生效日期签署的证券协议的补充文件(或其补充文件或其假设协议，或有关该等证券文件中所述抵押品的任何替代证券文件，在投资级期限终止后订立，视何者适用而定)；(Iii)仅在借款基准期内，质押该附属公司的所有股权(包括但不限于，交付证明该附属公司股权的原始股票，连同由其注册所有人空白签署的每份证书的适当的未注明日期的股票权力)及(Iv)其他其他结算文件，行政代理机构合理要求的证明和法律意见。(C)在任何借款基准期内，借款人将在任何时候使每家国内附属公司(包括但不限于所有掉期协议)声称根据证券文书质押作为抵押品的其他有形及无形资产，须受证券文书下的留置权所规限。(D)每次借款基准期在生效日期后开始时，借款人将在借款基准期开始后七十五(75)天(或行政代理人可自行决定同意的较长时间，不得超过三十(30)天)内签署并交付行政代理合理要求的证券工具，以遵守第8.14条中适用于借款基期的要求。第8.15节ERISA合规性。借款人应立即向行政代理提交并将促使其子公司和任何ERISA关联公司在行政代理提出请求后立即向行政代理提供关于每个计划或根据其设立的任何信托的每份年度报告和其他报告的副本，并在了解到发生了根据ERISA第406条或根据法规、行政豁免或其他与任何计划或根据其设立的信托相关的法规、法规、行政豁免或其他方式不存在或可获得例外的任何“禁止交易”时，迅速向行政代理提供由总裁或主要财务官、该等子公司或ERISA关联公司签署的书面通知。视情况而定，具体说明其性质、借款人、该子公司或ERISA附属公司正在或打算对其采取的行动，以及(如果知道)美国国税局或劳工部就此采取或提议的任何行动。
107第8.16节营销活动。借款人将不会，也不会允许其任何子公司从事任何碳氢化合物的营销活动或签订任何与此相关的合同，但在合同期间安排或合理估计从其已探明油气资产生产的碳氢化合物销售合同除外，或根据联合经营协议任何贷款方有权在该合同期间从第三方已探明石油和天然气资产生产的碳氢化合物销售合同除外。石油和天然气业务中常见和习惯的单位化协议或其他类似合同，以及购买和/或销售第三方碳氢化合物的其他合同：(A)一般有抵消性规定(即相应的定价机制、交货日期、交货点和数量)，因此不采取“立场”；(B)已就此采取适当的信贷支持，以减轻交易对手的实质性信贷风险。第8.17节非限制性附属公司。(A)除非根据第8.17(B)节被指定为非受限制附属公司，否则任何人如成为借款人或其任何受限制附属公司的境内附属公司，均应分类为受限制附属公司。(B)借款人可借给予行政代理人的书面通知，指定任何原本会是借款人的受限制附属公司的人，包括一名新成立或新取得而原本会是借款人的受限制附属公司的人，作为非受限制附属公司，但条件是：(I)在该项指定之前及生效后，既不会出现违约情况，亦不会出现借款基础不足的情况；(Ii)该人并不拥有或经营已为其设立借款基础的最近交付的储备报告所载的任何石油及天然气物业，除根据第9.10节允许出售或以其他方式转让的石油和天然气财产(根据第9.10节应被视为转让)外，(Iii)该人不是任何允许的额外债务、允许的定期贷款债务或其任何允许的再融资的担保人或主要债务人，除非该人将在指定的同时被免除，(Iv)该人不是与借款人或任何附属公司的任何协议、合同、安排或谅解的一方，除非该协议、合同、安排或谅解的条款经第9.11条允许，(V)此类指定被视为对非限制性附属公司的投资，并且根据第9.05(K)和(Vi)节允许进行此类投资。(Vi)行政代理应已收到负责官员的证书，证明此类指定符合第8.17(B)节的要求。就前述而言，指定某人为非限制性附属公司，应视为指定该人士现时及未来的所有附属公司为非限制性附属公司。除第8.17(B)节另有规定外，任何受限子公司不得被重新指定为非受限子公司。为免生疑问，借款人可根据第8.17(B)节的要求，指定任何直接拥有合格中游资产的附属公司为非受限制附属公司。(C)借款人可指定任何非限制性附属公司为受限制附属公司，条件是：(I)每份贷款文件中所载贷方的陈述和担保在所有重要方面都是真实和正确的
148根据适用于任何贷款人的法律(包括美利坚合众国和纽约州的法律或任何其他司法管辖区的法律，尽管本协议的其他规定可能强制适用于该贷款人)，本协议将对任何贷款人构成高利贷，则在该情况下，即使任何贷款文件或与票据相关或作为票据担保而订立的任何协议中有任何相反规定，协议如下：根据适用于任何贷款人的适用法律构成利息的所有对价的总和，贷款人根据任何贷款文件或协议或与票据有关的其他方式收取或收取的债务，在任何情况下均不得超过该适用法律所允许的最高金额，任何超出的部分应自动取消，如已付清，则贷款人应记入债务本金金额的贷方(或在债务本金已全额或将会全额偿还的范围内，由贷款人向借款人退还)；如果由于本协议下的任何违约事件或其他原因导致票据持有人被选择加速到期，或在任何要求或允许的预付款的情况下，根据适用于任何贷款人的法律构成利息的对价不得包括超过该适用法律允许的最高金额，并且本协议或其他规定的超额利息应由该贷款人自加速或预付款之日起自动取消，如果在此之前支付，该贷款人应记入债务本金(或，或，在债务本金已经或将会全额偿付的范围内，由该贷款人向借款人退还)。在适用于任何贷款人的法律允许的范围内，支付或同意支付给任何贷款人的所有款项，在适用于该贷款人的法律允许的范围内，应在规定的贷款期限内摊销、按比例分配和分摊，直至全额付款，以使本合同项下任何贷款的利率或利息金额不超过该适用法律所允许的最高金额。如果在任何时间和不时向任何贷款人支付的利息金额应按根据第12.12条适用于该贷款人的最高合法利率计算，并且就任何随后的利息计算期而言，否则应支付给该贷款人的利息金额将少于按适用于该贷款人的最高合法利率计算的应付利息金额，则就该随后的利息计算期间应付给该贷款人的利息应继续按适用于该贷款人的最高合法利率计算，直至应付给该贷款人的利息总额等于在没有执行第12.12条的情况下计算利息总额的情况下应支付给该贷款人的利息总额。第12.13条免责条款。(A)本协议各方明确同意，其有义务阅读本协议和其他贷款文件，并同意其负责通知和了解本协议和其他贷款文件的条款；它实际上已阅读本协议，并充分了解和了解本协议的条款、条件和效果；在执行本协议和其他贷款文件之前的整个谈判过程中，它由其选择的独立法律顾问代表；并已收到
149在订立本协议和其他贷款文件时向其律师提供咨询意见；并承认本协议和其他贷款文件中的某些条款导致一方承担交易某些方面的固有责任，并免除另一方对此类责任的责任。双方同意并承诺，不会以本协议和其他贷款文件中的任何免责条款的有效性或可执行性为由，对该条款没有通知或知情，或该条款不“显眼”的情况提出异议。(B)借款人特此承认：(I)本协议项下提供的信贷安排及与此相关的任何安排或其他服务(包括与本协议的任何修订、豁免或其他修改或任何其他贷款文件有关的服务)是借款人与其他贷款方、行政代理、贷款人和开证行之间的独立商业交易，借款人和其他贷款方有能力评估、了解、理解和接受本协议和其他贷款文件(包括任何修订、放弃或以其他方式修改本协议或其协议)；(Ii)就导致该项交易的程序而言，行政代理人、贷款人及开证行中的每一人均是并一直纯粹以委托人身分行事，而不是借款人、任何其他信贷方或其各自的联系人士、权益持有人、债权人或雇员或任何其他人的财务顾问、代理人或受托人；(Iii)行政代理人、任何其他代理人、任何安排人、任何贷款人或任何开证银行均没有或将会就本协议拟进行的任何交易或导致交易的任何程序，包括就本协议的任何修订、豁免或其他修改或任何其他贷款文件(不论该行政代理人、任何其他代理人、任何安排人、任何贷款人或任何开证银行是否已就其他事项向借款人、其他信贷当事人或其各自的关联公司提供意见)或任何其他代理人(不论该行政代理人、任何其他代理人、任何安排人、任何贷款人或任何开证银行是否曾经或正在就其他事项向借款人、其他信贷当事人或其各自的关联公司提供意见)承担或将会承担以借款人或任何其他信贷方为受益人的顾问、代理或受信责任。任何安排人、任何贷款人或任何开证行对借款人、其他信贷方或其各自的关联方中的任何一方就拟进行的交易负有任何义务
150在此，在每种情况下，除本文件和其他贷款文件中明确规定的义务外；(Iv)借款人、其他信贷方及其各自的关联方不会基于所称的违反受托责任而主张任何索赔；(5)行政代理人及其关联方、每家贷款人及其关联方以及每家开证行及其关联方可从事涉及不同于借款人、其他信贷方及其各自关联方的利息的广泛交易，行政代理人、任何贷款人或任何开证行均无任何义务因任何咨询、代理或受托关系而披露任何此类权益；和(Vi)行政代理、任何贷款人或任何开证行均未提供，且任何人都不会就本协议拟进行的任何交易提供任何法律、会计、监管或税务建议(包括对本协议或任何其他贷款文件的任何修订、豁免或其他修改)，且借款人已在其认为适当的范围内咨询了自己的法律、会计、监管和税务顾问。借款人特此放弃并在法律允许的最大限度内免除其可能就任何违反或被指控违反代理或受托责任的行为向行政代理提出的任何索赔。第12.14节抵押品事项；掉期协议；现金管理。对于借款人或其任何附属公司根据附表1.5所列现有担保互换协议(关于担保非贷款互换一方)、担保互换协议或担保现金管理协议产生的任何债务，担保票据和本协定关于任何担保债务的规定的利益也应按比例延伸至有担保的非贷款人互换当事人、有担保的互换当事人和现金管理银行(但须遵守贷款文件的条款，包括但不限于其中有关向有权利人付款的申请和优先顺序的规定)，并可供有担保的非贷款人互换当事人、有担保互换当事人和现金管理银行使用；但对于有担保的非出借方互换当事人而言，此种利益不适用于在生效日期或之后订立的任何其他交易或确认，但与附表1.5所列现有有担保互换协议有关并于生效日期生效的任何通知、交易或确认除外。任何有担保的互换缔约方或有担保的非贷款人互换缔约方不应因根据任何此类互换协议对其承担的债务的存在而在任何贷款文件下拥有任何投票权。任何现金管理银行不得因根据任何此类担保现金管理协议对其承担的债务的存在而在任何贷款文件下拥有任何投票权。第12.15节无第三方受益人。本协议、其他贷款文件以及贷款人和开证行之间关于发放贷款和签发、修改、续签或延长本协议项下信用证的协议，完全是为了信用证各方的利益，其他任何人(包括但不限于借款人(信用证方除外)的任何子公司、任何其他债务人、承包商、分包商、供应商或物质人)不应享有任何权利、主张、
151本合同或任何其他贷款文件项下因任何原因针对行政代理、任何其他代理、任何开证行或任何贷款人的补救措施或特权。没有第三方受益人。第12.16节《美国爱国者法案公告》。根据美国爱国者法案第326条，行政代理和贷款人特此通知借款人及其子公司，如果他们或其任何子公司在行政代理或任何贷方开立账户，包括任何贷款、存款账户、金库管理账户或其他信贷扩展，行政代理或适用的贷款人将要求提供适用人员的姓名、税务识别号、业务地址和其他必要信息，以识别此人(并可要求此人的组织文件或其他身份文件)，以使行政代理和适用的贷款人遵守美国爱国者法案。第12.17节保持良好。在贷款单据下的担保或授予担保权益的每一种情况下，任何指定的信用方对任何互换义务生效时，作为合格ECP担保人的每一方信用方在此绝对、无条件和不可撤销地承诺就该互换义务向每一指定信用方提供资金或其他支持，该指定信用方可能需要不时地履行其担保项下的所有义务以及与该互换义务有关的其他贷款文件(但在每种情况下，仅限于在不使此类合格ECP担保人根据本条款第12.17条承担的义务和承诺根据与欺诈性转让或欺诈性转让相关的适用法律可被宣告无效的情况下产生的此类责任的最高金额，且不得超过任何更大的金额)。每名符合条件的ECP担保人在本节项下的义务和承诺应保持完全效力，直至这些义务已无可挽回地支付并全部履行为止。就商品交易法的所有目的而言，每一位合格的ECP担保人打算构成(且应被视为构成)对每一特定贷款方的义务的担保以及为其利益而订立的“维持良好、支持或其他协议”。第12.18节承认并同意受影响金融机构的自救。尽管任何贷款文件或任何此类当事人之间的任何其他协议、安排或谅解中有任何相反的规定，本协议各方承认，任何受影响金融机构在任何贷款文件下产生的任何负债，只要该债务是无担保的，可受适用决议机构的减记和转换权力的约束，并同意、同意并承认并同意受以下约束：(A)适用决议机构对本协议项下任何一方(受影响金融机构)可能应向其支付的任何此类债务适用任何减记和转换权力；及(B)任何自救行动对任何该等法律责任的影响，包括(如适用)：(I)全部或部分减少或取消任何该等法律责任；
152(Ii)将全部或部分该等负债转换为有关受影响金融机构、其上级实体、企业或桥梁机构的股份或其他所有权工具，并将接受该等股份或其他所有权工具，以取代本协议或任何其他贷款文件项下任何该等负债的任何权利；或(Iii)就适用决议授权机关的减记及转换权力的行使而更改该等负债的条款。第12.19节洪水保险。尽管本协议有任何相反的规定，任何担保文书或其他贷款文件，(A)在任何情况下，(I)任何除外资产(定义见担保协议)或(Ii)任何建筑物或制造(流动)住宅(定义见适用的洪水保险条例)包括在“抵押品”的定义中，及(B)任何建筑物或制造(流动)住宅(定义见适用的洪水保险规例)不受任何担保文书下的留置权的约束。本文中所使用的“洪水保险条例”是指(I)1968年的《国家洪水保险法》、(Ii)1973年的《洪水灾害保护法》、(Iii)1994年的《国家洪水保险改革法》(修订42 USC 4001等)、(Iv)2004年的《洪水保险改革法》和(V)2012年的《比格特-沃特河洪水保险改革法》，在每一种情况下，均以现在或以后生效的法令或其任何后续法令为依据，并包括根据其颁布的任何条例。第12.20节债权人间协议..(A)贷款人、开证行和其他有担保的各方均承认，借款人和其他贷方对任何允许的额外债务、允许的定期贷款债务或其任何允许的再融资所承担的义务，在本协议规定的范围内，可以通过对借款人和构成债务抵押品的其他贷方的资产的留置权来担保。在根据本协议批准债权人间协议所需的必要各方批准债权人间协议后，贷款人、开证行和其他有担保的各方在此不可撤销地授权并指示行政代理在每一种情况下代表该有担保的一方，而无需该有担保的一方采取任何进一步的同意、授权或其他行动，(I)应借款人的请求，不时就任何此类债务的设立、产生、修订、再融资或替换，签署和交付该债权人间协议，以及(Ii)与之相关的任何文件。(B)每一贷款人、开证行和其他有担保当事人在此不可撤销地(I)同意根据债权人间协议规定的留置权的处理，(Ii)同意一旦签立和交付，该有担保一方将受任何债权人间协议的规定的约束，犹如它是该协议的签字人，并且不会采取任何违反任何债权人间协议的规定的行动，(Iii)同意因行政代理人根据第12.20节或根据任何债权人间协议的条款采取的任何行动而对行政代理人提起诉讼的任何权利，并(Iv)授权和指示行政代理人执行每项债权人间协议的规定和意图。
153(C)贷款人、开证行和其他担保当事人在此不可撤销地进一步授权和指示行政代理在每一种情况下代表该担保当事人，在没有该担保当事人进一步同意、授权或其他行动的情况下，对借款人可能不时要求(I)实施任何允许的额外债务或允许的部分定期贷款债务的任何设立、产生、修订、延期、续期、再融资或替换的任何债权人间协议的任何修订、补充或其他修改，(Ii)向任何一方确认该债权人间协议是有效的，并代表担保各方对行政代理具有约束力，或(Iii)达成任何其他修订、补充或修改，只要所产生的协议在当时作为新协议签署时将构成债权人间协议。(D)每一贷款人、开证行和其他担保当事人在此不可撤销地进一步授权和指示行政代理在每一种情况下代表该担保当事人，在没有该担保当事人进一步同意、授权或其他行动的情况下，对任何担保文书进行任何修订、补充或其他修改，以增加或删除根据任何债权人间协议可能需要的任何图例。(E)就行政代理根据第12.20节或根据任何债权人间协议的条款在全部范围内采取的所有行动而言，行政代理应享有xi条款的利益。第12.21节关于任何受支持的QFC的确认。在贷款文件通过担保或其他方式为任何互换协议或属于QFC的任何其他协议或工具提供支持(此类支持，“QFC信用支持”，以及每个此类QFC，“受支持的QFC”)的范围内，双方承认并同意联邦存款保险公司根据《联邦存款保险法》和《多德-弗兰克华尔街改革和消费者保护法》第二章(连同其下颁布的法规)拥有的清算权。对于此类受支持的QFC和QFC信用支持(尽管贷款文件和任何受支持的QFC实际上可能被声明为受纽约州和/或美国或美国任何其他州的法律管辖，以下条款仍适用)。如果作为受支持QFC的一方的承保实体(每个，“受保方”)受到美国特别决议制度下的诉讼程序的约束，该受支持QFC和该QFC信用支持(以及在该受支持QFC和该QFC信用支持中或之下的任何权益和义务，以及确保该受支持QFC或该QFC信用支持的任何财产权利)从该受覆盖方转让的效力程度将与在美国特别决议制度下的有效程度相同，前提是受支持的QFC和该QFC信用支持(以及任何此类利益，财产上的义务和权利)受美国或美国一个州的法律管辖。如果承保方或承保方的BHC法案附属公司根据美国特别决议制度、贷款文件下可能适用于该受支持的QFC或任何可能被行使的QFC信用支持的违约权利受到诉讼程序的约束
154如果受支持的QFC和贷款文件受美国或美国某个州的法律管辖，则允许行使此类承保方的程度不得超过根据美国特别决议制度可以行使的违约权利。在不限制前述规定的情况下，双方理解并同意，各方关于违约贷款人的权利和补救措施在任何情况下都不影响任何承保方关于所支持的QFC或任何QFC信用支持的权利。第12.22节现有信贷协议。自生效之日起，本协议将全部取代和取代现有的信贷协议；但条件是：(A)在该日期，现有信贷协议项下未偿还的所有贷款、信用证和其他债务、义务和债务应继续构成本协议项下的贷款、信用证和其他债务、义务和负债；(B)本协议或本协议项下任何贷款文件的签署和交付不应构成当事人之间关系的更新、再融资或任何其他根本变化；(C)贷款、信用证和本协议项下其他未偿债务、义务和债务，在紧接生效日期之前的现有信贷协议项下未偿还的范围内，(D)保证贷方在现有信贷协议下的“义务”(定义见现有信贷协议)及贷方在现有信贷协议下的权利、责任、责任及义务的留置权，以及作为其一方的“贷款文件”(定义见现有信贷协议)不得终绝，而应予以结转，并须担保经修订、续期、延长及重述的该等义务及责任。[签名从下一页开始]
55 Refinancing pursuant to Section 9.02(g) that refinances outstanding Permitted Additional Debt except, subject to the limitations set forth in this Section 2.06(e), with respect to any portion of the face principal amount of such Permitted Refinancing which exceeds the principal amount of such refinanced Permitted Additional Debt (plus any accrued interest, fees, expenses and premiums of such refinanced Permitted Additional Debt). (f) Investment Grade Period. If, at any time after the Effective Date, the Borrower commences an Investment Grade Period, then at all times during such Investment Grade Period, there shall be no Borrowing Base and the provisions of Section 2.06(a) through Section 2.06(e) shall not apply during such Investment Grade Period. For the avoidance of doubt, upon the termination of any Investment Grade Period, a Borrowing Base Period shall automatically commence and an Interim Redetermination shall occur in accordance with the procedures set forth in this Section 2.06. Section 2.07 Letters of Credit. (a) General. Subject to the terms and conditions of this Agreement, each Issuing Bank may (but shall not be required to) through the Issuing Office, at any time and from time to time from and after the date hereof until five (5) Business Days prior to the Revolving Credit Maturity Date, upon the written request of the Borrower (which written request must be received no later than three (3) Business Days prior to the requested issuance date of any Letter of Credit) accompanied by a duly executed Letter of Credit Agreement and such other documentation related to the requested Letter of Credit as each Issuing Bank may reasonably require, issue Letters of Credit in Dollars for the account of any Credit Party, (x) in an aggregate amount for all Letters of Credit issued hereunder at any one time outstanding by all Issuing Banks not to exceed the Letter of Credit Maximum Amount and (y) with respect to each Issuing Bank, in an aggregate amount for all Letters of Credit issued hereunder by such Issuing Bank at any one time outstanding not to exceed such Issuing Bank’s Letter of Credit Sublimit without the consent of such Issuing Bank. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, any Credit Party other than the Borrower, the Borrower shall be obligated to reimburse the applicable Issuing Bank hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of any other Credit Party inures to the benefit of the Borrower and that the Borrower’s business derives substantial benefits from the businesses of such other Credit Party. Each Letter of Credit shall be in a minimum face amount of Twenty-Five Thousand Dollars ($25,000) (or such lesser amount as may be agreed to by Issuing Bank) and each Letter of Credit (including any renewal thereof) shall expire not later than the first to occur of (i) twelve (12) months after the date of issuance thereof or such longer time as may be approved by Issuing Bank and (ii) five (5) Business Days prior to the Revolving Credit Maturity Date in effect on the date of issuance thereof; provided, that any Letter of Credit meeting the immediately foregoing requirements may contain a customary “evergreen” provision relating to the renewal thereof; provided, further, to the extent the Borrower Cash Collateralizes any other Letter of Credit at least one hundred eighty (180) days prior to the Revolving Credit Maturity Date in cases where such Letter of Credit could be automatically renewed beyond the Revolving Credit Maturity Date (but in no event beyond one year following the Revolving Credit Maturity Date), such Letter of Credit may contain a customary “evergreen” provision relating to the renewal thereof. The submission of all applications in respect of and the issuance of each Letter of Credit hereunder shall be subject
56 in all respects to the International Standby Practices 98, and any successor documentation thereto and to the extent not inconsistent therewith, the laws of the State of New York. In the event of any conflict between this Agreement and any Letter of Credit Document other than any Letter of Credit, this Agreement shall control. Notwithstanding anything to the contrary in the foregoing or Section 6.02(d), the Existing Specified Letters of Credit shall be deemed to have been issued hereunder as “Letters of Credit”. (b) Conditions to Issuance. No Letter of Credit (other than any Existing Specified Letter of Credit) shall be issued (including the renewal or extension of any Letter of Credit previously issued) at the request and for the account of the Borrower unless, as of the date of issuance (or renewal or extension) of such Letter of Credit: (i) after giving effect to the Letter of Credit requested, (A) the Letter of Credit Obligations do not exceed the Letter of Credit Maximum Amount and (B) each Issuing Bank’s individual Letter of Credit Obligations do not exceed such Issuing Bank’s Letter of Credit Sublimit without the consent of such Issuing Bank; (ii) the conditions set forth in Section 6.02 have been satisfied; (iii) if requested by an Issuing Bank, the Borrower shall have delivered to such Issuing Bank at its Issuing Office the Letter of Credit Agreement related thereto (which must be received no later than three (3) Business Days prior to the requested issuance date), together with such other documents and materials as may be reasonably required pursuant to the terms thereof, and the terms of the proposed Letter of Credit shall be reasonably satisfactory to such Issuing Bank; (iv) no order, judgment or decree of any court, arbitrator or Governmental Authority shall purport by its terms to enjoin or restrain Issuing Bank from issuing the Letter of Credit requested, or any Revolving Credit Lender from taking an assignment of its Applicable Revolving Credit Percentage thereof pursuant to Section 2.07(f) hereof, and no law, rule, regulation, request or directive (whether or not having the force of law) shall prohibit the applicable Issuing Bank from issuing, or any Revolving Credit Lender from taking an assignment of its Applicable Revolving Credit Percentage of, the Letter of Credit requested or letters of credit generally; (v) there shall have been (A) no introduction of or change in the interpretation of any law or regulation, (B) no declaration of a general banking moratorium by banking authorities in the United States, New York or the respective jurisdictions in which the Revolving Credit Lenders, the Borrower and the beneficiary of the requested Letter of Credit are located, and (C) no establishment of any new restrictions by any central bank or other Governmental Authority on transactions involving letters of credit or on banks generally that, in any case described in this Section 2.07(b)(v), would make it unlawful or unduly burdensome for the applicable Issuing Bank to issue or any Revolving Credit Lender to take an assignment of its Applicable Revolving Credit Percentage of the requested Letter of Credit or letters of credit generally;
57 (vi) if any Revolving Credit Lender is a Defaulting Lender, each Issuing Bank has entered into arrangements reasonably satisfactory to it to eliminate such Issuing Bank’s risk with respect to the participation in Letters of Credit by any such Defaulting Lender, including, without limitation, the creation of a cash collateral account or delivery of other security by the Borrower to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations; (vii) the applicable Issuing Bank shall have received the issuance fees required in connection with the issuance of such Letter of Credit pursuant to Section 2.07(d); and (viii) the issuance, extension or amendment of such Letter of Credit would not violate one or more policies of such Issuing Bank applicable to letters of credit generally. Each Letter of Credit Agreement submitted to Issuing Bank pursuant hereto shall constitute the certification by Borrower of the matters set forth in Section 6.02. The Administrative Agent shall be entitled to rely on such certification without any duty of inquiry. (c) Notice. Each Issuing Bank shall deliver to the Administrative Agent, concurrently with or promptly following its issuance of any Letter of Credit, a true and complete copy of each Letter of Credit. Promptly upon its receipt thereof, the Administrative Agent shall give notice, substantially in the form attached as Exhibit F, to each Revolving Credit Lender of the issuance of each Letter of Credit, specifying the amount thereof and the amount of such Revolving Credit Lender’s Applicable Revolving Credit Percentage thereof. (d) Letter of Credit Fees. (i) The Borrower shall pay letter of credit fees as follows: (A) A participation fee with respect to each Lender’s participations in Letters of Credit, which shall accrue at the same Applicable Margin used to determine the interest rate applicable to Term Benchmark Revolving Credit Loans on the average daily amount of such Lender’s Letter of Credit Obligations (excluding any portion thereof attributable to unreimbursed Letter of Credit Payments) during the period from and including the Effective Date to but excluding the later of the date on which such Lender’s Commitment terminates and the date on which such Lender ceases to have any Letter of Credit Obligations, shall be paid to the Administrative Agent for distribution to the Revolving Credit Lenders in accordance with their Applicable Revolving Credit Percentages, including without limitation as adjusted pursuant to Section 4.02(b)(iii). (B) A letter of credit fronting fee in the amount of 0.125% per annum on the face amount of each Letter of Credit during the period from and including the Effective Date to but excluding the later of the date of termination of the Commitments and the date on which there ceases to be any Letter of Credit Obligations (but in no event less than $500 per annum), shall be paid to the Administrative Agent for distribution to each Issuing Bank for its own account. (ii) All payments by the Borrower to the Administrative Agent for distribution to an Issuing Bank or the Revolving Credit Lenders under this Section 2.07(d) shall
58 be made in Dollars in immediately available funds at the Issuing Office or such other office of the Administrative Agent as may be designated from time to time by written notice to Borrower by the Administrative Agent. The fees described in Section 2.07(d)(i)(A) and (B) above (i) accrued through and including the last day of March, June, September and December of each year shall be payable on the third Business Day following such last day, commencing on the first such date to occur after the Effective Date; provided that all such fees shall be payable on the date on which the Aggregate Maximum Credit Amount terminates and any such fees accruing after the date on which the Aggregate Maximum Credit Amount terminates shall be payable on demand and (ii) shall be nonrefundable under all circumstances subject to Section 12.12. All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). (e) Other Fees. In connection with the Letters of Credit, and in addition to the Letter of Credit Fees, the Borrower shall pay, for the sole account of each Issuing Bank, standard documentation, administration, payment and cancellation charges assessed by such Issuing Bank or the Issuing Office, at the times, in the amounts and on the terms set forth or to be set forth from time to time in the standard fee schedule of the Issuing Office in effect from time to time. (f) Participation Interests in and Drawings and Demands for Payment Under Letters of Credit. (i) By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of any Issuing Bank or the Lenders, the applicable Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Applicable Revolving Credit Percentage of each Letter of Credit Payment made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (ii) below, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default, an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. (ii) If any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, the Borrower agrees to pay to such Issuing Bank an amount equal to the amount paid by such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto not later than 12:00 p.m. (New York time), in Dollars, on (i) the Business Day that the Borrower received notice of such presentment and honor, if such notice is received prior to 10:00 a.m. (New York time) or (ii) the Business Day immediately following the day that the Borrower received such notice, if such notice is received after 10:00 a.m. (New York time).
59 (iii) If any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse such Issuing Bank as required under Section 2.07(f)(ii) and the Aggregate Maximum Credit Amount has not been terminated (whether by maturity, acceleration or otherwise), the Borrower shall be deemed to have immediately requested that the Revolving Credit Lenders make a ABR Revolving Credit Borrowing (which Borrowing may be subsequently converted at any time into a Term Benchmark Borrowing pursuant to Section 2.03 hereof) in the principal amount equal to the amount paid by such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto. The Administrative Agent will promptly notify the Revolving Credit Lenders of such deemed request, and each such Lender shall make available to the Administrative Agent an amount equal to its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount of such Borrowing. (iv) If any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, but the Borrower does not reimburse such Issuing Bank as required under Section 2.07(f)(ii), and (i) the Aggregate Maximum Credit Amount has been terminated (whether by maturity, acceleration or otherwise), or (ii) any reimbursement received by such Issuing Bank from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of the Borrower or any of its Subsidiaries or otherwise, then the Administrative Agent shall notify each Revolving Credit Lender, and each Revolving Credit Lender will be obligated to pay the Administrative Agent for the account of such Issuing Bank its pro rata share (based on its Applicable Revolving Credit Percentage) of the amount paid by such Issuing Bank in respect of such draft or other demand under such Letter of Credit and all reasonable expenses paid or incurred by the Administrative Agent relative thereto (but no such payment shall diminish the obligations of the Borrower hereunder). Upon receipt thereof, the Administrative Agent will deliver to such Revolving Credit Lender a participation certificate evidencing its participation interest in respect of such payment and expenses. To the extent that a Revolving Credit Lender fails to make such amount available to the Administrative Agent by 10:00 am New York time on the Business Day next succeeding the date such notice is given, such Revolving Credit Lender shall pay interest on such amount in respect of each day from the date such amount was required to be paid, to the date paid to the Administrative Agent, at a rate per annum equal to the rate applicable under Section 2.04(c)(i) with respect to Revolving Credit Borrowings. The failure of any Revolving Credit Lender to make its pro rata portion of any such amount available under to the Administrative Agent shall not relieve any other Revolving Credit Lender of its obligation to make available its pro rata portion of such amount, but no Revolving Credit Lender shall be responsible for failure of any other Revolving Credit Lender to make such pro rata portion available to the Administrative Agent. (v) In the case of any Borrowing made under this Section 2.07(f), each such Borrowing shall be disbursed notwithstanding any failure to satisfy any conditions for disbursement of any Borrowing set forth in Article II hereof or Article VI, and, to the extent of the Borrowing so disbursed, the Reimbursement Obligation of Borrower to the Administrative Agent under this Section 2.07(f) shall be deemed satisfied (unless, in each case, taking into account any such deemed Borrowings, the aggregate outstanding principal amount of Revolving Credit Borrowings, plus the Letter of Credit Obligations (other than the Reimbursement Obligations to be reimbursed by this Borrowing) on such date exceed the least of the Borrowing Base (solely
60 during a Borrowing Base Period), the then applicable Aggregate Maximum Credit Amount or the then applicable Elected Loan Limit). (vi) If any Issuing Bank shall honor a draft or other demand for payment presented or made under any Letter of Credit, such Issuing Bank shall provide notice thereof to the Borrower on the date such draft or demand is honored, and to each Revolving Credit Lender on such date unless the Borrower shall have satisfied its Reimbursement Obligations by payment to the Administrative Agent (for the benefit of such Issuing Bank) as required under this Section 2.07(f). Each Issuing Bank shall further use reasonable efforts to provide notice to the Borrower prior to honoring any such draft or other demand for payment, but such notice, or the failure to provide such notice, shall not affect the rights or obligations of any Issuing Bank with respect to any Letter of Credit or the rights and obligations of the parties hereto, including without limitation the obligations of the Borrower under this Section 2.07(f). (vii) Notwithstanding the foregoing, however, no Revolving Credit Lender shall be deemed to have acquired a participation in a Letter of Credit if the officers of the applicable Issuing Bank immediately responsible for matters concerning this Agreement shall have received written notice from the Administrative Agent or any Lender at least two (2) Business Days prior to the date of the issuance or extension of such Letter of Credit or, with respect to any Letter of Credit subject to automatic extension, at least five (5) Business Days prior to the date that the beneficiary under such Letter of Credit must be notified that such Letter of Credit will not be renewed, that the issuance or extension of Letters of Credit should be suspended based on the occurrence and continuance of a Default or Event of Default and stating that such notice is a “notice of default”; provided, however, that the Revolving Credit Lenders shall be deemed to have acquired such a participation upon the date on which such Default or Event of Default has been waived by the requisite Revolving Credit Lenders, as applicable, but effective as of the extension or issuance date. (viii) Nothing in this Agreement shall be construed to require or authorize any Revolving Credit Lender to issue any Letter of Credit, it being recognized that the Issuing Banks shall be the sole issuers of Letters of Credit under this Agreement. (ix) In the event that any Revolving Credit Lender becomes a Defaulting Lender, any Issuing Bank may, at its option, require that the Borrower enter into arrangements satisfactory to such Issuing Bank to eliminate such Issuing Bank’s risk with respect to the participation in Letters of Credit by such Defaulting Lender, including creation of a cash collateral account or delivery of other security to assure payment of such Defaulting Lender’s Applicable Revolving Credit Percentage of all outstanding Letter of Credit Obligations. (g) Obligations Irrevocable. The obligations of the Borrower to make payments to the Administrative Agent for the account of any Issuing Bank or the Revolving Credit Lenders with respect to Letter of Credit Obligations under Section 2.07(f), shall be unconditional and irrevocable and not subject to any qualification or exception whatsoever, including, without limitation:
61 (i) Any lack of validity or enforceability of any Letter of Credit, any Letter of Credit Agreement, any other documentation relating to any Letter of Credit, this Agreement or any of the other Loan Documents (the “Letter of Credit Documents”); (ii) Any amendment, modification, waiver, consent, or any substitution, exchange or release of or failure to perfect any interest in collateral or security, with respect to or under any Letter of Credit Document; (iii) The existence of any claim, setoff, defense or other right which the Borrower may have at any time against any beneficiary or any transferee of any Letter of Credit (or any persons or entities for whom any such beneficiary or any such transferee may be acting), the Administrative Agent, any Issuing Bank or any Revolving Credit Lender or any other Person, whether in connection with this Agreement, any of the Letter of Credit Documents, the transactions contemplated herein or therein or any unrelated transactions; (iv) Any draft or other statement or document presented under any 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 applicable Issuing Bank to the beneficiary under any Letter of Credit against presentation of documents which do not comply with the terms of such Letter of Credit, including failure of any documents to bear any reference or adequate reference to such Letter of Credit; (vi) Any failure, omission, delay or lack on the part of the Administrative Agent, any Issuing Bank or any Revolving Credit Lender or any party to any of the Letter of Credit Documents or any other Loan Document to enforce, assert or exercise any right, power or remedy conferred upon the Administrative Agent, any Issuing Bank, any Revolving Credit Lender or any such party under this Agreement, any of the other Loan Documents or any of the Letter of Credit Documents, or any other acts or omissions on the part of the Administrative Agent, any Issuing Bank, any Revolving Credit Lender or any such party; or (vii) Any other event or circumstance that would, in the absence of this Section 2.07(g), result in the release or discharge by operation of law or otherwise of the Borrower from the performance or observance of any obligation, covenant or agreement contained in Section 2.07(f). No setoff, counterclaim, reduction or diminution of any obligation or any defense of any kind or nature which the Borrower has or may have against the beneficiary of any Letter of Credit shall be available hereunder to the Borrower against the Administrative Agent, any Issuing Bank or any Revolving Credit Lender. With respect to any Letter of Credit, nothing contained in this Section 2.07(g) shall be deemed to prevent the Borrower, after satisfaction in full of the absolute and unconditional obligations of the Borrower hereunder with respect to such Letter of Credit, from asserting in a separate action any claim, defense, set off or other right which it may have against the Administrative Agent, any Issuing Bank or any Revolving Credit Lender in connection with such Letter of Credit.
62 (h) Risk Under Letters of Credit. (i) In the administration and handling of Letters of Credit and any security therefor, or any documents or instruments given in connection therewith, the Issuing Banks shall have the sole right to take or refrain from taking any and all actions under or upon the Letters of Credit. (ii) Subject to other terms and conditions of this Agreement, each Issuing Bank shall issue the Letters of Credit and shall hold the documents related thereto in its own name and shall make all collections thereunder and otherwise administer the applicable Letters of Credit in accordance with such Issuing Bank’s regularly established practices and procedures and will have no further obligation with respect thereto. In the administration of Letters of Credit, each Issuing Bank shall not be liable for any action taken or omitted on the advice of counsel, accountants, appraisers or other experts selected by such Issuing Bank with due care and such Issuing Bank may rely upon any notice, communication, certificate or other statement from the Borrower, beneficiaries of Letters of Credit, or any other Person which such Issuing Bank believes to be authentic. Each Issuing Bank will, upon request, furnish the Revolving Credit Lenders with copies of Letter of Credit Documents related thereto. (iii) In connection with the issuance and administration of Letters of Credit and the assignments hereunder, the Issuing Banks make no representation and shall have no responsibility with respect to (i) the obligations of the Borrower or the validity, sufficiency or enforceability of any document or instrument given in connection therewith, or the taking of any action with respect to same, (ii) the financial condition of, any representations made by, or any act or omission of the Borrower or any other Person, or (iii) any failure or delay in exercising any rights or powers possessed by any Issuing Bank in its capacity as issuer of Letters of Credit in the absence of its gross negligence or willful misconduct. Each of the Revolving Credit Lenders expressly acknowledges that it has made and will continue to make its own evaluations of the Borrower’s creditworthiness without reliance on any representation of any Issuing Bank or any Issuing Bank’s officers, agents and employees. (iv) If at any time any Issuing Bank shall recover any part of any unreimbursed amount for any draw or other demand for payment under a Letter of Credit, or any interest thereon, the Administrative Agent or such Issuing Bank, as the case may be, shall receive same for the pro rata benefit of the Revolving Credit Lenders in accordance with their respective Applicable Revolving Credit Percentages and shall promptly deliver to each Revolving Credit Lender its share thereof, less such Revolving Credit Lender’s pro rata share of the costs of such recovery, including court costs and attorney’s fees. If at any time any Revolving Credit Lender shall receive from any source whatsoever any payment on any such unreimbursed amount or interest thereon in excess of such Revolving Credit Lender’s Applicable Revolving Credit Percentage of such payment, such Revolving Credit Lender will promptly pay over such excess to the Administrative Agent, for redistribution in accordance with this Agreement. (i) Indemnification. The Borrower hereby indemnifies and agrees to hold harmless the Revolving Credit Lenders, the Issuing Banks and the Administrative Agent and their respective Affiliates, and the respective officers, directors, employees and agents of such Persons (each an “L/C Indemnified Person”), from and against any and all claims, damages, losses,
63 liabilities, costs or expenses of any kind or nature whatsoever which the Revolving Credit Lenders, the Issuing Banks or the Administrative Agent or any such Person may incur or which may be claimed against any of them by reason of or in connection with any Letter of Credit (collectively, the “L/C Indemnified Amounts”), and none of the L/C Indemnified Persons shall be liable or responsible for: (i) the use which may be made of any Letter of Credit or for any acts or omissions of any beneficiary in connection therewith; (ii) the validity, sufficiency or genuineness of documents or of any endorsement thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (iii) payment by any Issuing Bank to the beneficiary under any Letter of Credit against presentation of documents which do not strictly comply with the terms of any Letter of Credit (unless such payment resulted from the gross negligence or willful misconduct of such Issuing Bank), including failure of any documents to bear any reference or adequate reference to such Letter of Credit; (iv) any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit; or (v) any other event or circumstance whatsoever arising in connection with any Letter of Credit. It is understood that in making any payment under a Letter of Credit, the applicable Issuing Bank will rely on documents presented to it under such Letter of Credit as to any and all matters set forth therein without further investigation and regardless of any notice or information to the contrary. With respect to subparagraphs (i) through (v), (A) the Borrower shall not be required to indemnify any L/C Indemnified Person for any L/C Indemnified Amounts to the extent such amounts result from the gross negligence or willful misconduct of such L/C Indemnified Person or any officer, director, employee or agent of such L/C Indemnified Person as determined by a final, non- appealable order of a court of competent jurisdiction and (B) the Administrative Agent and the applicable Issuing Bank shall be liable to the Borrower to the extent, but only to the extent, of any direct, as opposed to consequential or incidental, damages suffered by the Borrower which were caused by the gross negligence or willful misconduct of any L/C Indemnified Person or by such Issuing Bank’s wrongful dishonor of any Letter of Credit after the presentation to it by the beneficiary thereunder of a draft or other demand for payment and other documentation strictly complying with the terms and conditions of such Letter of Credit, in each case, as determined by a final, non-appealable order of a court of competent jurisdiction. (j) Right of Reimbursement. Each Revolving Credit Lender agrees to reimburse the applicable Issuing Bank on demand, pro rata in accordance with its respective Applicable Revolving Credit Percentage, for (i) the reasonable out-of-pocket costs and expenses of such Issuing Bank to be reimbursed by the Borrower pursuant to any Letter of Credit Agreement or any Letter of Credit, to the extent not reimbursed by the Borrower or any of its Subsidiaries and
64 (ii) any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, fees, reasonable out-of-pocket expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against such Issuing Bank in any way relating to or arising out of this Agreement (including Section 2.07(f)(iii) hereof), any Letter of Credit, any documentation or any transaction relating thereto, or any Letter of Credit Agreement, to the extent not reimbursed by the Borrower, except to the extent that such liabilities, losses, costs or expenses were incurred by such Issuing Bank as a result of such Issuing Bank’s gross negligence or willful misconduct or by such Issuing Bank’s wrongful dishonor of any Letter of Credit after the presentation to it by the beneficiary thereunder of a draft or other demand for payment and other documentation strictly complying with the terms and conditions of such Letter of Credit, in each case, as determined by a final, non-appealable order of a court of competent jurisdiction. ARTICLE III PAYMENTS OF PRINCIPAL AND INTEREST ON REVOLVING CREDIT LOANS; PREPAYMENTS OF REVOLVING CREDIT LOANS; FEES Section 3.01 Repayment of Revolving Credit Loans. The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Revolving Credit Lender the then unpaid principal amount of each Revolving Credit Loan on the Termination Date. Section 3.02 Interest on Revolving Credit Loans. (a) ABR Revolving Credit Loans. The Revolving Credit Loans comprising each ABR Revolving Credit Borrowing shall bear interest at the Alternate Base Rate plus the Applicable Margin, but in no event to exceed the Highest Lawful Rate. (b) Term Benchmark Revolving Credit Loans; RFR Loans. The Revolving Credit Loans comprising each Term Benchmark Revolving Credit Borrowing shall bear interest at the Adjusted Term SOFR for the Interest Period in effect for such Revolving Credit Borrowing plus the Applicable Margin, but in no event to exceed the Highest Lawful Rate. Each RFR Loan (if applicable) shall bear interest at a rate per annum equal to Adjusted Daily Simple SOFR plus the Applicable Margin, but in no event to exceed the Highest Lawful Rate. (c) Post-Default Rate. Notwithstanding the foregoing, if an Event of Default specified in (i) Sections 10.01(h), 10.01(i) or 10.01(j) has occurred and is continuing, or (ii) Sections 10.01(a) and 10.01(b) has occurred and is continuing, then (A) in the case of clause (i) of this Section 3.02(c), all Revolving Credit Loans outstanding, and (B) in the case of clause (ii) of this Section 3.02(c), any past due amounts, in each case shall bear interest, after as well as before judgment, at a rate per annum equal to two percent (2%) plus the rate applicable to such Revolving Credit Loans or such past due amounts, as applicable, but in no event to exceed the Highest Lawful Rate. (d) Interest Payment Dates. Accrued interest on each Revolving Credit Loan shall be payable in arrears on each Interest Payment Date for such Revolving Credit Loan and on the Termination Date; provided that (i) interest accrued pursuant to Section 3.02(c) shall be payable on demand, (ii) in the event of any repayment or prepayment of any Revolving Credit
65 Loan (other than an optional prepayment of an ABR Revolving Credit Loan prior to the Termination Date at a time when no Borrowing Base Deficiency exists), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment, and (iii) in the event of any conversion of any Term Benchmark Revolving Credit Loan prior to the end of the current Interest Period therefor, accrued interest on such Revolving Credit Loan shall be payable on the effective date of such conversion. (e) Interest Rate Computations. Interest computed by reference to the Term SOFR or Daily Simple SOFR hereunder shall be computed on the basis of a year of 360 days, unless such computation would exceed the Highest Lawful Rate, in which case interest shall be computed on the basis of a year of 365 days (or 366 days in a leap year). Interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year). In each case, interest shall be payable for the actual number of days elapsed (including the first day but excluding the last day). All interest hereunder or any Loan shall be computed on a daily basis based upon the outstanding principal amount of such Loan as of the applicable date of determination. The applicable Alternate Base Rate, Adjusted Term SOFR or Adjusted Daily Simple SOFR shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error, and be binding upon the parties hereto. Section 3.03 Prepayments of Revolving Credit Loans. (a) Optional Prepayments. Subject to any break funding costs payable pursuant to Section 5.02, the Borrower shall have the right at any time and from time to time to prepay any Revolving Credit Borrowing in whole or in part, without premium or penalty, subject to prior notice in accordance with Section 3.03(b). (b) Notice and Terms of Optional Prepayment. The Borrower shall notify the Administrative Agent by telephone (confirmed by facsimile) of any prepayment hereunder (i) in the case of prepayment of (A) a Term Benchmark Revolving Credit Borrowing, not later than 12:00 p.m., New York time, three (3) Business Days before the date of prepayment or (B) an RFR Borrowing, not later than 11:00 a.m., New York time, five (5) Business Days before the date of prepayment, or (ii) in the case of prepayment of an ABR Revolving Credit Borrowing, not later than 12:00 p.m., New York time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Revolving Credit Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Aggregate Maximum Credit Amount as contemplated by Section 2.05(b)(ii), then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.05(b)(ii). Promptly following receipt of any such notice relating to a Revolving Credit Borrowing, the Administrative Agent shall advise the Revolving Credit Lenders of the contents thereof. Each partial prepayment of any Revolving Credit Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving Credit Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 3.02.
66 (c) Mandatory Prepayments. (i) If, after giving effect to any termination or reduction of the Aggregate Maximum Credit Amounts pursuant to Section 2.05(b) or reduction of the Elected Loan Limit pursuant to Section 2.01(b)(i), the total Revolving Credit Exposures exceeds the total Commitments, then the Borrower shall prepay the Revolving Credit Borrowings on the date of such termination or reduction in an aggregate principal amount equal to such excess, and if any excess remains after prepaying all of the Revolving Credit Borrowings as a result of Letter of Credit Obligations, Cash Collateralize such excess in an amount equal to the greater of (A) the amount of such Letter of Credit Obligations and (B) the maximum amount that may be available to be drawn at any time prior to the stated expiry of all outstanding Letters of Credit. (ii) (A) During a Borrowing Base Period, upon any Scheduled Redetermination or Interim Redetermination or other adjustment of the Borrowing Base pursuant to Section 8.13(c) if the total Revolving Credit Exposures plus the principal balance of Permitted Pari Term Loan Debt then outstanding exceeds the redetermined Borrowing Base and the Administrative Agent sends a New Borrowing Base Notice to the Borrower indicating such Borrowing Base Deficiency (each, a “Borrowing Base Deficiency Notice”), then the Borrower shall within ten (10) Business Days following receipt of such Borrowing Base Deficiency Notice elect whether to (1) prepay the Revolving Credit Borrowings an amount which would, if prepaid immediately, eliminate the Borrowing Base Deficiency, (2) execute one or more Security Instruments (or cause a Subsidiary to execute one or more Security Instruments) covering such other Oil and Gas Properties as are reasonably acceptable to the Majority Lenders having present values which, in the reasonable opinion of the Majority Lenders, based upon the Majority Lenders’ good-faith evaluation of the engineering data provided them, taken in the aggregate are sufficient to increase the Borrowing Base to an amount sufficient to eliminate the Borrowing Base Deficiency, or (3) do any combination of the foregoing. If the Borrower fails to make an election within such ten (10) Business Day period after the Borrower’s receipt of the Borrowing Base Deficiency Notice, then Borrower shall be deemed to have selected the prepayment option specified in clause (1) above. To the extent any prepayment of Revolving Credit Borrowings is required hereunder, if a Borrowing Base Deficiency remains after prepaying all Revolving Credit Borrowings as a result of Letter of Credit Obligations, the Borrower shall Cash Collateralize such excess in an amount equal to the greater of (x) the amount of such Letter of Credit Obligations and (y) the maximum amount that may be available to be drawn at any time prior to the stated expiry of all outstanding Letters of Credit. (B) The Borrower shall deliver such prepayments or Security Instruments covering additional Oil and Gas Properties in accordance with its election (or deemed election) pursuant to Section 3.03(c)(ii)(A) as follows: (1) Prepayment Elections. If the Borrower elects to prepay an amount in accordance with Section 3.03(c)(ii)(A)(1) above, then the Borrower may make such prepayment in three (3) equal consecutive monthly installments beginning within thirty (30) days after Borrower’s receipt of the Borrowing Base Deficiency Notice and continuing on the same day of each month thereafter; provided that all payments required to be made pursuant to this Section 3.03(c)(ii)(B)(1) must be made on or prior to the Termination Date.
67 (2) Elections to Mortgage Additional Oil and Gas Properties. If the Borrower elects to mortgage additional Oil and Gas Properties in accordance with Section 3.03(c)(ii)(A)(2) above, then (I) such properties shall be reasonably acceptable to the Majority Lenders having present values which, in the reasonable opinion of the Majority Lenders, based upon the Majority Lenders’ good-faith evaluation of the engineering data provided them, taken in the aggregate are sufficient to increase the Borrowing Base to an amount sufficient to eliminate such Borrowing Base Deficiency, and (II) the Borrower or such Subsidiary shall execute, acknowledge and deliver to the Administrative Agent one or more Security Instruments within thirty (30) days after the Borrower’s receipt of the Borrowing Base Deficiency Notice (or such longer time as determined by the Administrative Agent); provided, however (x) if none of the additional Oil and Gas Properties offered by the Borrower are reasonably acceptable to the Majority Lenders, the Borrower shall be deemed to have elected the prepayment option specified in Section 3.03(c)(ii)(A)(1) (and Borrower shall make such prepayment in accordance with Section 3.03(c)(ii)(B)(1)); and (y) if the aggregate present values of additional Oil and Gas Properties which are reasonably acceptable to the Majority Lenders are insufficient to eliminate the Borrowing Base Deficiency, then the Borrower shall be deemed to have selected the option specified in Section 3.03(c)(ii)(A)(3) (and the Borrower shall make prepayment and deliver or cause to be delivered one or more Security Instruments as provided in Section 3.03(c)(ii)(B)(3)). Together with such Security Instruments, the Borrower shall deliver to the Administrative Agent title opinions and/or other title information and data reasonably acceptable to the Administrative Agent such that the Administrative Agent shall have received, together with the title information previously delivered to the Administrative Agent, reasonably satisfactory title information on at least ninety percent (90%) of the total value of the Proved Oil and Gas Properties evaluated by the most recent Reserve Report and which are required to be Mortgaged Properties hereunder. (3) Combination Elections. If the Borrower elects (or is deemed to have elected) to eliminate the Borrowing Base Deficiency by a combination of prepayment and mortgaging of additional Oil and Gas Properties in accordance with Section 3.03(c)(ii)(A)(3), then within thirty (30) days after the Borrower’s receipt of the Borrowing Base Deficiency Notice (or such longer time as determined by the Administrative Agent), the Borrower shall (or shall cause a Subsidiary to) execute, acknowledge and deliver to the Administrative Agent one or more Security Instruments covering such additional Oil and Gas Properties and pay the Administrative Agent the amount by which the Borrowing Base Deficiency exceeds the present values of such additional Oil and Gas Properties in three (3) equal consecutive monthly installments beginning within thirty (30) days after Borrower’s receipt of the Borrowing Base Deficiency Notice and continuing on the same day of each month thereafter; provided that all payments required to be made pursuant to this Section 3.03(c)(ii)(B)(3) must be made on or prior to the Termination Date. (iii) During a Borrowing Base Period, upon any adjustment to the Borrowing Base pursuant to Section 9.10 or pursuant to Section 2.06(e), if a Borrowing Base
68 Deficiency results, then the Borrower shall prepay the Revolving Credit Borrowings in an aggregate principal amount sufficient to eliminate such Borrowing Base Deficiency, and if any Borrowing Base Deficiency remains after prepaying all of the Revolving Credit Borrowings as a result of Letter of Credit Obligations, Cash Collateralize such excess in an amount equal to the greater of (A) the amount of such Letter of Credit Obligations and (B) the maximum amount that may be available to be drawn at any time prior to the stated expiry of all outstanding Letters of Credit. The Borrower shall be obligated to make such prepayment and/or Cash Collateralize such excess on the second (2nd) Business Day after it receives the applicable New Borrowing Base Notice in accordance with Section 2.06(d); provided that all payments required to be made pursuant to this Section 3.03(c)(iii) must be made on or prior to the Termination Date. (iv) Each prepayment of Revolving Credit Borrowings pursuant to this Section 3.03(c) shall be applied, (A) first, ratably to any ABR Revolving Credit Borrowings then outstanding, (B) second, to any RFR Borrowings then outstanding, and if more than one RFR Borrowing is then outstanding, to each such RFR Borrowing in order of priority beginning with the RFR Borrowing with the least number of days remaining prior to the Interest Payment Date applicable thereto and ending with the RFR Borrowing with the most number of days remaining prior to the Interest Payment Date applicable thereto and (C) third, to any Term Benchmark Revolving Credit Borrowings then outstanding, and if more than one Term Benchmark Revolving Credit Borrowing is then outstanding, to each such Term Benchmark Revolving Credit Borrowing in order of priority beginning with the Term Benchmark Revolving Credit Borrowing with the least number of days remaining in the Interest Period applicable thereto and ending with the Term Benchmark Revolving Credit Borrowing with the most number of days remaining in the Interest Period applicable thereto; provided, however, if any excess remains after the prepayment of all Revolving Credit Borrowings and after the Borrower Cash Collateralizes all Letter of Credit Obligations or outstanding Letters of Credit, such excess shall be prepaid by the Borrower. (v) Each prepayment of Revolving Credit Borrowings pursuant to this Section 3.03(c) shall be accompanied by accrued interest on the amount prepaid to the extent required by Section 3.02. (d) No Premium or Penalty. Prepayments permitted or required under this Section 3.03 shall be without premium or penalty, except as required under Section 5.02. Section 3.04 Fees. (a) Commitment Fees. The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender a commitment fee, which shall accrue at the applicable Commitment Fee Rate on the actual daily amount of the undrawn Commitment of such Revolving Credit Lender during the period from and including the date of this Agreement to but excluding the Termination Date (such fee, the “Commitment Fee”). Accrued Commitment Fees shall be payable in arrears on the last day of each March, June, September and December of each year (with respect to the preceding three months or portion thereof) and on the Termination Date (and, if applicable, thereafter on demand), commencing on the first such date to occur after the date hereof. If there is any change in the Commitment of any Revolving Credit Lender during any such three-month period, the actual daily amount of the Commitment shall be computed and multiplied by the Commitment Fee Rate separately for each period during such three-month period
69 such Commitment was in effect. All Commitment Fees shall be computed on the basis of a year of 360 days, unless such computation would exceed the Highest Lawful Rate, in which case interest shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and shall be payable for the actual number of days elapsed (including the first day and the last day of each period but excluding the date on which the Commitments terminate). (b) Administrative Agent Fees. The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times set forth in the Fee Letter. ARTICLE IV PAYMENTS; PRO RATA TREATMENT; SHARING OF SET-OFFS Section 4.01 Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) Payment Procedure. (i) All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise provided herein, all payments made by the Borrower of principal, interest or fees hereunder shall be made without setoff or counterclaim on the date specified for payment under this Agreement and must be received by the Administrative Agent not later than 1:00 p.m. (New York time) on the date such payment is required or intended to be made in Dollars in immediately available funds to the Administrative Agent at the Administrative Agent’s office located at 270 Park Avenue, New York, New York 10017, for the ratable benefit of the Revolving Credit Lenders in the case of payments in respect of the Revolving Credit Loans and any Letter of Credit Obligations. Any payment received by the Administrative Agent after 1:00 p.m. (New York time) shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. Upon receipt of each such payment, the Administrative Agent shall make prompt payment to each applicable Lender of all amounts received by it for the account of such Lender. (ii) Unless the Administrative Agent shall have been notified in writing by the Borrower at least two (2) Business Days prior to the date on which any payment to be made by the Borrower is due that the Borrower does not intend to remit such payment, the Administrative Agent may, in its sole discretion and without obligation to do so, assume that the Borrower has remitted such payment when so due and the Administrative Agent may, in reliance upon such assumption, make available to each Revolving Credit Lender, as the case may be, on such payment date an amount equal to such Lender’s share of such assumed payment. If the Borrower has not in fact remitted such payment to the Administrative Agent, each Lender shall forthwith on demand repay to the Administrative Agent the amount of such assumed payment made available or transferred to such Lender, together with the interest thereon, in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent at a rate per annum equal to the NYFRB Rate for the first two (2) Business Days that such amount remains unpaid, and thereafter at a rate of interest then applicable to such Borrowings.
70 (iii) Subject to the definition of “Interest Period” in Section 1.02 of this Agreement, whenever any payment to be made hereunder shall otherwise be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in computing interest, if any, in connection with such payment. (b) Application of Insufficient Payments. If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, Reimbursement Obligations, interest and fees then due hereunder, such funds shall be applied first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and second, towards payment of principal and Reimbursement Obligations then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and Reimbursement Obligations then due to such parties. (c) Sharing of Payments by Lenders. If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in Reimbursement Obligations resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in Reimbursement Obligations and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in Reimbursement Obligations of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in Reimbursement Obligations; provided that 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 the provisions of this Section 4.01(c) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Reimbursement Obligations to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this Section 4.01(c) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. Section 4.02 Deductions by the Administrative Agent; Defaulting Lender. (a) Certain Deductions by the Administrative Agent. If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(a), Section 2.07(f) or Section 4.02, then the Administrative Agent may, in its sole discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender hereunder,
71 in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion. (b) Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender: (i) The obligation of any Lender to make any Loan hereunder shall not be affected by the failure of any other Lender to make any Loan under this Agreement, and no Lender shall have any liability to the Borrower or any of its Subsidiaries, the Administrative Agent, any other Lender, or any other Person for another Lender’s failure to make any loan or Loan hereunder. (ii) If any Lender shall become a Defaulting Lender, then such Defaulting Lender’s right to participate in the administration of the loans, this Agreement and the other Loan Documents, including without limitation any right to vote in respect of any amendment, consent or waiver of the terms of this Agreement or such other Loan Documents, or to direct or approve any action or inaction by the Administrative Agent shall be suspended for the entire period that such Lender remains a Defaulting Lender and the stated commitment amounts and outstanding Loans of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders (or any class thereof) or the Majority Lenders (or any class thereof), as the case may be, have taken or may take any action hereunder (including, without limitation, any action to approve any consent, waiver or amendment to this Agreement or the other Loan Documents); provided, however, that the foregoing shall not permit (A) an increase in such Defaulting Lender’s stated commitment amounts, (B) the waiver, forgiveness or reduction of the principal amount of any Obligations outstanding to such Defaulting Lender (unless all other Lenders affected thereby are treated similarly), (C) the extension of the final maturity date(s) of such Defaulting Lenders’ portion of any of the loans or other extensions of credit or other obligations of the Borrower owing to such Defaulting Lender, in each case without such Defaulting Lender’s consent, (D) any other modification which under Section 12.02 requires the consent of all Lenders or Lender(s) affected thereby which affects the Defaulting Lender differently than the Non-Defaulting Lenders affected by such modification, other than a change to or waiver of the requirements of Section 4.01(b) which results in a reduction of the Defaulting Lender’s commitment or its share of the Obligations on a non-pro-rata basis. (iii) All or any part of such Defaulting Lender’s participation in Letter of Credit Obligations shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Revolving Credit Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non- Defaulting Lender’s Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation. (iv) To the extent and for so long as a Lender remains a Defaulting Lender and notwithstanding the provisions of Section 4.01(b), the Administrative Agent shall be
72 entitled, without limitation, (A) to withhold or setoff and to apply in satisfaction of those obligations for payment (and any related interest) in respect of which the Defaulting Lender shall be delinquent or otherwise in default to the Administrative Agent or any Lender (or to hold as cash collateral for such delinquent obligations or any future defaults) the amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document, (B) if the amount of Loans made by such Defaulting Lender is less than its Applicable Revolving Credit Percentage, as the case may be, requires, apply payments of principal made by the Borrower amongst the Non- Defaulting Lenders on a pro rata basis until all outstanding Loans are held by all Lenders according to their respective Applicable Revolving Credit Percentages, and (C) to bring an action or other proceeding, in law or equity, against such Defaulting Lender in a court of competent jurisdiction to recover the delinquent amounts, and any related interest. Performance by the Borrower of its obligations under this Agreement and the other Loan Documents shall not be excused or otherwise modified as a result of the operation of this Section, except to the extent expressly set forth herein and in any event the Borrower shall not be required to pay any Commitment Fee under Section 3.04(a) of this Agreement in respect of such Defaulting Lender’s Unfunded Portion for the period during which such Lender is a Defaulting Lender. Furthermore, the rights and remedies of the Borrower, the Administrative Agent, the Issuing Banks and the other Lenders against a Defaulting Lender under this section shall be in addition to any other rights and remedies such parties may have against the Defaulting Lender under this Agreement or any of the other Loan Documents, applicable law or otherwise, and the Borrower waives no rights or remedies against any Defaulting Lender. Section 4.03 Disposition of Proceeds. The Security Instruments contain an assignment by the Borrower and/or the Guarantors unto and in favor of the Administrative Agent for the benefit of the Secured Parties of all of the Borrower’s or each Guarantor’s interest in and to production and all proceeds attributable thereto which may be produced from or allocated to the Mortgaged Property. The Security Instruments further provide in general for the application of such proceeds to the satisfaction of the Obligations and other obligations described therein and secured thereby. Notwithstanding the assignment contained in such Security Instruments, until the occurrence of an Event of Default, the Administrative Agent and the Lenders agree that they will neither notify the purchaser or purchasers of such production nor take any other action to cause such proceeds to be remitted to the Administrative Agent or the Lenders, but the Lenders will instead permit such proceeds to be paid to the Borrower and its Subsidiaries and the Lenders hereby authorize the Administrative Agent to take such actions as may be necessary to cause such proceeds to be paid to the Borrower and/or such Subsidiaries. ARTICLE V INCREASED COSTS; REIMBURSEMENT OF PREPAYMENT COSTS; TAXES Section 5.01 Increased Costs. (a) Changes in Law. If any Change in Law shall: (i) impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loan requirement, insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any
73 Lender (except any such reserve requirement reflected in the Adjusted Term SOFR) or any Issuing Bank; (ii) impose on any Lender or any Issuing Bank or the applicable offshore market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein; or (iii) subject any recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (a) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; and the result of any of the foregoing shall be to increase the cost to such Lender or such other recipient of making, continuing, converting or maintaining any Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender, such Issuing Bank or such other recipient of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, such Issuing Bank or such other recipient hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender, such Issuing Bank or such other recipient, as the case may be, such additional amount or amounts as will compensate such Lender, such Issuing Bank or such other recipient, as the case may be, for such additional costs incurred or reduction suffered. (b) Capital Adequacy and Other Increased Costs. (i) If, after the Effective Date, the adoption or introduction of, or any change in any applicable law, treaty, rule or regulation (whether domestic or foreign) now or hereafter in effect and whether or not presently applicable to any Lender or the Administrative Agent, or any interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or the Administrative Agent with any guideline, request or directive of any such authority (whether or not having the force of law), including any risk based capital guidelines (each, a “Change in Law”), affects or would affect the amount of capital or liquidity required to be maintained by such Lender or the Administrative Agent (or any corporation controlling such Lender or the Administrative Agent) and such Lender or the Administrative Agent, as the case may be, determines that the amount of such capital or liquidity is increased by or based upon the existence of such Lender’s or the Administrative Agent’s obligations or Borrowings hereunder and such increase has the effect of reducing the rate of return on such Lender’s or the Administrative Agent’s (or such controlling corporation’s) capital as a consequence of such obligations or Borrowings hereunder to a level below that which such Lender or the Administrative Agent (or such controlling corporation) could have achieved but for such circumstances (taking into consideration its policies with respect to capital adequacy) (collectively, “Increased Costs”), then the Administrative Agent or such Lender shall notify the Borrower, and thereafter the Borrower shall pay to such Lender or the Administrative Agent, as the case may be, within ten (10) Business Days of written demand therefor from such Lender or the Administrative Agent, additional amounts sufficient to compensate such Lender or the Administrative Agent (or such controlling corporation) for any increase in the amount of capital or liquidity and reduced rate of return which such Lender or the Administrative Agent reasonably determines to be allocable to the existence of such Lender’s or
74 the Administrative Agent’s obligations or Borrowings hereunder. A statement setting forth the amount of such compensation, the methodology for the calculation and the calculation thereof which shall also be prepared in good faith and in reasonable detail by such Lender or the Administrative Agent, as the case may be, shall be submitted by such Lender or by the Administrative Agent to the Borrower, reasonably promptly after becoming aware of any event described in this Section 5.01(b) and shall be conclusively presumed to be correct, absent manifest error. Notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law” regardless of the date enacted, adopted or issued. (ii) Notwithstanding the foregoing, however, the Borrower shall not be required to pay any increased costs under Sections 5.01(a) or 5.01(b) for any period ending prior to the date that is two hundred seventy (270) days prior to the making of a Lender’s initial request for such additional amounts unless the applicable Change in Law or other event resulting in such increased costs is effective retroactively to a date more than two hundred seventy (270) days prior to the date of such request, in which case a Lender’s request for such additional amounts relating to the period more than one hundred eighty (180) days prior to the making of the request must be given not more than two hundred seventy (270) days after such Lender becomes aware of the applicable Change in Law or other event resulting in such increased costs. Section 5.02 Reimbursement of Prepayment Costs. If (a) the Borrower makes any payment of principal with respect to any Term Benchmark Borrowing on any day other than the last day of the Interest Period applicable thereto (whether voluntarily, pursuant to any mandatory provisions hereof, by acceleration, or otherwise); (b) the Borrower converts or refunds (or attempts to convert or refund) any such Borrowing or Loan on any day other than the last day of the Interest Period applicable thereto; (c) the Borrower fails to borrow, refund or convert any Term Benchmark Borrowing after notice has been given by the Borrower to the Administrative Agent in accordance with the terms hereof requesting such Borrowing or Loan; or (d) or if the Borrower fails to make any payment of principal in respect of a Term Benchmark Borrowing when due, the Borrower shall reimburse the Administrative Agent for itself and/or on behalf of any Lender, as the case may be, within ten (10) Business Days of written demand therefor for any resulting loss, cost or expense incurred (excluding the loss of any Applicable Margin) by the Administrative Agent and Lenders, as the case may be, as a result thereof, including, without limitation, any such loss, cost or expense incurred in obtaining, liquidating, employing or redeploying deposits from third parties, whether or not the Administrative Agent and Lenders, as the case may be, shall have funded or committed to fund such Borrowing or Loan. With respect to RFR Loans, in the event of (w) the payment of any principal of any RFR Loan other than on the Interest Payment Date applicable thereto (whether voluntarily, pursuant to any mandatory provisions hereof, by acceleration, or otherwise), (y) the failure to borrow or prepay any RFR Loan on the date specified in any notice delivered pursuant hereto or (z) the assignment of any RFR Loan other than on the Interest Payment Date applicable thereto as a result of a request by the Borrower pursuant to Section 5.05, then the Borrower shall reimburse the Administrative Agent for itself and/or on behalf of any Lender, as the case may be, within ten (10) Business Days of written demand therefor for any resulting loss, cost or expense
75 incurred (excluding the loss of any Applicable Margin) by the Administrative Agent and Lenders, as the case may be, as a result thereof, including, without limitation, any such loss, cost or expense incurred in obtaining, liquidating, employing or redeploying deposits from third parties, whether or not the Administrative Agent and Lenders, as the case may be, shall have funded or committed to fund such Borrowing or Loan. Calculation of any amounts payable to any Lender under this paragraph shall be made as though such Lender shall have actually funded or committed to fund the relevant Borrowing or Loan through the purchase of an underlying deposit in an amount equal to the amount of such Borrowing or Loan and having a maturity comparable to the relevant Interest Period; provided, however, that any Lender may fund any Borrowing in any manner it deems fit and the foregoing assumptions shall be utilized only for the purpose of the calculation of amounts payable under this paragraph. The Administrative Agent and the Lenders shall deliver to the Borrower a certificate setting forth the basis for determining such losses, costs and expenses, which certificate shall be conclusively presumed correct, absent manifest error. Section 5.03 Taxes. (a) Payments Free of Taxes. Any and all payments by or on account of any obligation of the Withholding Agent under any Loan Document shall be made free and clear of and without deduction for any Indemnified Taxes; provided that if any Credit Party shall be required to deduct any Indemnified Taxes from such payments, then the sum payable by the Credit Parties shall be increased as necessary so that after making all required deductions or withholdings (including deductions or withholdings of Indemnified Taxes applicable to additional sums payable under this Section 5.03), the Administrative Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, the Withholding Agent shall make such deductions or withholdings and the Withholding Agent shall pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. (b) Payment of Other Taxes by the Borrower or Guarantors. The Borrower or Guarantors, as applicable, shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law or, at the option of the Administrative Agent, timely reimburse it for such Other Taxes. (c) Indemnification by the Borrower, Guarantors and Lenders. (i) The Borrower or Guarantors, as applicable, shall indemnify the Administrative Agent and each Lender, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes paid by the Administrative Agent or such Lender, as the case may be, on or with respect to any payment by or on account of any obligation of the Borrower or Guarantors, as applicable, hereunder (including Indemnified Taxes or imposed or asserted on or attributable to amounts payable under this Section 5.03) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate of the Administrative Agent or a Lender as to the amount of such payment or liability
76 under this Section 5.03 shall be delivered to the Borrower or Guarantors, as applicable, and shall be conclusive absent manifest error. (ii) Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (A) any Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), (B) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.04(b)(viii) relating to the maintenance of a Participant Register and (C) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 5.03(c)(ii). (d) Evidence of Payments. As soon as practicable after any payment of Taxes by the Credit Parties to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent. (e) Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments made under any Loan Document shall deliver to the Withholding Agent, at the time or times reasonably requested by the Withholding Agent, such properly completed and executed documentation reasonably requested by the Withholding Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Withholding Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Withholding Agent as will enable the Withholding Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.03(e)(ii)(A) and (ii)(B) and Section 5.03(g) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. (ii) Without limiting the generality of the foregoing, in the event that the Borrower is a “United States person” as defined in Section 7701(a)(30) of the Code, (A) any Lender that is a “United States person” as defined in Section 7701(a)(30) of the Code shall deliver to the Withholding Agent on or prior to the
77 date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Withholding Agent), an executed copy of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Withholding Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Withholding Agent), whichever of the following is applicable: (1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, an executed copy of IRS Form W- 8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding tax pursuant to the “business profits” or “other income” article of such tax treaty; (2) an executed copy of IRS Form W-8ECI; (3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) an executed copy of IRS Form W-8BEN or IRS Form W-8BEN-E; or (4) to the extent a Foreign Lender is not the beneficial owner, an executed copy of IRS Form W-8IMY, accompanied by IRS Form W- 8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of each such direct and indirect partner; and (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Withholding Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Withholding Agent), an executed copy of any other form prescribed by applicable law as
78 a basis for claiming exemption from or a reduction in U.S. federal withholding tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Withholding Agent to determine the withholding or deduction required to be made. Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Withholding Agent in writing of its legal inability to do so. (f) Administrative Agent. On or before the date on which JPMorgan Chase Bank, N.A. (and any successor or replacement Administrative Agent) becomes the Administrative Agent hereunder, it shall deliver to the Borrower two duly executed originals of either (i) IRS Form W-9, or (ii) IRS Form W-8ECI (with respect to any payments to be received on its own behalf) and IRS Form W-8IMY (for all other payments), establishing that the Borrower can make payments to the Administrative Agent without deduction or withholding of any Taxes imposed by the United States, including Taxes imposed under FATCA. (g) FATCA. (i) If a payment made to a Lender under this Agreement would be subject to United States federal withholding tax imposed by FATCA if such Lender fails to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Withholding Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Withholding Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Withholding Agent as may be necessary for the Withholding Agent to comply with its obligations under FATCA, to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. For purposes of Section 5.03(f) and this Section 5.03(g), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. (ii) For purposes of determining withholding Taxes imposed under FATCA, from and after the Effective Date, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i). (h) Treatment of Certain Refunds. If the Administrative Agent or a Lender determines, in its reasonable discretion, that it has received a refund of any Indemnified Taxes as to which it has been indemnified by the Borrower or any Guarantor or with respect to which the Borrower or any Guarantor has paid additional amounts pursuant to this Section 5.03, it shall pay to the Borrower or any Guarantor, as applicable, an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower or any Guarantor under this Section 5.03 with respect to the Indemnified Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect
79 to such refund). Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after- Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person. (i) Survival. Each party’s obligations under this Section 5.03 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document. (j) Defined Terms. For purposes of this Section 5.03, the term “Lender” includes any Issuing Bank and the term “applicable law” includes FATCA. Section 5.04 Mitigation Obligations; Designation of Different Lending Office. If any Lender requests compensation under Section 5.01, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 5.03, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment would eliminate or reduce amounts payable pursuant to Section 5.01 or Section 5.03, as the case may be, in the future and would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment. Section 5.05 Replacement of Lenders. If (a) any Lender requests compensation under Section 5.01, (b) the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 5.03, (c) any Lender is a Defaulting Lender, (d) during any Borrowing Base Period, any Lender fails to provide its consent to increase or maintain the Borrowing Base pursuant to Section 2.06(c)(iii) and the Required Lenders have provided their consent to increase or maintain the Borrowing Base pursuant to Section 2.06(c)(iii) or (e) any Lender fails to approve a proposed waiver, consent or amendment which has been approved by the Majority Lenders, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent (and, in the case of clause (d) above, within thirty (30) days of the effectiveness of the redetermination of the Borrowing Base pursuant to Section 2.06(d)), require, in the case of clauses (a) through (c) above, such Lender (and, in the case of clause (d) above, within thirty (30) days of the effectiveness of the redetermination of the Borrowing Base pursuant to Section 2.06(d)) to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 12.04(a)), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have received the prior written consent of the Administrative
80 Agent and the Issuing Banks, which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in Reimbursement Obligations, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 5.01 or payments required to be made pursuant to Section 5.03, such assignment will result in a reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. Notwithstanding the foregoing, a Lender (other than a Defaulting Lender) shall not be required to make any such assignment and delegation if such Lender (or its Affiliate) is a Secured Swap Party with any outstanding Secured Swap Agreement, unless on or prior thereto, all such Swap Agreements have been terminated or novated to another Person and such Lender (or its Affiliate) shall have received payment of all amounts, if any, payable to it in connection with such termination or novation. Section 5.06 Illegality. If, after the date of this Agreement, the adoption or introduction of, or any change in, any applicable law, rule or regulation or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any of the Lenders with any request or directive (whether or not having the force of law) of any such authority, shall make it unlawful or impossible for any of the Lenders to honor its obligations hereunder to make or maintain any Term Benchmark Loans or RFR Loans (as applicable), such Lender shall forthwith give notice thereof to the Borrower and to the Administrative Agent. Thereafter, (a) the obligations of the applicable Lenders to make such Term Benchmark Loans (or, if applicable, RFR Loans) and the right of the Borrower to convert a Borrowing into or refund a Borrowing as a Term Benchmark Revolving Credit Borrowing (or, if applicable, an RFR Borrowing) shall be suspended and thereafter only the Alternate Base Rate shall be available, and (b) the applicable Borrowing shall immediately be converted to a Borrowing which bears interest at or by reference to the Alternate Base Rate. For purposes of this Section 5.06, a Change in Law or any change in rule, regulation, interpretation or administration shall include, without limitation, any change made or which becomes effective on the basis of a law, rule, regulation, interpretation or administration presently in force, the effective date of which change is delayed by the terms of such law, rule, regulation, interpretation or administration. Section 5.07 Right of Lenders to Fund through Branches and Affiliates. Each Lender may, if it so elects, fulfill its commitment as to any Borrowing hereunder by designating a branch or Affiliate of such Lender to make such Borrowing; provided that (a) such Lender shall remain solely responsible for the performances of its obligations hereunder and (b) no such designation shall result in any increased costs to Borrower. Section 5.08 Alternate Rate of Interest. (a) Inability to Determine Rates. Subject to Section 5.06 and Section 5.08(b), Section 5.08(c), Section 5.08(d), Section 5.08(e) and Section 5.08(f), if: (i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) (A) prior to the commencement of any Interest
81 Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Adjusted Term SOFR or the Term SOFR (including, without limitation, because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period or (B) at any time, that adequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR for an RFR Loan; or (ii) the Administrative Agent is advised by the Majority Lenders that (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Term Benchmark Loans included in such Borrowing for such Interest Period or (B) at any time, Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders of making or maintaining their RFR Loans included in such Borrowing; then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, telecopy, electronic mail or fax as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect the relevant Benchmark and (y) the Borrower delivers a new Revolving Credit Borrowing Request in accordance with the terms of Section 2.03, (A) any Revolving Credit Borrowing Request that requests the conversion of any Revolving Credit Borrowing to, or continuation of any Revolving Credit Borrowing as, a Term Benchmark Borrowing and any Revolving Credit Borrowing Request that requests a Term Benchmark Borrowing shall instead be deemed to be a Revolving Credit Borrowing Request for (1) an RFR Borrowing so long as Adjusted Daily Simple SOFR is not also the subject of Section 5.08(a)(i) or Section 5.08(a)(ii) above or (2) an ABR Borrowing if Adjusted Daily Simple SOFR is also the subject of Section 5.08(a)(i) or Section 5.08(a)(ii) above and (B) any Revolving Credit Borrowing Request that requests the conversion of any Borrowing to, or the continuation of any Borrowing as, an RFR Borrowing and any Revolving Credit Borrowing Request that requests an RFR Borrowing shall instead be deemed to be a Revolving Credit Borrowing Request for an ABR Borrowing. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of notice from the Administrative Agent referred to in this Section 5.08(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Revolving Credit Borrowing Request in accordance with the terms of Section 2.03, (A) any impacted Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (1) an RFR Borrowing so long as Adjusted Daily Simple SOFR is not also the subject of Section 5.08(a)(i) or Section 5.08(a)(ii) above or (2) an ABR Loan if Adjusted Daily Simple SOFR is also the subject of Section 5.08(a)(i) or Section 5.08(a)(ii) above, on such day and (B) any impacted RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute, an ABR Loan so long as Adjusted Term SOFR is not also the subject of Section 5.08(a)(i) or Section 5.08(a)(ii) above.
82 (b) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document (provided that any Swap Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 5.08), if a Benchmark Transition Event and the related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (i) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (ii) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Majority Lenders. (c) Benchmark Replacement Conforming Changes. Notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. (d) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event and the related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (e) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 5.08, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 5.08. (e) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information
83 announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor. (f) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Term Benchmark Borrowing or RFR Borrowing of, conversion to or continuation of Term Benchmark Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (i) an RFR Borrowing so long as Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (ii) an ABR Borrowing if Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Alternate Base Rate based upon the then- current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Alternate Base Rate. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 5.08, (A) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (1) an RFR Borrowing so long as Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (2) an ABR Loan if Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (B) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute, an ABR Loan. Section 5.09 Interest Rates; Benchmark Notifications. The interest rate on a Loan denominated in Dollars may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 5.08 provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement or with respect to any alternative or successor rate thereto, or replacement rate thereof including, without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark
84 Replacement) and/or any relevant adjustments thereto, in each case, in a manner that may have an indirect adverse impact on the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case, pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service. ARTICLE VI CONDITIONS PRECEDENT Section 6.01 Effective Date. The obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit (other than any Existing Specified Letter of Credit) hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 12.02): (a) The Administrative Agent, the Arrangers and the Lenders shall have received all commitment and agency fees and all other fees and amounts due and payable on or prior to the Effective Date, including, to the extent invoiced at least two (2) Business Days prior to the Effective Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder (including, to the extent invoiced at least two (2) Business Days prior to the Effective Date, the fees and expenses of Vinson & Elkins L.L.P., counsel to the Administrative Agent). (b) The Administrative Agent shall have received a certificate of the Secretary, Assistant Secretary or a Responsible Officer of the Credit Parties (for the avoidance of doubt, as used in this Agreement, Credit Parties includes Extraction, Condor Merger Sub 2 and their respective subsidiaries that become Guarantors hereunder) each setting forth resolutions of the members, board of directors or other appropriate governing body with respect to the authorization of the Credit Parties to execute and deliver the Loan Documents to which it is a party and to enter into the transactions contemplated in those documents, the officers of the Credit Parties who are authorized to sign the Loan Documents to which the Credit Parties is a party and who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with this Agreement and the transactions contemplated hereby, specimen signatures of such authorized officers, and the limited liability company agreement, the articles or certificate of incorporation and bylaws or other applicable organizational documents of the Credit Parties, certified as being true and complete. The Administrative Agent and the Lenders may conclusively rely on such certificate until the Administrative Agent receives notice in writing from the Credit Parties to the contrary. (c) The Administrative Agent shall have received certificates of the appropriate State agencies with respect to the existence, qualification and good standing of the Credit Parties.
85 (d) The Administrative Agent shall have received (i) a compliance certificate which shall be substantially in the form of Exhibit C, duly and properly executed by a Responsible Officer and dated as of the Effective Date and (ii) a certificate of a Financial Officer certifying that the Borrower’s pro forma Leverage Ratio as of June 30, 2021 was less than 1.0:1.0 and demonstrating that the Credit Parties are party to Swap Agreements, in the form of fixed-price swaps and purchased put options or collars, in each case, with prices and terms reasonably acceptable to the Administrative Agent, covering not less than fifty percent (50%) of the reasonably anticipated projected production from Oil and Gas Properties constituting Proved Developed Producing Reserves as reflected in the Initial Reserve Report for each of crude oil and natural gas, calculated separately, for each calendar month of the twelve (12) calendar month period commencing November 1, 2021. (e) The Administrative Agent shall have received from each party hereto counterparts (in such number as may be requested by the Administrative Agent) of this Agreement signed on behalf of such party. (f) The Administrative Agent shall have received duly executed Revolving Credit Notes payable to each Revolving Credit Lender requesting a Revolving Credit Note (to the extent requested at least two (2) Business Days prior to the Effective Date) in a principal amount equal to its Maximum Credit Amount dated as of the date hereof. (g) The Administrative Agent shall have received from each party thereto duly executed counterparts (in such number as may be requested by the Administrative Agent) of (i) the Guarantee Agreement and (ii) each Security Instrument described on Exhibit D (including, for the avoidance of doubt, any certificates representing the Equity Interests of the Credit Parties (including Extraction) along with any instruments of transfer and/or undated powers endorsed in blank). In connection with the execution and delivery of the Security Instruments and after giving effect to the Extraction Merger and Crestone Merger, the Administrative Agent shall be reasonably satisfied that the Security Instruments create first priority, perfected Liens (subject only to Permitted Liens) on, among other things, at least ninety (90%) of the total value of the Proved Oil and Gas Properties evaluated in the Initial Reserve Report. (h) The Administrative Agent shall have received a signed legal opinion of (i) Simpson Thacher & Bartlett LLP, counsel to the Credit Parties and (ii) local counsel to the Credit Parties from each State where there is Mortgaged Property, in each case, in form and substance reasonably satisfactory to the Administrative Agent. (i) The Administrative Agent shall have received a certificate of insurance coverage of the Credit Parties evidencing that the Credit Parties are carrying insurance in accordance with Section 7.12. (j) After giving effect to the Extraction Merger and Crestone Merger, the Administrative Agent shall have received title information as the Administrative Agent may reasonably require setting forth the status of title to at least ninety percent (90%) of the total value of the Proved Oil and Gas Properties evaluated in the Initial Reserve Report.
86 (k) The Administrative Agent shall be reasonably satisfied with the environmental condition of the Oil and Gas Properties of the Credit Parties. (l) The Administrative Agent shall have received a certificate of a Responsible Officer of the Credit Parties certifying that the Credit Parties have received all consents and approvals required by Section 7.03. (m) The Administrative Agent shall have received appropriate UCC and other lien search certificates reflecting no prior Liens encumbering the Properties of the Credit Parties for the State of Delaware and any other jurisdiction requested by the Administrative Agent, other than those being assigned or released on or prior to the Effective Date or Permitted Liens. (n) The Administrative Agent shall have received (i) the Initial Reserve Report and (ii) one or more certificates covering the matters described in Section 8.12(c) with respect to such Initial Reserve Report. (o) The Administrative Agent and the Lenders shall have received, and be reasonably satisfied in form and substance with, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including but not restricted to the USA PATRIOT Act, to the extent that Administrative Agent and/or the Lender have requested such documentation or other information at least five (5) Business Days prior to the Effective Date. (p) No material litigation, arbitration or similar proceeding shall be pending or threatened which calls into question the validity or enforceability of this Agreement, the other Loan Documents or the Transactions. (q) The Administrative Agent shall have received (i) the financial statements referred to in Section 7.04(a), (ii) the unaudited condensed consolidated balance sheets, statements of operations, cash flows, and changes in stockholders’ equity and noncontrolling interest of Extraction and its Consolidated Subsidiaries as of June 30, 2021, (iii) the unaudited condensed consolidated interim balance sheets, statements of operations, cash flows, and changes in stockholders’ equity and noncontrolling interest of Crestone and its Consolidated Subsidiaries as of June 30, 2021, and (iv) the unaudited condensed combined balance sheet of the Borrower and its Consolidated Subsidiaries as of June 30, 2021 after giving effect to the Extraction Merger, the Crestone Merger and the other transactions described therein. (r) The Administrative Agent shall have received a certificate of the Secretary, Assistant Secretary or a Responsible Officer of the Credit Parties certifying: (i) that attached to such certificate are true, accurate and complete copies of (A) the Extraction Merger Agreement, the “Company Voting Agreement” (as defined in the Extraction Merger Agreement) and all side letters and each other material agreement and assignment (including any assignments and bills of sale) executed and delivered in connection with the Extraction Merger (collectively, the “Extraction Merger Documents”), which Extraction Merger Documents shall be reasonably acceptable to the Administrative Agent and (B) the Crestone Merger Agreement, the “Company Support Agreement” (as defined in the Crestone Merger Agreement) and all side letters and each other material agreement and assignment (including any assignments and bills of sale) executed
87 and delivered in connection with the Crestone Merger (collectively, the “Crestone Merger Documents”), which Crestone Merger Documents shall be reasonably acceptable to the Administrative Agent, (ii) that substantially concurrently with any Borrowings on the Effective Date, the Borrower is consummating (A) the Extraction Merger substantially in accordance with the terms of the Extraction Merger Documents (without any material waiver or amendment thereof not otherwise approved by the Administrative Agent), (B) the Crestone Merger substantially in accordance with the terms of the Crestone Merger Documents (without any material waiver or amendment thereof not otherwise approved by the Administrative Agent) and (C) the Credit Parties shall, directly or indirectly, own all of the Oil and Gas Properties of Extraction, Crestone and their respective subsidiaries as set forth in the Initial Reserve Report and (iii) that all governmental and third party consents and all equity holder and board of director (or comparable entity management body) authorizations of (A) the Extraction Merger that are conditions to the consummation of the Extraction Merger and (B) the Crestone Merger that are conditions to the consummation of the Crestone Merger, in each case, have been obtained and are in full force and effect. (s) Substantially concurrently with any Borrowings on the Effective Date, the Extraction Merger and the Crestone Merger shall have been consummated as described in Section 6.01(r)(ii). (t) The Administrative Agent shall have received (i) evidence satisfactory to it (including mortgage releases and UCC-3 financing statement terminations, as applicable) that all Liens on (A) the Equity Interests in Extraction and its subsidiaries and the Properties of Extraction and its subsidiaries and (B) the Equity Interests in Crestone and its subsidiaries and the Properties of Crestone and its subsidiaries, in each case, have been released or terminated subject only to the filing of applicable terminations and releases and Permitted Liens and (ii) a payoff letter and/or termination letter in form and substance reasonably satisfactory to the Administrative Agent evidencing that, contemporaneously with the effectiveness of this Agreement and the making of any Loans on the Effective Date, (A)(1) the Credit Agreement dated as of January 20, 2021 (as amended or otherwise modified from time to time, the “Extraction Credit Agreement”), among Extraction, as borrower, Wells Fargo Bank, National Association, as administrative agent and an issuing bank, and the lenders party thereto and (2) the Credit Agreement dated as of September 21, 2016 (as amended or otherwise modified from time to time, the “Crestone Credit Agreement”), among Crestone Peak Resources LLC, as borrower, Toronto Dominion (Texas) LLC, as administrative agent and collateral agent, and the lenders party thereto, in each case, have been repaid in full, (B) the commitments under the Extraction Credit Agreement and the Crestone Credit Agreement have been terminated, and (C) the liens securing the Debt under the Extraction Credit Agreement and the Crestone Credit Agreement have been released and terminated. (u) After giving effect to the Transactions on the Effective Date, including the making of any Loans or other extensions of credit on the Effective Date and the consummation of the Extraction Merger and the Crestone Merger, the Commitment Utilization Percentage does not exceed eighty percent (80%). (v) The Administrative Agent shall have received evidence of the Borrower’s name change from Bonanza Creek Energy, Inc. to Civitas Resources, Inc. and the related UCC-3 financing statement amendment to reflect such change.
88 (w) The Administrative Agent shall have received such other documents as the Administrative Agent or special counsel to the Administrative Agent may reasonably request. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding. Section 6.02 Each Credit Event. The obligation of each Lender to make a Loan on the occasion of any Borrowing (including the initial funding, but excluding a Revolving Credit Borrowing to continue or convert any outstanding Revolving Credit Borrowing), and of the Issuing Banks to issue, amend, renew or extend any Letter of Credit (but excluding any automatic renewal or extension of any Letter of Credit, amendment the sole purpose of which is to extend or renew any Letter of Credit and any Existing Specified Letter of Credit that is deemed to be issued pursuant to Section 2.07(a)) is subject to the satisfaction of the following conditions (or waiver in accordance with Section 12.02): (a) At the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, (i) no Default or Borrowing Base Deficiency shall have occurred and be continuing and (ii) the Consolidated Cash Balance shall not exceed the greater of (A) $150,000,000 or (B) expenditures in respect of the oil and gas properties of the Borrower permitted hereunder in the ordinary course of business as agreed to by the Administrative Agent at the time of such credit event and subject to the Administrative Agent receiving prior written notice of such request on or prior to the date of delivery of the applicable Revolving Credit Borrowing Request in accordance with Section 2.03 or request for a Letter of Credit in accordance with Section 2.07(b). (b) The representations and warranties of the Credit Parties set forth in this Agreement and in the other Loan Documents shall be true and correct in all material respects (unless already qualified by materiality in which case such applicable representation and warranty shall be true and correct) on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, such representations and warranties shall continue to be true and correct in all material respects (unless already qualified by materiality in which case such applicable representation and warranty shall be true and correct) as of such specified earlier date. (c) The making of such Loan or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, would not conflict with, or cause any Lender or any Issuing Bank to violate or exceed, any applicable Governmental Requirement. (d) The receipt by the Administrative Agent of a Revolving Credit Borrowing Request in accordance with Section 2.03 or a request for a Letter of Credit in accordance with Section 2.07(b), as applicable. Each request for a Borrowing and each request for the issuance, amendment, renewal or extension of any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in Section 6.02(a) and (b).
89 ARTICLE VII REPRESENTATIONS AND WARRANTIES The Borrower represents and warrants to the Lenders that: Section 7.01 Organization; Powers. Each of the Credit Parties is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite corporate or other organizational power and authority, and has all material governmental licenses, authorizations, consents and approvals necessary, to own its assets and to carry on its business as now conducted, and is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except where failure to have such licenses, authorizations, consents, approvals and/or qualifications would not reasonably be expected to have a Material Adverse Effect. Section 7.02 Authority; Enforceability. The Transactions are within each Credit Party’s corporate, limited liability company or partnership powers and have been duly authorized by all necessary corporate, limited liability company or partnership action and, if required, action by any holders of its Equity Interests (including, without limitation, any action required to be taken by any class of directors, managers or supervisors, whether interested or disinterested, as applicable, of the Credit Parties or any other Person, in order to ensure the due authorization of the Transactions). Each Loan Document to which a Credit Party is a party has been duly executed and delivered by such Credit Party and constitutes a legal, valid and binding obligation of such Credit Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law. Section 7.03 Approvals; No Conflicts. The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority or any other third Person, nor is any such consent, approval, registration, filing or other action necessary for the validity or enforceability of any Loan Document or the consummation of the Transactions, except such as have been obtained or made and are in full force and effect other than the recording and filing of the Security Instruments as required by this Agreement and those approvals or consents which, if not made or obtained, would not cause a Default hereunder or would not reasonably be expected to have a Material Adverse Effect and (b) will not violate or result in a default under any Existing Secured Swap Agreement listed on Schedule 1.5, indenture, agreement or other instrument evidencing Material Indebtedness binding upon any Credit Party or any of their respective assets, or give rise to a right thereunder to require any payment to be made by any Credit Party. Section 7.04 Financial Condition; No Material Adverse Change. (a) The Borrower has heretofore furnished to the Lenders (i) the audited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of and for the fiscal year ended December 31, 2020, reported on by Deloitte & Touche LLP, and the audited statements of operations, stockholders’ equity and cash flows of the Borrower and its Consolidated Subsidiaries as of and for the fiscal year ended December 31, 2020, reported on by Grant Thornton
90 LLP and (ii) the unaudited condensed consolidated balance sheets and related statements of operations and comprehensive income (loss) and stockholders’ equity and cash flows of the Borrower and its Consolidated Subsidiaries as of June 30, 2021. The financial statements described in the foregoing clause (i) and clause (ii) present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its Consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (ii) above. (b) Since December 31, 2020, there has been no event, development or circumstance that has had a Material Adverse Effect. (c) Except as listed on Schedule 7.04(c) or as permitted under Section 9.02, no Credit Party has on the date hereof after giving effect to the Transactions, any Material Indebtedness or any off-balance sheet liabilities, liabilities for past due taxes, or any unusual forward or long-term commitments which are, in the aggregate, material to the Credit Parties taken as a whole or material with respect to the Borrower’s consolidated financial condition, required under GAAP to be shown but are not shown in the Borrower’s latest audited consolidated financial statements referred to in Section 7.04(a)(i). Section 7.05 Litigation. Except as set forth on Schedule 7.05, there are no actions, suits, investigations or proceedings that involve any Loan Document or the Transactions by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened against or affecting any Credit Party not fully covered by insurance (except for deductibles) as to which there is a reasonable probability of an adverse determination that, if adversely determined, would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect (after taking into account insurance proceeds or other recoveries from third parties actually received). Section 7.06 Environmental Matters. Except for such matters as set forth on Schedule 7.06, or that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect: (a) the Borrower, its Subsidiaries and each of their respective Properties and operations thereon are in compliance with all applicable Environmental Laws; (b) the Borrower and its Subsidiaries have obtained all Environmental Permits required for their respective operations and each of their Properties, with all such Environmental Permits being currently in full force and effect, and none of the Borrower and its Subsidiaries has received any written notice or otherwise has knowledge that any such existing Environmental Permit will be revoked or that any application for any new Environmental Permit or renewal of any existing Environmental Permit will be denied; (c) there are no claims, demands, suits, orders, or proceedings concerning any violation of, or any liability (including as a potentially responsible party) under, any applicable Environmental Laws that is pending or, to the Borrower’s knowledge, threatened against the
91 Borrower or any of its Subsidiaries or any of their respective Properties or as a result of any operations at such Properties that would reasonably be expected to be determined adversely; (d) none of the Properties of the Borrower and its Subsidiaries contain or, to Borrower’s knowledge, have contained any: underground storage tanks; asbestos-containing materials; landfills or dumps; hazardous waste management units as defined pursuant to RCRA or any comparable state law; or sites on or nominated for the National Priority List promulgated pursuant to CERCLA or any state remedial priority list promulgated or published pursuant to any comparable state law; (e) there has been no Release or, to the Borrower’s knowledge, threatened Release, of Hazardous Materials at, on, under or from any of the Borrower’s or its Subsidiaries’ Properties, that require, or that would reasonably be expected to result in, any investigation, remediation, abatement, removal, or monitoring of Hazardous Materials under applicable Environmental Laws at such Properties and, to the knowledge of the Borrower, none of such Properties are adversely affected by any Release or threatened Release of a Hazardous Material originating or emanating from any other real property; (f) no Credit Party nor its respective Subsidiaries has received any written notice asserting an alleged liability or obligation under any applicable Environmental Laws with respect to the investigation, remediation, abatement, removal, or monitoring of any Hazardous Materials at, under, or Released or threatened to be Released from any real properties offsite the Borrower’s or any of its Subsidiaries’ Properties and, to the Borrower’s knowledge, there are no conditions or circumstances that would reasonably be expected to result in the receipt of such written notice; (g) to the Borrower’s knowledge, there has been no exposure of any Person or Property to any Hazardous Materials as a result of or in connection with the Borrower’s or any of its Subsidiaries’ operations of its Properties that could reasonably be expected to form the basis for a claim for damages or compensation; and (h) to the extent requested by the Administrative Agent, the Borrower has made available to the Administrative Agent complete and correct copies of all non-privileged environmental site assessment reports, and non-privileged studies on material environmental matters (including matters relating to any alleged non-compliance with or liability under Environmental Laws) that are in the Borrower’s possession or control and relating to any of the Borrower’s or any of its Subsidiaries’ Properties or operations thereon. Section 7.07 Compliance with the Laws and Agreements; No Defaults. (a) Each of the Credit Parties is in compliance with all Governmental Requirements applicable to it or its Property and all agreements and other instruments binding upon it or its Property, and possesses all licenses, permits, franchises, exemptions, approvals and other governmental authorizations necessary for the ownership of its Property and the conduct of its business, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
92 (b) No Credit Party is in default and no event or circumstance has occurred which, but for the expiration of any applicable grace period or the giving of notice, or both, would constitute a default or would require any Credit Party to Redeem or make any offer to Redeem under any indenture, note, credit agreement or instrument pursuant to which any Material Indebtedness is outstanding or by which any Credit Party or any of their Properties is bound. (c) No Default has occurred and is continuing. Section 7.08 Investment Company Act. No Credit Party is an “investment company” within the meaning of, or subject to regulation under, the Investment Company Act of 1940, as amended. Section 7.09 Taxes. Each Credit Party has timely filed or caused to be filed all federal income Tax returns and reports, and all other material Tax returns and reports, required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except Taxes that are being contested in good faith by appropriate proceedings and for which such Credit Party has set aside on its books adequate reserves in accordance with GAAP or to the extent that the failure to do so would not reasonably be expected to result in a Material Adverse Effect. The charges, accruals and reserves on the books of the Credit Parties in respect of Taxes and other governmental charges are, in the reasonable opinion of the Borrower, adequate. Except for Excepted Liens, (a) no Lien for Taxes has been filed and (b) to the knowledge of the Borrower, no claim is being asserted with respect to any such Tax or other such governmental charge. Section 7.10 ERISA. Except for such matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect: (a) The Credit Parties and each ERISA Affiliate have complied in all material respects with ERISA and, where applicable, the Code regarding each Plan. (b) Each Plan is, and has been, established and maintained in substantial compliance with its terms, ERISA and, where applicable, the Code. (c) No act, omission or transaction has occurred which could result in imposition on the Borrower, any other Credit Party or any ERISA Affiliate (whether directly or indirectly) of either a civil penalty assessed pursuant to subsections (c), (i), (l) or (m) of section 502 of ERISA or a tax imposed pursuant to Chapter 43 of Subtitle D of the Code or breach of fiduciary duty liability damages under section 409 of ERISA. (d) Full payment when due has been made of all amounts which the Credit Parties or any ERISA Affiliate is required under the terms of each Plan or applicable law to have paid as contributions to such Plan as of the date hereof. (e) No ERISA Event individually or together with any other ERISA Event, has occurred or is reasonably expected to occur. (f) No Credit Party and no ERISA Affiliate sponsors, maintains, or contributes to an employee welfare benefit plan, as defined in section 3(1) of ERISA, including, without limitation, any such plan maintained to provide benefits to former employees of such entities, with
93 respect to which its sponsorship of, maintenance of or contribution to may not be terminated by the applicable Credit Party or any ERISA Affiliate in its sole discretion at any time without any liability other than for benefits due as of, or claims incurred prior to, the effective date of such termination. Section 7.11 Disclosure; No Material Misstatements. The certificates, written statements and reports, and other written information, taken as a whole, furnished by or on behalf of the Credit Parties to the Administrative Agent and the Lenders in connection with the negotiation of any Loan Document (as modified or supplemented by other information so furnished), do not contain any material misstatement of fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were or are made, not misleading as of the date such information is dated or certified; provided that (a) to the extent any such certificate, written statement, written report, or written information was based upon or constitutes a forecast or projection, each Credit Party represents only that such certificate, written statement, written report or written information was prepared in good faith based on assumptions believed to be reasonable at the time delivered (it being recognized by the Lenders, however, that projections as to future events are not to be viewed as facts and that results during the period(s) covered by such projections may differ from the projected results and that such differences may be material and that the Credit Parties make no representation that such projections will be realized) and (b) as to any such written statements, written information and written reports furnished on behalf of the Credit Parties to the Administrative Agent and the Lenders by third parties in connection with the negotiation of any Loan Document (as modified or supplemented by other information so furnished), the Borrower represents only that it is not aware of any material misstatement or omission therein. Section 7.12 Insurance. The Borrower has, and has caused all of its other Credit Parties to have, all insurance policies sufficient for the compliance by each of them with all material Governmental Requirements and all material agreements and insurance coverage in at least amounts and against such risk (including, without limitation, public liability) that are usually insured against by companies similarly situated and engaged in the same or a similar business for the assets and operations of the Credit Parties. The Administrative Agent and the Lenders have been named as additional insured in respect of such liability insurance policies and the Administrative Agent, on behalf of the Lenders, has been named as lender loss payee with respect to Property loss insurance. Section 7.13 Restriction on Liens. No Credit Party is a party to any material agreement or arrangement, or subject to any order, judgment, writ or decree, which either restricts or purports to restrict its ability to grant Liens to the Administrative Agent and the Lenders on or in respect of their Properties to secure the Debt and the Loan Documents, or restricts any Credit Party from paying dividends or making any other distributions in respect of its Equity Interests to any other Credit Party, or restricts any Credit Party from making loans or advances to any other Credit Party, or which requires the consent of other Persons in connection therewith, except, in each case, for such encumbrances or restrictions permitted under Section 9.12. Section 7.14 Subsidiaries. Except as set forth on Schedule 7.14 or as disclosed in writing to the Administrative Agent (which shall promptly furnish a copy to the Lenders), which shall be
94 a supplement to Schedule 7.14, the Borrower has no Restricted Subsidiaries. The Borrower has no Foreign Subsidiaries. Section 7.15 Location of Business and Offices. The correct legal name, business address, type of organization and jurisdiction of organization, tax identification number and other relevant identification numbers of the Credit Parties are set forth on Schedule 1.3 hereto (or, in each case, as set forth in a notice delivered to the Administrative Agent pursuant to Section 8.01(i) in accordance with Section 12.01). Section 7.16 Properties; Titles, Etc. (a) Each of the Credit Parties has good and defensible title to their respective Oil and Gas Properties evaluated in the most recently delivered Reserve Report and good title to all its material personal Properties, in each case, free and clear of all Liens except Permitted Liens. The Credit Parties own in all material respects the net interests in production attributable to the Hydrocarbon Interests as reflected in the most recently delivered Reserve Report, and the ownership of such Properties shall not in any material respect obligate the Credit Parties to bear the costs and expenses relating to the maintenance, development and operations of each such Property in an amount in excess of the working interest of each Property set forth in the most recently delivered Reserve Report that is not offset by at least a corresponding proportionate increase in the Credit Parties’ net revenue interest in such Property. (b) All leases and agreements necessary for the conduct of the business of the Credit Parties are valid and subsisting, in full force and effect, and no Credit Party is in default beyond all applicable grace or cure periods under any such lease or agreement which default would reasonably be expected to have a Material Adverse Effect. (c) The rights and Properties presently owned, leased or licensed by the Credit Parties including, without limitation, all easements and rights of way, include all rights and Properties necessary to permit the Credit Parties to conduct their business in all material respects in the same manner as their business has been conducted in the twelve months prior to the date hereof. (d) All of the Properties of the Credit Parties which are reasonably necessary for the operation of their businesses are in good working condition, normal wear and tear excepted, and are maintained in accordance with prudent business standards. (e) Each Credit Party owns, or is licensed to use, all trademarks, trade names, copyrights, patents and other intellectual Property material to its business, and the use thereof by the Credit Parties does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. The Credit Parties either own or have valid licenses or other rights to use all databases, geological data, geophysical data, engineering data, seismic data, maps, interpretations and other technical information used in their businesses as presently conducted, subject to the limitations contained in the agreements governing the use of the same. Section 7.17 Maintenance of Properties. Except for such acts or failures to act as could not be reasonably expected to have a Material Adverse Effect, the Oil and Gas Properties (and
95 Properties unitized therewith) of Credit Parties have in all material respects been maintained, operated and developed in a good and workmanlike manner and in conformity in all material respects with all Governmental Requirements and in conformity in all material respects with the provisions of all leases, subleases or other contracts comprising a part of the Hydrocarbon Interests and other contracts and agreements forming a part of the Oil and Gas Properties of the Credit Parties. Section 7.18 Marketing of Production. Except for contracts listed and in effect on the date hereof on Schedule 7.18, and thereafter either disclosed in writing to the Administrative Agent or included in the most recently delivered Reserve Report, no material agreements exist which are not cancelable on sixty (60) days’ notice or less without penalty or detriment for the sale of production from the Credit Parties’ Hydrocarbons (including, without limitation, calls on or other rights to purchase, production, whether or not the same are currently being exercised) that pertain to the sale of production at a fixed price and have a maturity or expiry date of longer than six (6) months from the date hereof or the date of such Reserve Report, as applicable. Section 7.19 Swap Agreements. Schedule 7.19, as of the date hereof, and after the date hereof, each report required to be delivered by the Borrower pursuant to Section 8.01(e), as of the date of (or as of the date(s) otherwise set forth in) such report, sets forth, a true and complete list of all Swap Agreements of the Credit Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net mark to market value thereof (as of the last Business Day of the most recent fiscal quarter preceding the Effective Date and for which a mark to market value is reasonably available), all credit support agreements relating thereto (including any margin required or supplied) and the counterparty to each such agreement. Section 7.20 Use of Loans and Letters of Credit. The proceeds of the Loans and the Letters of Credit shall be used (a) to pay any fees, costs and expenses related to the Transactions, (b) to repay the Debt under the Extraction Credit Agreement and the Crestone Credit Agreement and any fees, costs and expenses in connection with the termination of such credit facilities and (c) for working capital, for lease acquisitions, for exploration and production operations, for development (including the drilling and completion of producing wells), for the payment of fees and expenses incurred in connection with this Agreement and for any other general business purposes. The Credit Parties are not engaged principally, or as one of its or their important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying margin stock (within the meaning of Regulation T, U or X of the Board). No part of the proceeds of any Loan or Letter of Credit will be used for any purpose which violates the provisions of Regulations T, U or X of the Board. Section 7.21 Solvency. After giving effect to the Transactions (including each Borrowing or issuance of any Letter of Credit hereunder), the aggregate assets (after giving effect to amounts that could reasonably be expected to be received by reason of indemnity, offset, insurance or any similar arrangement), at a fair valuation, of the Credit Parties, taken as a whole, exceed the aggregate Debt of the Credit Parties on a consolidated basis, the Credit Parties, taken as a whole, have not incurred and do not intend to incur, and do not believe that they have incurred, Debt beyond their ability to pay such Debt (after taking into account the timing and amounts of cash they reasonably expect could be received and the amounts that they reasonably expect could
96 be payable on or in respect of their liabilities, and giving effect to amounts that that could reasonably be expected to be received by reason of indemnity, offset, insurance or any similar arrangement) as such Debt becomes absolute and matures and the Credit Parties, taken as a whole, do not have (and do not have reason to believe that it will have thereafter) unreasonably small capital for the conduct of their business. Section 7.22 Anti-Corruption Laws and Sanctions. The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and directors and to the knowledge of the Borrower its employees and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary or any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any agent of the Borrower or any its Subsidiaries that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions. Section 7.23 Affected Financial Institutions. No Credit Party is an Affected Financial Institution. Section 7.24 Security Instruments. The Security Instruments are effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Mortgaged Property and Collateral and proceeds thereof, as applicable. Subject to the proviso to Section 8.18, the Obligations are secured by legal, valid and enforceable first priority perfected Liens in favor of the Administrative Agent, covering and encumbering (a) the Mortgaged Property and (b) the Collateral granted pursuant to the Security Agreement, including the pledged Equity Interests and the Deposit Accounts, Securities Accounts and Commodities Accounts, in each case to the extent perfection has occurred, as the case may be, by the recording of a mortgage, the filing of a UCC financing statement, or, in the case of Deposit Accounts, Securities Accounts and Commodities Accounts, by obtaining of “control” or, with respect to Equity Interests represented by certificates, by possession (in each case, to the extent applicable in the applicable jurisdiction); provided that, except in the case of pledged Equity Interests, Permitted Liens may exist. Section 7.25 Plan Assets; Prohibited Transactions. No Credit Party or any of its respective Subsidiaries is an entity deemed to hold “plan assets” (within the meaning of the Plan Asset Regulations), and neither the execution, delivery nor performance of the transactions contemplated under this Agreement, including the making of any Loan and the issuance of any Letter of Credit hereunder, will give rise to a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code. ARTICLE VIII AFFIRMATIVE COVENANTS Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder and all other amounts payable under the Loan
97 Documents shall have been paid in full and all Letters of Credit shall have expired or terminated and all Reimbursement Obligations shall have been reimbursed, the Borrower covenants and agrees with the Lenders that: Section 8.01 Financial Statements; Other Information. The Borrower will furnish to the Administrative Agent and each Lender: (a) Annual Financial Statements. Within ninety (90) days after the end of each fiscal year of the Borrower commencing with the fiscal year ended December 31, 2021, the audited consolidated balance sheet and related statements of operations, members’ equity and cash flows of the Borrower and its Consolidated Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by independent public accountants of recognized national standing (without a “going concern” or like qualification or exception (other than a “going concern” or like qualification or exception that is solely as a result of the Loans maturing within the next 365 days) and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; (b) Quarterly Financial Statements. Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower commencing with the fiscal quarter ending September 30, 2021, the consolidated balance sheet and related statements of operations, members’ equity and cash flows of the Borrower and its Consolidated Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; (c) Certificate of Financial Officer — Compliance. Concurrently with any delivery of financial statements under Section 8.01(a) or Section 8.01(b), a compliance certificate of a Financial Officer in substantially the form of Exhibit C hereto certifying as to whether a Default then exists and, if a Default then exists, specifying the details thereof and any action taken or proposed to be taken with respect thereto, setting forth reasonably detailed calculations demonstrating compliance with Section 9.01, and stating whether any change in the application of GAAP to the Borrower’s financial statements has been made since the preparation of the Borrower’s audited annual financial statements most recently delivered under Section 8.01(a) (or, if no such audited financial statements have yet been delivered, since the preparation of the Financial Statements) and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate. With respect to each fiscal period ending June 30, 2024 and September 30, 2024, such compliance certificate shall include reasonably detailed calculations of Civitas EBITDAX and reasonable supporting information relating thereto;
98 (d) Certificate of Financial Officer — Consolidated Subsidiaries. If, at any time, all of the Consolidated Subsidiaries of the Borrower are not Consolidated Restricted Subsidiaries, then concurrently with any delivery of financial statements under Section 8.01(a) or Section 8.01(b), a certificate of a Financial Officer setting forth consolidating spreadsheets that show all Consolidated Unrestricted Subsidiaries and the eliminating entries, in such form as would be presentable to the auditors of the Borrower; (e) Certificate of Financial Officer — Swap Agreements. Concurrently with each delivery of a Reserve Report pursuant to Section 8.12(a), a certificate of a Financial Officer, in form and substance satisfactory to the Administrative Agent in its reasonable discretion, setting forth as of the last Business Day of the most recently ended fiscal year or period, as applicable, (i) a true and complete list of all Swap Agreements of the Credit Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net mark-to-market value therefor (as of the last Business Day of such fiscal year or period, as applicable and for which a mark-to-market value is reasonably available), any new credit support agreements relating thereto not listed on Schedule 7.19, any margin required or supplied under any credit support document, and the counterparty to each such agreement and (ii) the aggregate projected production from Oil and Gas Properties for the forthcoming five-year period; (f) Certificate of Insurer — Insurance Coverage. On or prior to the date that is thirty (30) days after the renewal of the applicable policies, one or more certificates of insurance coverage from the Credit Parties’ insurance broker or insurers with respect to the insurance required by Section 8.07, in form and substance satisfactory to the Administrative Agent in its reasonable discretion, and, if requested by the Administrative Agent, copies of the applicable policies; (g) SEC and Other Filings; Reports to Shareholders. To the extent not readily available on a public web site or on an intranet web site to which the Administrative Agent has access, then promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Credit Party with the SEC, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be. Documents required to be delivered pursuant to Section 8.01(a), Section 8.01(b), and this Section 8.01(g) may be delivered electronically and shall be deemed to have been delivered on the date on which the Borrower posts such documents to EDGAR (or such other free, publicly accessible internet database that may be established and maintained by the SEC as a substitute for or successor to EDGAR); (h) Notices Under Material Instruments. Promptly after any Credit Party’s receipt thereof, copies of any notice of default received by such Credit Party pursuant to any Material Indebtedness, and not otherwise required to be furnished to the Lenders pursuant to any other provision of this Section 8.01; (i) Information Regarding Borrower and Guarantors. Prompt written notice (and in any event within five (5) Business Days subsequent thereto) of any change in any Credit Party’s corporate name, in the location of any Credit Party’s chief executive office, in the Credit Party’s identity or corporate, limited liability company or partnership structure or in the jurisdiction in which such Person is incorporated or formed, in the Credit Party’s jurisdiction of
99 organization or such Person’s organizational identification number in such jurisdiction of organization, and in the Credit Party’s federal taxpayer identification number; (j) Production Report and Lease Operating Statements. Concurrently with the delivery of each Reserve Report under Section 8.12(a), a report setting forth, for each calendar month during the then current fiscal year to date, the volume of production and sales attributable to production (and the prices at which such sales were made and the revenues derived from such sales) for each such calendar month from the Oil and Gas Properties set forth in such Reserve Report, setting forth the related ad valorem, severance and production taxes and lease operating expenses attributable thereto and incurred for each such calendar month, and setting forth the drilling and operations for each such calendar month; (k) Notices of Certain Changes. Promptly, but in any event within five (5) Business Days after the execution thereof, copies of any material amendment, modification or supplement to the certificate of formation, limited liability company agreement, articles of incorporation, by-laws, any preferred stock designation or any other organic document of any Credit Party, in each case to the extent not delivered (or deemed delivered) pursuant to Section 8.01(g); (l) Cash Flow Forecast. Concurrently with the delivery of each Reserve Report under Section 8.12(a) as of (i) November 30, 2021 and (ii) thereafter, December 31 and June 30 of each year, a copy of the plan and forecast (including a projected consolidated balance sheet, income statement and funds flow statement) of the Borrower for each fiscal quarter for the forthcoming four quarter period after such date in form reasonably satisfactory to the Administrative Agent; (m) Changes in Index Debt Ratings. During any Investment Grade Period, promptly after any of Moody’s, S&P or Fitch shall have announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change; and (n) Other Requested Information. Promptly following any reasonable request therefor, (i) such other information regarding the operations, business affairs and financial condition of the Credit Parties (including any Plan and any reports or other information required to be filed with respect thereto under the Code or under ERISA), or compliance with the terms of this Agreement or any other Loan Document, as the Administrative Agent or any Lender may reasonably request, (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act and (iii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and any Lender has requested a Beneficial Ownership Certification in a written notice to the Borrower, a Beneficial Ownership Certification. Section 8.02 Notices of Material Events. The Borrower will furnish to the Administrative Agent and each Lender prompt written notice of the following: (a) the occurrence of any Default;
100 (b) the filing or commencement of, or the threat in writing of, any action, suit, proceeding, investigation or arbitration by or before any arbitrator or Governmental Authority against or affecting the Borrower or any of its Subsidiaries not previously disclosed in writing to the Lenders or any material adverse development in any action, suit, proceeding, investigation or arbitration (whether or not previously disclosed to the Lenders) that, in either case, is reasonably likely to be adversely determined, and if so determined, would reasonably be expected to result in a Material Adverse Effect; (c) the occurrence of any ERISA Event that results in, or would reasonably be expected to result in, a Material Adverse Effect; (d) any change in the information provided in a Beneficial Ownership Certification delivered to any Lender (if any) that would result in a change to the list of beneficial owners identified in such certification to the extent such change would reasonably be expected to result in a Material Adverse Effect; and (e) any other development that results in, or would reasonably be expected to result in, a Material Adverse Effect. Each notice delivered under this Section 8.02 shall be accompanied by a statement of a Responsible Officer setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto. Section 8.03 Existence; Conduct of Business. The Borrower will, and will cause each other Credit Party to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect (a) its legal existence as a Person organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof and (b) the rights, licenses, permits, privileges and franchises material to the conduct of its business and maintain, if necessary, its qualification to do business in each other jurisdiction in which its Oil and Gas Properties is located or the ownership of its Properties requires such qualification, except where the failure to so qualify would not reasonably be expected to have a Material Adverse Effect; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 9.08. Section 8.04 Payment of Obligations. The Borrower will, and will cause each other Credit Party to, pay its obligations, including Tax liabilities of the Credit Parties, before the same shall become delinquent or in default, except where the validity or amount thereof is being contested in good faith by appropriate proceedings, and such Credit Parties have set aside on their books adequate reserves with respect thereto in accordance with GAAP and the failure to make payment pending such contest would not reasonably be expected to result in a Material Adverse Effect or result in the seizure or levy of any material Property of any Credit Party. Section 8.05 Performance of Obligations under Loan Documents. The Borrower will pay the Loans in accordance with the terms hereof, and the Borrower will, and will cause each other Credit Party to, do and perform every act and discharge all of the obligations to be performed and discharged by them under the Loan Documents, including, without limitation, this Agreement, at the time or times and in the manner specified.
101 Section 8.06 Operation and Maintenance of Properties. The Borrower, at its own expense, will, and will cause each other Credit Party to: (a) operate its Oil and Gas Properties and other material Properties or, if it is not the operator thereof, use commercially reasonable efforts to cause such Oil and Gas Properties and other material Properties to be operated, in a careful and efficient manner in accordance with the generally accepted practices of the industry and in compliance in all material respects with all applicable contracts and agreements, except, in each case, where the failure to do so would not reasonably be expected to have a Material Adverse Effect; (b) keep and maintain all Property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted, and preserve, maintain and keep in good repair, working order and efficiency (ordinary wear and tear and depletion excepted) all of its Oil and Gas Properties, except, in each case, where the failure to do so would not reasonably be expected to have a Material Adverse Effect; (c) promptly pay and discharge, or make reasonable and customary efforts to cause to be paid and discharged, all delay rentals, royalties, expenses and indebtedness accruing under the leases or other agreements affecting or pertaining to its Oil and Gas Properties and do all other things necessary to keep unimpaired their rights with respect thereto and prevent any forfeiture thereof or default by the Credit Parties thereunder, except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect; (d) promptly perform or make reasonable and customary efforts to cause to be performed, in accordance with customary industry standards, the obligations required by the assignments, deeds, leases, sub-leases, contracts and agreements affecting its interests in its Oil and Gas Properties and other material Properties, except, in each case, where the failure to do so would not reasonably be expected to have a Material Adverse Effect; and (e) to the extent the Borrower is not the operator of any Property, the Credit Parties shall use commercially reasonable efforts to cause the operator to comply with this Section 8.06. Section 8.07 Insurance. The Borrower will, and will cause each other Credit Party to, maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations. The Administrative Agent and the Lenders shall be named as additional insured in respect of such liability insurance policies, and, during a Borrowing Base Period, the Administrative Agent, on behalf of the Lenders, shall be named as lender loss payee with respect to Property loss insurance covering Collateral and such policies shall provide that the Administrative Agent shall receive thirty (30) days’ notice of cancellation or non-renewal. Each time a Borrowing Base Period commences after the Effective Date, the Borrower will, and will cause each other Credit Party, to comply with the requirements of this Section 8.07 that apply during a Borrowing Base Period within 90 days (or such longer time as the Administrative Agent may agree in its sole discretion) following the commencement of such Borrowing Base Period.
102 Section 8.08 Books and Records; Inspection Rights. The Borrower will, and will cause each other Credit Party to, keep books of record and account in conformity with GAAP. The Borrower will, and will cause each other Credit Party to, permit any representatives designated by the Administrative Agent or Majority Lenders, upon reasonable prior notice, to visit and inspect its Properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as reasonably requested and at the sole expense of the Borrower; provided, however, unless an Event of Default then exists and is continuing, not more than one such inspection per calendar year shall be at the expense of the Borrower. Section 8.09 Compliance with Laws. The Borrower will, and will cause each other Credit Party to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its Property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. The Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by itself, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. Section 8.10 Environmental Matters. (a) The Borrower shall at its sole expense: comply, cause each of its Subsidiaries and each such Subsidiary’s Properties and operations to comply or, if it is not the operator thereof, use commercially reasonable efforts to cause its Properties and operations to comply, with all applicable Environmental Laws, the breach of which would reasonably be expected to have a Material Adverse Effect; not Release or threaten to Release, and shall cause each of its Subsidiaries not to Release or threaten to Release, any Hazardous Material on, under, about or from any of its or its Subsidiaries’ Properties or any other property offsite the Property to the extent caused by its or any of its Subsidiaries’ operations except in compliance with applicable Environmental Laws, the Release or threatened Release of which would reasonably be expected to have a Material Adverse Effect; timely obtain or file, and shall cause each of its Subsidiaries to timely obtain or file, all Environmental Permits, if any, required under applicable Environmental Laws to be obtained or filed in connection with the operation or use of its Subsidiaries’ Properties, which failure to obtain or file would reasonably be expected to have a Material Adverse Effect; promptly commence and diligently prosecute to completion, and shall cause each of its Subsidiaries to promptly commence and diligently prosecute to completion, any assessment, evaluation, investigation, monitoring, containment, cleanup, removal, repair, restoration, remediation or other remedial obligations (collectively, the “Remedial Work”) in the event any Remedial Work is required under applicable Environmental Laws because of or in connection with the actual or suspected past, present or future Release or threatened Release of any Hazardous Material on, under, about or from any of its or its Subsidiaries’ Properties, which failure to commence and diligently prosecute to completion would reasonably be expected to have a Material Adverse Effect; conduct, and cause its Subsidiaries to conduct, their respective operations and businesses in a manner that will not expose any Property or Person to Hazardous Materials that would reasonably be expected to cause the Borrower or its Subsidiaries to owe material damages or compensation; and establish and implement, and shall cause each of its Subsidiaries to establish and implement, such procedures as may be necessary to determine and assure that the Borrower’s and its Subsidiaries’ obligations under this Section 8.10(a) are timely and fully satisfied, which
103 failure to establish and implement would reasonably be expected to have a Material Adverse Effect. (b) If Borrower or any of its Subsidiaries receives written notice of any action or, investigation by any Governmental Authority or any threatened demand or lawsuit by any Person against the Borrower or any of its Subsidiaries or their Properties, in each case in connection with any Environmental Laws, the Borrower will within fifteen (15) days after any Responsible Officer learns thereof give written notice of the same to Administrative Agent if the Borrower would reasonably anticipate that such action will result in liability (whether individually or in the aggregate) in excess of the greater of (i) $50,000,000 or (ii) (A) during any Borrowing Base Period, five percent (5%) of the Borrowing Base or (B) during any Investment Grade Period, one and six-tenths percent (1.6%) of Consolidated Net Tangible Assets as of the last day of the then most recently ended Rolling Period for which financial statements are available (in each case to the extent not covered (other than with respect to deductible amounts)). Section 8.11 Further Assurances. (a) The Borrower at its sole expense will, and will cause each other Credit Party to, promptly execute and deliver to the Administrative Agent all such other documents, agreements and instruments reasonably requested by the Administrative Agent to comply with, cure any defects or accomplish the covenants and agreements of any Credit Party, as the case may be, in the Loan Documents, including the Notes, or, during a Borrowing Base Period, to further evidence and more fully describe the collateral intended as security for the Obligations, or to correct any omissions in this Agreement or the Security Instruments, or to state more fully the obligations secured therein, or, during any Borrowing Base Period, to perfect, protect or preserve any Liens created pursuant to this Agreement or any of the Security Instruments or the priority thereof, or to make any recordings, file any notices or obtain any consents, all as may be reasonably necessary or appropriate, in the sole discretion of the Administrative Agent, in connection therewith. (b) The Borrower hereby authorizes the Administrative Agent to file, at any time during a Borrowing Base Period, one or more financing or continuation statements, and amendments thereto, relative to all or any part of the Mortgaged Property without the signature of any Credit Party where permitted by law. A carbon, photographic or other reproduction of the Security Instruments or any financing statement covering the Mortgaged Property or any part thereof shall be sufficient as a financing statement where permitted by law. Section 8.12 Reserve Reports. (a) On or before (i) March 1, 2022, the Borrower shall furnish to the Administrative Agent and the Revolving Credit Lenders a Reserve Report evaluating the Oil and Gas Properties of the Borrower and its Subsidiaries as of the immediately preceding November 30, 2021 and (ii) commencing October 1, 2022, April 1 and October 1 of each year, the Borrower shall furnish to the Administrative Agent and the Revolving Credit Lenders a Reserve Report evaluating the Oil and Gas Properties of the Borrower and its Subsidiaries as of the immediately preceding December 31 or June 30, respectively. The Reserve Report as of December 31 of each year shall be prepared or audited by one or more Approved Petroleum Engineers, and the Reserve Report as of June 30 of each year shall be prepared either by Approved Petroleum Engineers or by
104 Borrower’s internal reserve engineering staff, which shall certify such Reserve Report to be true and accurate in all material respects (with appropriate exceptions for projections and cost estimates) and to have been prepared in accordance with the procedures used in the immediately preceding December 31 Reserve Report. (b) In the event of an Interim Redetermination, the Borrower shall furnish to the Administrative Agent and the Revolving Credit Lenders a Reserve Report prepared by Borrower’s internal reserve engineering staff, which shall certify such Reserve Report to be true and accurate in all material respects (with appropriate exceptions for projections and cost estimates) and to have been prepared in accordance with the procedures used in the immediately preceding December 31 Reserve Report. For any Interim Redetermination requested by the Administrative Agent or the Borrower pursuant to Section 2.06(b), the Borrower shall provide such Reserve Report with an “as of” date as required by the Administrative Agent as soon as possible, but in any event no later than thirty (30) days following the receipt of such request or the commencement of a Borrowing Base Period, as applicable. (c) With the delivery of each Reserve Report, the Borrower shall provide to the Administrative Agent and the Revolving Credit Lenders a certificate from a Responsible Officer (i) certifying that (A) the information contained in the Reserve Report and any other information delivered in connection therewith is true and correct, (B) each Credit Party owns good and defensible title to the Oil and Gas Properties evaluated in such Reserve Report and such Properties are free and clear of all Liens except for Permitted Liens, (C) except as set forth on an exhibit to the certificate, there are no Material Gas Imbalances with respect to the Oil and Gas Properties evaluated in such Reserve Report, (D) none of their Proved 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 such Oil and Gas Properties sold and attached thereto is a schedule of the Oil and Gas Properties evaluated by such Reserve Report that are Mortgaged Properties and (E) attached thereto is a list of all marketing agreements entered into subsequent to the later of the date hereof or the most recently delivered certificate delivered under this Section 8.12(c) which the Borrower would reasonably be expected to have been obligated to list on Schedule 7.18 had such agreement been in effect on the date hereof and (ii) if during a Borrowing Base Period, demonstrating the percentage of the total value of the Proved Oil and Gas Properties that the value of such Mortgaged Properties represents in compliance with Section 8.14(a). Section 8.13 Title Information. (a) At any time during a Borrowing Base Period, within thirty (30) days after the delivery to the Administrative Agent and the Revolving Credit Lenders of each Reserve Report required by Section 8.12(a), the Borrower will deliver title information in form and substance reasonably acceptable to the Administrative Agent covering enough of the Oil and Gas Properties evaluated by such Reserve Report that were not included in the immediately preceding Reserve Report, so that the Administrative Agent shall have received together with title information previously delivered to the Administrative Agent, reasonably satisfactory title information on at least (i) ninety percent (90%) of the total value of the Oil and Gas Properties evaluated by such Reserve Report and (ii) ninety percent (90%) of the total value of the Oil and Gas Properties that
105 are classified as proved developed nonproducing reserves and proved developed producing reserves evaluated by such Reserve Report. (b) If the Borrower has provided title information for additional Properties under Section 8.13(a), the Borrower shall, within sixty (60) days after notice from the Administrative Agent that title defects or exceptions exist with respect to such additional Properties, either (i) cure any such title defects or exceptions (including defects or exceptions as to priority) which are not Permitted Liens raised by such information, (ii) substitute acceptable Mortgaged Properties with no title defects or exceptions except for Excepted Liens (other than Excepted Liens described in clauses (e) and (j) of such definition) having an aggregate equivalent value or (iii) deliver title information in form and substance reasonably requested by the Administrative Agent so that the Administrative Agent shall have received, together with title information previously delivered to the Administrative Agent, satisfactory title information to comply with Section 8.13(a). (c) If the Borrower is unable to cure any title defect requested by the Administrative Agent or the Lenders to be cured within the 60-day period or the Borrower does not comply with the requirements to provide reasonably acceptable title information provided for in Section 8.13(a), such default shall not be a Default or Event of Default, but instead the Administrative Agent and/or the Required Lenders shall have the right, at any time during a Borrowing Base Period, to exercise the following remedy in their sole discretion from time to time, and any failure to so exercise this remedy at any time shall not be a waiver as to future exercise of the remedy by the Administrative Agent or the Required Lenders: such unacceptable Mortgaged Property shall not count towards the requirement provided for in Section 8.13(a), and the Administrative Agent may send a notice to the Borrower and the Lenders that the then outstanding Borrowing Base shall be reduced by an amount as determined by the Required Lenders to cause the Borrower to be in compliance with the requirement to provide acceptable title information as required in Section 8.13(a). This new Borrowing Base shall become effective immediately after receipt of such notice. Section 8.14 Additional Collateral; Additional Guarantors. (a) In connection with each redetermination of the Borrowing Base during a Borrowing Base Period, the Borrower shall review the Reserve Report and the list of current Mortgaged Properties (as described in Section 8.12(c)) to ascertain whether the Mortgaged Properties represent at least ninety percent (90%) of the total value of the Oil and Gas Properties evaluated in the most recently completed Reserve Report after giving effect to exploration and production activities, acquisitions, dispositions and production. In the event that, during a Borrowing Base Period, the Mortgaged Properties do not represent at least ninety percent (90%) of such total value as determined by the Administrative Agent, then the Borrower shall, or shall cause one or more of the other Credit Parties to, grant, within thirty (30) days after delivery of the certificate required under Section 8.12(c), to the Administrative Agent as security for the Obligations, Security Instruments covering additional Oil and Gas Properties not already subject to a Lien of the Security Instruments such that after giving effect thereto, the Mortgaged Properties will represent at least ninety percent (90%) of such total value. All such Liens will be created and perfected by and in accordance with the provisions of deeds of trust, security agreements and financing statements or other Security Instruments, all in form and substance reasonably
106 satisfactory to the Administrative Agent and in sufficient executed (and acknowledged where necessary or appropriate) counterparts for recording purposes. If any Subsidiary of the Borrower places a Lien on its Oil and Gas Properties in order to comply with the foregoing, and such Subsidiary is not a Guarantor, then it shall become a Guarantor and comply with Section 8.14(b). (b) The Borrower shall promptly cause each Domestic Subsidiary that is not an Unrestricted Subsidiary to Guarantee the Obligations pursuant to the Guarantee Agreement. In connection with any such Guarantee, the Borrower shall, or shall cause such Subsidiary to, promptly, but in any event no later than thirty (30) days (or such later date as the Administrative Agent may agree in its reasonable discretion) after the formation or acquisition (or other similar event) of such Subsidiary to, execute and deliver (i) a supplement to the Guarantee Agreement executed by such Subsidiary, (ii) solely during a Borrowing Base Period, a supplement executed by such Subsidiary to the Security Agreement executed by the Credit Parties on the Effective Date (or supplements thereto or assumption agreements thereto or any replacement Security Instrument with respect to the collateral described in such Security Instruments that is entered into after the termination of an Investment Grade Period, as applicable), (iii) solely during a Borrowing Base Period, a pledge all of the Equity Interests of such Subsidiary (including, without limitation, delivery of original stock certificates evidencing the Equity Interests of such Subsidiary, together with an appropriate undated stock powers for each certificate duly executed in blank by the registered owner thereof) and (iv) such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent. (c) During any Borrowing Base Period, the Borrower will at all times cause the other material tangible and intangible assets of each Domestic Subsidiary (including, without limitation, all Swap Agreements) purported to be pledged as collateral pursuant to the Security Instruments to be or be made subject to a Lien under the Security Instruments. (d) Each time a Borrowing Base Period commences after the Effective Date, the Borrower will, and will cause each Domestic Subsidiary, to execute and deliver such Security Instruments as reasonably required by the Administrative Agent to comply with the requirements of this Section 8.14 that apply during a Borrowing Base Period within seventy-five (75) days (or such longer time, not to exceed an additional thirty (30) days, as the Administrative Agent may agree in its sole discretion) following the commencement of such Borrowing Base Period. Section 8.15 ERISA Compliance. The Borrower will promptly furnish and will cause its Subsidiaries and any ERISA Affiliate to promptly furnish to the Administrative Agent promptly after request therefor by the Administrative Agent, copies of each annual and other report with respect to each Plan or any trust created thereunder, and promptly upon becoming aware of the occurrence of any “prohibited transaction”, as described in section 406 of ERISA or in section 4975 of the Code for which no exception exists or is available by statute, regulation, administrative exemption, or otherwise, in connection with any Plan or any trust created thereunder, a written notice signed by the President or the principal Financial Officer, such Subsidiary or the ERISA Affiliate, as the case may be, specifying the nature thereof, what action the Borrower, such Subsidiary or the ERISA Affiliate is taking or proposes to take with respect thereto, and, when known, any action taken or proposed by the Internal Revenue Service or the Department of Labor with respect thereto.
107 Section 8.16 Marketing Activities. The Borrower will not, and will not permit any of its Subsidiaries to, engage in marketing activities for any Hydrocarbons or enter into any contracts related thereto other than contracts for the sale of Hydrocarbons scheduled or reasonably estimated to be produced from their Proved Oil and Gas Properties during the period of such contract, contracts for the sale of Hydrocarbons scheduled or reasonably estimated to be produced from Proved Oil and Gas Properties of third parties during the period of such contract associated with the Oil and Gas Properties of the Credit Parties that any Credit Party has the right to market pursuant to joint operating agreements, unitization agreements or other similar contracts that are usual and customary in the oil and gas business and other contracts for the purchase and/or sale of Hydrocarbons of third parties (a) which have generally offsetting provisions (i.e. corresponding pricing mechanics, delivery dates and points and volumes) such that no “position” is taken and (b) for which appropriate credit support has been taken to alleviate the material credit risks of the counterparty thereto. Section 8.17 Unrestricted Subsidiaries. (a) Unless designated as an Unrestricted Subsidiary in accordance with Section 8.17(b), any Person that becomes a Domestic Subsidiary of the Borrower or any of its Restricted Subsidiaries shall be classified as a Restricted Subsidiary. (b) The Borrower may designate by written notification thereof to the Administrative Agent, any Person that would otherwise be a Restricted Subsidiary of the Borrower, including a newly formed or newly acquired Person that would otherwise be a Restricted Subsidiary of the Borrower, as an Unrestricted Subsidiary if (i) prior, and after giving effect, to such designation, neither a Default nor a Borrowing Base Deficiency would exist, (ii) such Person does not own or operate any Oil and Gas Properties included in the most recently delivered Reserve Report for which a Borrowing Base has been established, other than Oil and Gas Properties permitted to be sold or otherwise transferred pursuant to Section 9.10 (which shall count as a Transfer thereunder), (iii) such Person is not a guarantor or the primary obligor with respect to any Permitted Additional Debt, Permitted Pari Term Loan Debt or any Permitted Refinancing thereof unless such Person will be released contemporaneously with such designation, (iv) such Person is not a party to any agreement, contract, arrangement or understanding with the Borrower or any Subsidiary unless the terms of such agreement, contract, arrangement or understanding are permitted by Section 9.11, (v) such designation is deemed to be an Investment in an Unrestricted Subsidiary and such Investment would be permitted to be made under Section 9.05(k) and (vi) the Administrative Agent shall have received a certificate of a Responsible Officer certifying that such designation complies with the requirements of this Section 8.17(b). For purposes of the foregoing, the designation of a Person as an Unrestricted Subsidiary shall be deemed to be the designation of all present and future subsidiaries of such Person as Unrestricted Subsidiaries. Except as provided in this Section 8.17(b), no Restricted Subsidiary may be redesignated as an Unrestricted Subsidiary. For the avoidance of doubt, the Borrower may designate any Subsidiary that directly owns Qualified Midstream Assets as an Unrestricted Subsidiary in accordance with the requirements of this Section 8.17(b). (c) The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary if after giving effect to such designation, (i) the representations and warranties of the Credit Parties contained in each of the Loan Documents are true and correct in all material respects
108 on and as of such date as if made on and as of the date of such designation (or, if stated to have been made expressly as of an earlier date, were true and correct in all material respects as of such date), (ii) no Default would exist and (iii) the Borrower complies with the requirements of Section 8.14, Section 8.18 and Section 9.11. (d) The Borrower will cause the management, business and affairs of each Credit Party to be conducted in such a manner (including, without limitation, by keeping separate books of account, furnishing separate financial statements of Unrestricted Subsidiaries to creditors and potential creditors thereof and by not permitting Properties of the Credit Parties to be commingled) so that each Unrestricted Subsidiary will be treated as an entity separate and distinct from Credit Parties; (e) The Borrower will cause each Unrestricted Subsidiary (i) to refrain from maintaining its assets in such a manner that would make it costly or difficult to segregate, ascertain or identify as its individual assets from those of any other Credit Party and (ii) to observe all corporate formalities; (f) The Borrower will not, and will not permit any other Credit Party to, incur, assume, guarantee or be or become liable for any Debt of any of the Unrestricted Subsidiaries except to the extent permitted by this Agreement; (g) The Borrower will not, and will not permit any other Credit Party to, permit any credit agreement for a senior credit facility, a loan agreement for a senior credit facility, a note purchase agreement for the sale of promissory notes or an indenture governing capital markets debt instruments pursuant to which any Credit Party is a borrower, issuer or guarantor (the “Relevant Debt”), the terms of which would, upon the occurrence of a default under any Debt of an Unrestricted Subsidiary, (i) result in, or permit the holder of any Relevant Debt to declare a default on such Relevant Debt or (ii) cause the payment of any Relevant Debt to be accelerated or payable before the fixed date on which the principal of such Relevant Debt is due and payable; and (h) The Borrower will not permit any Unrestricted Subsidiary to hold any Equity Interest in, or any Debt of, any Credit Party. Section 8.18 Account Control Agreements. The Borrower will, and will cause each other Credit Party to, in connection with any Deposit Account, Securities Account and/or Commodities Account (other than an Excluded Account for so long as it is an Excluded Account) established, held or maintained on or after the Effective Date, substantially contemporaneously with the opening of such Deposit Account, Securities Account and/or Commodities Account (or at such later date as the Administrative Agent may agree to in its sole discretion), cause such Deposit Account, Securities Account and/or Commodities Account to be subject to a Control Agreement; provided, that, notwithstanding the foregoing, with respect to Deposit Accounts, Securities Accounts and/or Commodities Accounts (other than Excluded Accounts) in existence on the Effective Date, the Borrower shall not be required to comply with this Section 8.18 until the date that is forty-five (45) days following the Effective Date (or such later date as the Administrative Agent may agree in its sole discretion). In addition, the Borrower will, and will cause each other
109 Credit Party to, maintain and hold Deposit Accounts (other than an Excluded Account for so long as it is an Excluded Account) only with Lenders or Affiliates of Lenders. ARTICLE IX NEGATIVE COVENANTS Until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder and all other amounts payable under the Loan Documents have been paid in full and all Letters of Credit have expired or terminated and all Reimbursement Obligations shall have been reimbursed, the Borrower covenants and agrees with the Lenders that: Section 9.01 Financial Covenants. (a) Current Ratio. The Borrower will not permit the Current Ratio, as of the last day of any fiscal quarter, commencing with the fiscal quarter ending December 31, 2021, to be less than 1.0 to 1.0. (b) Leverage Ratio. The Borrower will not permit the Leverage Ratio to be greater than 3.0 to 1.0 as of the last day of any fiscal quarter, commencing with the fiscal quarter ending December 31, 2021. (c) PV-9 Coverage Ratio. If, as of the last day of any fiscal quarter ending during an Investment Grade Period, the Borrower does not have an Investment Grade Rating from at least two of Moody’s, S&P and Fitch, the Borrower will not permit the PV-9 Coverage Ratio, as of the last day of such fiscal quarter, to be less than 1.50 to 1.00; provided that, if the Borrower does have an Investment Grade Rating from at least two of Moody’s, S&P and Fitch as of such date, this Section 9.01(c) shall not apply as of such date. Section 9.02 Debt. The Borrower will not, nor will it permit any other Credit Party to, incur, create, assume or suffer to exist any Debt, except: (a) the Notes or other Obligations arising under the Loan Documents, or Cash Management Agreements or the Secured Swap Agreements; (b) Debt under Capital Leases or that constitutes Purchase Money Indebtedness; provided that the aggregate principal amount of all Debt described in this Section 9.02(b) at the time incurred (after giving effect to such incurrence) shall not exceed the greater of (i) $50,000,000 and (ii) (x) during a Borrowing Base Period, five percent (5%) of the Borrowing Base in effect at such time or (y) during an Investment Grade Period, one and six-tenths percent (1.6%) of Consolidated Net Tangible Assets as of the last day of the then most recently ended Rolling Period for which financial statements are available; (c) intercompany Debt between the Borrower and any other Credit Party or between Credit Parties; provided that such Debt is not held, assigned, transferred, negotiated or pledged to any Person other than a Credit Party; and, provided further, that any such Debt owed by a Credit Party shall be subordinated to the Obligations on terms set forth in the Guarantee Agreement;
110 (d) Debt constituting a Guarantee by a Credit Party of the Obligations; (e) other Debt not to exceed in the aggregate at the time incurred (after giving effect to such incurrence) the greater of (i) $50,000,000 and (ii) (x) during a Borrowing Base Period, five percent (5%) of the Borrowing Base in effect at such time or (y) during an Investment Grade Period, one and six-tenths percent (1.6%) of Consolidated Net Tangible Assets as of the last day of the then most recently ended Rolling Period for which financial statements are available; (f) Debt in respect of the 7.50% Senior Notes, the 5.00% Senior Notes and any other additional secured or unsecured Debt; provided that, (i) no Default or Borrowing Base Deficiency exists at the time of the incurrence of such Debt or would result therefrom (including, with respect to the incurrence of any such Debt after the Effective Date, after giving effect to any automatic reduction of the Borrowing Base during any Borrowing Base Period and any concurrent repayment required pursuant to Section 2.06(e)), (ii) after giving pro forma effect to the incurrence of such Debt and any concurrent repayments, (A) the Leverage Ratio does not exceed 3.00 to 1.00 and (B) the Current Ratio is not less than 1.00 to 1.00, (iii) the documents governing such Debt do not (x) require any scheduled amortization of principal or have a maturity date prior to one hundred eighty (180) days after the Stated Revolving Credit Maturity Date at the time of the incurrence of such Debt and (y) contain any mandatory prepayment or Redemption provisions (provided that the following exceptions shall be deemed not to violate the requirements of this clause (iii): (A) customary change of control or asset sale tender offer provisions, (B) customary “bridge” facilities which, subject to customary conditions (including no payment or bankruptcy event of default) would either automatically be converted into or required to be exchanged for permanent refinancing and (C) customary special mandatory Redemption provisions in connection with mergers or acquisitions), (iv) the covenants and events of default contained in the documentation governing such Debt are (A) in the case of financial covenants, not more restrictive than the financial covenants of this Agreement and the other Loan Documents and (B) in the case of other covenants and events of default, taken as a whole, not more restrictive than the corresponding terms of this Agreement and the other Loan Documents in each case as reasonably determined in good faith by the Borrower, (v) such Debt does not prohibit prior repayment of the Obligations and (vi) if such Debt is secured, (A) a Junior Lien Intercreditor Agreement shall have been entered into with respect to such Debt and (B) there shall be no Lien on the assets of any Credit Party securing any such Debt if the same assets are not subject to a Lien securing the Obligations; (g) Debt which constitutes a Permitted Refinancing of Debt outstanding or incurred under Section 9.02(f) or Section 9.02(j); (h) Debt incurred or deposits made by the Credit Parties (i) under worker’s compensation laws, unemployment insurance laws or similar legislation, (ii) in connection with bids, tenders, contracts (other than for the payment of Debt) or leases to which such Credit Party is a party, (iii) to secure public or statutory obligations of such Credit Party, and (iv) of cash or U.S. government securities made to secure the performance of statutory obligations, surety, stay, customs and appeal bonds to which such Credit Party is a party in connection with the operation of the Hydrocarbon Interests in the ordinary course of business; (i) Debt of any Credit Party assumed in connection with any acquisition permitted by Section 9.05 so long as such Debt is not incurred in contemplation of such acquisition,
111 and any Permitted Refinancing thereof; provided that after giving pro forma effect to such acquisition and the assumption of such Debt, (i) the Leverage Ratio does not exceed 3.00 to 1.00 and (ii) the Current Ratio is not less than 1.0 to 1.0; (j) Permitted Pari Term Loan Debt incurred on or prior to the date that is two years after the Third Amendment Effective Date, and any guarantees thereof; provided that (i) the aggregate principal amount of Permitted Pari Term Loan Debt permitted by this clause (j) shall not exceed, at the time of incurrence thereof, an aggregate principal amount equal to the least of: (A) the Borrowing Base then in effect minus the aggregate Elected Loan Limit then in effect, (B) an amount equal to the aggregate Elected Loan Limit at such time and (C) the greater of (x) $1,000,000,000 and (y) 33 1/3% of the sum of the Elected Loan Limit plus the aggregate principal amount of such Permitted Pari Term Loan Debt (after giving effect to the incurrence thereof) and (ii) for the avoidance of doubt, no Permitted Pari Term Loan Debt may be issued or incurred during an Investment Grade Period; (k) Debt of the type described in clause (c) of the definition thereof in connection with the Fifth Amendment Acquisition or any other Investment or acquisition permitted hereunder in an amount not to exceed $550,000,000 in the aggregate at the time incurred; and (l) Debt of any Credit Party permitted to be incurred during an Investment Grade Period existing during any subsequent Borrowing Base Period to the extent the aggregate principal amount thereof exceeds the amounts permitted by Section 9.02(b) or Section 9.02(e), as applicable. Section 9.03 Liens. The Borrower will not, nor will it permit any other Credit Party to, create, incur, assume or permit to exist any Lien on any of its Properties (now owned or hereafter acquired), except: (a) Liens securing the payment of any Obligations; (b) (i) Excepted Liens and (ii) Liens created in accordance with this Agreement during any Investment Grade Period securing Property to the extent that, during any subsequent Borrowing Base Period, the aggregate principal amount of the obligations secured thereby exceeds the amount permitted by Section 9.03(e) (so long as in any case the aggregate principal amount of obligations secured by Liens referred to in this clause (ii) does not exceed at any time one and six- tenths percent (1.6%) of Consolidated Net Tangible Assets as of the last day of the then most recently ended Rolling Period for which financial statements are available); (c) Liens securing Capital Leases and Purchase Money Indebtedness permitted by Section 9.02(b) but only on the Property under lease or the Property purchased with such Purchase Money Indebtedness; (d) Liens on escrowed proceeds for the benefit of the related holders of debt securities or other Debt (or the underwriters or arrangers thereof) or on cash set aside at the time of the incurrence of any Debt purchased with such cash, in either case to the extent such cash prefunds the payment of interest on such Debt and is held in an escrow account or similar arrangement to be applied for such purpose;
112 (e) Liens on Property not constituting Hydrocarbon Interests and not otherwise permitted by this Section 9.03; provided that the aggregate principal or face amount of all Debt secured by such Liens pursuant to this Section 9.03(e), and the fair market value of the Properties subject to such Liens (determined as of the date such Liens are incurred), shall not exceed the greater of (i) $25,000,000 at any time and (ii) (x) during a Borrowing Base Period, five percent (5%) of the Borrowing Base in effect at such time or (y) during an Investment Grade Period, one and six-tenths percent (1.6%) of Consolidated Net Tangible Assets as of the last day of the then most recently ended Rolling Period for which financial statements are available; (f) Liens to secure Debt permitted under Section 9.02(i); provided that (i) the aggregate principal amount of all Debt secured by such Liens pursuant to this Section 9.03(f) shall not exceed $30,000,000 at any time, (ii) such Liens attach at all times only to the assets acquired pursuant to such acquisition and (iii) such Liens shall not encumber any Oil and Gas Properties; (g) Liens on any deposits made in connection with any Investment permitted by Section 9.05; and (h) Liens securing (i) Permitted Additional Debt permitted under Section 9.02(f) (so long as such Liens are subordinate to the Liens in favor of the Administrative Agent securing the Obligations and subject to a Junior Lien Intercreditor Agreement), (ii) Permitted Pari Term Loan Debt permitted under Section 9.02(j) (so long as such Liens are pari passu with the Liens in favor of the Administrative Agent securing the Obligations and subject to a Pari Passu Intercreditor Agreement), and (iii) Permitted Refinancing of Debt permitted under Section 9.02(g). Section 9.04 Restricted Payments. The Borrower will not, nor will it permit any other Credit Party to, declare or make, or agree to pay or make, directly or indirectly (collectively in this section, “make”), any Restricted Payment except: (a) any Credit Party may make Restricted Payments to any other Credit Party; (b) the Borrower may make Restricted Payments with respect to its Equity Interests payable solely in additional membership interests or shares of its Equity Interests (other than Disqualified Capital Stock); (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of any Credit Party in an aggregate amount not to exceed $10,000,000 in any fiscal year; (d) any Credit Party may make a Restricted Payment not otherwise permitted under this Section 9.04, provided that (i) no Default or Event of Default has occurred and is continuing, or would result therefrom, and (ii) after giving pro forma effect to such Restricted Payment, (A) the Leverage Ratio does not exceed 3.0 to 1.0 and (B) the Commitment Utilization Percentage does not exceed eighty percent (80%); and (e) any Credit Party may make Restricted Payments within sixty (60) days after the date of declaration thereof, if at the date of declaration the making of such Restricted Payment would have complied with the provisions of this Agreement.
113 Section 9.05 Investments, Loans and Advances. The Borrower will not, nor will it permit any other Credit Party to, make or permit to remain outstanding any Investments in or to any Person, except that the foregoing restriction shall not apply to: (a) Investments reflected in the Financial Statements or disclosed to the Lenders in Schedule 9.05; (b) accounts receivable arising in the ordinary course of business; (c) direct obligations of the United States or any agency thereof, or obligations guaranteed by the United States or any agency thereof, in each case maturing within one year from the date of creation thereof; (d) commercial paper maturing within one year from the date of creation thereof rated in the highest grade by S&P or Moody’s; (e) demand deposits, and time deposits maturing within one year from the date of creation thereof, with, or issued by any Lender or any office located in the United States of any other bank or trust company which is organized under the laws of the United States or any state thereof, has capital, surplus and undivided profits aggregating at least $100,000,000 (as of the date of such bank or trust company’s most recent financial reports) and has a short term deposit rating of no lower than A2 or P2, as such rating is set forth from time to time by S&P or Moody’s, respectively; (f) deposits in money market funds investing exclusively in Investments described in Section 9.05(c), Section 9.05(d) or Section 9.05(e); (g) Investments made by any Credit Party in or to any other Credit Party; (h) Investments in stock, obligations or securities received in settlement of debts arising from Investments permitted under this Section 9.05 owing to any Credit Party as a result of a bankruptcy or other insolvency proceeding of the obligor in respect of such obligations or upon the enforcement of such obligations or of any Lien securing such obligations; provided that the Borrower shall give the Administrative Agent prompt written notice in the event that the aggregate amount of all Investments held at any one time under this Section 9.05(h) exceeds $2,000,000; (i) Investments constituting Debt permitted under Section 9.02(c); (j) Guarantees constituting Debt permitted by Section 9.02; (k) Investments not otherwise permitted under this Section 9.05; provided that (i) no Default or Event of Default has occurred and is continuing, or would result therefrom, and (ii) after giving pro forma effect to such Investment, (A) the Leverage Ratio does not exceed 3.0 to 1.0 and (B) the Commitment Utilization Percentage does not exceed eighty percent (80%); (l) The consummation of the Fifth Amendment Acquisition;
114 (m) The consummation of the Extraction Merger and the Crestone Merger, in each case, on the Effective Date; and (n) The consummation of the Specified Acquisitions on the Fourth Amendment Effective Date. Section 9.06 Nature of Business. The Borrower will not, nor will it permit any other Credit Party to, allow any material change to be made in the character of their business, taken as a whole, as an independent oil and gas exploration and production company. Section 9.07 Proceeds of Loans. (a) The Borrower will not, nor will it permit any other Credit Party to, permit the proceeds of the Loans to be used for any purpose other than those permitted by Section 7.20. No Credit Party or any Person acting on behalf of any Credit Party has taken or will take any action which might cause any of the Loan Documents to violate Regulations T, U or X or any other regulation of the Board or to violate section 7 of the Securities Exchange Act of 1934 or any rule or regulation thereunder, in each case as now in effect or as the same may hereinafter be in effect. If requested by the Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form U-1 or such other form referred to in Regulation U, Regulation T or Regulation X of the Board, as the case may be. (b) The Borrower will not request any Borrowing or Letter of Credit, and no Credit Party shall use, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Borrowing or Letter of Credit (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, except to the extent permitted for a Person required to comply with Sanctions or (iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto. Section 9.08 Mergers, Etc. The Borrower will not, nor will it permit any other Credit Party to, divide or merge into or with or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its Property to any other Person (whether now owned or hereafter acquired) (any such transaction, a “consolidation”), or liquidate or dissolve; provided that, so long as no Default has occurred and is then continuing, (a) any Restricted Subsidiary may participate in a consolidation with the Borrower (provided that the Borrower shall be the survivor), (b) any Restricted Subsidiary may participate in a consolidation with any other Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary, (c) any Restricted Subsidiary may dispose of its assets to the Borrower or to another Restricted Subsidiary and (d) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders. Notwithstanding anything to the contrary in
115 this Section 9.08, the Credit Parties may consummate the Extraction Merger and the Crestone Merger, in each case, on the Effective Date. Section 9.09 Sale or Discount of Receivables. Except for receivables obtained by any Credit Party out of the ordinary course of business or the settlement of joint interest billing accounts in the ordinary course of business or discounts granted to settle collection of accounts receivable or the sale of defaulted accounts arising in the ordinary course of business in connection with the compromise or collection thereof and not in connection with any financing transaction, the Borrower will not, nor will it permit any other Credit Party to, enter into an agreement with any Person to securitize any of its notes receivable or accounts receivable. Section 9.10 Sale of Properties. The Borrower will not, nor will it permit any other Credit Party to, sell, assign, farm-out, convey or otherwise transfer (collectively in this section, “Transfer”) any Oil and Gas Property or any interest in Hydrocarbons produced or to be produced therefrom or any Equity Interest in any Credit Party that owns any Oil and Gas Property, commodity Swap Agreement or any interest in Hydrocarbons produced or to be produced therefrom (in this section, an “E&P Credit Party”) or unwind or terminate any commodity Swap Agreements, except for: (a) the sale of Hydrocarbons in the ordinary course of business; (b) farmouts, swaps or trades of undeveloped acreage not included in the most recently delivered Reserve Report and assignments in connection with such farmouts, swaps or trades; (c) the Transfer of equipment that is no longer necessary for the business of the Borrower or such other Credit Party or is replaced by equipment of at least comparable value or use; (d) Transfers of Properties that were not, during a Borrowing Base Period, evaluated in the Reserve Report used in the most recent determination of the Borrowing Base; (e) during any Borrowing Base Period, (i) Transfers of Properties evaluated in the Reserve Report used in the most recent determination of the Borrowing Base, provided that such Transfers are for fair market value, (ii) the unwinding or termination of commodity Swap Agreements; or (iii) Transfers of all (but not less than all) of the Equity Interests collectively owned by the Borrower and its Subsidiaries in any E&P Credit Party; provided that in the case of clause (i) or (ii) above, except with respect to any novation or replacement, as applicable, contemplated by the penultimate proviso of this Section 9.10(e), during any Borrowing Base Period, at least seventy-five percent (75%) (or such greater percentage as may be required to eliminate any resulting Borrowing Base Deficiency) of the consideration received in respect of such sale or other disposition or unwinding or termination, as applicable, shall be cash or cash equivalents; provided, further, that to the extent that, if during any Borrowing Base Period commencing with the later of the most recent Scheduled Redetermination Date or the most recent adjustment to the Borrowing Base pursuant to this Section 9.10 through the next Scheduled Redetermination Date, Oil and Gas Properties and commodity Swap Agreements with an aggregate Borrowing Base value in excess of five percent (5%) of the Borrowing Base value of all Oil and Gas Properties included in the
116 Borrowing Base of the Credit Parties (as reasonably determined by the Administrative Agent), are Transferred or unwound or terminated, as applicable, by any one or more Credit Parties pursuant to this Section 9.10(e), then the Borrowing Base will be reduced, effective immediately, by the Borrowing Base values in excess of such five percent (5%) threshold; provided, further, that for purposes of this Section 9.10, (A) a commodity Swap Agreement shall be deemed to have not been unwound or terminated if, (x) such commodity Swap Agreement is novated from the existing counterparty to an Approved Counterparty, with the Borrower or the applicable Credit Party being the “remaining party” for purposes of such novation, or (y) upon its termination or unwinding, it is replaced, in a substantially contemporaneous transaction, with one or more commodity Swap Agreements with the same or longer tenor, covering volumes not less than and for prices not less than those Swap Agreements being replaced and without cash payments to any Credit Party in connection therewith, and (B) a Property shall be deemed to have not been Transferred if upon its Transfer, it is replaced, in a substantially contemporaneous transaction, with Properties with approximately the same fair market value as reasonably determined by Borrower in good faith and evidenced by delivery to the Administrative Agent of a certificate of a Responsible Officer containing reasonably detailed supporting information for such good faith determination; provided that, this clause (B) shall only apply and may only be relied on to the extent that the Properties so Transferred in exchange for other Properties in any period between two successive Scheduled Redetermination Dates does not exceed seven and one-half percent (7.5%) of the Borrowing Base value of all Oil and Gas Properties included in the Borrowing Base of the Credit Parties (as reasonably determined by the Administrative Agent). For the purposes of the preceding sentence, the Transfer of an E&P Credit Party owning Oil and Gas Properties and/or commodity Swap Agreements pursuant to this Section 9.10(e) shall be deemed the Transfer of such Oil and Gas Properties and the unwinding or termination of the commodity Swap Agreements owned by such E&P Credit Party; (f) Transfers in connection with Investments permitted by Section 9.05, other than Transfers of (i) any Proved Oil and Gas Properties that, during any Borrowing Base Period, were evaluated in the Reserve Report used in the most recent determination of the Borrowing Base or (ii) any Equity Interests in any E&P Credit Party owning Proved Oil and Gas Properties that, during any Borrowing Base Period, were evaluated in the Reserve Report used in the most recent determination of the Borrowing Base; (g) Transfers of Properties among the Credit Parties; provided that (i) with respect to any Transfers of Equity Interests in any E&P Credit Party, the requirements of Section 8.14(b) are satisfied and (ii) solely during a Borrowing Base Period, with respect to any Transfers of Proved Oil and Gas Properties evaluated in the Reserve Report used in the most recent determination of the Borrowing Base, the transferee promptly delivers mortgages or other Security Instruments in favor of the Administrative Agent to the extent necessary to satisfy the requirements of Section 8.14; and (h) Transfers during an Investment Grade Period, so long as the Borrower shall be in pro forma compliance with Section 9.01 (including Section 9.01(c) even if Section 9.01(c) is not otherwise being tested at such time) after giving effect to such Transfer. Section 9.11 Transactions with Affiliates. The Borrower will not, nor will it permit any other Credit Party to, enter into any transaction, including, without limitation, any purchase, sale,
117 lease or exchange of Property, with any Affiliate (other than one of the other Credit Parties), other than (a) transactions that are upon fair and reasonable terms no less favorable to it than it would obtain in a comparable arm’s length transaction with a Person not an Affiliate, (b) transactions between Credit Parties, (c) transactions between any Credit Party and any partnership listed on Schedule 9.11, (d) any Restricted Payment permitted by Section 9.04, or (e) any Investment permitted by Section 9.05. Section 9.12 Subsidiaries. The Borrower will not, nor will it permit any other Credit Party to, create or acquire any additional Subsidiary or redesignate an Unrestricted Subsidiary as a Restricted Subsidiary unless the Borrower complies with Section 8.14(b). The Borrower will not, nor will it permit any other Credit Party to, sell, assign or otherwise dispose of any Equity Interests in any Credit Party except (a) to another Credit Party or (b) in compliance with Section 9.10(e). No Credit Party shall have any Foreign Subsidiaries. Section 9.13 Negative Pledge Agreements; Dividend Restrictions. The Borrower will not, nor will it permit any other Credit Party to, create, incur, assume or suffer to exist any contract, agreement or understanding (other than restrictions or conditions imposed by law, this Agreement, the Security Instruments, agreements with respect to Purchase Money Indebtedness or Capital Leases secured by Liens permitted by Section 9.03(c), but then only with respect to the Property that is the subject of such Capital Lease or Purchase Money Indebtedness, Liens permitted under Section 9.03(f) but then only with respect to the assets subject of such Lien, Liens securing Permitted Additional Debt under Section 9.03(h), and documents creating Liens which are described in clause (d), (f), (h) or (i) of the definition of “Excepted Liens”, but then only with respect to the Property that is the subject of the applicable lease, document or license described in such clause (d), (f), (h) or (i)) that in any way prohibits or restricts the granting, conveying, creation or imposition of any Lien on any of its Property in favor of the Administrative Agent for the benefit of the Secured Parties, or restricts any Credit Party from paying dividends or making any other distributions in respect of its Equity Interests to any Credit Party. Section 9.14 Swap Agreements. (a) The Borrower will not, nor will it permit any other Credit Party to, enter into any Swap Agreements with any Person other than: (i) Swap Agreements in respect of commodities with an Approved Counterparty fixing a price for a term of not more than sixty months and the notional volumes for which (when aggregated with other commodity Swap Agreements then in effect other than put or floor options as to which an upfront premium has been paid or basis differential swaps on volumes already hedged pursuant to other Swap Agreements) do not exceed, as of the date such Swap Agreement is executed (A) for any month during the first two years of the forthcoming five year period, the greater of (1) one hundred percent (100%) of the reasonably anticipated projected production from Oil and Gas Properties constituting PDP Reserves (as reflected in the most recently delivered Reserve Report) for each of crude oil, natural gas, and natural gas liquids calculated separately and (2) eighty-five percent (85%) of the reasonably anticipated projected production from Oil and Gas Properties constituting Proved Reserves (as reflected in the most recently delivered Reserve Report) for each of crude oil, natural gas, and natural gas liquids calculated separately, and (B) for any month during the last three years of the forthcoming five
118 year period, the greater of (1) eighty-five percent (85%) of the reasonably anticipated projected production from Oil and Gas Properties constituting PDP Reserves (as reflected in the most recently delivered Reserve Report) for each of crude oil, natural gas, and natural gas liquids calculated separately and (2) sixty-five percent (65%) of the reasonably anticipated projected production from Oil and Gas Properties constituting Proved Reserves (as reflected in the most recently delivered Reserve Report) for each of crude oil, natural gas, and natural gas liquids calculated separately; provided that the Borrower (1) shall have the option to update the reasonably anticipated projected production from Oil and Gas Properties between the delivery of Reserve Reports hereunder (which updates shall be provided to the Administrative Agent in writing and shall be in form and substance reasonably satisfactory to the Administrative Agent) and (2) shall have the option to enter into commodity Swap Agreements with an Approved Counterparty with respect to (x) such updated projected production and subject to the volume limitations set forth in this Section 9.14(a) and (y) reasonably anticipated projected production from Oil and Gas Properties not then owned by the Credit Parties but which are subject to a binding purchase agreement (in form and substance reasonably satisfactory to the Administrative Agent) for which one or more of the Credit Parties are scheduled to acquire such Oil and Gas Properties within the applicable period (a “subject acquisition”), provided that, (I) the Credit Parties are in compliance with this Section 9.14(a) after giving pro forma effect to such subject acquisition and (II) if such subject acquisition does not close for any reason on the date required thereunder, including any binding extensions thereof, within thirty (30) days of such required closing date, the Credit Parties shall unwind or otherwise terminate the Swap Agreements entered into with respect to production that was to be acquired thereunder; and (ii) Swap Agreements in respect of interest rates with an Approved Counterparty, the notional amounts of which (when aggregated with all other Swap Agreements of the Credit Parties then in effect) do not exceed seventy-five percent (75%) of the then outstanding principal amount of the Borrower’s Debt for borrowed money. (b) In no event shall any Swap Agreement, other than a master Swap Agreement pursuant to which any Credit Party executes only put or floor options as to which an upfront premium has been paid, contain any requirement, agreement or covenant for any Credit Party to post collateral or margin to secure their obligations under such Swap Agreement other than the benefit of the Security Instruments as contemplated herein. (c) If, after the end of any calendar month, the Borrower determines that the aggregate notional volume of all Swap Agreements in respect of commodities for such calendar month exceeded one hundred percent (100%) of actual production of Hydrocarbons in such calendar month, then the Borrower shall (i) promptly notify the Administrative Agent of such determination, and (ii) if requested by the Administrative Agent (or if otherwise necessary to ensure compliance with Section 9.14(a)), within thirty (30) days after such request, terminate, create off-setting positions, or otherwise unwind or monetize existing Swap Agreements such that, at such time, future volumes under commodity Swap Agreements will not exceed one hundred percent (100%) of reasonably anticipated projected production for the then-current and any succeeding calendar months.
119 Section 9.15 Permitted Additional Debt Restrictions. (a) The Borrower will not, nor will it permit any other Credit Party to, amend, modify, waive or otherwise change, consent or agree to any amendment, modification, waiver or other change to, any of the terms of the Permitted Additional Debt or Permitted Pari Term Loan Debt if (a) the effect thereof would be to shorten the maturity of the Permitted Additional Debt or Permitted Pari Term Loan Debt to a date that is earlier than one hundred eighty (180) days after the Stated Revolving Credit Maturity Date, or (b) such action adds or amends any representations and warranties, covenants or events of default to be more restrictive or burdensome than this Agreement in each case as reasonably determined in good faith by the Borrower without this Agreement being contemporaneously amended to add similar provisions. (b) The Borrower will not, nor will it permit any other Credit Party to prior to the date that is one hundred eighty (180) days after the Stated Revolving Credit Maturity Date, make or offer to make any optional or voluntary Redemption of or otherwise optionally or voluntarily Redeem (whether in whole or in part) any principal in respect of any Permitted Additional Debt or Permitted Pari Term Loan Debt, except (i) with the Net Cash Proceeds of any substantially contemporaneous issuance of Equity Interests (other than Disqualified Capital Stock) or in exchange for Equity Interests (other than Disqualified Capital Stock), (ii) with the Net Cash Proceeds of any Permitted Refinancing, or (iii) if after giving pro forma effect to such Redemption, (A) no Default exists or results therefrom, (B) the Commitment Utilization Percentage is not more than eighty percent (80%) and (C) the Leverage Ratio is less than 3.0 to 1.0. Section 9.16 Amendments to Organizational Documents. The Borrower will not, nor will it permit any other Credit Party to, amend, supplement or otherwise modify (or permit to be amended, supplemented or modified) its organizational documents in any respect that would reasonably be expected to be materially adverse to the interests of the Administrative Agent or the Revolving Credit Lenders without the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed). Section 9.17 Changes in Fiscal Periods. The Borrower will not, nor will it permit any other Credit Party to, have its fiscal year end on a date other than December 31 or change its method of determining fiscal quarters without the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed). ARTICLE X EVENTS OF DEFAULT; REMEDIES Section 10.01 Events of Default. One or more of the following events shall constitute an “Event of Default”: (a) the Borrower shall fail to pay any principal of any Loan or any Reimbursement Obligation when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof, by acceleration or otherwise; (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in Section 10.01(a)) payable under any Loan
120 Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five (5) Business Days; (c) any representation or warranty made or deemed made by or on behalf of any Credit Party in or in connection with any Loan Document or any amendment or modification of any Loan Document or waiver under such Loan Document, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made; (d) any Credit Party shall fail to observe or perform any covenant, condition or agreement contained in Section 8.02, Section 8.03(a), Section 8.07, Section 8.18 or Article IX; (e) any Credit Party shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in Section 10.01(a), Section 10.01(b) or Section 10.01(d)) or any other Loan Document, and such failure shall continue unremedied for a period of thirty (30) days after the earlier to occur of (i) a Responsible Officer of the Borrower or any other Credit Party having knowledge of such default or (ii) written notice thereof from the Administrative Agent to the Borrower; (f) any Credit Party shall fail to make any payment of principal or interest on any Material Indebtedness, when and as the same shall become due and payable, and such failure to pay shall extend beyond any applicable period of grace; (g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of such Material Indebtedness or any trustee or agent on its or their behalf to cause such Material Indebtedness to become due, or to require the Redemption thereof or any offer to Redeem to be made in respect thereof, prior to its scheduled maturity; provided that this Section 10.01(g) shall not apply to (i) secured Debt that becomes due as a result of the voluntary sale or transfer of the Property (permitted by this Agreement) securing such Debt and (ii) Debt that becomes due as a result of a change in law, tax regulation or accounting treatment so long as such Debt is paid when due; (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking liquidation, reorganization or other relief in respect of any Credit Party or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Credit Party or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered; (i) any Credit Party shall voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition
121 described in Section 10.01(h), apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Credit Party or for a substantial part of its assets, file an answer admitting the material allegations of a petition filed against it in any such proceeding, make a general assignment for the benefit of creditors or take any action for the purpose of effecting any of the foregoing; (j) any Credit Party shall become unable, admit in writing its inability or fail generally to pay its debts as they become due; (k) one or more judgments for the payment of money in an aggregate amount in excess of the greater of (i) $20,000,000 or (ii) (A) during any Borrowing Base Period, five percent (5%) of the Borrowing Base or (B) during any Investment Grade Period, one and six-tenths percent (1.6%) of Consolidated Net Tangible Assets as of the last day of the then most recently ended Rolling Period for which financial statements are available (in each case to the extent not covered (other than with respect to deductible amounts) by independent third party insurance as to which the insurer does not dispute coverage and is not subject to an insolvency proceeding), shall be rendered against any Credit Party or any combination thereof and the same shall remain undischarged, unvacated or unbonded for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Credit Party to enforce any such judgment; (l) the Loan Documents after delivery thereof shall for any reason, except to the extent permitted by the terms thereof, cease to be in full force and effect and valid, binding and enforceable in accordance with their terms against the Credit Parties party thereto or shall be repudiated by any of them, or cease to create valid and perfected Liens of the priority required thereby on any material portion of the Collateral purported to be covered thereby, except to the extent permitted by the terms of this Agreement or the Security Instruments, or any Credit Party shall so state in writing; (m) a Change in Control shall occur; (n) an ERISA Event shall occur that, individually or together with any other ERISA Event, could reasonably be expected to have a Material Adverse Effect; or (o) any Intercreditor Agreement shall for any reason, except to the extent permitted by the terms thereof, cease to be in full force and effect and valid, binding and enforceable in accordance with its terms against any party thereto, or shall be repudiated by any of them, or cease to establish the relative Lien priorities required thereby, or any party thereto (other than the Administrative Agent) shall so state in writing. Section 10.02 Remedies. (a) In the case of an Event of Default other than one described in Section 10.01(h), Section 10.01(i) and Section 10.01(j), at any time thereafter during the continuance of such Event of Default, the Administrative Agent may, and at the request of the Majority Lenders, shall, by notice to the Borrower, take either or both of the following actions, at the same or different times: terminate the Commitments, and thereupon the Commitments shall terminate immediately, and declare the Notes and the Loans then outstanding to be due and payable
122 in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Credit Parties accrued hereunder and under the Notes and the other Loan Documents (including, without limitation, the payment of cash collateral to secure the Letter of Credit Obligations in an amount equal to the greater of (x) one hundred five percent (105%) of the amount of such Letter of Credit Obligations and (y) one hundred five percent (105%) of the maximum amount that may be available to be drawn at any time prior to the stated expiry of all outstanding Letters of Credit), shall become due and payable immediately, without presentment, demand, protest, notice of intent to accelerate, notice of acceleration or other notice of any kind, all of which are hereby waived by the Credit Parties; and in case of an Event of Default described in Section 10.01(h), Section 10.01(i) or Section 10.01(j), the Commitments shall automatically terminate and the Notes and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and the other obligations of the Credit Parties accrued hereunder and under the Notes and the other Loan Documents (including, without limitation, the payment of cash collateral to secure the Letter of Credit Obligations in an amount equal to the greater of (x) one hundred five percent (105%) of the amount of such Letter of Credit Obligations and (y) one hundred five percent (105%) of the maximum amount that may be available to be drawn at any time prior to the stated expiry of all outstanding Letters of Credit), shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Credit Party. (b) In the case of the occurrence of an Event of Default, the Administrative Agent and the Lenders will have all other rights and remedies available at law and equity. (c) All proceeds realized from the liquidation or other disposition of Collateral or otherwise received after maturity of the Notes, whether by acceleration or otherwise, shall be applied: (i) first, to payment or reimbursement of that portion of the Obligations constituting fees, expenses and indemnities payable to the Administrative Agent in its capacity as such; (ii) second, pro rata to payment or reimbursement of that portion of the Obligations constituting fees, expenses and indemnities payable to the Lenders as permitted hereunder; (iii) third, pro rata to payment of accrued interest on the Revolving Credit Loans; (iv) fourth, pro rata to payment of (A) principal outstanding on the Revolving Credit Loans and to serve as cash collateral to secure outstanding Letter of Credit Obligations, (B) Obligations under Secured Swap Agreements then due and owing to Secured Swap Parties, (C) Obligations under Existing Secured Swap Agreements then due and owing to the Secured Non-Lender Swap Party, and (D) liabilities to any Cash Management Bank arising in connection with Secured Cash Management Agreements;
123 (v) fifth, pro rata to any other Obligations; and (vi) sixth, any excess, after all of the Obligations shall have been indefeasibly paid in full in cash, shall be paid to the Borrower or as otherwise required by any Governmental Requirement. Notwithstanding the foregoing, Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets, but appropriate adjustments shall be made with respect to payments from other Credit Parties to preserve the allocation to the Obligations otherwise set forth above in this Section 10.02. ARTICLE XI THE AGENTS Section 11.01 Authorization and Action. (a) Each Lender and each Issuing Bank hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Loan Documents and each Lender and each Issuing Bank authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Lender and each Issuing Bank hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. (b) As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender and each Issuing Bank; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives an indemnification satisfactory to it from the Lenders and the Issuing Banks with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Loan
124 Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (c) In performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on behalf of the Lenders and the Issuing Banks (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender, Issuing Bank or holder of any other obligation other than as expressly set forth herein and in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and the transactions contemplated hereby; (ii) where the Administrative Agent is required or deemed to act as a trustee in respect of any Collateral over which a security interest has been created pursuant to a Loan Document expressed to be governed by the laws of the United States, the obligations and liabilities of the Administrative Agent to the Secured Parties in its capacity as trustee shall be excluded to the fullest extent permitted by applicable law; and (iii) nothing in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit element of any sum received by the Administrative Agent for its own account. (d) The Administrative Agent may perform any 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 of their respective duties and exercise their respective rights and powers 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 pursuant to this Agreement. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agent except to the extent that
125 a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agent. (e) Neither of the Documentation Agent nor any Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to any Credit Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any Reimbursement Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, Letter of Credit Payment and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim under Sections 3.02, 3.04, 5.01, 5.03, 5.04 and 12.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender, each Issuing Bank and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, the Issuing Banks or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 12.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or Issuing Bank or to authorize the Administrative Agent to vote in respect of the claim of any Lender or Issuing Bank in any such proceeding. (g) The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and, except solely to the extent of the Borrower’s rights to consent pursuant to and subject to the conditions set forth in this Article, none of the Borrower or any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the provisions of this Article.
126 Section 11.02 Administrative Agent’s Reliance, Indemnification, Etc. (a) Neither the Administrative Agent nor any of its Related Parties shall be (i) liable for any action taken or omitted to be taken by it under or in connection with this Agreement or the other Loan Documents (A) with the consent of 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 to be necessary, under the circumstances as provided in the Loan Documents) or (B) in the absence of its own gross negligence or willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and nonappealable judgment) or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Credit Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Credit Party to perform its obligations hereunder or thereunder. (b) The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the Borrower, a Lender or an Issuing Bank, and 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 any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the satisfaction of any condition set forth in Article VI or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent, or (vi) the creation, perfection or priority of Liens on the Collateral. Notwithstanding anything herein to the contrary, the Administrative Agent shall not be liable for, or be responsible for any loss, cost or expense suffered by the Borrower, any Subsidiary, any Lender or any Issuing Bank as a result of, any determination of the Revolving Credit Exposure, any of the component amounts thereof or any portion thereof attributable to each Lender or Issuing Bank. (c) Without limiting the foregoing, the Administrative Agent (i) may treat the payee of any promissory note as its holder until such promissory note has been assigned in accordance with Section 12.04, (ii) may rely on the Register to the extent set forth in Section 12.04(b), (iii) may consult with legal counsel (including counsel to the Borrower), independent public accountants and other experts selected by it, and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts, (iv) makes no warranty or representation to any Lender or Issuing Bank and shall not be responsible to any Lender or Issuing Bank for any statements, warranties or representations made by or on behalf of any Credit Party in connection with this Agreement or any other Loan Document, (v) in determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
127 of a Lender or an Issuing Bank, may presume that such condition is satisfactory to such Lender or Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or Issuing Bank sufficiently in advance of the making of such Loan or the issuance of such Letter of Credit and (vi) shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Loan Document by acting upon, any notice, consent, certificate or other instrument or writing (which writing may be a fax, any electronic message, Internet or intranet website posting or other distribution) or any statement made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise authenticated by the proper party or parties (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof). Section 11.03 Posting of Communications. (a) The Borrower agrees that the Administrative Agent may, but shall not be obligated to, make any Communications available to the Lenders and the Issuing Banks by posting the Communications on IntraLinks™, DebtDomain, SyndTrak, ClearPar or any other electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “Approved Electronic Platform”). (b) Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including, as of the Effective Date, a user ID/password authorization system) and the Approved Electronic Platform is secured through a per- deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders, each of the Issuing Banks and the Borrower acknowledges and agrees that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. Each of the Lenders, each of the Issuing Banks and the Borrower hereby approves distribution of the Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution. (c) THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY ARRANGER, THE DOCUMENTATION AGENT OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY CREDIT PARTY, ANY LENDER, ANY ISSUING BANK OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR
128 INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY CREDIT PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM. “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Credit Party pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Administrative Agent, any Lender or any Issuing Bank by means of electronic communications pursuant to this Section, including through an Approved Electronic Platform. (d) Each Lender and each Issuing Bank agrees that notice to it (as provided in the next sentence) specifying that Communications have been posted to the Approved Electronic Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender and Issuing Bank agrees (i) to notify the Administrative Agent in writing (which could be in the form of electronic communication) from time to time of such Lender’s or Issuing Bank’s (as applicable) email address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address. (e) Each of the Lenders, each of the Issuing Banks and the Borrower agrees that the Administrative Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Communications on the Approved Electronic Platform in accordance with the Administrative Agent’s generally applicable document retention procedures and policies. (f) Nothing herein shall prejudice the right of the Administrative Agent, any Lender or any Issuing Bank to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document. Section 11.04 The Administrative Agent Individually. With respect to its Commitment, Loans, Letter of Credit Maximum Amount and Letters of Credit, the Person serving as the Administrative Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Lender or Issuing Bank, as the case may be. The terms “Issuing Banks”, “Lenders”, “Required Lenders” and any similar terms shall, unless the context clearly otherwise indicates, include the Administrative Agent in its individual capacity as a Lender, Issuing Bank or as one of the Required Lenders, as applicable. The Person serving as the Administrative Agent and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of banking, trust or other business with, the Borrower, any Subsidiary or any Affiliate of any of the foregoing as if such Person was not acting as the Administrative Agent and without any duty to account therefor to the Lenders or the Issuing Banks. Section 11.05 Successor Administrative Agent. (a) The Administrative Agent may resign at any time by giving thirty (30) days’ prior written notice thereof to the Lenders, the Issuing Banks and the Borrower, whether or not a
129 successor Administrative Agent has been appointed. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within thirty (30) days after the retiring Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in New York, New York or an Affiliate of any such bank. In either case, such appointment shall be subject to the prior written approval of the Borrower (which approval may not be unreasonably withheld and shall not be required while an Event of Default has occurred and is continuing). Upon the acceptance of any appointment as Administrative Agent by a successor Administrative Agent, such successor Administrative Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Administrative Agent. Upon the acceptance of appointment as Administrative Agent by a successor Administrative Agent, the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other Loan Documents. Prior to any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the retiring Administrative Agent shall take such action as may be reasonably necessary to assign to the successor Administrative Agent its rights as Administrative Agent under the Loan Documents. (b) Notwithstanding Section 11.05(a), in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents; provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Security Instrument for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties, and continue to be entitled to the rights set forth in such Security Instruments and the other Loan Documents, and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this Section (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Security Instrument, including any action required to maintain the perfection of any such security interest), and (ii) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent; provided that (A) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article and Section 12.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub- agents and their respective Related Parties in respect of any actions taken or omitted to be taken
130 by any of them while the retiring Administrative Agent was acting as Administrative Agent and in respect of the matters referred to in the proviso under clause (i) above. Section 11.06 Acknowledgements of Lenders and Issuing Banks. (a) Each Lender represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and that it has, independently and without reliance upon the Administrative Agent, any Arranger or any other Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Arranger or any other Lender, or any of the Related Parties of any of the foregoing, and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. (b) Each Lender, by delivering its signature page to this Agreement on the Effective Date, or delivering its signature page to an Assignment and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date. Section 11.07 Collateral Matters. (a) Except with respect to the exercise of setoff rights in accordance with Section 12.08 or with respect to a Secured Party’s right to file a proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof. (b) In furtherance of the foregoing and not in limitation thereof, no arrangements in respect of cash management services the obligations under Secured Cash Management Agreements and obligations under Secured Swap Agreements, will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Credit Party under any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such arrangement in respect of Secured Cash Management Agreement or Secured Swap Agreement, as applicable, shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph.
131 (c) The Secured Parties irrevocably authorize the Administrative Agent, at its option and in its discretion, to: (i) subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 9.03(b) or any Transfer permitted by Section 9.10; and (ii) release any Lien on any property granted to or held by Administrative Agent under any Loan Document (A) after the termination of the Commitments, the payment in full of all principal and interest on each Loan and all fees payable hereunder and all other amounts payable under the Loan Documents (other than contingent indemnification or contingent reimbursement obligations not yet known) to any Agent, the Issuing Banks or any Lender under any Loan Document, the expiration or termination of all Letters of Credit (other than Letters of Credit for which other arrangements satisfactory to the Administrative Agent and the Issuing Banks have been made), the reimbursement of all Reimbursement Obligations owing under the Loan Documents, and the payment in full or cash collateralization (or other arrangements reasonably satisfactory to the Administrative Agent) with respect to any other Obligations that are due and owing or that would become due and owing as a result of the termination of this Agreement, (B) that is, or is to be, sold, released or otherwise disposed of as permitted pursuant to the terms of the Loan Documents, (C) upon the commencement of an Investment Grade Period as described in Section 11.07(e) below and (D) if approved, authorized or ratified in writing by the Majority Lenders (or, if approval, authorization or ratification by all Lenders is required under the first proviso in Section 12.02(b), then by all Lenders). (d) The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon or any certificate prepared by any Credit Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders or any other Secured Party for any failure to monitor or maintain any portion of the Collateral. (e) Upon the commencement of any Investment Grade Period, the Administrative Agent’s Lien and security interests in the collateral under the Security Instruments shall automatically terminate and be released (without notice to, or vote or consent of, any Lender or any other Secured Party), and the Administrative Agent shall execute and deliver to the Credit Parties or the Credit Parties’ designee, at the Credit Parties’ expense, all Uniform Commercial Code termination statements and similar documents that the Credit Parties shall reasonably request from time to time to evidence such termination. Any execution and delivery of termination statements or documents pursuant to this Section 11.07(e) shall be without recourse to or warranty by the Administrative Agent. Section 11.08 Credit Bidding. The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including
132 under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Credit Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid, (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles, (ii) each of the Secured Parties’ ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the Administrative Agent shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 12.02 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Secured Parties pro rata with their original interest in such Obligations and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such credit bid.
133 Section 11.09 Certain ERISA Matters. (a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and each Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement, (ii) the prohibited transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable so as to exempt from the prohibitions of Section 406 of ERISA and Section 4975 of the Code such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, and the conditions for exemptive relief thereunder are and will continue to be satisfied in connection therewith, (iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub- sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender. (b) In addition, unless Section 11.09(a)(i) is true with respect to a Lender or such Lender has provided another representation, warranty and covenant as provided in Section 11.09(a)(iv), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and each Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that:
134 (i) none of the Administrative Agent, any Arranger, the Documentation Agent or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto), (ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21, as amended from time to time) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)- (E), (iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the obligations), (iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and (v) no fee or other compensation is being paid directly to the Administrative Agent, or any Arranger or any their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments or this Agreement. (c) The Administrative Agent and each Arranger and the Documentation Agent hereby informs the Lenders that each such Person is not undertaking to provide investment advice or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments, this Agreement and any other Loan Documents, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees,
135 processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing. Section 11.10 Erroneous Payments. (a) Each Lender hereby agrees that (i) if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise, individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion thereof), such Lender shall promptly, but in any event no later than one (1) Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (ii) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice from the Administrative Agent to any Lender under this Section 11.10 shall be conclusive, absent manifest error. (b) Each Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (i) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (ii) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in any event no later than one (1) Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. (c) The Borrower and each other Credit Party hereby agrees that (i) in the event an erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (ii) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Credit Party, except, in each case, to the extent any such erroneous Payment is, and solely with respect to the amount of such erroneous Payment that is, comprised of funds received by the
136 Administrative Agent from the Borrower or any other Credit Party for the purpose of making such erroneous Payment. (d) Each party’s obligations under this Section 11.10 shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document. ARTICLE XII MISCELLANEOUS Section 12.01 Notices. (a) Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to Section 12.01(b)), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, to the addresses set forth on Schedule 12.01, and, if to any Lender other than JPMorgan Chase Bank, N.A., to it at its address (or telecopy number) set forth in its Administrative Questionnaire. (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II, Article III, Article IV and Article V unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. (c) Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt. Section 12.02 Waivers; Amendments. (a) No failure on the part of the Administrative Agent, any Issuing Bank or any Lender to exercise and no delay in exercising, and no course of dealing with respect to, any right, power or privilege, or any abandonment or discontinuance of steps to enforce such right, power or privilege, under any of the Loan Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under any of the Loan Documents preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies of the Administrative Agent, any other Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by Section 12.02(b), and then such waiver or consent
137 shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any other Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time. (b) Subject to Section 5.08, neither this Agreement nor any provision hereof nor any other Loan Document nor any provision thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Majority Lenders or by the Borrower and the Administrative Agent with the consent of the Majority Lenders; provided that no such agreement shall (i) increase the Commitment or the Maximum Credit Amount or postpone the scheduled date of expiration of any Commitment of any Revolving Credit Lender without the written consent of such Revolving Credit Lender, (ii) increase the Borrowing Base without the written consent of each Revolving Credit Lender (other than any Defaulting Lender), (iii) decrease or maintain the Borrowing Base without the consent of the Required Lenders, or modify Section 2.06 in any manner without the consent of the Required Lenders (in each case, except as expressly contemplated by this Agreement with respect to the commencement or termination of any Investment Grade Period); provided that a Scheduled Redetermination may be postponed by the Required Lenders, (iv) reduce the principal amount of any Loan or Reimbursement Obligation or reduce the rate of interest thereon, or reduce any fees payable hereunder, or reduce any other Obligations hereunder or under any other Loan Document, without the written consent of each Lender affected thereby, (v) postpone the scheduled date of payment or prepayment of the principal amount of any Loan or Reimbursement Obligation, or any interest thereon, or any fees payable hereunder, or any other Obligations hereunder or under any other Loan Document, or reduce the amount of, waive or excuse any such payment, or postpone or extend the Termination Date without the written consent of each Lender affected thereby, (vi) (A) change any term or condition hereof in a manner that would alter the pro rata sharing of payments required thereby, (B) subordinate any of the Obligations owed to the Lenders in right of payment or otherwise adversely affect the priority of payment of any of such Obligations or (C) subordinate any of the Liens on a material portion of the Collateral, taken as a whole, securing the Obligations owed to the Lenders to any other indebtedness for borrowed money other than purchase money indebtedness, capitalized lease or similar obligations and/or any debtor-in- possession financing (except as otherwise set forth in Section 11.07), in each case, without the written consent of each Lender, (vii) waive or amend Section 3.03(c), Section 6.01 or Section 10.02(c), without the written consent of each Lender, (viii) release any Guarantor (except as set forth in the Guarantee Agreement or this Agreement or as a result of a transaction permitted under Section 9.10), release, or subordinate the Administrative Agent’s Lien on or security interest in, in either case, all or substantially all of the Collateral (other than as provided in Section 11.07) or reduce the percentage set forth in Section 8.14(a) to less than eighty-five percent (85%), without the consent of each Lender, (ix) impose any greater restriction on the ability of any Revolving Credit Lender to assign any of its rights or obligations hereunder without the written consent of, if such Lender is a Revolving Credit Lender, the Majority Lenders or (x) change any of the provisions of this Section 12.02(b) or the definitions of “Applicable Revolving Credit Percentage”, “Majority Lenders”, “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or under any other Loan Documents or make any determination or grant any consent hereunder or any other Loan Documents, without the written consent of each Lender; provided, further, that no such agreement
138 shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any other Agent or any Issuing Bank hereunder or under any other Loan Document without the prior written consent of the Administrative Agent, such other Agent or such Issuing Bank, as the case may be. Notwithstanding anything to the contrary in this Agreement, fees payable hereunder to any Lender may be reduced with the consent of the Administrative Agent and the affected Lender. Section 12.03 Expenses, Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including, without limitation, the reasonable fees, charges and disbursements of counsel (which counsel shall be limited to one counsel and a single local counsel in each material jurisdiction) and other outside consultants for the Administrative Agent, the reasonable travel, photocopy, mailing, courier, telephone and other similar expenses, and the cost of environmental invasive and non-invasive assessments and audits and surveys and appraisals, in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration (both before and after the execution hereof and including advice of counsel to the Administrative Agent as to the rights and duties of the Administrative Agent and the Lenders with respect thereto) of this Agreement and the other Loan Documents and any amendments, modifications or waivers of or consents related to the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), all costs, expenses, Taxes, assessments and other charges incurred by any Agent in connection with any filing, registration, recording or perfection of any security interest contemplated by this Agreement or any Security Instrument or any other document referred to therein, (ii) all reasonable out-of-pocket expenses incurred by the applicable Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder, and (iii) all out-of-pocket expenses incurred by any Agent, any Issuing Bank or any Lender, including the fees, charges and disbursements of any counsel for any Agent, any Issuing Bank or any Lender, in connection with the enforcement or protection of its rights in connection with this Agreement or any other Loan Document, including its rights under this Section 12.03, or in connection with the Loans made or Letters of Credit issued hereunder, including, without limitation, all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit. (b) THE BORROWER SHALL, AND SHALL CAUSE EACH OTHER CREDIT PARTY TO, INDEMNIFY EACH AGENT, THE ARRANGERS, EACH ISSUING BANK, EACH LENDER, AND EACH RELATED PARTY OF ANY OF THE FOREGOING PERSONS (EACH SUCH PERSON BEING CALLED AN “INDEMNITEE”) AGAINST, AND DEFEND AND HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES, PENALTIES, LIABILITIES AND RELATED EXPENSES, INCLUDING THE REASONABLE AND DOCUMENTED OUT-OF-POCKET FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR ANY INDEMNITEE (WHICH COUNSEL SHALL BE LIMITED TO ONE COUNSEL FOR ALL INDEMNITEES, TAKEN AS A WHOLE, AND, IF REASONABLY NECESSARY, A SINGLE LOCAL COUNSEL TO ALL INDEMNITEES, TAKEN AS A WHOLE, IN EACH RELEVANT MATERIAL JURISDICTION TO THE AFFECTED INDEMNITEES SIMILARLY SITUATED TAKEN AS A WHOLE, AND SOLELY IN THE CASE OF A CONFLICT OF INTEREST, ONE ADDITIONAL COUNSEL IN EACH APPLICABLE MATERIAL JURISDICTION TO THE AFFECTED INDEMNIFIED
139 PARTIES SIMILARLY SITUATED TAKEN AS A WHOLE), DAMAGES AND LIABILITIES OF ANY KIND OR NATURE (THE “INDEMNIFIED OBLIGATIONS”) INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE BY ANY PERSON (INCLUDING, WITHOUT LIMITATION, ANY CREDIT PARTY OR ITS RESPECTIVE SUBSIDIARIES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF THE EXECUTION OR DELIVERY OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OR THE PARTIES TO ANY OTHER LOAN DOCUMENT OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER OR THEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR BY ANY OTHER LOAN DOCUMENT, THE FAILURE OF ANY CREDIT PARTY TO COMPLY WITH THE TERMS OF ANY LOAN DOCUMENT, INCLUDING THIS AGREEMENT, OR WITH ANY GOVERNMENTAL REQUIREMENT, ANY INACCURACY OF ANY REPRESENTATION OR ANY BREACH OF ANY WARRANTY OR COVENANT OF ANY CREDIT PARTY SET FORTH IN ANY OF THE LOAN DOCUMENTS OR ANY INSTRUMENTS, DOCUMENTS OR CERTIFICATIONS DELIVERED IN CONNECTION THEREWITH, ANY LOAN OR LETTER OF CREDIT OR THE USE OF THE PROCEEDS THEREFROM, INCLUDING, WITHOUT LIMITATION, ANY REFUSAL BY ANY ISSUING BANK TO HONOR A DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT IF THE DOCUMENTS PRESENTED IN CONNECTION WITH SUCH DEMAND DO NOT STRICTLY COMPLY WITH THE TERMS OF SUCH LETTER OF CREDIT, OR THE PAYMENT OF A DRAWING UNDER ANY LETTER OF CREDIT NOTWITHSTANDING THE NON-COMPLIANCE, NON-DELIVERY OR OTHER IMPROPER PRESENTATION OF THE DOCUMENTS PRESENTED IN CONNECTION THEREWITH, ANY OTHER ASPECT OF THE LOAN DOCUMENTS, THE OPERATIONS OF THE BUSINESS OF THE CREDIT PARTIES AND THEIR RESPECTIVE SUBSIDIARIES BY THE CREDIT PARTIES AND THEIR RESPECTIVE SUBSIDIARIES, ANY ASSERTION THAT THE LENDERS WERE NOT ENTITLED TO RECEIVE THE PROCEEDS RECEIVED PURSUANT TO THE SECURITY INSTRUMENTS, ANY ENVIRONMENTAL LAW APPLICABLE TO THE CREDIT PARTIES, ANY OF THEIR RESPECTIVE SUBSIDIARIES OR ANY OF THEIR PROPERTIES OR OPERATIONS, INCLUDING, THE PRESENCE, GENERATION, STORAGE, RELEASE, THREATENED RELEASE, USE, TRANSPORT, DISPOSAL, ARRANGEMENT OF DISPOSAL OR TREATMENT OF HAZARDOUS MATERIALS ON OR AT ANY OF THEIR PROPERTIES, THE BREACH OR NON-COMPLIANCE BY ANY CREDIT PARTY OR ANY OF THEIR RESPECTIVE SUBSIDIARIES WITH ANY ENVIRONMENTAL LAW APPLICABLE TO ANY CREDIT PARTY OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, THE PAST OWNERSHIP BY ANY CREDIT PARTY OR ANY OF THEIR RESPECTIVE SUBSIDIARIES OF ANY OF THEIR PROPERTIES OR PAST ACTIVITY ON ANY OF THEIR PROPERTIES WHICH, THOUGH LAWFUL AND FULLY PERMISSIBLE AT THE TIME, COULD RESULT IN PRESENT LIABILITY, THE PRESENCE, USE, RELEASE, STORAGE, TREATMENT, DISPOSAL, GENERATION, THREATENED RELEASE, TRANSPORT, ARRANGEMENT FOR TRANSPORT OR ARRANGEMENT FOR DISPOSAL OF HAZARDOUS MATERIALS ON OR AT ANY OF THE PROPERTIES OWNED OR OPERATED BY ANY CREDIT PARTY OR ANY OF THEIR RESPECTIVE SUBSIDIARIES OR ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED
140 BY ANY CREDIT PARTY OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO ANY CREDIT PARTY OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, OR ANY OTHER ENVIRONMENTAL, HEALTH OR SAFETY CONDITION IN CONNECTION WITH THE LOAN DOCUMENTS, OR ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO, AND SUCH INDEMNITY SHALL EXTEND TO EACH INDEMNITEE NOTWITHSTANDING THE SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND OR CHARACTER WHATSOEVER, WHETHER ACTIVE OR PASSIVE, WHETHER AN AFFIRMATIVE ACT OR AN OMISSION, INCLUDING WITHOUT LIMITATION, ALL TYPES OF NEGLIGENT CONDUCT IDENTIFIED IN THE RESTATEMENT (SECOND) OF TORTS OF ONE OR MORE OF THE INDEMNITEES OR BY REASON OF STRICT LIABILITY IMPOSED WITHOUT FAULT ON ANY ONE OR MORE OF THE INDEMNITEES; PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM (i) THE GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR (ii) ANY DISPUTE SOLELY AMONG INDEMNITEES OTHER THAN CLAIMS AGAINST AN INDEMNITEE IN ITS CAPACITY OR IN FULFILLING ITS ROLE AS AN AGENT, ISSUING BANK OR ARRANGER HEREUNDER AND OTHER THAN ANY CLAIMS ARISING OUT OF ANY ACT OR OMISSION ON THE PART OF THE BORROWER OR ANY AFFILIATE THEREOF. THIS SECTION 12.03(b) SHALL NOT APPLY WITH RESPECT TO TAXES OTHER THAN TAXES THAT REPRESENT LOSSES, CLAIMS, DAMAGES, ETC. ARISING FROM ANY NON-TAX CLAIM. (c) To the extent that the Borrower fails to pay any amount required to be paid by it to any Agent, any Arranger or any Issuing Bank under Section 12.03(a) or (b), each Revolving Credit Lender severally agrees to pay to such Agent, any Arranger or such Issuing Bank, as the case may be, such Lender’s Applicable Revolving Credit Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent, any Arranger or such Issuing Bank in its capacity as such. (d) TO THE EXTENT PERMITTED BY APPLICABLE LAW, NO PARTY TO THIS AGREEMENT SHALL ASSERT, AND EACH PARTY HEREBY WAIVES, ANY CLAIM AGAINST ANY OTHER PARTY HERETO, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, THE TRANSACTIONS, ANY LOAN OR LETTER OF CREDIT OR THE USE OF THE PROCEEDS THEREOF; PROVIDED THAT NOTHING IN THIS SECTION 12.03(d) SHALL RELIEVE THE BORROWER OF ANY OBLIGATION IT MAY HAVE TO INDEMNIFY AND
141 INDEMNITEE AGAINST SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES ASSERTED AGAINST SUCH INDEMNITEE BY A THIRD PARTY. (e) All amounts due under this Section 12.03 shall be payable not later than ten (10) days after written demand therefor. Section 12.04 Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender and no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 12.04. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in Section 12.04(b)) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. (b) (i) Subject to the conditions set forth in Section 12.04(b)(ii), any Lender may assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of: (A) the Borrower; provided that no consent of the Borrower shall be required if such assignment is to a Lender, an Affiliate of a Lender that is actively engaged in the making of revolving loans, an Approved Fund or if an Event of Default has occurred and is continuing; provided, further, that the Borrower shall be deemed to have consented to such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; and (B) the Administrative Agent and the Issuing Banks; provided that no consent of the Administrative Agent shall be required for an assignment to an assignee that is a Lender immediately prior to giving effect to such assignment. (ii) Assignments shall be subject to the following additional conditions: (A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent; provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
142 (B) 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; (C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; (E) no such assignment shall be made to a natural person or a holding company, investment vehicle or trust for, or owned and operated for, the primary benefit of a natural person, an Industry Competitor, any Credit Party, any Affiliate of any Credit Party, or any of their respective Subsidiaries; and (F) no such assignment shall be made to a Defaulting Lender. (iii) Subject to Section 12.04(b)(v) and the acceptance and recording thereof by the Administrative Agent, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning 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 Section 5.01, Section 5.02, Section 5.03 and Section 12.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 12.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 12.04(b). (iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Maximum Credit Amount of, and principal amount (and stated interest) of the Loans and Reimbursement Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Administrative Agent, the Issuing Banks and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, any Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable prior notice. In connection with any changes to the Register, if necessary, the Administrative Agent will reflect the revisions on Schedule 1.2 and forward a copy of such revised Schedule 1.2 to the Borrower, each Issuing Bank and each Lender. (v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative
143 Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in Section 12.04(b)(ii)(C) and any written consent to such assignment required by Section 12.04(b)(i), the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this Section 12.04(b). (vi) Any Lender may, without the consent of the Borrower, the Administrative Agent or any Issuing Bank, sell participations to one or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that such Lender’s obligations under this Agreement shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, the Borrower, the Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and no such participation may be sold to a natural Person or an Industry Competitor. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the proviso to Section 12.02 that affects such Participant. In addition such agreement must provide that the Participant be bound by the provisions of Section 12.03. Subject to Section 12.04(b)(vii), the Borrower agrees that each Participant shall be entitled to the benefits of Section 5.01, Section 5.02 and Section 5.03 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 12.04(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 12.08 as though it were a Lender, provided such Participant agrees to be subject to Section 4.01(c) as though it were a Lender. (vii) A Participant shall not be entitled to receive any greater payment under Section 5.01 or Section 5.03 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 or to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 5.03 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 5.03(e) as though it were a Lender. (viii) Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that
144 such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations to a Federal Reserve Bank or any other central bank, and this Section 12.04(c) shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. (d) Notwithstanding any other provisions of this Section 12.04, no transfer or assignment of the interests or obligations of any Lender or any grant of participations therein shall be permitted if such transfer, assignment or grant would require the Borrower to file a registration statement with the SEC or to qualify the Loans under the “Blue Sky” laws of any state. Section 12.05 Survival; Revival; Reinstatement. (a) All covenants, agreements, representations and warranties made by the Credit Parties herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, any other Agent, any Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. The provisions of Section 5.01, Section 5.02, Section 5.03 and Section 12.03 and Article XI shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement, any other Loan Document or any provision hereof or thereof. (b) To the extent that any payments on the Obligations or proceeds of any Collateral are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, debtor in possession, receiver or other Person under any bankruptcy law, common law or equitable cause, then to such extent, the Obligations so satisfied shall be revived and continue as if such payment or proceeds had not been received and the Administrative Agent’s and the Lenders’ Liens, security interests, rights, powers and remedies under this Agreement and each Loan Document shall continue in full force and effect. In such
145 event, each Loan Document shall be automatically reinstated and the Credit Parties shall take such action as may be reasonably requested by the Administrative Agent and the Lenders to effect such reinstatement. Section 12.06 Counterparts; Integration; Effectiveness. (a) This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. (b) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES HERETO AND THERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. (c) Except as provided in Section 6.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by telecopy, facsimile, as an attachment to an email or other similar electronic means shall be effective as delivery of a manually executed counterpart of this Agreement. Section 12.07 Severability. Any provision of this Agreement or any other Loan Document held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof or thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. Section 12.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations (of whatsoever kind, including, without limitations obligations under Swap Agreements) at any time owing by such Lender or Affiliate to or for the credit or the account of any Credit Party against any and all the obligations of any Credit Party owed to such Lender now or hereafter existing under this Agreement or any other Loan Document, irrespective of whether or not such Lender shall have made any demand under this Agreement or any other Loan Document and although such obligations may be unmatured. The rights of each Lender under this Section 12.08 are in addition to other rights and remedies (including other rights of setoff) which such Lender or its Affiliates may have. Section 12.09 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS; WAIVER OF TRIAL BY JURY.
146 (a) THIS AGREEMENT, THE NOTES AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. (b) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS (AND THE BORROWER SHALL CAUSE EACH OTHER CREDIT PARTY TO SUBMIT) FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT; PROVIDED, THAT NOTHING CONTAINED HEREIN OR IN ANY OTHER LOAN DOCUMENT WILL PREVENT ANY PARTY FROM BRINGING ANY ACTION TO ENFORCE ANY AWARD OR JUDGMENT OR EXERCISE ANY RIGHT UNDER THE LOAN DOCUMENTS IN ANY OTHER FORUM IN WHICH JURISDICTION CAN BE ESTABLISHED. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS. (c) EACH PARTY HEREBY (i) IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN; (ii) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (iii) CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OF COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (iv) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 12.09.
147 (d) EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT (i) SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO IT AT ITS ADDRESS SET FORTH IN SECTION 12.01 OR AT SUCH OTHER ADDRESS OF WHICH THE ADMINISTRATIVE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO AND (ii) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. Section 12.10 Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement. Section 12.11 Confidentiality. Each of the Administrative Agent, the Issuing Banks and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority or a nationally recognized ratings agency that requires access to information regarding the Credit Parties, the Loans and the Loan Documents in connection with ratings issued with respect to a securitization (it being understood that such nationally recognized ratings agency to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement or any other Loan Document, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any suit, 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 12.11, to any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or any actual or prospective counterparty (or its advisors) to any Swap Agreement relating to any Credit Party and its obligations, (g) with the consent of the Borrower or (h) to the extent such Information becomes publicly available other than as a result of a breach of this Section 12.11 or becomes available to the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis from a source other than the Borrower. For the purposes of this Section 12.11, “Information” means all information received from the Credit Parties relating to the Credit Parties and their businesses, other than (i) any such information that is available to the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by any Credit Party and (ii) information routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry. Any Person required to maintain the confidentiality of Information as provided in this Section 12.11 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. Section 12.12 Interest Rate Limitation. It is the intention of the parties hereto that each Lender shall conform strictly to usury laws applicable to it. Accordingly, if the transactions
148 contemplated hereby would be usurious as to any Lender under laws applicable to it (including the laws of the United States of America and the State of New York or any other jurisdiction whose laws may be mandatorily applicable to such Lender notwithstanding the other provisions of this Agreement), then, in that event, notwithstanding anything to the contrary in any of the Loan Documents or any agreement entered into in connection with or as security for the Notes, it is agreed as follows: the aggregate of all consideration which constitutes interest under law applicable to any Lender that is contracted for, taken, reserved, charged or received by such Lender under any of the Loan Documents or agreements or otherwise in connection with the Notes shall under no circumstances exceed the maximum amount allowed by such applicable law, and any excess shall be canceled automatically and if theretofore paid shall be credited by such Lender on the principal amount of the Obligations (or, to the extent that the principal amount of the Obligations shall have been or would thereby be paid in full, refunded by such Lender to the Borrower); and in the event that the maturity of the Notes is accelerated by reason of an election of the holder thereof resulting from any Event of Default under this Agreement or otherwise, or in the event of any required or permitted prepayment, then such consideration that constitutes interest under law applicable to any Lender may never include more than the maximum amount allowed by such applicable law, and excess interest, if any, provided for in this Agreement or otherwise shall be canceled automatically by such Lender as of the date of such acceleration or prepayment and, if theretofore paid, shall be credited by such Lender on the principal amount of the Obligations (or, to the extent that the principal amount of the Obligations shall have been or would thereby be paid in full, refunded by such Lender to the Borrower). All sums paid or agreed to be paid to any Lender for the use, forbearance or detention of sums due hereunder shall, to the extent permitted by law applicable to such Lender, be amortized, prorated, allocated and spread throughout the stated term of the Loans until payment in full so that the rate or amount of interest on account of any Loans hereunder does not exceed the maximum amount allowed by such applicable law. If at any time and from time to time the amount of interest payable to any Lender on any date shall be computed at the Highest Lawful Rate applicable to such Lender pursuant to this Section 12.12 and in respect of any subsequent interest computation period the amount of interest otherwise payable to such Lender would be less than the amount of interest payable to such Lender computed at the Highest Lawful Rate applicable to such Lender, then the amount of interest payable to such Lender in respect of such subsequent interest computation period shall continue to be computed at the Highest Lawful Rate applicable to such Lender until the total amount of interest payable to such Lender shall equal the total amount of interest which would have been payable to such Lender if the total amount of interest had been computed without giving effect to this Section 12.12. Section 12.13 EXCULPATION PROVISIONS. (A) EACH OF THE PARTIES HERETO SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND AGREES THAT IT IS CHARGED WITH NOTICE AND KNOWLEDGE OF THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; THAT IT HAS IN FACT READ THIS AGREEMENT AND IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF THE TERMS, CONDITIONS AND EFFECTS OF THIS AGREEMENT; THAT IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF ITS CHOICE THROUGHOUT THE NEGOTIATIONS PRECEDING ITS EXECUTION OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND HAS RECEIVED THE
149 ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS RESULT IN ONE PARTY ASSUMING THE LIABILITY INHERENT IN SOME ASPECTS OF THE TRANSACTION AND RELIEVING THE OTHER PARTY OF ITS RESPONSIBILITY FOR SUCH LIABILITY. EACH PARTY HERETO AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF ANY EXCULPATORY PROVISION OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS ON THE BASIS THAT THE PARTY HAD NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT THE PROVISION IS NOT “CONSPICUOUS”. (B) THE BORROWER HEREBY ACKNOWLEDGES THAT (I) THE CREDIT FACILITIES PROVIDED FOR HEREUNDER AND ANY RELATED ARRANGING OR OTHER SERVICES IN CONNECTION THEREWITH (INCLUDING IN CONNECTION WITH ANY AMENDMENT, WAIVER OR OTHER MODIFICATION HEREOF OR OF ANY OTHER LOAN DOCUMENT) ARE AN ARM’S-LENGTH COMMERCIAL TRANSACTION BETWEEN THE BORROWER AND THE OTHER CREDIT PARTIES, ON THE ONE HAND, AND THE ADMINISTRATIVE AGENT THE LENDERS AND THE ISSUING BANKS, ON THE OTHER HAND, AND THE BORROWER AND THE OTHER CREDIT PARTIES ARE CAPABLE OF EVALUATING AND UNDERSTANDING AND UNDERSTAND AND ACCEPT THE TERMS, RISKS AND CONDITIONS OF THE TRANSACTIONS CONTEMPLATED HEREBY AND BY THE OTHER LOAN DOCUMENTS (INCLUDING ANY AMENDMENT, WAIVER OR OTHER MODIFICATION HEREOF OR THEREOF); (II) IN CONNECTION WITH THE PROCESS LEADING TO SUCH TRANSACTION, EACH OF THE ADMINISTRATIVE AGENT, THE LENDERS AND THE ISSUING BANKS IS AND HAS BEEN ACTING SOLELY AS A PRINCIPAL AND IS NOT THE FINANCIAL ADVISOR, AGENT OR FIDUCIARY FOR ANY OF THE BORROWER, ANY OTHER CREDIT PARTY OR ANY OF THEIR RESPECTIVE AFFILIATES, EQUITY HOLDERS, CREDITORS OR EMPLOYEES OR ANY OTHER PERSON; (III) NEITHER THE ADMINISTRATIVE AGENT, ANY OTHER AGENT, ANY ARRANGER, ANY LENDER NOR ANY ISSUING BANK HAS ASSUMED OR WILL ASSUME AN ADVISORY, AGENCY OR FIDUCIARY RESPONSIBILITY IN FAVOR OF THE BORROWER OR ANY OTHER CREDIT PARTY WITH RESPECT TO ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THE PROCESS LEADING THERETO, INCLUDING WITH RESPECT TO ANY AMENDMENT, WAIVER OR OTHER MODIFICATION HEREOF OR OF ANY OTHER LOAN DOCUMENT (IRRESPECTIVE OF WHETHER THE ADMINISTRATIVE AGENT, ANY OTHER AGENT, ANY ARRANGER, ANY LENDER OR ANY ISSUING BANK HAS ADVISED OR IS CURRENTLY ADVISING ANY OF THE BORROWER, THE OTHER CREDIT PARTIES OR THEIR RESPECTIVE AFFILIATES ON OTHER MATTERS) AND NONE OF THE ADMINISTRATIVE AGENT, ANY OTHER AGENT, ANY ARRANGER, ANY LENDER OR ANY ISSUING BANK HAS ANY OBLIGATION TO ANY OF THE BORROWER, THE OTHER CREDIT PARTIES OR THEIR RESPECTIVE AFFILIATES WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED
150 HEREBY, IN EACH CASE, EXCEPT THOSE OBLIGATIONS EXPRESSLY SET FORTH HEREIN AND IN THE OTHER LOAN DOCUMENTS; (IV) THE BORROWER, THE OTHER CREDIT PARTIES AND THEIR RESPECTIVE AFFILIATES WILL NOT ASSERT ANY CLAIM BASED ON ALLEGED BREACH OF FIDUCIARY DUTY; (V) THE ADMINISTRATIVE AGENT AND ITS AFFILIATES, EACH LENDER AND ITS AFFILIATES AND EACH ISSUING BANK AND ITS AFFILIATES MAY BE ENGAGED IN A BROAD RANGE OF TRANSACTIONS THAT INVOLVE INTERESTS THAT DIFFER FROM THOSE OF THE BORROWER, THE OTHER CREDIT PARTIES AND THEIR RESPECTIVE AFFILIATES, AND NONE OF THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY ISSUING BANK HAS ANY OBLIGATION TO DISCLOSE ANY OF SUCH INTERESTS BY VIRTUE OF ANY ADVISORY, AGENCY OR FIDUCIARY RELATIONSHIP; AND (VI) NEITHER THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY ISSUING BANK HAS PROVIDED AND NONE WILL PROVIDE ANY LEGAL, ACCOUNTING, REGULATORY OR TAX ADVICE WITH RESPECT TO ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING ANY AMENDMENT, WAIVER OR OTHER MODIFICATION HEREOF OR OF ANY OTHER LOAN DOCUMENT) AND THE BORROWER HAS CONSULTED ITS OWN LEGAL, ACCOUNTING, REGULATORY AND TAX ADVISORS TO THE EXTENT IT HAS DEEMED APPROPRIATE. THE BORROWER HEREBY WAIVES AND RELEASES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY CLAIMS THAT IT MAY HAVE AGAINST THE ADMINISTRATIVE AGENT WITH RESPECT TO ANY BREACH OR ALLEGED BREACH OF AGENCY OR FIDUCIARY DUTY. Section 12.14 Collateral Matters; Swap Agreements; Cash Management. The benefit of the Security Instruments and of the provisions of this Agreement relating to any Collateral securing the Obligations shall also extend to and be available to the Secured Non-Lender Swap Party, the Secured Swap Parties and the Cash Management Banks on a pro rata basis (but subject to the terms of the Loan Documents, including, without limitation, provisions thereof relating to the application and priority of payments to the Persons entitled thereto) in respect of any obligations of the Borrower or any of its Subsidiaries which arise under Existing Secured Swap Agreements listed on Schedule 1.5 (with respect to the Secured Non-Lender Swap Party), Secured Swap Agreements or Secured Cash Management Agreements; provided that such benefit shall not apply, with respect to the Secured Non-Lender Swap Party, to any additional transactions or confirmations entered into on or after the Effective Date, with the exception of any novations, transactions or confirmations in respect of the Existing Secured Swap Agreements listed on Schedule 1.5 that are entered into and effective as of the Effective Date. No Secured Swap Party or Secured Non-Lender Swap Party shall have any voting rights under any Loan Document as a result of the existence of obligations owed to it under any such Swap Agreements. No Cash Management Bank shall have any voting rights under any Loan Document as a result of the existence of obligations owed to it under any such Secured Cash Management Agreements. Section 12.15 No Third Party Beneficiaries. This Agreement, the other Loan Documents, and the agreement of the Lenders to make Loans and the Issuing Banks to issue, amend, renew or extend Letters of Credit hereunder are solely for the benefit of the Credit Parties, and no other Person (including, without limitation, any Subsidiary of the Borrower (other than a Credit Party), any other obligor, contractor, subcontractor, supplier or materialmen) shall have any rights, claims,
151 remedies or privileges hereunder or under any other Loan Document against the Administrative Agent, any other Agent, any Issuing Bank or any Lender for any reason whatsoever. There are no third party beneficiaries. Section 12.16 USA Patriot Act Notice. Pursuant to Section 326 of the USA Patriot Act, the Administrative Agent and the Lenders hereby notify the Borrower and its Subsidiaries that if they or any of their Subsidiaries open an account, including any loan, deposit account, treasury management account, or other extension of credit with the Administrative Agent or any Lender, the Administrative Agent or the applicable Lender will request the applicable Person’s name, tax identification number, business address and other information necessary to identify such Person (and may request such Person’s organizational documents or other identifying documents) to the extent necessary for the Administrative Agent and the applicable Lender to comply with the USA Patriot Act. Section 12.17 Keepwell. Each Credit Party that is a Qualified ECP Guarantor at the time the Guarantee or the grant of the security interest under the Loan Documents, in each case, by any Specified Credit Party, becomes effective with respect to any Swap Obligation, hereby absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Credit Party with respect to such Swap Obligation as may be needed by such Specified Credit Party from time to time to honor all of its obligations under its Guarantee and the other Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering the such Qualified ECP Guarantor’s obligations and undertakings under this Section 12.17 voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full. Each Qualified ECP Guarantor intends this Section to constitute, and this Section shall be deemed to constitute, a Guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Credit Party for all purposes of the Commodity Exchange Act. Section 12.18 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: (a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and (b) the effects of any Bail-In Action on any such liability, including, if applicable: (i) a reduction in full or in part or cancellation of any such liability;
152 (ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or (iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority. Section 12.19 Flood Insurance. Notwithstanding any provision in this Agreement, any Security Instrument or other Loan Document to the contrary, (a) in no event is (i) any Excluded Asset (as defined in the Security Agreement) or (ii) any Building or Manufactured (Mobile) Home (as defined in the applicable Flood Insurance Regulations) included in the definition of “Collateral” and (b) no Building or Manufactured (Mobile) Home (as defined in the applicable Flood Insurance Regulations) shall be subject to a Lien under any Security Instrument. As used herein, “Flood Insurance Regulations” shall mean (i) the National Flood Insurance Act of 1968, (ii) the Flood Disaster Protection Act of 1973, (iii) the National Flood Insurance Reform Act of 1994 (amending 42 USC 4001, et seq.), (iv) the Flood Insurance Reform Act of 2004 and (v) the Biggert-Waters Flood Insurance Reform Act of 2012, in each case as now or hereafter in effect or any successor statute thereto and including any regulations promulgated thereunder. Section 12.20 Intercreditor Agreements.. (a) Each of the Lenders, the Issuing Banks and the other Secured Parties acknowledges that obligations of the Borrower and the other Credit Parties with respect to any Permitted Additional Debt, Permitted Pari Term Loan Debt or any Permitted Refinancing thereof may, to the extent set forth herein, be secured by Liens on assets of the Borrower and the other Credit Parties that constitute collateral security for the Obligations. Upon the approval of an Intercreditor Agreement by the requisite parties required to approve such Intercreditor Agreement pursuant to this Agreement, each of the Lenders, the Issuing Banks and the other Secured Parties hereby irrevocably authorizes and directs the Administrative Agent to execute and deliver, in each case on behalf of such Secured Party and without any further consent, authorization or other action by such Secured Party, (i) from time to time upon the request of the Borrower, in connection with the establishment, incurrence, amendment, refinancing or replacement of any such Debt, such Intercreditor Agreement and (ii) any documents relating thereto. (b) Each of the Lenders, the Issuing Banks and the other Secured Parties hereby irrevocably (i) consents to the treatment of Liens to be provided for under the Intercreditor Agreements, (ii) agrees that, upon the execution and delivery thereof, such Secured Party will be bound by the provisions of any Intercreditor Agreement as if it were a signatory thereto and will take no actions contrary to the provisions of any Intercreditor Agreement, (iii) agrees that no Secured Party shall have any right of action whatsoever against the Administrative Agent as a result of any action taken by the Administrative Agent pursuant to this Section 12.20 or in accordance with the terms of any Intercreditor Agreement and (iv) authorizes and directs the Administrative Agent to carry out the provisions and intent of each Intercreditor Agreement.
153 (c) Each of the Lenders, the Issuing Banks and the other Secured Parties hereby irrevocably further authorizes and directs the Administrative Agent to execute and deliver, in each case on behalf of such Secured Party and without any further consent, authorization or other action by such Secured Party, any amendments, supplements or other modifications of any Intercreditor Agreement that the Borrower may from time to time request (i) to give effect to any establishment, incurrence, amendment, extension, renewal, refinancing or replacement of any Permitted Additional Debt or Permitted Pari Term Loan Debt, (ii) to confirm for any party that such Intercreditor Agreement is effective and binding upon the Administrative Agent on behalf of the Secured Parties or (iii) to effect any other amendment, supplement or modification so long as the resulting agreement would constitute an Intercreditor Agreement if executed at such time as a new agreement. (d) Each of the Lenders, the Issuing Banks and the other Secured Parties hereby irrevocably further authorizes and directs the Administrative Agent to execute and deliver, in each case on behalf of such Secured Party and without any further consent, authorization or other action by such Secured Party, any amendments, supplements or other modifications of any Security Instrument to add or remove any legend that may be required pursuant to any Intercreditor Agreement. (e) The Administrative Agent shall have the benefit of the provisions of Article XI with respect to all actions taken by it pursuant to this Section 12.20 or in accordance with the terms of any Intercreditor Agreement to the full extent thereof. Section 12.21 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Agreement or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States). In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against
154 such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support. Section 12.22 Existing Credit Agreement. On the Effective Date, this Agreement shall supersede and replace in its entirety the Existing Credit Agreement; provided, however, that (a) all loans, letters of credit, and other indebtedness, obligations and liabilities outstanding under the Existing Credit Agreement on such date shall continue to constitute Loans, Letters of Credit and other indebtedness, obligations and liabilities under this Agreement, (b) the execution and delivery of this Agreement or any of the Loan Documents hereunder shall not constitute a novation, refinancing or any other fundamental change in the relationship among the parties, (c) the Loans, Letters of Credit, and other indebtedness, obligations and liabilities outstanding hereunder, to the extent outstanding under the Existing Credit Agreement immediately prior to the Effective Date, shall constitute the same loans, letters of credit, and other indebtedness, obligations and liabilities as were outstanding under the Existing Credit Agreement and (d) the Liens securing the “Obligations” (as defined in the Existing Credit Agreement) and the rights, duties, liabilities and obligations of the Credit Parties under the Existing Credit Agreement and the “Loan Documents” (as defined in the Existing Credit Agreement) to which they are a party shall not be extinguished but shall be carried forward and shall secure such Obligations and liabilities as amended, renewed, extended and restated hereby. [SIGNATURES BEGIN NEXT PAGE]