附件10.1對修訂和重述的信貸協議的執行版本1第六修正案本修訂和重述的信貸協議的第六修正案(本「修正案」)，日期爲2024年6月12日(「第六修正案的生效日期」)，是特拉華州的一家公司Civitas Resources，Inc.(「借款人」)；每個簽署的擔保人(「擔保人」，與借款人一起，「信貸方」)；每個貸款人(包括下文提到的新貸款人)是本協議的簽字人；和摩根大通銀行，N.A.作爲貸款人的行政代理人(以該身分，連同其以該身分的繼任者，稱爲「行政代理人」)。摘要A.借款人、行政代理、貸款人和開證行均爲該於2021年11月1日生效的經修訂及重訂的信貸協議(經修訂、重述、修訂及重述、補充或以其他方式修改的「信貸協議」)的當事各方，根據該協議，貸款人在符合本協議所載條款及條件的情況下，向借款人及其代表提供若干信貸。B.借款人已要求豐業銀行休斯敦分行和瑞穗銀行有限公司(各自爲「新貸款人」，統稱爲「新貸款人」)成爲信貸協議項下的貸款人，最高貸款額自「信貸協議第六修正案」生效之日起生效，金額如信貸協議附表1.2所示(現予修訂)。C.雙方希望訂立本修正案，以(I)修改本修正案第2節所述的信貸協議，(Ii)本修正案第3.1節所述借款基數從3,000,000,000美元增加到3,400,000,000美元的證據，以及(Iii)本修正案第3.2節所述的所選貸款限額從1,850,000,000美元增加到2,200,000,000美元的證據，在每種情況下，均如本文所述並在第六修正案生效日期生效。因此，現在，考慮到本合同所載的前提和相互契諾，出於良好和有價值的代價，特此確認該契諾的收據和充分性，本合同各方同意如下：第1節定義的術語。在信貸協議中定義但在本修正案中沒有定義的每個大寫術語，應具有信貸協議中該術語的含義，並在此進行修訂。除非另有說明，本修正案中的所有條款均指信貸協議的條款。第二節修正案自第六修正案生效之日起生效。根據本修正案中包含的陳述、保證、契諾和協議，在滿足本修正案第4節規定的先決條件的前提下，信貸協議應按本修正案第2節規定的方式進行修訂。
2 2.1《信貸協議》修正案。現將《信貸協議》(簽名頁、附表和附件除外)全部修改爲附件A所列內容。2.2取代附表1.1。附表1.1萬億現以本信貸協議所附附表1.1的形式對其全文進行修訂和重述，本協議所附的附表1.1應被視爲作爲信貸協議的附表1.1所附。2.3取代附表1.2。附表1.2萬億現將《信貸協議》全部替換爲本協議的附表1.2，本協議的附表1.2應被視爲作爲《信貸協議》的附表1.2所附。本修正案生效後，以及在第六修正案生效日進行的任何借款後，(A)持有貸款總額低於其適用的循環信貸佔所有貸款的百分比的每個貸款人(包括每個新貸款人)應墊付新貸款，這些新貸款應支付給行政代理，並用於向持有貸款總額大於其適用的循環信貸佔所有貸款的百分比的每個貸款人償還未償還貸款，(B)每個貸款人(包括每個新貸款人)在每個信用證(如果有)中的參與度應自動調整爲等於其適用的循環信貸百分比，(C)應根據行政代理的具體規定進行其他調整，以使適用於每個貸款人(包括每個新貸款人)的循環信貸敞口等於其適用的循環信貸佔所有貸款人循環信貸敞口總額的百分比；及(D)應每個適用貸款人的要求，借款人應被要求向該貸款人支付因本第2.3節所述的貸款重新分配和調整而根據信貸協議第5.02節所要求的任何分期付款。第三節借款基數和選定貸款限額的選擇。3.1借款基數。依據本修正案中包含的陳述、擔保、契諾和協議，並在滿足本修正案第4節規定的先決條件的前提下，行政代理和每一貸款人(包括新貸款人)特此同意，自第六修正案生效之日起，借款基數從3,000,000,000美元增加到3,400,000,000美元，並應保持在3,400,000,000美元，直至下一次預定重新確定、中期重新確定或此後對借款基數進行其他調整爲止，以信貸協議的條款爲準。就信貸協議第2.06(B)節而言，本3.1節規定的借款基數的重新確定應構成預定於2024年5月1日或前後進行的重新確定。本修正案是信貸協議第2.06(D)節所指的新借款基準通知，適用於計劃於2024年5月1日或前後進行的重新確定。3.2選定貸款限額的選舉。行政代理、貸款人(包括新貸款人)和借款人依據本修正案中包含的陳述、擔保、契諾和協議，在滿足本修正案第4節規定的先決條件的前提下，就本修正案第3.1節規定的借款基數增加，同意將選定的貸款限額從1,850,000,000美元增加到2,200,000,000美元，並保持在2,200,000,000美元，直至隨後根據信貸協議第2.01(B)節減少或增加貸款基數。
3第四節條件先例。本修正案的效力取決於下列條件：4.1對應方。行政代理應從(A)每一貸方和(B)每一貸方(包括新貸方)收到本修正案的副本。4.2費用。行政代理應在第六修正案生效日期或之前收到所有到期和應付的費用和其他金額(包括貸款人帳戶的到期和應付費用)。4.3備註。行政代理應已收到已正式籤立的循環信貸票據(或其任何修訂和重述，視情況而定)，應付給申請循環信貸票據的每個循環信貸貸款人(包括新貸款人)(在第六修正案生效日期前至少兩(2)個工作日的請求範圍內)，本金金額等於其截至本修正案生效日期的最高信貸金額(經修訂)。第5節新的貸款人每名新貸款人特此加入、成爲信貸協議一方，並同意作爲貸款人遵守信貸協議的條款及條件並受其約束，而任何貸款人須受信貸協議約束的每份其他貸款文件，猶如該新貸款人是信貸協議的原始簽署人一樣。各新貸款人特此委任並授權行政代理代表其採取行政代理的行動，並行使信貸協議條款授予行政代理的權力和酌情決定權，以及合理附帶的權力和酌情決定權。每一新貸款人表示並保證：(A)其擁有執行和交付本修正案的全部權力和權力，並已採取一切必要行動，以執行和交付本修正案，完成本修正案擬進行的交易，併成爲信貸協議項下的貸款人；(B)其已收到信貸協議副本和根據第8.01節交付的最新財務報表副本，以及其認爲適當的其他文件和信息，可自行作出徵信分析和決定，以訂立本修正案併成爲貸款人，並在此基礎上獨立作出分析和決定，而不依賴行政代理或任何其他貸款人。和(C)從第六修正案生效之日起及之後，它應是信貸協議和其他貸款文件的一方，並受其約束，並根據該協議享有貸款人的權利和義務。第6條雜項6.1確認和生效。在本修訂生效後，信貸協議(經本修訂修訂)的條文將根據其條款保持十足效力及效力，而本修訂並不構成放棄信貸協議或任何其他貸款文件的任何條文。在信貸協議中，凡提及「本協議」、「本協議」或類似含義的詞語，均指經本協議修訂的信貸協議，並在簽署和/或交付的任何其他文件、文書或協議中提及信貸協議。
4與信貸協議的關係指的是現修訂的信貸協議，也是對信貸協議的引用。6.2信用證方的批准和確認。每一信貸方在此明確(A)承認本修正案的條款，(B)批准並確認其在其所屬的貸款文件下的義務，(C)承認、續期並擴大其在其所屬的貸款文件下的持續責任，(D)就作爲擔保人的每一貸方同意其在《擔保協議》下的擔保對經修訂的義務保持完全效力。(E)向貸款人和行政代理表示並保證，在信貸協議及其所屬的其他貸款文件中包含的該貸款方的每項陳述和保證，在本協議之日以及在實施本協議第2節所述修訂後，在所有重要方面均屬真實和正確，除非(I)任何該等陳述和保證明確限於較早的日期，在此情況下，在本協議規定的較早日期，該等陳述和保證應繼續在所有重要方面真實和正確，和(Ii)在任何該等陳述和擔保因重要性或參考重大不利影響而明確限定的範圍內，該陳述和擔保(如此限定)應繼續在各方面真實和正確，(F)向貸款人和行政代理陳述並保證，該信用方執行、交付和履行本修正案屬於該信用方的法人、有限合夥企業或有限責任公司的權力範圍(視情況而定)，已通過所有必要的行動正式授權，並且該修正案構成該信用方的有效和具有約束力的義務，可根據其條款強制執行。但其可執行性可能受到影響債權的破產法、無力償債法或類似法律的限制，以及(G)向貸款人和行政代理表示並保證，在本修正案生效後，不存在違約或違約事件。6.3對應方。本修正案可由本修正案的一方或多方以任何數量的單獨副本簽署，所有這些副本加在一起應被視爲構成同一份文書。通過傳真或電子傳輸(例如，「.pdf」)交付本修正案應與手動簽署的原始副本一樣有效。本修正案的執行和交付應被視爲包括由行政代理批准的電子平台上的電子簽名，其法律效力、有效性或可執行性應與交付手動簽署的簽名相同，範圍和任何適用法律，包括《全球和國家商法中的聯邦電子簽名》、《紐約州電子簽名和記錄法案》或基於《統一電子交易法》的任何其他類似州法律所規定的範圍和範圍；但如果本修正案的任何一方提出請求，電子簽名的正本應立即在電子簽名之後出現。6.4無口頭協議。本書面修改、信貸協議和與本協議及相關條款相關的其他貸款文件代表雙方之間的最終協議，不得與雙方先前的、同時的或不書面的口頭協議相矛盾。當事人之間沒有修改信貸協議和其他貸款文件中當事人協議的後續口頭協議。
5 6.5適用法律。本修正案(包括但不限於本修正案的有效性和可執行性)應受紐約州法律管轄，並按紐約州法律解釋。6.6費用的支付。借款人同意向行政代理支付或償還其與本修正案、與本修正案相關的任何其他文件以及本協議預期進行的交易所產生的所有合理的自付費用和開支，包括但不限於行政代理律師的合理費用和支出。6.7可分割性。在任何司法管轄區被禁止或不能執行的本修正案的任何條款，在不使本修正案其餘條款無效的情況下，在該等禁止或不可強制執行的範圍內應對該司法管轄區無效，而在任何司法管轄區內的任何此類禁止或不可強制執行不得使該條款在任何其他司法管轄區失效或無法執行。6.8繼任者和受讓人。本修正案對本合同雙方及其各自的繼承人和允許受讓人的利益具有約束力和約束力。[簽名頁在後面。]
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。本修正案自上述第一年生效之日起，雙方已正式簽署。借款人：Civitas Resources，Inc.作者：S/Marianella Foschi姓名：Marianella Foschi標題：首席財務官
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。擔保人：Bonanza Creek能源運營公司、Civitas North有限責任公司、Holmes東方有限責任公司、落基山基礎設施有限責任公司、Highpoint Resources公司、第五口袋生產公司、LLC開採石油和天然氣公司。採掘金融公司。山頂礦產，LLC表山資源，LLC西北走廊控股，LLC XTR中游，LLC 7N，LLC 8 North，LLC Axis勘探，LLC XOG服務，LLC猛禽禿鷹合併Sub2，LLC Crestone Peak Resources GP Inc.作者：S/Marianella Foschi姓名：Marianella Foschi職務：首席財務官
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。Civitas DE盆地資源公司，Civitas DE盆地控股公司，Civitas DE盆地中游公司，Civitas DE盆地礦產公司，Civitas DE盆地資源公司，Civitas DE盆地控股公司II，Civitas DE盆地礦產公司，Civitas DE盆地Nm控股公司，Civitas DE盆地Nm礦產公司，Civitas中盆地能源公司，Civitas中盆地能源公司，Civitas二疊紀經營公司，LLC by：/S/Marianella Foschi公司名稱：Marianella Foschi
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。摩根大通銀行，N.A.，作爲行政代理和貸款人：/S/奧馬爾·哈桑姓名：奧馬爾·哈桑
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。美國銀行，N.A.，作爲貸款人：S/Alia Qaddumi姓名：Alia Qaddumi標題：董事
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。花旗銀行，N.A.作爲貸款人：S/克里夫·瓦茲姓名：克里夫·瓦茲標題：副總裁
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。第五第三銀行，國家協會，作爲貸款人/S/喬納森·H·李姓名：喬納森·H·李標題：管理董事
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。出借人：S/喬治·E·麥基恩姓名：喬治·E·麥基恩標題：高級副總裁
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。PNC銀行，全國協會，作爲貸款人：/S/羅伯特·唐尼姓名：羅伯特·唐尼標題：副總裁
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。加拿大皇家銀行，作爲貸款人/S/埃米莉·斯科特姓名：埃米莉·斯科特標題：授權簽字人
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。真實的銀行，作爲貸款人/S/格雷格·克拉布林姓名：格雷格·克拉布林標題：董事
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。美國銀行協會，作爲貸款人/S/布魯斯·埃爾南德斯姓名：布魯斯·埃爾南德斯標題：高級副總裁
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。富國銀行，國家協會，作爲貸款人/S/喬納森·赫裏克姓名：喬納森·赫裏克標題：管理董事
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。資本一號，國家協會，作爲貸款人/S/克里斯托弗·庫納姓名：克里斯托弗·庫納標題：高級董事
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。多倫多道明銀行紐約分行，作爲貸款人/S/埃文斯·斯旺姓名：埃文斯·斯旺標題：授權簽字人
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。出借人：S/本傑明·H·阿德勒姓名：本傑明·H·阿德勒
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。姓名：威廉·古德里奇姓名：威廉·古德里奇職務：總裁助理
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。高盛美國銀行，作爲貸款人：/S/安德魯·弗農姓名：安德魯·弗農標題：授權簽字人
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。姓名：悉尼G.丹尼斯名稱：悉尼G.丹尼斯標題：董事
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。瑞穗銀行作爲新貸款人：S/愛德華·薩克斯姓名：愛德華·薩克斯標題：管理董事
修改和重述信貸協議Civitas Resources，Inc.第六修正案的簽名頁。豐業銀行，休斯頓分行，作爲新的貸款人：S/薩姆·卡特勒姓名：薩姆·卡特勒標題：董事
附件A[見附件]
經修訂和重新簽署的信貸協議第六修正案附件A：Civitas Resources，Inc.作爲借款人、作爲行政代理和開證行的北卡羅來納州摩根大通銀行與貸款人和其他開證行簽訂的日期爲2021年11月1日的經修訂和重述的信貸協議附件A_N.A.、KeyBanc Capital Markets Inc.、美國銀行、N.A.、Five Third Bank、National Association、U.S.Bank National Association、Truist Securities，Inc.、加拿大皇家銀行、PNC Bank、National Association、Goldman Sachs bank USA、Barclays bank PLC、Capital One、National Association和TD Securities(USA)LLC爲聯合牽頭安排人和聯合簿記管理人
I目錄第I頁第I條定義和會計事項第1.01節以上.........................................................................................定義的術語2第1.02節某些定義的術語........................................................................................2第1.03節貸款和借款類型.......................................................................43第1.04節一般術語；施工規則..........................................................44第1.05節會計術語和確定；公認會計准則...............................................44第1.06分部...........................................................................................................45第二條循環信貸安排第2.01節承諾....................................................................................................45第2.02節循環信貸貸款和借款.........................................................46第2.03節循環信貸借款申請......................................................48第2.04節循環信貸借款的資金........................................................49第2.05節終止和減少總最高貸方金額......51第2.06節借款基準................................................................................................51第2.07節................................................................................................信用證55第三條循環信貸本金和利息的支付；循環信貸貸款的預付；費用第3.01節循環信貸貸款的償還.............................................................第3.02節循環信用貸款利息..................................................................第3.03節循環信用貸款提前還款..........................................................65第3.04節費用...................................................................................................................68第四條付款；按比例處理；抵銷的分攤第4.01條一般付款；按比例計算的處理；抵銷的分攤......69第4.02節由行政代理作出的扣減；違約貸款人......70第4.03節收益處置....................................................................................72第五條費用增加；預付款費用的償還；稅費第5.01節增加費用.................................................................................................72第5.02節預付款費用的報銷...............................................................74第5.03節稅收.................................................................................................................75第5.04節緩解義務；指定不同的貸款辦事處.79第5.05節更換貸款人...................................................................................79第5.06節非法............................................................................................................80第5.07條貸款人透過分行及聯營公司取得資金的權利......................80第5.08節替代利率..................................................................................80
II第5.09節利率；基準通知..........................................................83條第六條條件第6.01節生效日期...................................................................................................84第6.02節每個信用事件.............................................................................................88第七條陳述和保證第7.01節組織；授權........................................................................................89第7.02節授權；可執行性..................................................................................89第7.03節批准；無衝突...................................................................................第7.04節財務狀況；無重大不利變化..89第7.05節訴訟...........................................................................................................90第7.06節環境Matters......................................................................................90第7.07節遵守法律和協議；無違約行爲.....................91第7.08節投資公司法.................................................................................92第7.09節稅收.................................................................................................................92第7.10節ERISA...............................................................................................................92第7.11節披露；沒有重大錯誤陳述............................................................93第7.12節保險...........................................................................................................93第7.13節對留置權的限制..........................................................................................93第7.14節附屬公司.......................................................................................................93第7.15節企業和辦公室的位置.....................................................................94第7.16節財產、頭銜等.......................................................................................94第7.17節物業保養................................................................................94第7.18節生產...................................................................................的營銷95第7.19節互換協議.............................................................................................第7.20節貸款和信用證的使用...................................................................95第7.21節償付能力............................................................................................................95第7.22節反腐敗法和Sanctions................................................................96第7.23節受影響的金融機構..........................................................................96第7.24節安全工具.........................................................................................96第7.25節計劃資產；禁止的交易................................................................96第八條平權公約第8.01節財務報表；其他資料..........................................................97第8.02節材料通知Events................................................................................99第8.03節存在；業務行爲......................................................................100第8.04節Obligations...................................................................................的付款第8.05節Documents......................................貸款項下債務的履行100第8.06節Properties.......................................................的操作和維護第8.07節保險.........................................................................................................第8.08節圖書和記錄；檢查權...........................................................第8.09節遵守法律...................................................................................102第8.10節環境Matters....................................................................................一百零二
III第8.11節進一步的Assurances..........................................................................................第8.12節儲備報告..............................................................................................第8.13節標題信息.............................................................................................第8.14節額外抵押品；額外擔保人.................................................第8.15節ERISA合規性.........................................................................................第8.16節營銷活動.......................................................................................第8.17節非限制性附屬公司................................................................................第8.18節帳戶控制協議.........................................................................第108條第九條消極公約第9.01條金融公約........................................................................................第9.02節債務.................................................................................................................第9.03條留置權................................................................................................................111第9.04節限制支付........................................................................................第9.05節投資、貸款和墊款..................................................................第9.06節業務性質..........................................................................................第9.07節貸款收益...........................................................................................114第9.08條合併等...................................................................................................第9.09節出售或貼現應收款.....................................................................第9.10節出售物業............................................................................................第9.11節與關聯公司............................................................................的交易第9.12節附屬公司.....................................................................................................117第9.13節負質押協議；股息限制.....117第9.14節互換協議...........................................................................................117第9.15條允許額外的債務限制..........................................................第9.16節對組織文件...................................................的修訂第9.17節財政期變動...............................................................................第119條違約事件；補救措施第10.01條違約事件............................................................................................第119條第10.02條補救措施.........................................................................................................第121條xi代理第11.01條授權和行動................................................................................123第11.02條行政代理人的信賴、賠償等.126第11.03節發佈通信............................................................................127第11.04節管理代理單獨..........................................................128第11.05節後續管理代理.....................................................................128第11.06條貸款人及開證行的認可......第11.07節抵押品Matters............................................................................................130第11.08節信用投標.................................................................................................第131節第11.09條ERISA的某些事項...................................................................................133第11.10節錯誤的Payments........................................................................................一百三十五
第四條第十二條雜項第12.01節通知............................................................................................................第136條第12.02條的豁免；修訂....................................................................................第136節12.03費用，賠償；損害豁免...........................................................13812.04節繼承人和Assigns...................................................................................141第12.05條生存；復活；恢復...................................................................第144條12.06對應方；集成；有效性.........................................................145第12.07節可分割性.....................................................................................................145節12.08 Setoff.................................................................................................的權利145第12.09條管限法律；司法管轄權；同意送達法律程序文件；放棄由陪審團................................................進行審訊145第12.10節標題.........................................................................................................147第12.11節保密................................................................................................147第12.12節利率限制..................................................................................147第12.13條免責條文....................................................................148第12.14條抵押品事宜；掉期協議；現金管理......150第12.15節無第三方受益人..........................................................................150第12.16條美國愛國者法案公告..................................................................................第151節12.17 Keepwell.........................................................................................................第151節第12.18節承認並同意受影響金融機構的自救第151節第12.19節洪水保險...............................................................................................152第12.20節債權人間協議。...............................................................................152第12.21節關於任何受支持的QFC的確認.....................................第153節12.22現有信貸協議.............................................................................附表1.1適用按金附表1.2分配附表1.3合規信息附表1.4附表1.5附表7.04(C)現有指定信用證其他有擔保互換協議重要債務及負債附表7.05訴訟附表7.06環境事宜附表7.14子公司附表7.18營銷協議附表7.19互換協議附表9.05投資附表9.11關聯交易附表12.01通知A表格循環信貸票據表格B循環信貸借款申請表格C
V附件D證券文書附件E轉讓和假設表格F簽發信用證通知表格附件G-1表格美國稅務合規證書(外國貸款人；非合夥企業)證物G-2表格美國稅務合規證書(外國參與者；非合夥企業)證物G-3表格美國稅務合規證書(外國參與者；合夥企業)證物G-4表格美國稅務合規證書(外國貸款人；合夥企業)
1修訂和重述信貸協議這份修訂和重述的信貸協議日期爲2021年11月1日，屬於特拉華州的Civitas Resources，Inc.(前身爲Bonanza Creek Energy，Inc.)借款人(以下簡稱「借款人」)、每一貸款人作爲貸款人的行政代理(以該身份，連同其在該身份的繼任者，稱爲「行政代理人」)，以及每一其他各方不時作爲本協議的當事人。摘要A.借款人、行政代理、貸款人和開證行是截至2018年12月7日的該特定信貸協議(在此日期之前修訂、重述、補充或以其他方式修改的「現有信貸協議」)的當事各方，根據該協議，貸款人在符合其中規定的條款和條件的情況下，向借款人及其代表提供某些信貸。B.借款人已通知行政代理和貸款人，它已於2021年5月9日簽訂了該協議和合並計劃(已簽署，不對隨後的任何修訂或修改生效，但本協議條款不禁止的範圍除外，「採掘合併協議」除外)，借款人中的「母公司」、特拉華州的公司和借款人的全資國內子公司Raptor Eagle Merger Sub，Inc.(「Eagle Merge Sub」)，以及特拉華州的採掘石油和天然氣公司(「採掘」)，作爲「公司」。根據採掘合併協議，鷹合併子公司將與採掘合併，並併入採掘，而採掘作爲借款人的全資境內附屬公司(該交易在採掘合併協議中有進一步描述，稱爲「採掘合併」)。C.此外，借款人已通知行政代理和貸款人，它已於2021年6月6日簽訂了該協議和合並計劃(已簽署，除本協議條款不禁止的範圍外，不影響對其進行的任何後續修訂或修改)，作爲借款人中的「母公司」、Raptor Condor Merge Sub 1，Inc.、特拉華州公司和借款人的全資國內子公司(「Condor Merge Sub 1」)，作爲「Merge Sub 1」、Raptor Condor Merge Sub 2，LLC，一家特拉華州有限責任公司和借款人的全資國內子公司(「禿鷹合併子2」)，作爲「合併子2」，Crestone Peak Resources LP，特拉華州有限合夥企業，作爲「CPR」，CPPIB Crestone Peak Resources America Inc.，特拉華州一家公司(「Crestone」)，作爲「公司」，Crestone Peak Resources Management LP，特拉華州有限合夥企業，作爲「CPR Management LP」，並在某些有限的身份下，採掘。根據Crestone合併協議，(I)Condor Merge Sub 1將與Crestone合併並併入Crestone，Crestone爲尚存法團，爲借款人的全資國內附屬公司(「尚存公司」，該等交易，一如Crestone合併協議中進一步描述，爲「尚存公司合併」)及(Ii)尚存公司將與Condor Merge Sub 2合併並併入Condor Merge Sub 2，Condor Merge Sub 2爲尚存實體，作爲借款人的全資國內附屬公司(該交易，如Crestone合併協議進一步描述爲「Condor Merge」)
2子2合併「，並連同尚存的公司合併，統稱爲」Crestone合併“)。D.本協議雙方希望以本協議的形式修訂和重述現有信貸協議，以(I)反映抽取合併和Crestone合併，以及(Ii)在本協議規定的某些方面修訂現有信貸協議的某些其他條款。E.考慮到本協議所載的相互契諾和協議以及下文提及的貸款、信貸延期和承諾，雙方同意按照本協議規定的條款和條件對現有信貸協議進行整體修訂和重述。第一條定義和會計事項第1.01節以上定義的術語。如本協議所用，上述定義的每個術語均具有上述含義。第1.02節某些定義的術語。本協議中使用的下列術語的含義如下：「5.00%優先票據」是指借款人於2026年10月15日到期的5.00%優先票據，原始本金總額爲400,000,000美元，可根據第9.15節的允許範圍不時進行修訂、重述、補充或以其他方式修改。「7.50%優先票據」指借款人於2026年4月30日到期、本金總額爲100,000,000美元的特定7.50%優先票據，可根據第9.15節的規定不時修訂、重述、補充或以其他方式修改。「ABR」用於任何貸款或借款時，是指此類貸款或構成此類借款的貸款是否按參考備用基本利率確定的利率計息。「調整後每日簡單SOFR」指就任何RFR借款而言，等於(A)每日簡單SOFR加(B)0.10%的年利率；但如果如此確定的調整後每日簡單SOFR將低於下限，則就本協議而言，該利率應被視爲等於下限。「調整期限SOFR」是指，對於任何利息期間的任何期限基準借款或基於調整期限SOFR的任何ABR借款，年利率等於(A)該利息期間的期限SOFR加上(B)0.10%；但如果如此確定的調整期限SOFR將低於下限，則就本協議而言，該利率應被視爲等於下限。
3「行政調查問卷」是指行政代理人提供的形式的行政調查問卷。「受影響的金融機構」指(A)任何歐洲經濟區金融機構或(B)任何英國金融機構。「附屬公司」是指，就特定個人而言，直接或間接通過一個或多箇中間人控制或受其控制或與其共同控制的另一人。「代理人」統稱爲行政代理人和文件代理人；根據上下文需要，「代理人」指行政代理人或文件代理人中的任何一個。在任何時候，「合計最高貸方金額」應等於最高貸方金額的總和，因爲最高貸方金額可根據第2.05節減少或終止。截至第四修正案生效日期，循環信貸貸款人的最高信貸總額爲4,000,000,000美元。「協議」是指本信貸協議，該協議可能會不時被修改、修改、補充或重述。「備用基本利率」是指任何一天的年利率，等於(A)該日生效的最優惠利率、(B)該日生效的NYFRB利率加1%的1/2和(C)公佈的一個月利息期間的調整後期限SOFR中最大的一個(或如果該日不是營業日，則爲緊接的前一個營業日)加1%(1%)；但就本定義而言，任何一天的經調整術語SOFR應以凌晨5點左右的術語SOFR參考匯率爲基礎。(芝加哥時間)在該日(或CME術語SOFR管理人在術語SOFR參考利率方法中指定的術語SOFR參考利率的任何修訂發佈時間)。因最優惠利率、NYFRB利率或經調整期限SOFR的變化而導致的替代基本利率的任何變化，應分別自基本利率、NYFRB利率或經調整期限SOFR的該等變化的生效日期起生效。如果根據第5.08節將備用基本利率用作備用利率(爲免生疑問，僅在根據第5.08(B)節確定基準替代利率之前)，則備用基本利率應爲上文(A)款和(B)款中的較大者，並且應在不參考上文(C)款的情況下確定。爲免生疑問，如果根據上述規定確定的備用基本利率將低於1.5%(1.50%)，則就本協議而言，該利率應被視爲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日的每個滾動期，(A)該滾動期的EBITDAX乘以(B)下表所列的該滾動期的係數：滾動期結束係數2021年12月31日4
4滾動期截止因素2022年3月31日2 2022年6月30日4/3「反腐敗法」是指任何司法管轄區不時適用於借款人或其任何子公司的與賄賂、腐敗或洗錢有關的所有法律、規則和條例。「適用按金」就任何ABR循環信貸貸款、定期基準循環信貸貸款或(如當時可用)RFR貸款(視屬何情況而定)而言，指(I)在借款基期內任何一天，(I)第(I)款下附表1.1所載承諾使用率網格所載的年利率，並根據當時有效的承諾使用率百分比及(Ii)投資級期間內任何一天，第(Ii)條下附表1.1所載指數債務評級網格內所載的年利率及當時有效的適用評級水平。「適用評級水平」指在任何投資級別期間內的任何一天，穆迪或S分別在該日適用於該指數債務的較高評級。就前述而言，如穆迪或S就指數債所確立的評級須予更改(但因穆迪或S的評級制度更改而更改的情況除外)，則該更改自穆迪或S(視何者適用而定)首次公佈之日起生效，而不論借款人何時已將該更改通知行政代理及貸款人。適用評級水平的每一變化應適用於自該變化生效之日起至下一次該變化生效日期前一日止的期間。如果穆迪或S的評級體系發生變化，或如果穆迪或S停止爲公司債務評級業務，借款人和貸款人應真誠協商修改這些條款，以反映該變化的評級體系或無法從該評級機構獲得評級，在任何該等修訂生效之前，適用的評級水平應參考在該變化或停止之前最近生效的評級來確定。「適用循環信貸百分比」是指，就任何循環信貸貸款人而言，該循環信貸貸款人的最高信貸金額佔總最高信貸金額的百分比(可計算至小數點後七位)載於附表1.2，但如承諾已終止或到期，則應根據最近生效的承諾厘定各循環信貸貸款人的適用循環信貸百分比。「認可對手方」指(A)任何有擔保互換方，(B)任何其他人士(如該人士或其信貸支持提供者擁有S或穆迪(或其同等評級)或更高的長期高級無擔保債務評級或公司評級A-/A3)及(C)有擔保非貸款人互換方，僅就有擔保非貸款人互換方附表1.5所列的現有有擔保互換協議而言。「覈准基金」是指從事發放、購買、持有或投資循環銀行貸款和類似信貸延伸的任何人(自然人除外)。
5在其正常業務過程中，並由貸款人、貸款人的關聯公司或經營或管理貸款人的實體或實體的關聯公司管理或管理。「認可石油工程師」是指Cawley，Gillesbie&Associates，Inc.，DeGolyer and MacNaughton Corp.，荷蘭Sewell&Associates，Inc.，Ryder Scott Company Petroleum Consulters，L.P.，以及行政代理和所需貸款人合理接受的任何其他獨立石油工程師。「安排人」統稱爲摩根大通銀行、富國證券、花旗銀行、KeyBanc Capital Markets Inc.、美國銀行、第五第三銀行、全國銀行協會、美國銀行全國協會、Truist證券公司、加拿大皇家銀行銀行、PNC銀行、全國銀行協會、高盛銀行美國公司、巴克萊銀行、Capital One、全國銀行協會和道明證券(美國)有限責任公司，每種情況下均以其在本協議下的聯合牽頭安排人和聯合簿記管理人的身份。「ASC 805」係指財務會計準則委員會發布的會計準則編撰第805號(企業合併)。「ASC 815」係指財務會計準則委員會發布的會計準則彙編第815號(衍生工具和套期保值)。「轉讓和承擔」是指貸款人和受讓人(經第12.04(B)節要求其同意的任何一方同意)訂立的轉讓和承擔，並由行政代理以附件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終止日期(但不包括終止日期)的期間。在借款基期內的任何時候的「可用借款基數」是指當時的借款基數減去當時未償還的允許定期貸款債務的本金餘額。「可用期限」指，在任何確定日期，就當時的基準(如適用)而言，該基準(或其組成部分)的任何期限或參照該基準(或其組成部分)計算的利息付款期(如適用)，用於或可用於確定任何期限利率或其他利率的利息期長度，用於確定支付根據本協議計算的截至該日期的利息的任何頻率，但爲免生疑問，不包括：根據第5.08(E)節從「利息期」的定義中刪除的該基準的任何基準期。「自救行動」是指適用的決議機構對受影響的金融機構的任何負債行使任何減記和轉換權力。「自救立法」是指(A)就執行歐洲議會和歐洲聯盟理事會第2014/59/EU號指令第55條的任何歐洲經濟區成員國而言，從
6歐盟自救立法附表及(B)就聯合王國而言，指《2009年聯合王國銀行法》(經不時修訂)第I部及適用於聯合王國的任何其他法律、規例或規則，涉及清盤不健全或倒閉的銀行、投資公司或其他金融機構或其聯營公司(透過清盤、行政管理或其他破產程序除外)。「銀行價格表」是指行政代理不時向借款人提供的每種石油、天然氣和其他碳氫化合物的遠期曲線基礎上的最新內部價格表。「破產法」是指現在和今後生效的題爲「破產」的美國法典第11章，或任何後續法規。「基準」最初指的是SOFR；但如果就SOFR或當時的基準發生了基準轉換事件和相關的基準替換日期，則「基準」是指適用的基準替換，前提是該基準替換已根據第5.08(B)節的規定替換了先前的基準利率。「基準替換」是指，對於任何可用的基準期，可由行政代理爲適用的基準替換日期確定的下列順序中所列的第一個替換：(A)經調整的每日簡易SOFR；或(B)(I)行政代理及借款人選定的替代基準利率，以取代當時適用的相應期限的基準利率，並已充分考慮(A)任何替代基準利率的選擇或建議，或有關政府機構厘定該利率的機制，或(B)任何演變中或當時盛行的市場慣例，以厘定基準利率以取代當時以美元計價的銀團信貸安排的現行基準利率，以及(Ii)相關的基準取代調整。如果根據上文(B)款確定的基準替換將低於下限，則就本協議和其他貸款文件而言，基準替換將被視爲下限。「基準替代調整」是指，就任何適用的利息期間和該未調整基準替代的任何設定的可用基準期替代當時的基準、利差調整或計算或確定該利差調整(可以是正值、負值或零)的方法而言，由行政代理和借款人爲適用的相應基期選擇的，並適當考慮(A)利差調整的任何選擇或建議，或用於計算或確定該利差調整的方法，有關政府機構在適用的基準替換日期以適用的未經調整的基準替換此類基準和/或(B)確定利差調整的任何演變或當時的市場慣例；
7或計算或厘定該等利差調整的方法，以取代該基準，以取代當時適用的美元銀團信貸安排的未經調整基準。對於任何基準置換和/或任何術語基準貸款，「符合變更的基準置換」是指任何技術、行政或操作變更(包括對「備用基本利率」的定義、「營業日」的定義、「美國政府證券營業日」的定義、「利息期」的定義、確定利率和支付利息的時間和頻率、借款請求或提前還款的時間、轉換或繼續通知、回顧期限的長度、中斷條款的適用性，以及其他技術方面的變更，行政或操作事項)，行政代理在其合理的酌情權下決定可能是適當的，以反映該基準的採用和實施，並允許行政代理以與市場慣例基本一致的方式管理該基準(或者，如果行政代理決定採用該市場慣例的任何部分在行政上不可行，或者如果行政代理確定不存在用於管理該基準的市場慣例，則按照行政代理決定的與本協議和其他貸款文件的管理相關的合理必要的其他管理方式)。「基準更換日期」就任何當時的基準而言，是指下列事件中較早發生的一種：(A)在「基準過渡事件」的定義(A)或(B)款的情況下，(1)其中提及的公開聲明或信息的公佈日期，以及(2)該基準的管理人永久或無限期停止提供該基準的所有可用基準期(或其組成部分)的日期；或(B)在「基準過渡事件」定義第(C)款的情況下，該基準(或用於計算該基準的已公佈組成部分)已由監管機構確定並宣佈該基準(或其組成部分)的管理人不再具有代表性的第一個日期；但這種不具代表性將參照該(C)款中提及的最新聲明或出版物來確定，即使在該日期繼續提供該基準(或其組成部分)的任何可用基準期。爲免生疑問，(X)如果導致基準更換日期的事件發生在與任何確定的基準時間相同但早於基準時間的同一天，則基準更換日期將被視爲發生在該確定的基準時間之前，以及(Y)在(A)或(B)款的情況下，對於任何基準，當(A)或(B)款所述的適用事件發生時，該基準將被視爲已經發生，該事件涉及該基準的所有當時可用的承諾人(或在計算該基準時使用的已公佈的組成部分)。
28根據第8.01(A)節的規定，截至2021年12月31日的會計季度的EBITDAX應視爲13億美元。「貸款」統稱爲循環信用貸款。「多數貸款人」是指在任何時候(A)只要信貸總額的最高限額尚未終止，非違約貸款人持有超過50%(50%)的總承諾額，以及(B)如果信貸總額已經終止(無論是通過到期、加速或其他方式)，非違約貸款人持有循環信貸貸款項下當時未償還本金總額的50%以上；但爲了確定本協議項下的多數貸款人，償還義務應根據循環信貸貸款人各自適用的循環信貸百分比進行分配；「重大不利影響」是指貸方整體的業務、經營、財產或財務狀況發生重大不利變化或產生重大不利影響，任何貸方根據任何貸款文件履行其任何付款義務的能力，任何貸款文件的有效性或可執行性，或行政代理、任何其他代理、開證行或任何貸款機構根據任何貸款文件可獲得的權利和補救或利益的重大不利影響。對於借款方或任何其他貸款方作爲一方的所有天然氣平衡協議，或借款方或另一貸款方擁有的任何石油和天然氣財產受其約束的所有天然氣平衡協議，「材料天然氣失衡」是指借款方和其他貸款方作爲一個整體產生的超過110,000立方英尺的淨過剩天然氣不平衡。「重大債務」是指任何一個或多個貸方的債務(貸款和信用證除外)，或與一項或多項互換協議有關的債務，本金總額超過(A)50,000,000美元和(B)(X)在借款基期內、當時有效借款基數的5%(5%)或(Y)在借款基期內的較大者。
29投資級期間，指截至可提供財務報表的最近滾動期的最後一天的綜合有形資產淨額的千分之一(1.6%)。爲了確定重大債務，任何貸款方在任何時候就任何掉期協議承擔的債務的「本金」應爲掉期終止價值。對於每個循環信貸貸款人而言，「最高信貸額度」是指在附表1.2「最高信貸額度」標題下與該循環信貸貸款人名稱相對的金額，可根據第2.05(B)節的規定減少或終止信貸總額，或根據第12.04(B)節允許的任何轉讓而不時修改。「穆迪」是指穆迪投資者服務公司及其任何繼任者，即國家認可的評級機構。「抵押財產」是指貸方擁有的任何不動產或不動產，受擔保文書條款下現有和將存在的留置權的約束。「多僱主計劃」是指ERISA第4001(A)(3)節所界定的多僱主計劃。「現金淨收益」是指任何貸方從任何轉讓、發行股權或發行債務(視情況而定)中收到的現金總額，扣除與此類出售或發行有關的普通和慣例直接成本(視情況而定)，如法律、會計和投資銀行費用、銷售佣金和其他第三方費用，並扣除貸方就任何出售或發行支付或應付的物業稅、轉讓稅和任何其他稅項。「新借款基數通知」具有第2.06(D)節中賦予該術語的含義。「新的負有義務的當事人」具有第四修正案中賦予該術語的含義。「非違約貸款人」是指在任何時候並非違約貸款人的每個貸款人。「票據」統稱爲循環信用證。「紐約聯邦儲備銀行」指紐約聯邦儲備銀行。「NYFRB利率」指，就任何一天而言，指(A)在該日生效的聯邦基金有效利率和(B)在該日(或在美國政府證券營業日之前的任何非美國政府證券營業日的任何一天)有效的隔夜銀行資金利率中的較大者；如果沒有公佈任何營業日的此類利率，則術語「NYFRB利率」是指在上午11：00報價的聯邦基金交易利率。在行政代理收到由其選定的具有公認地位的聯邦基金經紀人的當天；此外，如果上述任何一項利率小於零，則就本協議而言，該利率應被視爲零。
30「NYFRB的網站」是指NYFRB的網站，網址爲http://www.newyorkfed.org，或任何後續來源。「債務」是指貸方欠下或將要欠下的任何和所有金額(無論是直接或間接的(包括通過假設獲得的)、絕對的或有的、到期的或即將到期的、目前存在的或今後產生的)：根據任何貸款文件對行政代理、開證行、任何貸款人或任何貸款人的任何關聯公司；對任何擔保互換協議項下的任何擔保互換當事人；根據附表1.5所述的任何現有有擔保互換協議向有擔保非貸款人互換一方支付，但不包括在生效日期(I)與有擔保非貸款人互換當事人訂立的任何額外交易或確認，但與附表1.5所列現有有擔保互換協議或(Ii)在生效日期之後訂立的任何其他交易、交易或確認除外；根據任何有擔保現金管理協議向任何現金管理銀行支付利息和費用，包括根據任何聯邦、州、外國破產、接管或類似法律在任何聯邦、州、外國破產、接管或類似法律下根據任何聯邦、州、外國破產、破產、接管或類似法律在該程序中指定該人爲債務人的利息和費用；以及上述任何條款的所有續展、延期和/或重新安排；但「義務」應不包括任何除外的互換義務。「石油和天然氣屬性」是指所有碳氫化合物權益，現在或以後與碳氫化合物權益合併或合併的所有財產，以及可能影響全部或任何部分碳氫化合物權益的所有現有或未來的單位、集合單位和由此創建的單位(包括但不限於根據任何政府當局的命令、法規和規則創建的所有單位)。除非本合同另有說明，否則所提及的術語「石油和天然氣資產」應指信用方的石油和天然氣資產。「其他關聯稅」是指，就(A)行政代理、(B)任何貸款人和(C)任何開證行(視情況而定)而言，由於此人與徵收該稅的司法管轄區之間目前或以前的聯繫而徵收的稅款(不包括因此人籤立、交付、成爲當事人、履行其義務、根據任何貸款文件接受付款、接受或完善擔保權益、根據或強制執行任何其他交易、或出售或轉讓任何貸款或貸款文件的權益而產生的聯繫)。「其他稅」是指任何和所有現在或將來的印花稅或單據稅，或任何其他消費稅或財產稅、收費或類似的徵稅，這些稅是因根據本協議支付的任何款項，或因本協議和任何其他貸款文件的簽署、交付或執行，或與本協議和任何其他貸款文件有關的其他方面而產生的，但對轉讓徵收的任何此類稅收除外(根據第5.05節進行的轉讓除外)。「隔夜銀行融資利率」是指在任何一天，由存款機構在美國管理的銀行辦事處以美元計價的隔夜聯邦基金和隔夜歐洲美元交易的利率(綜合利率由NYFRB不時在NYFRB網站上公佈)，並在下一個營業日由NYFRB公佈爲隔夜銀行融資利率。
31「同等擔保債權人間協議」是指，就任何允許的定期貸款債務而言，一項債權人間協議，其形式和實質令行政代理和借款人合理滿意，其中所包含的條款和條件符合債權人間協議慣常使用的條款和條件的範圍，而債權人間協議的類型支配優先擔保信貸安排的持有人和與允許的準定期貸款債務相同類型債務的持有人之間的債權人間關係，由行政代理和借款人合理確定。「參與者」具有第12.04(B)(Vi)節規定的含義。「參與者名冊」具有第12.04(B)節()中賦予該術語的含義。「付款」具有第11.10(A)節規定的含義。「付款通知」具有第11.10(B)節規定的含義。「PBGC」是指養老金福利擔保公司。「准許額外債務」指與7.50%優先債券、5.00%優先債券有關的債務，以及根據第9.02(F)節發行或產生的任何其他債務，包括第9.02(D)節允許的此類債務的擔保。「允許留置權」是指根據第9.03節允許的任何留置權。「允許定期貸款債務」是指以高級擔保定期貸款或其他債務證券(無論是登記的還是私募的)形式的擔保債務(債務除外)，只要(A)在形式上使這種債務的產生(及其收益的使用)生效後，擔保槓桿率不應超過2.00至1.00，(B)在這種債務產生時和緊接發生之後，沒有違約或違約事件發生，並且沒有違約或違約事件正在發生或將由此產生，(C)在產生這類債務時及緊接該債務產生後，可供借用的未用承諾額不少於當時有效的承諾額總額的20%；。(D)這類債務的規定到期日不早於發行該等准許定期貸款債務時所述的循環信貸到期日後一百八十(180)天；。前提是此類債務可能具有慣常的彈性到期機制；(E)此類債務在發行時有效的循環信貸到期日後一百八十(180)天之前沒有任何預定的預付款、攤銷或贖回條款(以下情況除外)：(I)控制權的慣常變更或資產出售要約條款；(Ii)與特定收購和第五修正案收購相關的特別強制性贖回條款未能在指定日期之前完成，和(Iii)按計劃攤銷，每年不超過此類債務原始本金金額的5%(5%)；(F)此類債務不包含任何比本協議規定的任何金融契諾更具限制性的金融契諾(習慣抵押品覆蓋率除外)；(G)鑑於當時的市場條件，借款人合理確定的每種情況下，此類債務的條款對借款人及其受限制附屬公司的有利程度不會比類似規模和信用質量借款人的類似優先擔保定期貸款的市場條款低很多；(H)
32該等債務以全部或部分抵押品上的留置權作擔保，而抵押品上的留置權則作爲該等債務的抵押品的留置權(不言而喻，在厘定該等留置權是否以同等權益爲基礎時，須不考慮對補救辦法的控制)，並且不以借款人或任何附屬公司的資產作爲抵押品以外的任何抵押(亦不是以按照本協議提供的任何現金抵押品作爲抵押)，(I)該等債務並非由借款人的任何附屬公司擔保，但貸方或任何就該債務的產生而成爲信貸方的人除外。(J)代表該債務持有人行事的行政代理人、抵押品代理人、受託人及/或任何相類的代表應已成爲一項對等債權人間協議的當事一方，該協議規定，擔保該債務的抵押品上的留置權應優先於擔保該等債務的抵押品上的留置權(有一項理解，即在決定該等留置權是否具有同等優先權時，須不考慮對補救辦法的控制)，(K)如該等債務是在完成任何一項指明收購的日期之前發生的，而根據該等債務的條款，該等債務所得款項擬用作支付一項或兩項指明收購的部分代價，而該兩項指明收購均未於指定日期完成，則借款人或受限制附屬公司必須負有不可撤銷的償債責任。雙方理解並同意，即使本協議有任何相反規定，允許的定期貸款債務只能根據第9.02(J)節和/或第9.02(G)節的規定產生，且仍未償還。「允許再融資」是指任何信用方的任何債務，以及任何信用方爲交換或其淨現金收益用於延長、再融資、續期、替換、作廢或退款而不時產生或發行的、本協議允許的現有債務的全部或部分債務；但條件是(A)該項許可再融資的本金額(或如該項許可再融資是以折扣價發行的，則該項許可再融資的初始發行價)不超過再融資債務的本金額(加上任何保費、應計和未付利息以及與此相關的費用和開支的數額)，(B)此類許可再融資不規定任何預定償還，強制性贖回或在發行這類新債務時有效的循環信貸到期日後一百八十(180)天之前強制贖回或支付償債基金債務(因出售資產或在適用協議下發生「控制權變更」而要求贖回這類債務的任何要約除外)，(C)如果再融資的債務是無擔保的，則允許的再融資是無擔保的，(D)如果再融資的債務是有擔保的，(E)借款人的任何附屬公司無須擔保該項獲准再融資，除非該附屬公司是(或與任何該等擔保同時成爲)擔保人，及(F)在該項准許再融資是或擬明確從屬於清償所有債務的範圍內，其中所載的居次規定或者(X)至少與再融資債務中所載的居次規定一樣有利於擔保當事人，或者(Y)行政代理人和多數貸款人合理地滿意；但如發生或發行任何債務，而該等已產生或已發行的債務中只有一部分符合上述條件，則即使該等已產生或已發行的債務的其他部分並不構成許可再融資，其符合上述條件的部分亦須當作構成許可再融資。
33「人」是指任何自然人、公司、有限責任公司、信託、合資企業、協會、公司、合夥企業、政府主管部門或其他實體。「計劃」係指ERISA第3(2)節所界定的任何僱員退休金計劃，該計劃須受ERISA第四章或守則第412節或ERISA第302節所規限，而該計劃目前或以後由借款人、附屬公司或ERISA聯屬公司贊助、維持或出資，或借款人、附屬公司或ERISA聯營公司是(或如該計劃終止，則根據ERISA第4069條將被視爲)ERISA第3(5)節所界定的「僱主」，或在本條例生效日期前六個歷年的任何時間，由借款人、子公司或ERISA附屬公司維持或出資。「計劃資產管理條例」係指美國聯邦法規第29編2510.3-101節及以後的規定，經ERISA第3(42)節修改，並經不時修訂。「最優惠利率」指JPMorgan Chase Bank，N.A.在其位於紐約Park Avenue 270號的辦事處不時公佈的最優惠年利率；最優惠利率的每一次變動均應自公開宣佈該變動生效之日起生效(包括該日在內)。「財產」是指對任何種類的財產或資產的任何利益，無論是不動產、動產或混合財產，或有形或無形的財產或資產，包括但不限於現金、證券、帳戶和合同權利。「建議借款基數」具有第2.06(C)(I)節中賦予該術語的含義。「建議借款基數通知」具有第2.06(C)(Ii)節中賦予該術語的含義。「探明的已開發生產儲量」或「PDP儲量」是指「已探明的已開發的石油和天然氣儲量」，這一術語由SPE在其標準和指南中定義。「已探明儲量」或「已探明儲量」是指「已探明油氣儲量」和(A)「已探明已開發生產油氣儲量」、(B)「已探明已開發非生產油氣儲量」(包括已探明已開發的關井油氣儲量和已探明已開發的管道後油氣儲量)或(C)「已探明未開發油氣儲量」的儲量，這些術語在SPE的標準和指南中有定義。「購貨款負債」是指債務，其收益用於購買、建造或改善庫存、設備或其他財產。「PV-9」是指，就最近提交的儲量報告中評估的借款人及其受限制子公司的任何石油和天然氣資產預計將生產的任何已探明儲量，按9%的年利率貼現的未來淨現值，即在該已探明儲量的剩餘預期經濟壽命期間，借款人和其他貸款方在這些已探明儲量的剩餘預期經濟壽命內預期應計的未來淨收入的淨現值，按照行政代理向借款人提供的最新銀行價格甲板計算(並實施：(A)估計獲得的未
34這種儲量報告所反映的：(B)自這種儲量報告之日起，由於勘探、開發或開採、生產或其他活動而對已探明儲量的估計值進行了擴展、發現和其他增加以及向上修正的估計已探明儲量，按照標準的行業慣例，這將導致這種修正(包括對已探明儲量和未來淨收入的影響，以及自該年終以來估計的開發成本和增加的折讓)，(C)自該儲備報告的日期以來生產或處置的估計已探明儲量，但該等估計折現的未來淨收入已包括在該儲備報告或上述(A)或(B)項下的該等估計儲量內，及。(D)自該儲備報告的日期以來，因地質條件的改變或其他因素而向下修訂已探明儲量的估計已探明儲量的估計已探明儲量)；。但可歸因於(B)款或(C)款定義中描述的已探明儲量的合計PV-9在任何情況下都不得超過合計PV-9的35%(35%)。「PV-9承保比率」指於任何厘定日期(A)於厘定日期前呈交的最近一份儲備報告所反映的PV-9與(B)借款人及綜合受限制附屬公司於厘定日期的綜合淨債務總額的比率。「合格財務合同」的含義與「美國法典」第12編第5390(C)(8)(D)條中「合格財務合同」一詞的含義相同。「QFC信用支持」具有第12.21節中賦予該術語的含義。「合格的ECP擔保人」是指，在任何時候總資產超過10,000,000美元的每個信用方，或在商品交易法下有資格成爲「有資格的合同參與者」的每個信用方，並且可以導致另一個人在這個時候根據商品交易法的第1a(18)(A)(A)(V)(Ii)條有資格成爲「有資格的合同參與者」。「合格中游資產」是指用於收集、分發、營銷、處理、加工、運輸或儲存、處置或以其他方式處理碳氫化合物、水、沙、礦物、化學品或在經營石油天然氣業務中通常產生、使用、回收、生產或加工的其他產品或物質的資產，包括壓縮、泵送、處理和處置設施、集輸管線和系統，以及其他通常被認爲是中游資產或對開展中游業務有用的資產，爲免生疑問，合格中游資產不包括借用基地中包括的任何石油和天然氣資產。「贖回」指就任何債務而言，該等債務的回購、贖回、預付、償還、失敗或任何其他收購或報廢，包括支付現金以代替與此相關的零碎股份。「贖回」對此有相關的含義。「重新確定日期」，就任何預定的重新確定或任何臨時重新確定而言，是指與之相關的重新確定的借款基數根據第2.06(D)節生效的日期。
35關於當時基準的任何設置的「參考時間」是指(A)如果該基準是術語SOFR，則爲上午5：00。(芝加哥時間)在設定日期的前兩(2)個工作日，(B)如果該基準是Daily Simple Sofr，則爲上午5：00。(C)如果該基準既不是術語SOFR也不是每日簡單SOFR，則由行政代理以其合理的酌情決定權確定的時間。「登記冊」具有第12.04(B)(Iv)節中賦予該術語的含義。「規則D」指可不時修訂、補充或取代的董事會規則D。「償付義務(S)」是指所有信用證項下所有未償付提款的總金額(爲免生疑問，不包括根據第2.07(F)(Iii)條規定的被視爲已支付的償付義務)。「關聯方」，就任何特定的人而言，是指該人的關聯公司，以及該人和該人的關聯公司各自的董事、高級職員、僱員、代理人和顧問(包括律師、會計師和專家)。「釋放」是指任何沉積、溢出、泄漏、泵送、澆注、排放、排空、排放、注入、泄漏、淋濾、傾倒或處置。「相關債務」具有第8.17(G)節中賦予該術語的含義。「相關政府機構」指董事會和/或NYFRB、CME術語SOFR管理人(視情況而定)或由董事會和/或NYFRB正式認可或召集的委員會，或在任何情況下，其任何繼任者。「相關利率」指(A)就任何期限基準借款而言，調整後期限SOFR或(B)就任何RFR借款而言，調整後每日簡單SOFR(視情況而定)。「補救工作」具有第8.10(A)節中賦予該術語的含義。「所需貸款人」是指在任何時候(A)只要總最高貸款額尚未終止，持有總承諾額超過66%和三分之二(66-2/3%)的非違約貸款人，以及(B)如果總最高貸款額已經終止(無論是以到期、加速或其他方式)，非違約貸款人持有當時循環信貸貸款項下未償還本金總額的66%和23%(66-2/3%)以上；但爲了確定本合同項下所要求的貸款人，償還義務應根據循環信貸貸款人各自適用的循環信貸百分比在循環信貸貸款人之間分配；此外，此類計算應不考慮非違約貸款人根據第12.04(B)(Vi)條出售任何貸款參與權的情況。「備用報告」是指在第8.12節規定的日期(或第8.12節中的其他日期)提出的、形式和實質合理地令行政代理滿意的報告
36中期重新確定的情況下)貸方石油和天然氣資產的石油和天然氣儲量，以及根據與行政代理當時的貸款要求一致的定價假設，對截至該日期的石油和天然氣儲量及其未來淨收入、稅收、運營費用和資本支出的預測。「決議機構」指歐洲經濟區決議機構，或就任何英國金融機構而言，指聯合王國決議機構。「負責人」對任何人來說，是指該人的總裁、任何財務主管或任何副總裁。除另有說明外，凡提及責任高級人員，均指借款人的責任高級人員。「限制性支付」是指因購買、贖回、報廢、收購、註銷或終止任何信用方的任何股權或任何期權、認股權證或其他權利而支付的任何股息或其他分派(無論是現金、證券或其他財產)，或任何付款(無論是現金、證券或其他財產)，包括任何償債基金或類似的存款。「受限子公司」是指借款人不是非受限子公司的任何國內子公司。「循環信用借款」是指借入循環信用貸款。「循環信用借款請求」是指借款人按照第2.03節的規定提出的借款請求，其形式爲本合同附件b。「循環信貸風險」指，就任何循環信貸貸款人而言，(A)該循環信貸貸款人的循環信貸貸款的未償還本金金額，以及(B)其適用的循環信貸在任何未償還信用證債務中所佔的百分比的總和。「循環信用貸款人」是指不時作爲循環信用貸款出借人的金融機構。根據第12.22節的規定，「循環信用貸款」是指借款人根據本協議第2.01(A)節要求並由循環信用貸款人進行的借款，包括但不限於根據第2.07(F)(Iii)節對該借款進行的任何再墊付、退款或轉換，以及根據第2.07(F)(Iii)節對信用證所作的任何貸款的視爲支付，並可在符合本協議條款的情況下，包括定期基準貸款和ABR貸款。「循環信貸到期日」指(A)任何獲准額外債務的預定到期日之前一百八十(180)天及(B)2028年8月2日(「所述循環信貸到期日」)中較早的日期。
「循環信用票據」是指第2.02(D)節所述的借款人的本票，基本上採用附件A的形式，及其所有的修改、修改、替換、延長和重新安排。「RFR借款」，就任何借款而言，是指構成此類借款的RFR貸款。「RFR貸款」是指以調整後的每日簡單SOFR爲基準計息的貸款。「滾動期」是指(A)截至2021年12月31日、2022年3月31日和2022年6月30日的財政季度，從2021年10月1日開始，至該適用財政季度的最後一天結束；(B)對於任何其他財政季度，指在該適用財政季度的最後一天結束的連續四(4)個財政季度的期間。「受制裁國家」是指在任何時候作爲任何制裁對象或目標的國家、地區或領土(截至第四修正案生效日期，包括但不限於所謂的頓涅茨克人民共和國、所謂的盧甘斯克人民共和國、克里米亞、扎波里日日亞和烏克蘭、古巴、伊朗、朝鮮和敘利亞的Kherson地區)。「受制裁人員」是指，在任何時候，(A)美國財政部、美國國務院外國資產管制辦公室維護的與制裁有關的指定人員名單中所列的任何人，(B)在受制裁國家經營、組織或居住的任何人，或(C)由上述(A)或(B)款所述的任何一人或多人擁有或控制的任何人。「制裁」是指美國政府不時實施、管理或執行的所有經濟或金融制裁或貿易禁運，包括由美國財政部外國資產控制辦公室、美國國務院或其他相關制裁機構實施的制裁或貿易禁運。「預定重新確定」具有第2.06(B)節中賦予該術語的含義。「預定重新確定日期」是指第2.06(D)節規定的、已根據預定重新確定重新確定的借款基數生效的日期。「美國證券交易委員會」係指美國證券交易委員會或任何繼任的政府機構。「第二修正案」是指在第二修正案生效之日，借款人、擔保方、行政代理和貸款方之間對修訂和重新簽署的信貸協議的某些第二修正案。「第二修正案生效日期」指2022年4月20日。「擔保現金管理協議」是指任何信用方和任何現金管理銀行之間簽訂的任何現金管理協議。
38「擔保槓桿率」是指在任何確定日期，(A)以任何抵押品的留置權擔保的淨債務總額與(B)最近結束的滾動期的EBITDAX(可獲得財務報表)的比率。「有擔保的非貸款人互換方」是指多倫多道明銀行，作爲附表1.5所列現有有擔保互換協議項下貸方的交易對手，只要該交易對手不是貸款人或貸款人的關聯公司。「擔保方」係指行政代理、各開證行、任何貸款人、任何擔保互換協議項下的任何擔保互換方、任何現有擔保互換協議項下的有擔保非貸款人互換方、任何擔保現金管理協議項下的任何現金管理銀行以及任何其他債務持有人。「有擔保互換協議」是指(A)現有的有擔保互換協議，以及(B)任何貸款方與任何貸款人或貸款人的關聯方(本條(B)項所述的前述人員，「有擔保互換方」)之間的任何互換協議，該人在成爲貸款人或貸款人的關聯方之前或期間與該貸款方訂立了此類互換協議，即使該人後來因任何原因不再是貸款人(或其關聯方)；但爲免生疑問，「有擔保互換協議」一詞不應包括(I)任何有擔保互換協議或在該有擔保互換當事人不再是貸款人或其聯營公司後訂立的任何互換協議下的交易，或(Ii)在生效日期(A)與有擔保非貸款人互換當事人訂立的任何互換協議下的任何互換協議或交易，但與附表1.5或(B)生效日期後所列現有有擔保互換協議有關的任何通知、交易或確認書除外。「有擔保的互換當事人」具有在有擔保的互換協議定義中賦予該術語的含義。「證券帳戶」的含義與UCC中賦予此類術語的含義相同。「擔保協議」是指貸方在生效日期簽署的某些經修訂和重新簽署的擔保協議，其形式和實質令行政代理人滿意(行政代理人在此通過簽署本協議確認其滿意)。「擔保工具」指抵押、信託契約、質押協議、擔保協議，包括但不限於擔保協議、控制協議和附件D中描述或提及的其他協議、文書和補充，以及貸方現在或以後簽署和交付的任何和所有其他協議、文書和補充(貸款人與任何其他貸款人或債權人之間關於本協議項下任何義務的擔保互換協議或參與或類似協議除外)，作爲支付或履行債務、票據、本協議或償還義務的擔保，此類協議可不時修訂、修改、補充或重述。
39「第六修正案」是指借款人、擔保方、行政代理和貸款方之間在第六修正案生效之日對修訂和重新簽署的信貸協議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」是指標準普爾評級集團，麥格勞-希爾公司的一個部門，及其任何繼任者，是一家國家公認的評級機構。「SOFR」是指相當於SOFR管理人在SOFR管理人網站上公佈的有擔保隔夜融資利率的年利率。「SOFR管理人」是指NYFRB(或有擔保隔夜融資利率的繼任管理人)。「SOFR管理人網站」是指紐約林業局的網站，目前位於http://www.newyorkfed.org，或SOFR管理人不時確定的擔保隔夜融資利率的任何後續來源。「SOFR日」具有在「每日簡單SOFR」的定義中賦予此類術語的含義。「SPE」指石油工程師協會。「特定收購」具有「第三修正案」中賦予這一術語的含義。「指定信用方」指不是商品交易法(在第12.17條生效之前確定)下的「合格合同參與者」的任何信用方。
40「指定合併前EBITDAX金額」是指(A)截至2024年6月30日的滾動期，爲550,000,000美元；(B)截至2024年9月30日的滾動期，爲200,000,000美元。「所述循環信貸到期日」具有「循環信貸到期日」定義中賦予該術語的含義。「子公司」指在任何日期的任何人(「母公司」)，如果在該日期的合併財務報表是按照公認會計原則編制的，其帳目將與母公司的合併財務報表中的母公司的帳目合併的任何其他人，以及擁有超過50%(50%)的股權或超過50%(50%)的普通投票權的任何其他人(不論該人的任何其他類別的股權在當時是否因任何或有事項的發生而具有或可能具有投票權)，或如屬合夥，則任何普通合夥的權益在該日期是擁有、控制或持有的，或在該日期是以其他方式控制的，母公司或母公司的一個或多個子公司，或母公司和母公司的一個或多個子公司。「子公司」是指借款人的任何子公司。「受支持的QFC」具有第12.21節中賦予該術語的含義。「掉期協議」是指與任何掉期、遠期、期貨或衍生品交易或期權或類似協議有關的任何協議，不論是交易所交易、「場外交易」或其他交易，涉及或參照一種或多種利率、貨幣、商品、股權或債務工具或證券，或經濟、金融或定價指數或經濟、金融或定價風險或價值的衡量，或任何類似交易或這些交易的任何組合；但任何只因任何貸款方的現任或前任董事、高級職員、僱員或顧問所提供的服務而支付款項的虛擬股票或類似計劃，均不屬於互換協議。「互換義務」是指就任何信用方而言，構成商品交易法第1a(47)節所指的「互換」的任何協議、合同或交易項下的任何付款或履行義務。就任何一項或多項掉期協議而言，「掉期終止價值」就任何一項或多項掉期協議而言，在計入與該等掉期協議有關的任何可依法強制執行的淨額結算協議的效力後，指在該等掉期協議完成當日或之後的任何日期，以及據此厘定的終止價值(S)，即上述掉期協議的終止價值(S)及上述日期之前的任何日期，由該等掉期協議的對手方(任何信貸方除外)厘定爲該等掉期協議的市值(S)的金額(S)。「合成租賃」是指就任何人而言，在負有支付租金責任的人的財務報表上(無論是或有或有或以其他方式)本應或本應被視爲經營性租賃的所有租賃，並且就美國聯邦所得稅而言，該等租賃被適當地視爲借款的債務，但承租人有義務以超過的金額購買。
41提前終止，或在提前終止時支付超過該經營租賃到期或提前終止時受該經營租賃約束的財產剩餘價值的80%(80%)。「稅」是指任何政府當局目前或將來徵收的任何或所有稅收、徵費、徵收、關稅、扣除、收費或扣繳。「期限基準」用於任何貸款或借款時，指的是此類貸款或構成此類借款的貸款是否按調整後期限SOFR確定的利率計息。「SOFR期限」指，就任何期限基準借款及與適用利息期間相若的任何期限而言，於凌晨5時左右的SOFR期限參考利率。(芝加哥時間)，在該期限開始前兩(2)個美國政府證券營業日，該利率由CME Term Sofr署長公佈，與適用的利息期相當。「術語SOFR確定日」具有在「術語SOFR參考匯率」的定義中賦予該術語的含義。「期限SOFR參考利率」是指，在任何日期和時間(該日爲「期限SOFR確定日」)，對於以美元計價的任何期限基準借款，以及對於與適用利息期限相當的任何期限，由行政代理確定爲基於SOFR的前瞻性期限利率的年利率。如果在下午5：00之前(紐約時間)在該條款SOFR確定日，CME條款SOFR管理人尚未公佈適用期限的「SOFR參考利率」，並且尚未出現關於SOFR條款的基準替換日期，則該條款SOFR確定日的SOFR參考利率將是CME條款SOFR管理人就其公佈的第一個美國政府證券營業日公佈的SOFR參考利率，只要該首個美國政府證券營業日不超過該條款SOFR確定日之前五(5)個工作日。「終止日期」是指循環信貸到期日和承諾終止日期中較早的一個。「第三修正案」是指在第三修正案生效之日，借款人、擔保方、行政代理和貸款方之間對修訂和重新簽署的信貸協議的某些第三修正案。「第三修正案生效日期」指2023年6月23日。「總資產」是指在任何時候，按照公認會計原則，在貸方的合併資產負債表上與「總資產」(或任何類似的標題)相對列出的金額。「總債務」是指在任何時候，就任何人而言，(A)該人的債務總額，不包括根據ASC 815產生的或有債務，也不包括
42定義第(C)、(I)和(J)款所述類型的債務加上(B)當時未計入「流動負債」計算的任何生產稅負債的當期部分；但此種定義第(B)款所指的信用證所涉債務僅應視爲「總債務」，前提是此類信用證已提取或已獲得資金。爲免生疑問，借款人的總債務爲貸款方的綜合總債務，根據公認會計原則確定。「總淨債務」是指截至任何日期，(A)借款人和其他貸方的合併總債務和(B)以行政代理爲受益人的、受完善的、優先留置權約束的任何不受限制的現金和現金等價物的差額；但如在確定日期仍有任何貸款或信用證未清償，則本條(B)項中的數額不得超過(A)借款基期內的1.7億美元和(B)(X)期間借款基數的5%(5%)，或(Y)投資級期間內可獲得財務報表的最近滾動期最後一天的綜合有形資產淨額的千分之零點六(1.6%)；此外，本文第一個但書中規定的上限不適用於代表任何(I)指定收購的額外債務或(Ii)第五修正案收購的額外債務的任何無限制現金和現金等價物，並且在每種情況下，該等現金和現金等價物均受以行政代理爲受益人的完善的優先留置權的約束。「交易」指，就每一適用的信用方而言，(A)本協議的簽署、交付和履行、其所屬的其他貸款文件、借款和簽發本協議項下的信用證，(B)由該信用方擔保擔保協議項下的義務和其他義務，以及該信用方授予擔保工具項下的擔保權益和提供抵押品，(C)根據擔保工具授予抵押財產的留置權，以及(D)完成提取合併和Crestone合併。「轉讓」的含義與第9.10節中賦予該術語的含義相同。「類型」用於任何貸款或借款時，是指此類貸款或構成此類借款的貸款的利率是參照調整後期限SOFR、備用基本利率還是調整後每日簡單SOFR(如果適用)來確定的。「UCC」係指紐約州或任何其他州的統一商法典，其法律要求適用於完善任何抵押品上的擔保權益。「英國金融機構」是指任何BRRD業務(根據英國審慎監管局頒佈的PRA規則手冊(不時修訂)下的定義)，或屬於英國金融市場行爲監管局頒佈的FCA手冊(不時修訂)IFPRU 11.6範圍內的任何個人，包括某些信貸機構和投資公司，以及這些信貸機構或投資公司的某些附屬公司。
43「英國清算機構」是指英格蘭銀行或任何其他負責英國金融機構清算的公共行政機構。「未調整基準置換」是指適用的基準置換，不包括相關基準置換調整。「非限制性附屬公司」指借款人根據第8.17節以書面形式指定借款人爲「非限制性附屬公司」的任何人及其每一附屬公司。「美國愛國者法」係指經修訂的「與敵貿易法」，或美國財政部的任何外國資產管制條例(31 CFR，副標題b，第五章，經修訂)或與之有關的任何授權立法或行政命令，或美國聯邦法律，通過提供攔截和阻撓恐怖主義所需的適當工具，加強和加強美國。「美國政府證券營業日」是指除(A)週六、(B)週日或(C)證券業和金融市場協會建議其成員的固定收益部門全天關閉以進行美國政府證券交易的任何一天。「美國人」係指「守則」第7701(A)(30)節所指的「美國人」。「美國特別決議制度」具有第12.21節中賦予該術語的含義。「美國納稅證明」具有第5.03(E)(Ii)(B)(3)節中賦予該術語的含義。「扣繳代理人」是指任何貸方或行政代理人。「減記和轉換權力」是指：(A)就任何歐洲經濟區決議機構而言，該歐洲經濟區決議機構根據適用的歐洲經濟區成員國的自救立法不時具有的減記和轉換權力，這些減記和轉換權力在歐盟自救立法附表中有描述；以及(B)對於聯合王國，適用的自救立法規定的任何決議機構在自救立法下取消、減少、修改或改變任何英國金融機構或產生該責任的任何合同或文書的負債形式的任何權力，將該法律責任的全部或部分轉換爲該人或任何其他人的股份、證券或義務，並規定任何該等合約或文書具有效力，猶如已根據該合約或文書行使權利一樣，或暫時吊銷與該等權力有關或附屬於該等權力的任何法律責任或該自救法例所賦予的任何權力的任何義務。第1.03節貸款和借款的類型。就本協定而言，貸款和借款可分別按類型分類和指代(例如，「定期基準貸款」或「定期基準借款」)。
44第1.04節一般術語；施工規則。本協議中術語的定義應同樣適用於所定義術語的單數和複數形式。只要上下文需要，任何代詞都應包括相應的陽性、陰性和中性形式。本協定中使用的「包括」、「包括」和「包括」應視爲後跟「但不限於」一詞。「或」這個詞並不是排他性的。「將」一詞應解釋爲與「遺囑」一詞具有相同的含義和效力。除文意另有所指外，本協議、文書或其他文件的任何定義或提及，應解釋爲指不時修訂、補充或以其他方式修改的協議、文書或其他文件(但須受貸款文件所載對此等修訂、補充或修改的任何限制所規限)，此處對任何法律的任何提及，應解釋爲指經修訂、修改、編纂或重新制定的、全部或部分且不時有效的法律，本協議中對任何人的任何提及應解釋爲包括此人的繼任者和受讓人(在符合貸款文件所載限制的情況下)。本協議中的「萬億」、「此處」和「此處」以及類似含義的詞語應被解釋爲指本協議的整體，而不是本協議中關於任何時間段的確定的任何特定規定，「從」一詞指的是「從幷包括」，「到」一詞應被解釋爲指「到幷包括」，以及本協議中對條款、節、附件、證物和附表的任何提及應被解釋爲指下列條款和章節：以及本協定的附件、證物和附表。本協議或任何其他貸款文件的任何規定不得僅僅因爲任何人或其法定代表人起草了本協議或任何其他貸款文件而被解釋或解釋爲對該人不利。第1.05節會計術語和定義；公認會計原則。除非本協議另有規定，否則本協議中使用的所有會計術語應予以解釋，應作出與本協議項下會計事項有關的所有決定，並應根據公認會計原則編制與本協議項下要求提供給管理機構或貸款人的財務事項有關的所有財務報表和證書及報告，其適用基礎應與財務報表一致，但借款人的獨立註冊會計師同意的變更除外，該變更應作爲根據第8.01(A)節提交給貸款人的經審計年度財務報表的一部分或與經審計的年度財務報表一起向行政代理機構披露；但除非借款人和多數貸款人另有書面協議，否則此類變更不得改變或影響計算第9.01節所列公約的遵守情況的方式，以使所有此類計算均應使用與以前期間一致的財務信息進行。儘管本協議有任何相反規定，爲了計算根據第9.01節測試的任何比率以及每個比率的組成部分，所有非限制性子公司(包括其資產、負債、收入、虧損、現金流及其要素)應不包括在內，但任何非限制性子公司向任何貸款方實際支付的任何現金股息或分配除外，這些現金股息或分配在貸款方實際收到時應被視爲該貸款方的收入。儘管本協議或任何其他貸款文件中有任何相反的規定，爲了遵守本協議或任何其他貸款文件的條款，GAAP將被視爲以與其在「生效日期」(如現有信貸協議中的定義)根據GAAP目前的處理方式一致的方式對待經營租賃和資本租賃，即使在此之後可能發生的任何修改或解釋性變更，包括爲免生疑問，在「生效日期」(如現有信貸協議中的定義)採用的GAAP修正案所預期的任何未來逐步實施的GAAP變更
45信貸協議)(不言而喻，財務報表的編制不應使本句生效)。第1.06節劃分。第二條循環信貸安排第2.01節承諾。(A)承諾。借款人可在上述限額及本協議所列條款及條件的規限下，借入、償還及再借循環信貸貸款。(B)借款人可選擇較低的貸款限額。低於該等新借款基準通知所載金額(或低於投資級期間的總最高信貸金額)。借款人根據第2.01(B)(I)條發出的通知是不可撤銷的，但不影響其根據第2.06條啓動臨時重新確定或隨後根據第2.01(B)條降低或增加選定貸款限額的權利。無論本條款第2.01(B)節規定的任何通知要求或任何其他相反規定，截至第六修正案生效日期的選定貸款限額爲2,200,000,000美元。(Ii)在借款基準期內、可用借款基準期內或(Y)投資級期間內的任何時間，所選擇的貸款限額少於(X)可用借款基數，或(Y)在投資級期間內，借款人此後可就借款基數的任何預定重新厘定或中期重新厘定(或在投資級期間，在任何5月1日或11月1日的三(3)個營業日內)增加所選擇的貸款限額至不超過重新厘定的數額
46在發出相關的新借款基數通知之前(在任何借款基期內)，通過向行政代理和貸款人發出書面通知(在任何借款基期內)，可獲得可用借款基數(或在投資級期間，最高可達總最高信用額度)，但須滿足以下條件：(A)如果每個貸款人同意並同意接受其適用的循環信貸百分比，則所選擇的貸款限額應按借款人要求的金額增加(貸款人根據每個貸款人的適用循環信貸百分比按比例增加)；或(B)如任何貸款人不同意接受該項增加的適用循環信貸百分比，則(1)所選擇的貸款限額須予提高，以每名貸款人已同意接受該項增加的全部或部分爲限，(2)所有貸款人的最高信貸金額及適用的循環信貸百分比將予重新分配，以反映每名貸款人願意接受的該項增加的金額，及(3)附表1.2將被視爲修訂，以反映該項重新分配。(C)行政代理應將有關此類增加的信息記錄在登記冊中，並在必要時分發經修訂的附表1.2。(Iii)即使第2.01(B)(Ii)節有任何相反規定，未經任何貸款人書面同意，不得增加任何貸款人當時有效的選定貸款限額的適用循環信貸百分比。第2.02節循環信貸貸款和借款。(A)循環信貸借款；若干債務。每筆循環信貸貸款應作爲循環信貸借款的一部分，循環信貸借款由循環信貸貸款人根據各自的承諾按比例發放循環信貸貸款。任何循環信貸貸款人未能按規定發放任何循環信貸貸款，不解除任何其他循環信貸貸款人在本協議項下的義務；只要承諾是多項的，任何循環信貸貸款人均不對任何其他循環信貸貸款人未能按要求提供循環信貸貸款負責。根據第5.06節和第5.08節的規定，每筆循環信用借款應完全由借款人根據本協議要求提供的ABR循環信用貸款或定期基準循環信用貸款組成。每一循環信貸貸款人可自行選擇促使該循環信貸貸款人的任何國內或外國分支機構或關聯公司發放循環信貸貸款；但該選擇權的任何行使不影響借款人按照本協議條款償還該循環信貸貸款的義務。爲免生疑問，自第二修正案生效之日起，借款人可獲得的借款類型應僅包括ABR循環信貸貸款或定期基準循環信貸貸款。(C)最低金額；對循環信貸借款次數的限制。在任何期限基準循環的每個利息期開始時
47信貸借款，這種循環信貸借款的數額應不少於500,000美元，並在此基礎上增加500,000美元。在進行每筆ABR循環信貸借款(或如果當時適用的話，RFR借款)時，此類循環信貸借款的金額應不少於500,000美元，且增量應超過500,000美元；但儘管有上述規定，ABR循環信貸借款的總金額可以等於總承諾額的全部未用餘額，或第2.07(F)(Iii)節所規定的償還義務所需的資金。超過一種類型的循環信貸借款可以同時未償還，但在任何時候不得有超過六(6)個期限基準循環信貸借款或RFR借款未償還。儘管本協議有任何其他規定，如果就任何循環信貸借款請求的利息期限將在循環信貸到期日之後結束，則借款人無權請求、或選擇轉換或繼續進行任何循環信貸借款。(D)循環信用票據。應該循環信貸貸款人的要求，循環信貸貸款人發放的循環信貸貸款應由借款人的一張本票證明，該本票基本上採用附件A的形式，並且，(I)對於本協議的任何一方而言，該循環信貸票據的日期應自本協議之日起生效，或(Ii)對於根據轉讓和假設成爲本協議一方的任何循環信貸貸款人，該循環信貸票據的日期應自轉讓和假設的生效日期起生效，在每種情況下，應支付給該循環信貸貸款人的本金金額等於其在該日期有效的最高信貸金額，並以其他方式妥爲完成。如任何循環信貸貸款人的最高信貸金額因任何原因而增加或減少(不論是否根據第2.05節、第12.04(B)節或其他規定)，借款人應應該循環信貸貸款人的要求，在該項增加或減少的生效日期，向該循環信貸貸款人交付或安排交付一張新的循環信貸票據，其本金金額等於該循環信貸貸款人在實施該項增加或減少後的最高信貸金額，並以其他方式妥爲填寫，以備退還被替換的循環信貸票據給借款人。每一循環信用貸款人發放的每筆循環信貸貸款的日期、金額、類型、利率和利息期限，以及因其本金而支付的所有款項，應由該循環信用貸款人記錄在其循環信用票據的賬簿上。任何循環信貸貸款人或借款人對該等循環信貸貸款的權利或義務，不應因未能作出任何該等批註或未附上附表而受影響。(E)註冊。行政代理人應根據第12.04(B)(Iv)條爲每個循環信貸貸款人保存登記冊和其中的一個子帳戶，其中應記錄(I)根據本協議進行的每筆循環信貸借款的金額、其類型和適用於任何期限基準借款的每個利息期。(Ii)借款人就循環信貸借款而到期應付或即將到期應付的任何本金或利息的款額，及(Iii)行政代理根據本協議就循環信貸借款從借款人收到的任何款項的款額及每名循環信貸貸款人在其中所佔的份額。在根據第2.02(E)節保存的登記冊中登記的事項，如無明顯錯誤，在適用法律允許的範圍內，應爲其中記錄的借款人債務的存在和數額的表面證據；但是，任何循環信貸貸款人或
88(W)行政代理人應已收到行政代理人或行政代理人的特別律師合理要求的其他文件。行政代理應將生效日期通知借款人和貸款人，該通知具有決定性和約束力。第6.02節每個信用事件。每家貸款人在任何借款(包括初始資金，但不包括循環信用借款，以繼續或轉換任何未償還的循環信用借款)時發放貸款的義務，以及開證行開具、修改、續期或延期任何信用證的義務(但不包括任何信用證的自動續期或延期，其唯一目的是延長或續期任何信用證和根據第2.07(A)節被視爲簽發的任何現有指定信用證的修改)須滿足下列條件(或根據第12.02節的豁免)：(A)在該等借款或該等信用證的簽發、修改、續期或延期(視情況而定)生效之時及之後，(I)不會發生任何違約或借款基礎不足，並且(Ii)綜合現金餘額不得超過(A)150,000,000美元或(B)在正常業務過程中由行政代理人在信貸事件發生時同意的借款人在石油和天然氣資產方面的支出，但須受行政代理人根據第2.03節或第2.07(B)節在適用的循環信貸借款申請交付之日或之前收到關於該項申請的事先書面通知的限制。(B)本協議和其他貸款文件中規定的信用證各方的陳述和擔保，在該借款之日或該信用證的開具、修改、續展或延期之日(視情況而定)，在所有重要方面均應真實和正確(除非在該情況下，該適用的陳述和擔保應爲真實和正確的)，但如任何該等陳述和擔保明確限於較早的日期，則在該借款之日或該信用證的簽發、修改、續展或延期之日(以適用者爲準)爲限，自指定的較早日期起，該等陳述和保證在所有重大方面應繼續真實和正確(除非已受到重大程度的限制，在這種情況下，適用的陳述和保證應爲真實和正確)。(C)貸款的發放或信用證的簽發、修改、續展或延期(視情況而定)不會與任何貸款人或任何開證行違反或超過任何適用的政府要求，或導致任何貸款人或開證行違反或超過任何適用的政府要求。(D)行政代理收到根據第2.03節提出的循環信貸借款請求或根據第2.07(B)節提出的信用證申請(視情況而定)。每次借款請求和每次開立、修改、續展或延期任何信用證的請求，應視爲借款人在信用證發出之日就第6.02(A)和(B)款規定的事項作出的陳述和保證。
89第七條借款人向貸款人作出的陳述和保證：第7.01節組織；權力。每一貸方均按其組織所在司法管轄區的法律正式組織、有效存在和信譽良好，擁有所有必要的公司或其他組織權力和權力，並擁有所有必要的政府許可、授權、同意和批准，擁有其資產和開展目前所進行的業務，並有資格在需要此類資格的每個司法管轄區開展業務，且信譽良好，除非不具備此類許可、授權、同意、批准和/或資格將不會合理地產生重大不利影響。第7.02節授權；可執行性。該等交易屬每一信貸方的法人、有限責任公司或合夥企業的權力範圍內，並已獲得所有必要的法人、有限責任公司或合夥企業的正式授權，以及(如有需要)其股權的任何持有人的訴訟(包括但不限於任何類別的董事、經理或監管人，不論是否有利害關係，或任何其他人士爲確保交易獲得適當授權而須採取的任何行動)。信用方作爲一方當事人的每份貸款文件均已由該信用方正式簽署和交付，並構成該信用方的一項法律、有效和具有約束力的義務，可根據其條款強制執行，但須遵守適用的破產、破產、重組、暫停或其他一般影響債權人權利的法律和一般衡平法原則，無論是否在衡平法訴訟或法律上予以考慮。第7.03節批准；無衝突。交易(A)不需要任何政府當局或任何其他第三人的任何同意或批准、登記或備案，或任何其他行動，也不是任何貸款文件的有效性或可執行性或交易完成所必需的任何此類同意、批准、登記、備案或其他行動，但已取得或作出且完全有效的交易除外，按本協議的要求對證券工具進行記錄和備案，以及如未作出或獲得，(B)不會違反或導致附表1.5所列任何現有有擔保互換協議、契約、協議或其他證明對任何貸款方或其各自資產具有約束力的重大債務的文書項下的違約，或產生要求任何貸款方支付任何款項的權利。第7.04節財務狀況；無重大不利變化。(A)借款人迄今已向貸款人提供(I)德勤律師事務所報告的借款人及其綜合子公司截至2020年12月31日的財政年度的經審計綜合資產負債表，以及均富律師事務所報告的借款人及其綜合子公司截至2020年12月31日的財政年度及截至2020年12月31日的經審計的營業、股東權益和現金流量報表
90 LLP及(Ii)截至2021年6月30日借款人及其綜合附屬公司的未經審計簡明綜合資產負債表及相關經營報表及全面收益(虧損)及股東權益及現金流量。前述第(I)及(Ii)條所述財務報表在各重大方面均公平地反映借款人及其綜合附屬公司於該等日期及期間的財務狀況及經營業績及現金流量，並須受年終審核調整及上文第(Ii)條所述報表無附註所規限。(二)自2020年12月31日以來，未發生任何造成實質性不利影響的事件、發展或情況。(C)除附表7.04(C)所列或第9.02節所允許的情況外，任何貸款方在交易生效之日起，不得有任何重大債務或任何表外負債、逾期稅款的負債或任何不尋常的遠期或長期承諾，而該等債務或負債、或任何不尋常的遠期或長期承諾，在整體上對貸款方或就借款人的綜合財務狀況而言是重大的，根據公認會計原則要求須予顯示，但未在第7.04(A)(I)節所述借款人的最新經審核綜合財務報表中顯示。第7.05節訴訟。除附表7.05所列外，沒有任何訴訟、訴訟、調查或程序涉及任何貸款文件或任何仲裁員或政府當局的交易，而據借款人所知，這些訴訟、訴訟、調查或程序對未完全投保保險(免賠額除外)的任何貸款方懸而未決，或對其構成威脅或影響，且有合理的可能性作出不利判定，即如果不利判定，將合理地個別或總體地導致重大不利影響(在考慮到實際收到的保險收益或其他第三方賠償後)。第7.06條環境事宜。(C)沒有任何關於違反任何適用環境法的索賠、要求、訴訟、命令或法律程序(包括作爲潛在責任方)懸而未決，或據借款人所知，有可能對
91借款人或其任何附屬公司或其各自的任何物業，或因在該等物業的任何業務而合理地預期將被確定爲不利的；(D)借款人及其附屬公司的任何物業均不包含或據借款人所知不包含任何：地下儲藏罐；含石棉材料；垃圾填埋場或傾倒場；根據RCRA或任何類似的州法律定義的危險廢物管理單位；或列入或提名列入根據CERCLA頒佈的國家優先名單或根據任何類似的州法律頒佈或公佈的任何國家補救優先名單的地點；(E)在借款人或其附屬公司的任何物業上、之上、之下或從借款人或其附屬公司的任何物業中，沒有或據借款人所知，沒有危險物質的釋放或威脅釋放，要求或合理地預期會導致在該等財產根據適用的環境法對危險材料進行任何調查、補救、減少、移走或監測，且據借款人所知，任何該等財產均不會因源自或來自任何其他不動產的危險物質的任何釋放或威脅釋放而受到不利影響；(F)任何貸款方或其各自子公司均未收到任何書面通知，表明根據任何適用的環境法，在借款人或其任何子公司的財產中調查、補救、減少、清除或監測任何有害物質，或從任何非現場不動產釋放或威脅釋放任何有害物質的所謂責任或義務，且據借款人所知，不存在任何合理預期會導致收到該書面通知的條件或情況；(G)據借款人所知，沒有任何人或財產因借款人或其任何附屬公司對其財產的經營而暴露於任何危險材料或與之相關，而該等經營可合理地預期構成損害或賠償要求的依據；和(H)在行政代理要求的範圍內，借款人已向行政代理提供所有非特權環境現場評估報告的完整和正確副本，以及借款人擁有或控制的與借款人或其任何子公司的財產或業務有關的重大環境事項(包括與任何據稱不遵守環境法或環境法下的責任有關的事項)的非特權研究報告。第7.07節遵守法律和協議；沒有違約。(A)每一貸方均遵守適用於其或其財產的所有政府要求以及對其或其財產具有約束力的所有協議和其他文書，並擁有其財產所有權和業務開展所需的所有許可證、許可證、特許經營權、豁免、批准和其他政府授權，除非未能單獨或整體遵守規定不會導致重大不利影響。
92(B)沒有信用方違約，也沒有發生任何事件或情況，如果沒有任何適用的寬限期到期或發出通知，或兩者兼而有之，就會構成違約或要求任何信用方根據任何契約、票據、信貸協議或工具贖回或提出贖回任何重大債務，或任何信用方或其任何財產受到約束的事件或情況。(C)沒有違約發生，而且仍在繼續。第7.08節投資公司法。任何信用方都不是1940年修訂後的《投資公司法》所指或受其監管的「投資公司」。第7.09節稅項。每個信用方都及時提交或促使提交所有聯邦所得稅申報單和報告，以及所有其他重要的納稅申報單和報告，要求提交併且已經支付或導致支付其必須支付的所有稅款，但正在通過適當的程序真誠地提出異議的稅款除外，並且該信用方已根據公認會計准則在其賬面上爲其留出了充足的準備金，或者如果沒有這樣做將合理地預期不會導致實質性的不利影響。借款人合理地認爲，貸方賬面上有關稅收和其他政府收費的費用、應計項目和準備金是足夠的。除例外留置權外，(A)沒有提出任何稅收留置權，(B)據借款人所知，沒有就任何此類稅收或其他此類政府收費提出索賠。第7.10節ERISA。(A)貸方和各ERISA關聯公司已在所有重要方面遵守了ERISA，並在適用的情況下，遵守了有關每個計劃的守則。(B)每項計劃均基本上符合其條款、僱員補償標準及(如適用)守則的規定而制定及維持。(C)並無發生任何作爲、不作爲或交易，以致借款人、任何其他信貸方或任何ERISA聯營公司直接或間接被施加根據《ERISA》第502條(C)、(I)、(L)或(M)款評估的民事罰款，或根據《ERISA》小標題D第43章徵收稅項，或違反《ERISA》第409條下的受信責任責任。(D)在到期時全額支付貸方或任何ERISA關聯公司根據每個計劃或適用法律的條款，截至本計劃之日作爲對該計劃的繳款而支付的所有金額。(E)未單獨或與任何其他ERISA事件一起發生ERISA事件，或合理地預期將發生ERISA事件。(F)沒有貸款方和ERISA附屬公司發起、維持或貢獻ERISA第3(1)節所界定的員工福利計劃，包括但不限於爲向此類實體的前僱員提供福利而維持的任何此類計劃，
93適用貸方或任何ERISA關聯公司不得在任何時間自行決定終止對其的贊助、維持或出資，除終止生效日期前到期的福利或發生的索賠外，不承擔任何責任。第7.11節披露；沒有重大失實陳述。由信貸方或其代表就任何貸款文件(經如此提供的其他信息修改或補充)向行政代理和貸款人提供的證書、書面聲明和報告以及其他書面信息作爲一個整體，不包含任何重大事實錯誤陳述，或遺漏陳述其中陳述所需的任何重大事實，根據其作出或作出陳述的情況，截至該等信息的日期或證明之日，不具有誤導性；只要(A)任何該等證書、書面聲明、書面報告或書面信息是基於或構成一項預測或預測，則每一貸方僅表示該證書、書面聲明、書面報告或書面信息是基於在交付時被認爲是合理的假設善意編制的(然而，貸款人承認，對於(A)對未來事件的預測不被視爲事實，且該等預測涵蓋的期間(S)內的結果可能與預測結果不同，且該等差異可能是實質性的，且貸款人並不表示該等預測將會實現)及(B)對於第三方代表貸款人就任何貸款文件(經如此提供的其他信息修改或補充)而提供的任何該等書面陳述、書面資料及書面報告，借款人僅表示其並不知悉其中有任何重大失實陳述或遺漏。第7.12節保險。借款人擁有並已促使其所有其他信貸方擁有足以使每個信貸方遵守所有重大政府要求、所有重大協議和至少金額的保險範圍的所有保單，以及針對此類風險(包括但不限於公共責任)的保險，這些風險通常由處於相同位置並從事相同或類似業務的公司爲信貸方的資產和業務投保。行政代理和貸款人已被指定爲此類責任保險單的額外承保人，行政代理已代表貸款人被指定爲財產損失保險的貸款人損失收款人。第7.13節對留置權的限制。任何信用方均不是任何重大協議或安排的一方，或受制於任何命令、判決、令狀或法令，該等協議或安排限制或旨在限制其就其物業或就其物業向行政代理及貸款人授予留置權以擔保債務及貸款文件的能力，或限制任何信用方就其股權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發放貸款或墊款，或須徵得其他人的同意，但第9.12節所准許的此等產權負擔或限制除外。第7.14節附屬公司。但附表7.14所列或以書面形式向行政代理披露的除外(行政代理應立即向出借人提供副本)，該行政代理應
94作爲附表7.14的補編，借款人沒有受限制的子公司。借款人沒有外國子公司。第7.15節營業和辦公地點。貸方的正確法定名稱、營業地址、組織類型和管轄範圍、稅務識別號和其他相關識別號列於本合同附表1.3(在每種情況下，均在根據第8.01(I)節按照第12.01節向行政代理提交的通知中闡明)。第7.16節財產、頭銜等(A)每個貸方對最近提交的儲量報告中評估的各自的石油和天然氣財產擁有良好的、可辯護的所有權，並對其所有重大個人財產擁有良好的所有權，在每種情況下，除允許留置權外，沒有任何留置權。貸方在各重大方面擁有最近交付的儲量報告所反映的碳氫化合物權益所應占的生產淨權益，而該等物業的所有權在任何重大方面均不會使貸方有義務承擔與每項該等物業的維護、發展及營運有關的成本及開支超過最近交付的儲備報告所載的每項物業的營運權益，而貸方對該等物業的淨收入權益的至少相應比例增加並未抵銷該等權益。(B)信貸方開展業務所需的所有租約和協議均爲有效和存續的，且完全有效，且任何信貸方不會違約超過任何該等租約或協議下所有適用的寬限期或治療期，而違約將合理地預期會產生重大不利影響。(C)信貸方目前擁有、租賃或許可的權利和財產，包括但不限於所有地役權和通行權，包括允許信貸方在所有重要方面開展業務所必需的所有權利和財產，其方式與其在本合同日期前12個月的業務方式相同。(D)貸方對其業務運營合理必需的所有財產均處於良好的工作狀態，正常損耗除外，並按照審慎的商業標準進行維護。(E)每個信用方擁有或被許可使用其業務的所有商標、商號、版權、專利和其他知識產權材料，信用方使用這些材料不會侵犯任何其他人的權利，但不包括任何此類侵權行爲，無論是個別侵權行爲，還是總體侵權行爲，都不會合理地預期會導致重大不利影響。貸方擁有或擁有有效的許可證或其他權利，可以使用目前在其業務中使用的所有數據庫、地質數據、地球物理數據、工程數據、地震數據、地圖、解釋和其他技術信息，但須遵守管理其使用的協議中所載的限制。第7.17節物業的保養。除不能合理預期會產生重大不利影響的作爲或不作爲外，石油和天然氣財產(和
(95)貸方的油氣物業在所有重大方面均以良好及熟練的方式維護、營運及發展，並在所有重大方面符合政府的所有要求，並在所有重大方面符合構成碳氫化合物權益一部分的所有租約、分租或其他合約的條文，以及構成貸方石油及天然氣物業一部分的其他合約及協議的條文。第7.18節產品營銷。除附表7.18所列並在本合同日期生效的合同，以及此後以書面形式披露給行政代理或包括在最近提交的儲備報告中的合同外，對於貸方碳氫化合物生產的銷售(包括但不限於要求或其他購買、生產或其他權利)，不存在不能在六十(60)天或更短的時間內取消而不受處罰或損害的重大協議。與以固定價格出售產品有關，且到期日或到期日自本報告日期或該儲備報告日期(視何者適用而定)超過六(6)個月。第7.19節互換協議。附表7.19自本報告之日起及之後，根據第8.01(E)節規定借款人必須交付的每份報告、截至該報告之日(或截至報告中另有規定的日期(S))的每份報告，均真實而完整地列出了貸方的所有互換協議及其實質性條款(包括類型、期限、生效日期、終止日期和名義金額或數量)，其按市值計價的淨值(截至生效日期前最近一個財政季度的最後一個營業日，且按市值計價是合理的)、與之相關的所有信貸支持協議(包括要求或提供的任何按金)以及每項此類協議的交易對手。第7.20節貸款和信用證的使用。貸款及信用證所得款項將用於(A)支付與交易有關的任何費用、成本及開支；(B)償還採掘信貸協議及Crestone信貸協議項下的債務及與終止該等信貸安排有關的任何費用、成本及開支；及(C)用作營運資金、租賃收購、勘探及生產經營、開發(包括鑽井及完井)、支付與本協議有關的費用及開支以及任何其他一般業務用途。貸方並無主要或作爲其或其重要活動之一，爲購買或持有按金股票(董事會第T、U或X條所指)而提供信貸的業務，不論是即時、附帶或最終的目的。任何貸款或信用證的收益不得用於違反董事會規則T、U或X的任何目的。第7.21節償付能力。在實施交易(包括本合同項下任何信用證的每次借款或簽發)後，貸方的總資產(在實施因賠償、抵銷、保險或任何類似安排而合理預期收到的金額後)以公允估值計算，在綜合基礎上超過貸方的總債務，貸方作爲一個整體沒有發生也不打算髮生，也不相信它們已經發生，超出其償債能力的債務(在考慮到他們合理預期可以收到的現金的時間和數額以及他們合理預期的金額之後
96須就其負債支付或就其負債支付，並使因彌償、抵銷、保險或任何類似安排而可合理預期收到的款項生效)，因爲該等債務成爲絕對債務併到期，而貸方整體而言並無(亦無理由相信其後會有)不合理的小額資本來進行其業務。第7.22節反腐敗法律和制裁。借款人已實施並有效維持旨在確保借款人、其子公司及其各自的董事、官員、僱員和代理人遵守反腐敗法律和適用制裁的政策和程序，借款人、其子公司及其各自的官員和董事，據借款人所知，其僱員和代理人在所有實質性方面都遵守反腐敗法律和適用的制裁。(A)借款人、任何附屬公司或其各自的任何董事、高級職員或僱員，或(B)據借款人所知，借款人、借款人的任何代理人或其任何附屬公司將以任何身份與本協議設立的信貸安排相關或從中受益，均不是受制裁的人。任何借款或信用證、使用收益或本協議設想的其他交易都不會違反反腐敗法或適用的制裁措施。第7.23節受影響的金融機構。沒有信用方是受影響的金融機構。第7.24節安全工具。擔保文書有效地爲擔保當事人的利益在抵押財產及其抵押品和收益(如適用)上設定合法、有效和可強制執行的擔保權益。在符合第8.18節的但書的情況下，債務以合法、有效和可強制執行的以行政代理爲受益人的第一優先權留置權爲擔保，涵蓋和扣押(A)抵押財產和(B)根據擔保協議授予的抵押品，包括質押股權和存款帳戶、證券帳戶和商品帳戶，在每種情況下，只要通過記錄抵押貸款、提交UCC財務報表，或在存款帳戶、證券帳戶和商品帳戶的情況下，通過獲得「控制權」或，對於證書所代表的股權，通過佔有(在每一種情況下，在適用的司法管轄區內適用的範圍內)；但除質押股權外，允許留置權可以存在。7.25計劃資產；禁止的交易。任何貸款方或其任何附屬公司均不是被視爲持有「計劃資產」(按計劃資產條例的含義)的實體，本協議項下擬進行的交易的執行、交付或履行，包括髮放任何貸款和簽發本協議項下的任何信用證，都不會導致根據ERISA第406條或本準則第4975條的規定進行非豁免的禁止交易。承諾期滿或終止前的肯定契諾，每筆貸款的本金和利息，以及本協議項下應支付的所有費用和貸款項下應支付的所有其他金額
97單據應已全額支付，所有信用證應已到期或終止，所有償還義務應已償還，借款人與貸款人約定並同意：第8.01節財務報表；其他信息。借款人將向行政代理和每個貸款人提供：(A)年度財務報表。借款人從截至2021年12月31日的財政年度開始的每個財政年度結束後九十(90)天內，借款人及其合併子公司的經審計的綜合資產負債表和相關經營報表、成員權益和現金流量，以比較形式列出上一財政年度的數字，均由具有公認國家地位的獨立公共會計師報告(無「持續經營」或類似的資格或例外(但「持續經營」或類似的資格或例外情況除外，該等資格或例外完全是由於未來365天內到期的貸款而產生的)，且對該項審計的範圍沒有任何限制或例外)，大意是該等綜合財務報表根據一貫適用的公認會計原則在綜合基礎上公平地列報借款人及其綜合附屬公司的財務狀況及經營結果；(B)季度財務報表。借款人從截至2021年9月30日的財政季度開始的每個財政年度的前三個財政季度結束後四十五(45)天內，借款人及其合併子公司的綜合資產負債表和相關的經營報表、成員權益和現金流量，截至該財政季度末和該財政年度當時已過去的部分，以比較形式列出上一財政年度的相應一個或多個期間(或就資產負債表而言，截至上一財政年度結束時)的數字。均經其一名財務主任核證，根據一貫適用的公認會計原則，在所有重要方面公平地列報借款人及其綜合附屬公司的財務狀況和經營結果，但須作正常的年終審計調整，並無腳註；(C)財務幹事證書--合規。在根據第8.01(A)節或第8.01(B)節交付任何財務報表的同時，財務主任的合規證書，基本上採用本合同附件C的形式，以證明當時是否存在違約，如果存在違約，則指明違約的細節和就此採取或建議採取的任何行動，列出合理詳細的計算，證明符合第9.01節的規定，並說明自根據第8.01(A)節最近提交的借款人經審計的年度財務報表編制以來，對借款人財務報表的應用是否發生了任何變化(或如該等經審計財務報表尚未交付，則須於編制財務報表後(如已發生任何該等變更)，列明該等變更對該證明書所附財務報表的影響。對於截至2024年6月30日和2024年9月30日的每個會計期間，該合規性證書應包括Civitas EBITDAX的合理詳細計算和與此相關的合理支持信息；
98(D)綜合附屬公司財務主任證書。如在任何時候，借款人的所有合併附屬公司並非合併的限制性附屬公司，則在根據第8.01(A)或第8.01(B)節提交任何財務報表的同時，須出具一份財務主任證書，列出顯示所有合併的非限制性子公司的合併電子表格，並以借款人的核數師可出示的形式註銷分錄；(E)財務主任證書-掉期協議。在根據第8.12(A)節每次提交儲備報告的同時，財務主管的證書，其形式和實質應由行政代理人根據其合理的酌情決定權滿意，列出截至最近結束的財政年度或財政期間(如適用)的最後一個營業日，(I)貸方的所有互換協議、其實質條款(包括類型、期限、生效日期、終止日期和名義金額或數量)、按市值計價的淨值(截至該財政年度或財政期間的最後一個營業日，(I)未列入附表7.19的任何新的信貸支持協議，任何信貸支持文件要求或提供的按金，以及每項此類協議的對手方，以及(Ii)未來五年期間石油和天然氣資產的預計總產量；(F)保險人證書--保險範圍。在適用保單續期後三十(30)天或之前，貸方的保險經紀人或保險人就第8.07節要求的保險出具的一份或多份保險承保證書，其形式和實質應行政代理以其合理的酌情決定權滿意，並在行政代理提出要求時，還包括適用保單的副本；(G)美國證券交易委員會和其他文件；提交給股東的報告。在行政代理有權訪問的公共網站或內聯網網站上不容易獲得的範圍內，則在其公開可用後立即提供任何信用方向美國證券交易委員會或任何國家證券交易所提交的或由借款人分發給其股東的所有定期報告和其他報告、委託書和其他材料的副本(視情況而定)。根據第8.01(A)節、第8.01(B)節和本第8.01(G)節規定必須交付的文件可以電子方式交付，並且應被視爲在借款人向EDGAR(或美國證券交易委員會可能建立和維護的替代或繼承EDGAR的其他免費、可公開訪問的互聯網數據庫)張貼該等文件之日已交付；(H)實質性儀器項下的通知。任何貸款方收到違約通知後，應立即向貸款方提供：(I)關於借款人和擔保人的信息；(I)借款人和擔保人的信息。及時書面通知(無論如何在五(5)個工作日內)任何信用方的公司名稱、任何信用方首席執行官辦公室的所在地、信用方的身份或法人、有限責任公司或合夥企業的結構或其註冊成立或組成的司法管轄區在信用方的管轄範圍內發生的任何變化
99組織或此人在該組織管轄範圍內的組織識別號，並在貸款方的聯邦納稅人識別號中；(J)生產報告和租賃經營報表。在提交第8.12(A)節規定的每一份儲量報告的同時，一份報告列出本財政年度迄今每個歷月的石油和天然氣資產的可歸因於生產的產量和銷售量(以及銷售價格和銷售所得收入)，並列出每個歷月的相關從價、遣散費、生產稅和租賃運營費用，以及每個歷月的鑽探和作業情況；(K)某些變化的通知。迅速，但無論如何，在簽署後五(5)個工作日內，任何貸款方的成立證書、有限責任公司協議、公司章程、章程、任何優先股指定或任何其他組織文件的任何重大修訂、修改或補充的副本，在每種情況下均未按照第8.01(G)節交付(或被視爲已交付)；(L)現金流量預測。與根據第8.12(A)節(A)截至2021年11月30日及(Ii)其後每年12月31日及6月30日提交的每一份儲備報告同時，借款人在該日期後每個財政季度的計劃及預測(包括預計綜合資產負債表、損益表及資金流量表)副本一份，其格式令行政代理人合理滿意；(M)指數債務評級的變動。在任何投資級期間，在穆迪、S或惠譽任何人宣佈改變指數債務的評級後，應立即發出關於該評級變化的書面通知；及(N)其他要求提供的信息。第8.02節重大事件通知。借款人將向行政代理和每個貸款人及時提供以下書面通知：(A)任何違約的發生；
100(B)任何仲裁員或政府當局對借款人或其任何附屬公司提起或展開任何針對借款人或其任何附屬公司或影響借款人或其任何附屬公司的任何訴訟、訴訟、法律程序、調查或仲裁的任何訴訟、訴訟、法律程序、調查或仲裁的任何書面威脅，或在任何訴訟、訴訟、法律程序、調查或仲裁(不論先前是否向貸款人披露)中的任何重大不利發展，而在上述任何一種情況下，該等訴訟、訴訟、法律程序、調查或仲裁相當可能會被不利裁定，以及如經裁定，合理地預期會導致重大不利影響；(C)任何ERISA事件的發生，導致或將會導致重大不利影響；(D)向任何貸款人交付的實益所有權證書(如有的話)中提供的信息發生任何變化，從而導致該證書中確定的實益擁有人名單發生變化，而該變化將合理地預期該變化將導致重大不利影響；及(E)導致或合理預期將導致重大不利影響的任何其他事態發展。根據第8.02節提交的每份通知應附有一名負責官員的聲明，說明需要發出通知的事件或發展的細節，以及就此採取或擬採取的任何行動。第8.03節存在；業務行爲。借款人將，並將促使對方信用方作出或促使對方作出一切必要的事情，以保存、更新和保持充分的效力：(A)作爲根據美國、任何州、哥倫比亞特區或其任何領土組織或存在的人的合法存在，以及(B)對其業務的開展具有重要意義的權利、許可證、許可、特權和特許經營權，並在必要時保持其在其石油和天然氣資產所在的其他司法管轄區開展業務的資格，或其資產的所有權需要此類資格，但如不符合上述資格，則不會合理地預期會產生重大不利影響；但上述規定不應禁止9.08節允許的任何合併、合併、清算或解散。第8.04節債務的償付。借款人將，並將導致對方信用方在債務違約或違約之前支付其債務，包括信用方的稅務責任，除非有關程序真誠地對其有效性或金額提出異議，且該等信用方已根據公認會計准則爲其預留了充足的準備金，在該爭議期間不付款不會合理地預期會導致重大不利影響或導致任何信用方的任何物質財產被扣押或徵收。第8.05節履行貸款文件項下的義務。借款人將根據本協議的條款支付貸款，借款人將，並將促使對方信用方在貸款文件(包括但不限於本協議)下，按照規定的時間和方式，作出和履行每一行爲，並履行其應履行和解除的所有義務。
101第8.06節物業的操作和維護。借款人將自費並將促使對方貸方：(A)經營其石油和天然氣財產及其他材料財產，或(如果借款人不是其經營者)使用商業上合理的努力，使該等石油和天然氣財產及其他材料財產按照業界普遍接受的做法以謹慎和有效的方式經營，並在所有實質性方面遵守所有適用的合同和協議，但在每一種情況下，不這樣做不會合理地預期會產生實質性不利影響的情況除外；(B)爲其業務的進行而備存和維持所有財產材料，使其處於良好的運作狀況及狀況(普通損耗除外)，並將其所有石油及天然氣財產保存、維持和保持在良好的維修、運作狀況及效率(普通損耗及耗盡除外)，但如在每一情況下不這樣做會合理地預期不會有重大的不利影響，則屬例外；(C)迅速支付和清償，或作出合理和慣常的努力，促使支付和清償根據影響或與其石油和天然氣財產有關的租約或其他協議而產生的所有延遲租金、特許權使用費、費用和債務，並採取一切其他必要措施，以保持其權利不受損害，並防止貸方根據這些權利被沒收或違約，除非不這樣做不會合理地預期會導致實質性的不利影響；(D)按照習慣行業標準，迅速履行或作出合理和慣常的努力，促使履行影響其在其石油和天然氣財產及其他材料財產的權益的轉讓、契據、租賃、分租、合同和協議所要求的義務，除非在每一種情況下，不這樣做將不會產生實質性的不利影響；及(E)如果借款人不是任何財產的經營者，貸方應採取商業上合理的努力，促使經營者遵守本第8.06節。第8.07節保險。借款人將並將促使對方信用方與財務穩健和信譽良好的保險公司維持保險，其金額和風險通常由在相同或相似地點經營相同或類似業務的公司維持。行政代理人和貸款人應被指定爲此類責任保險單的附加被保險人，在借款基準期內，行政代理人應代表貸款人被指定爲承保抵押品的財產損失保險的貸款人損失收款人，此類保險單應規定行政代理人應收到三十(30)天的取消或不續期通知。每次借款基準期在生效日期之後開始時，借款人將在借款基準期開始後90天內(或行政代理可自行決定的較長時間內)遵守本第8.07節的要求，並將促使對方貸款方遵守該借款基準期開始後90天內適用的要求。
102第8.08節書籍和記錄；檢查權。借款人將並將促使對方貸方按照公認會計准則保存記錄和帳簿。借款人將允許行政代理或多數貸款人指定的任何代表在合理的事先通知下訪問和檢查其物業、審查和摘錄其賬簿和記錄，並與其高級職員和獨立會計師討論其事務、財務和狀況，借款人將並將促使對方相互允許；但除非違約事件當時存在且仍在繼續，否則每一歷年不得超過一次此類檢查，費用由借款人承擔。第8.09節遵守法律。借款人將並將促使對方信貸方遵守適用於其或其財產的任何政府當局的所有法律、規則、法規和命令，除非未能單獨或整體遵守的情況下，合理地預計不會導致實質性的不利影響。借款人應保持有效並執行旨在確保其自身、其子公司及其各自的董事、官員、員工和代理人遵守反腐敗法律和適用制裁的政策和程序。第8.10節環境事宜。(A)借款人應自費：遵守、促使其每一家子公司及其每一家子公司的物業和業務遵守，或如果借款人不是其經營者，則採取商業上合理的努力，使其物業和業務遵守所有適用的環境法，違反這些法律將合理地預期會產生實質性的不利影響；不釋放或威脅釋放，並應促使其每個子公司不釋放或威脅釋放在其或其子公司的任何財產或任何其他財產上、在其或其子公司的財產或任何其他異地財產上、在其或其子公司的財產或任何其他財產上的任何有害物質，除非遵守適用的環境法，其釋放或威脅釋放將合理地預期會產生實質性的不利影響；及時獲取或提交，並應促使其每個子公司及時獲取或提交適用環境法要求的與其子公司的財產的運營或使用有關的所有環境許可證(如果有)，如果未能獲取或提交將合理地預期會產生重大不利影響；迅速開始並勤奮地起訴直至完成，並應促使其每一子公司迅速開始並勤奮地起訴任何評估、評估、調查、監測、遏制、清理、移除、修復、恢復、補救或其他補救義務(統稱爲「補救工作」)，如果根據適用的環境法，由於或與任何其或其子公司的物業上、其下、關於或從其任何子公司的物業上、之下、有關或威脅釋放任何有害物質的實際或疑似泄漏或威脅泄漏有關的任何補救工作，而不開始並勤奮地起訴直至完成，則合理地預期該等工作將產生重大不利影響；開展並促使其子公司開展各自的經營和業務，使任何財產或個人不會使任何財產或個人暴露在危險材料之下，從而合理預期借款人或其子公司欠下實質性損害或賠償；並建立和實施必要的程序，並應促使其子公司建立和實施必要的程序，以確定並確保借款人及其子公司根據本條款第8.10(A)條承擔的義務得到及時和充分的履行。
103.如果不能制定和實施，可以合理地預期會產生重大的不利影響。(B)如借款人或其任何附屬公司收到任何政府當局的書面通知，或任何人對借款人或其任何附屬公司或其財產採取的任何行動或調查，或任何人針對借款人或其任何附屬公司或其財產提出的任何威脅要求或訴訟，在每一情況下，借款人應在任何負責官員獲悉後十五(15)天內，向行政代理發出書面通知，條件是借款人合理地預期該等行動將導致(不論個別或合計)在任何借款基期內的責任超過(I)$50,000,000或(Ii)(A)兩者中較大者，借款基礎的5%(5%)或(B)在任何投資級期間，佔截至可編制財務報表的最近結束滾動期最後一天的綜合有形資產淨額的千分之一(1.6%)(每種情況下均不包括在內(可扣除金額除外))。第8.11節進一步保證。(A)借款人自費將迅速籤立並向行政代理交付行政代理合理要求的所有其他文件、協議和文書，並促使對方將其提交給行政代理，以遵守、糾正貸款文件中的任何缺陷或完成任何貸方的契諾和協議(視情況而定)，或在借款基期內，或在借款基期內，進一步提供證據並更全面地描述擬用作債務擔保的抵押品，或更正本協議或證券文書中的任何遺漏，或更充分地說明其中擔保的義務，或在任何借款基期內，完善、保護或保留根據本協議或任何證券文書或其優先權而設立的任何留置權，或進行任何記錄、提交任何通知或取得任何同意，所有與此相關的合理必要或適當的事項由行政代理全權酌情決定。(B)借款人特此授權行政代理在借款基準期內的任何時間，在法律允許的情況下，無需任何貸款方的簽字，即可提交與全部或部分抵押財產有關的一份或多份融資或延續聲明及其修正案。在法律允許的情況下，證券文書的複印件、照片或其他複製品或涵蓋抵押財產或其任何部分的任何融資報表應足以作爲融資報表。第8.12節儲備報告。(A)在(I)2022年3月1日或之前，借款人應向行政代理和循環信貸貸款人提交一份評估借款人及其子公司截至2021年11月30日的石油和天然氣屬性的儲備報告，以及(Ii)自每年10月1日、2022年4月1日和10月1日起，借款人應分別向行政代理和循環信貸貸款人提交一份評估借款人及其子公司截至緊接前一年12月31日或6月30日的石油和天然氣屬性的儲備報告。截至每年12月31日的儲量報告應由一名或多名認可石油工程師編制或審計，截至每年6月30日的儲量報告應由認可石油工程師或
104借款人的內部儲備工程人員，他們應證明該儲備報告在所有重要方面都是真實和準確的(預測和成本估計除外)，並且是按照緊接在12月31日之前的儲備報告中使用的程序編制的。(B)如進行中期重新厘定，借款人應向行政代理人及循環信貸貸款人提交一份由借款人的內部儲備金工程人員擬備的儲備金報告，該報告須證明該儲備金報告在所有重要方面均屬真實及準確(預測及成本估計除外)，並已按照緊接在12月31日之前的儲備金報告所採用的程序擬備。對於行政代理或借款人根據第2.06(B)條要求的任何臨時重新決定，借款人應儘快向該儲備報告提供行政代理所要求的「截止」日期，但無論如何不得遲於收到該請求或借款基準期開始後三十(30)天(視情況而定)。(C)在交付每份儲備報告時，借款人應向行政代理人和循環信貸貸款人提供一份由負責官員提供的證書：(I)證明(A)儲備報告中所載信息和與之相關的任何其他信息是真實和正確的，(B)每一貸款方對該儲備報告中評估的石油和天然氣財產擁有良好和可抗辯的所有權，並且該等財產沒有任何留置權，但允許留置權除外；(C)除證書的證物中所列明的外，與該儲備報告中評估的石油和天然氣財產不存在重大的天然氣失衡，(D)自上次借款基地厘定日期以來，除該證明書的證物所列者外，並無出售其已探明的石油及天然氣財產，該證書應列出出售並隨附的所有此類油氣資產，是該儲備報告評估的抵押資產的油氣資產明細表，(E)附件是在本合同日期較晚的日期之後簽訂的所有營銷協議的清單，或根據第8.12(C)節交付的最近交付的證書，如果該協議在本合同的日期生效，且(Ii)如果在借款基準期內，則合理地預期借款人有義務在附表7.18中列出該銷售協議，根據第8.14(A)節的規定，證明已探明的石油和天然氣資產的總價值所代表的抵押資產的價值所佔的百分比。第8.13節標題信息。(A)在借款基準期內的任何時候，在第8.12(A)節要求的每一份儲備報告提交給行政代理和循環信貸貸款人後的三十(30)天內，借款人應以行政代理合理接受的形式和實質提交所有權信息，涵蓋該儲備報告所評估的未包括在前一份儲備報告中的足夠石油和天然氣資產，以便行政代理應已收到先前提交給行政代理的所有權信息，至少(I)該儲量報告評估的石油和天然氣財產總值的90%(90%)和(Ii)石油和天然氣財產總值的90%(90%)的合理令人滿意的所有權信息
該儲量報告評價的已探明開發未動用儲量和已探明已開發生產儲量共105個。(B)如果借款人已根據第8.13(A)條提供了附加物業的所有權信息，則借款人應在收到行政代理關於該等附加物業存在所有權缺陷或例外情況的通知後六十(60)天內，(I)糾正因該等信息引起的不允許留置權的任何該等所有權缺陷或例外情況(包括關於優先權的缺陷或例外情況)，(Ii)代以沒有所有權缺陷或例外的可接受抵押物業，但具有合計等值價值的例外留置權(該定義(E)和(J)條所述的例外留置權除外)，或(Iii)以行政代理合理要求的形式和實質交付所有權信息，以便行政代理應已收到符合第8.13(A)節要求的令人滿意的所有權信息以及先前交付給行政代理的所有權信息。(C)如果借款人不能糾正行政代理或貸款人要求在60天期限內補救的任何所有權缺陷，或借款人不遵守第8.13(A)節規定的提供合理可接受的所有權信息的要求，這種違約不應是違約或違約事件，相反，行政代理和/或所要求的貸款人有權在借款基準期內的任何時間行使其不時全權酌情決定的下列補救措施：任何未能在任何時候行使該補救辦法的行爲，並不代表行政代理人或所需貸款人放棄日後行使補救辦法：該等不可接受的抵押財產不得計入第8.13(A)節所規定的要求，而行政代理人可向借款人和貸款人發出通知，通知當時未償還的借款基數應按所需貸款人所決定的數額減少，以使借款人遵守第8.13(A)節所要求提供可接受的所有權資料的要求。新的借款基數在收到通知後立即生效。第8.14節附加抵押品；附加擔保人。(A)在借款基準期內每次重新確定借款基數時，借款人應審閱儲量報告和當前抵押財產清單(如第8.12(C)節所述)，以確定抵押財產是否至少佔最近完成的儲量報告中評估的石油和天然氣財產在勘探和生產活動、收購、處置和生產後總價值的90%。如果在借款基準期內，抵押財產不代表行政代理確定的總價值的至少90%(90%)，則借款人應在第8.12(C)條所要求的證書交付後三十(30)天內，或應促使其他貸款方向行政代理授予擔保，作爲債務的擔保，擔保工具涵蓋不受擔保工具留置權約束的其他石油和天然氣財產，從而在生效後，抵押財產將至少佔該總價值的90%(90%)。所有此類留置權將根據信託契約、擔保協議和融資聲明或其他擔保文書的規定設立和完善，其形式和實質都是合理的
106令行政代理滿意，併爲記錄目的而充分執行(並在必要或適當時確認)對應的副本。如果借款人的任何子公司爲了遵守前述規定而對其石油和天然氣資產進行留置權，而該子公司不是擔保人，則其應成爲擔保人並遵守第8.14(B)節。(B)借款人應迅速安排不是不受限制的子公司的每一家國內子公司擔保擔保協議所規定的債務。就任何此類擔保而言，借款人應迅速、但無論如何不遲於子公司成立或收購(或其他類似事件)後三十(30)天(或行政代理經其合理酌情決定同意的較晚日期)，簽署並交付(I)該子公司簽署的擔保協議補充文件，(Ii)僅在借款基準期內，由該附屬公司於生效日期簽署的證券協議的補充文件(或其補充文件或其假設協議，或有關該等證券文件中所述抵押品的任何替代證券文件，在投資級期限終止後訂立，視何者適用而定)；(Iii)僅在借款基準期內，質押該附屬公司的所有股權(包括但不限於，交付證明該附屬公司股權的原始股票，連同由其註冊所有人空白簽署的每份證書的適當的未註明日期的股票權力)及(Iv)其他其他結算文件，行政代理機構合理要求的證明和法律意見。(C)在任何借款基準期內，借款人將在任何時候使每家國內附屬公司(包括但不限於所有掉期協議)聲稱根據證券文書質押作爲抵押品的其他有形及無形資產，須受證券文書下的留置權所規限。(D)每次借款基準期在生效日期後開始時，借款人將在借款基準期開始後七十五(75)天(或行政代理人可自行決定同意的較長時間，不得超過三十(30)天)內簽署並交付行政代理合理要求的證券工具，以遵守第8.14條中適用於借款基期的要求。第8.15節ERISA合規性。借款人應立即向行政代理提交併將促使其子公司和任何ERISA關聯公司在行政代理提出請求後立即向行政代理提供關於每個計劃或根據其設立的任何信託的每份年度報告和其他報告的副本，並在了解到發生了根據ERISA第406條或根據法規、行政豁免或其他與任何計劃或根據其設立的信託相關的法規、法規、行政豁免或其他方式不存在或可獲得例外的任何「禁止交易」時，迅速向行政代理提供由總裁或主要財務官、該等子公司或ERISA關聯公司簽署的書面通知。視情況而定，具體說明其性質、借款人、該子公司或ERISA附屬公司正在或打算對其採取的行動，以及(如果知道)美國國稅局或勞工部就此採取或提議的任何行動。
107第8.16節營銷活動。借款人將不會，也不會允許其任何子公司從事任何碳氫化合物的營銷活動或簽訂任何與此相關的合同，但在合同期間安排或合理估計從其已探明油氣資產生產的碳氫化合物銷售合同除外，或根據聯合經營協議任何貸款方有權在該合同期間從第三方已探明石油和天然氣資產生產的碳氫化合物銷售合同除外。石油和天然氣業務中常見和習慣的單位化協議或其他類似合同，以及購買和/或銷售第三方碳氫化合物的其他合同：(A)一般有抵消性規定(即相應的定價機制、交貨日期、交貨點和數量)，因此不採取「立場」；(B)已就此採取適當的信貸支持，以減輕交易對手的實質性信貸風險。第8.17節非限制性附屬公司。(A)除非根據第8.17(B)節被指定爲非受限制附屬公司，否則任何人如成爲借款人或其任何受限制附屬公司的境內附屬公司，均應分類爲受限制附屬公司。(B)借款人可借給予行政代理人的書面通知，指定任何原本會是借款人的受限制附屬公司的人，包括一名新成立或新取得而原本會是借款人的受限制附屬公司的人，作爲非受限制附屬公司，但條件是：(I)在該項指定之前及生效後，既不會出現違約情況，亦不會出現借款基礎不足的情況；(Ii)該人並不擁有或經營已爲其設立借款基礎的最近交付的儲備報告所載的任何石油及天然氣物業，除根據第9.10節允許出售或以其他方式轉讓的石油和天然氣財產(根據第9.10節應被視爲轉讓)外，(Iii)該人不是任何允許的額外債務、允許的定期貸款債務或其任何允許的再融資的擔保人或主要債務人，除非該人將在指定的同時被免除，(Iv)該人不是與借款人或任何附屬公司的任何協議、合同、安排或諒解的一方，除非該協議、合同、安排或諒解的條款經第9.11條允許，(V)此類指定被視爲對非限制性附屬公司的投資，並且根據第9.05(K)和(Vi)節允許進行此類投資。(Vi)行政代理應已收到負責官員的證書，證明此類指定符合第8.17(B)節的要求。就前述而言，指定某人爲非限制性附屬公司，應視爲指定該人士現時及未來的所有附屬公司爲非限制性附屬公司。除第8.17(B)節另有規定外，任何受限子公司不得被重新指定爲非受限子公司。爲免生疑問，借款人可根據第8.17(B)節的要求，指定任何直接擁有合格中游資產的附屬公司爲非受限制附屬公司。(C)借款人可指定任何非限制性附屬公司爲受限制附屬公司，條件是：(I)每份貸款文件中所載貸方的陳述和擔保在所有重要方面都是真實和正確的
148根據適用於任何貸款人的法律(包括美利堅合衆國和紐約州的法律或任何其他司法管轄區的法律，儘管本協議的其他規定可能強制適用於該貸款人)，本協議將對任何貸款人構成高利貸，則在該情況下，即使任何貸款文件或與票據相關或作爲票據擔保而訂立的任何協議中有任何相反規定，協議如下：根據適用於任何貸款人的適用法律構成利息的所有對價的總和，貸款人根據任何貸款文件或協議或與票據有關的其他方式收取或收取的債務，在任何情況下均不得超過該適用法律所允許的最高金額，任何超出的部分應自動取消，如已付清，則貸款人應記入債務本金金額的貸方(或在債務本金已全額或將會全額償還的範圍內，由貸款人向借款人退還)；如果由於本協議下的任何違約事件或其他原因導致票據持有人被選擇加速到期，或在任何要求或允許的預付款的情況下，根據適用於任何貸款人的法律構成利息的對價不得包括超過該適用法律允許的最高金額，並且本協議或其他規定的超額利息應由該貸款人自加速或預付款之日起自動取消，如果在此之前支付，該貸款人應記入債務本金(或，或，在債務本金已經或將會全額償付的範圍內，由該貸款人向借款人退還)。在適用於任何貸款人的法律允許的範圍內，支付或同意支付給任何貸款人的所有款項，在適用於該貸款人的法律允許的範圍內，應在規定的貸款期限內攤銷、按比例分配和分攤，直至全額付款，以使本合同項下任何貸款的利率或利息金額不超過該適用法律所允許的最高金額。如果在任何時間和不時向任何貸款人支付的利息金額應按根據第12.12條適用於該貸款人的最高合法利率計算，並且就任何隨後的利息計算期而言，否則應支付給該貸款人的利息金額將少於按適用於該貸款人的最高合法利率計算的應付利息金額，則就該隨後的利息計算期間應付給該貸款人的利息應繼續按適用於該貸款人的最高合法利率計算，直至應付給該貸款人的利息總額等於在沒有執行第12.12條的情況下計算利息總額的情況下應支付給該貸款人的利息總額。第12.13條免責條款。(A)本協議各方明確同意，其有義務閱讀本協議和其他貸款文件，並同意其負責通知和了解本協議和其他貸款文件的條款；它實際上已閱讀本協議，並充分了解和了解本協議的條款、條件和效果；在執行本協議和其他貸款文件之前的整個談判過程中，它由其選擇的獨立法律顧問代表；並已收到
149在訂立本協議和其他貸款文件時向其律師提供諮詢意見；並承認本協議和其他貸款文件中的某些條款導致一方承擔交易某些方面的固有責任，並免除另一方對此類責任的責任。雙方同意並承諾，不會以本協議和其他貸款文件中的任何免責條款的有效性或可執行性爲由，對該條款沒有通知或知情，或該條款不「顯眼」的情況提出異議。(B)借款人特此承認：(I)本協議項下提供的信貸安排及與此相關的任何安排或其他服務(包括與本協議的任何修訂、豁免或其他修改或任何其他貸款文件有關的服務)是借款人與其他貸款方、行政代理、貸款人和開證行之間的獨立商業交易，借款人和其他貸款方有能力評估、了解、理解和接受本協議和其他貸款文件(包括任何修訂、放棄或以其他方式修改本協議或其協議)；(Ii)就導致該項交易的程序而言，行政代理人、貸款人及開證行中的每一人均是並一直純粹以委託人身分行事，而不是借款人、任何其他信貸方或其各自的聯繫人士、權益持有人、債權人或僱員或任何其他人的財務顧問、代理人或受託人；(Iii)行政代理人、任何其他代理人、任何安排人、任何貸款人或任何開證銀行均沒有或將會就本協議擬進行的任何交易或導致交易的任何程序，包括就本協議的任何修訂、豁免或其他修改或任何其他貸款文件(不論該行政代理人、任何其他代理人、任何安排人、任何貸款人或任何開證銀行是否已就其他事項向借款人、其他信貸當事人或其各自的關聯公司提供意見)或任何其他代理人(不論該行政代理人、任何其他代理人、任何安排人、任何貸款人或任何開證銀行是否曾經或正在就其他事項向借款人、其他信貸當事人或其各自的關聯公司提供意見)承擔或將會承擔以借款人或任何其他信貸方爲受益人的顧問、代理或受信責任。任何安排人、任何貸款人或任何開證行對借款人、其他信貸方或其各自的關聯方中的任何一方就擬進行的交易負有任何義務
150在此，在每種情況下，除本文件和其他貸款文件中明確規定的義務外；(Iv)借款人、其他信貸方及其各自的關聯方不會基於所稱的違反受託責任而主張任何索賠；(5)行政代理人及其關聯方、每家貸款人及其關聯方以及每家開證行及其關聯方可從事涉及不同於借款人、其他信貸方及其各自關聯方的利息的廣泛交易，行政代理人、任何貸款人或任何開證行均無任何義務因任何諮詢、代理或受託關係而披露任何此類權益；和(Vi)行政代理、任何貸款人或任何開證行均未提供，且任何人都不會就本協議擬進行的任何交易提供任何法律、會計、監管或稅務建議(包括對本協議或任何其他貸款文件的任何修訂、豁免或其他修改)，且借款人已在其認爲適當的範圍內諮詢了自己的法律、會計、監管和稅務顧問。借款人特此放棄並在法律允許的最大限度內免除其可能就任何違反或被指控違反代理或受託責任的行爲向行政代理提出的任何索賠。第12.14節抵押品事項；掉期協議；現金管理。對於借款人或其任何附屬公司根據附表1.5所列現有擔保互換協議(關於擔保非貸款互換一方)、擔保互換協議或擔保現金管理協議產生的任何債務，擔保票據和本協定關於任何擔保債務的規定的利益也應按比例延伸至有擔保的非貸款人互換當事人、有擔保的互換當事人和現金管理銀行(但須遵守貸款文件的條款，包括但不限於其中有關向有權利人付款的申請和優先順序的規定)，並可供有擔保的非貸款人互換當事人、有擔保互換當事人和現金管理銀行使用；但對於有擔保的非出借方互換當事人而言，此種利益不適用於在生效日期或之後訂立的任何其他交易或確認，但與附表1.5所列現有有擔保互換協議有關並於生效日期生效的任何通知、交易或確認除外。任何有擔保的互換締約方或有擔保的非貸款人互換締約方不應因根據任何此類互換協議對其承擔的債務的存在而在任何貸款文件下擁有任何投票權。任何現金管理銀行不得因根據任何此類擔保現金管理協議對其承擔的債務的存在而在任何貸款文件下擁有任何投票權。第12.15節無第三方受益人。本協議、其他貸款文件以及貸款人和開證行之間關於發放貸款和簽發、修改、續簽或延長本協議項下信用證的協議，完全是爲了信用證各方的利益，其他任何人(包括但不限於借款人(信用證方除外)的任何子公司、任何其他債務人、承包商、分包商、供應商或物質人)不應享有任何權利、主張、
151本合同或任何其他貸款文件項下因任何原因針對行政代理、任何其他代理、任何開證行或任何貸款人的補救措施或特權。沒有第三方受益人。第12.16節《美國愛國者法案公告》。根據美國愛國者法案第326條，行政代理和貸款人特此通知借款人及其子公司，如果他們或其任何子公司在行政代理或任何貸方開立帳戶，包括任何貸款、存款帳戶、金庫管理帳戶或其他信貸擴展，行政代理或適用的貸款人將要求提供適用人員的姓名、稅務識別號、業務地址和其他必要信息，以識別此人(並可要求此人的組織文件或其他身份文件)，以使行政代理和適用的貸款人遵守美國愛國者法案。第12.17節保持良好。在貸款單據下的擔保或授予擔保權益的每一種情況下，任何指定的信用方對任何互換義務生效時，作爲合格ECP擔保人的每一方信用方在此絕對、無條件和不可撤銷地承諾就該互換義務向每一指定信用方提供資金或其他支持，該指定信用方可能需要不時地履行其擔保項下的所有義務以及與該互換義務有關的其他貸款文件(但在每種情況下，僅限於在不使此類合格ECP擔保人根據本條款第12.17條承擔的義務和承諾根據與欺詐性轉讓或欺詐性轉讓相關的適用法律可被宣告無效的情況下產生的此類責任的最高金額，且不得超過任何更大的金額)。每名符合條件的ECP擔保人在本節項下的義務和承諾應保持完全效力，直至這些義務已無可挽回地支付並全部履行爲止。就商品交易法的所有目的而言，每一位合格的ECP擔保人打算構成(且應被視爲構成)對每一特定貸款方的義務的擔保以及爲其利益而訂立的「維持良好、支持或其他協議」。第12.18節承認並同意受影響金融機構的自救。儘管任何貸款文件或任何此類當事人之間的任何其他協議、安排或諒解中有任何相反的規定，本協議各方承認，任何受影響金融機構在任何貸款文件下產生的任何負債，只要該債務是無擔保的，可受適用決議機構的減記和轉換權力的約束，並同意、同意並承認並同意受以下約束：(A)適用決議機構對本協議項下任何一方(受影響金融機構)可能應向其支付的任何此類債務適用任何減記和轉換權力；及(B)任何自救行動對任何該等法律責任的影響，包括(如適用)：(I)全部或部分減少或取消任何該等法律責任；
152(Ii)將全部或部分該等負債轉換爲有關受影響金融機構、其上級實體、企業或橋樑機構的股份或其他所有權工具，並將接受該等股份或其他所有權工具，以取代本協議或任何其他貸款文件項下任何該等負債的任何權利；或(Iii)就適用決議授權機關的減記及轉換權力的行使而更改該等負債的條款。第12.19節洪水保險。儘管本協議有任何相反的規定，任何擔保文書或其他貸款文件，(A)在任何情況下，(I)任何除外資產(定義見擔保協議)或(Ii)任何建築物或製造(流動)住宅(定義見適用的洪水保險條例)包括在「抵押品」的定義中，及(B)任何建築物或製造(流動)住宅(定義見適用的洪水保險規例)不受任何擔保文書下的留置權的約束。本文中所使用的「洪水保險條例」是指(I)1968年的《國家洪水保險法》、(Ii)1973年的《洪水災害保護法》、(Iii)1994年的《國家洪水保險改革法》(修訂42 USC 4001等)、(Iv)2004年的《洪水保險改革法》和(V)2012年的《比格特-沃特河洪水保險改革法》，在每一種情況下，均以現在或以後生效的法令或其任何後續法令爲依據，幷包括根據其頒佈的任何條例。第12.20節債權人間協議..(A)貸款人、開證行和其他有擔保的各方均承認，借款人和其他貸方對任何允許的額外債務、允許的定期貸款債務或其任何允許的再融資所承擔的義務，在本協議規定的範圍內，可以通過對借款人和構成債務抵押品的其他貸方的資產的留置權來擔保。在根據本協議批准債權人間協議所需的必要各方批准債權人間協議後，貸款人、開證行和其他有擔保的各方在此不可撤銷地授權並指示行政代理在每一種情況下代表該有擔保的一方，而無需該有擔保的一方採取任何進一步的同意、授權或其他行動，(I)應借款人的請求，不時就任何此類債務的設立、產生、修訂、再融資或替換，簽署和交付該債權人間協議，以及(Ii)與之相關的任何文件。(B)每一貸款人、開證行和其他有擔保當事人在此不可撤銷地(I)同意根據債權人間協議規定的留置權的處理，(Ii)同意一旦籤立和交付，該有擔保一方將受任何債權人間協議的規定的約束，猶如它是該協議的簽字人，並且不會採取任何違反任何債權人間協議的規定的行動，(Iii)同意因行政代理人根據第12.20節或根據任何債權人間協議的條款採取的任何行動而對行政代理人提起訴訟的任何權利，並(Iv)授權和指示行政代理人執行每項債權人間協議的規定和意圖。
153(C)貸款人、開證行和其他擔保當事人在此不可撤銷地進一步授權和指示行政代理在每一種情況下代表該擔保當事人，在沒有該擔保當事人進一步同意、授權或其他行動的情況下，對借款人可能不時要求(I)實施任何允許的額外債務或允許的部分定期貸款債務的任何設立、產生、修訂、延期、續期、再融資或替換的任何債權人間協議的任何修訂、補充或其他修改，(Ii)向任何一方確認該債權人間協議是有效的，並代表擔保各方對行政代理具有約束力，或(Iii)達成任何其他修訂、補充或修改，只要所產生的協議在當時作爲新協議簽署時將構成債權人間協議。(D)每一貸款人、開證行和其他擔保當事人在此不可撤銷地進一步授權和指示行政代理在每一種情況下代表該擔保當事人，在沒有該擔保當事人進一步同意、授權或其他行動的情況下，對任何擔保文書進行任何修訂、補充或其他修改，以增加或刪除根據任何債權人間協議可能需要的任何圖例。(E)就行政代理根據第12.20節或根據任何債權人間協議的條款在全部範圍內採取的所有行動而言，行政代理應享有xi條款的利益。第12.21節關於任何受支持的QFC的確認。在貸款文件通過擔保或其他方式爲任何互換協議或屬於QFC的任何其他協議或工具提供支持(此類支持，「QFC信用支持」，以及每個此類QFC，「受支持的QFC」)的範圍內，雙方承認並同意聯邦存款保險公司根據《聯邦存款保險法》和《多德-弗蘭克華爾街改革和消費者保護法》第二章(連同其下頒佈的法規)擁有的清算權。對於此類受支持的QFC和QFC信用支持(儘管貸款文件和任何受支持的QFC實際上可能被聲明爲受紐約州和/或美國或美國任何其他州的法律管轄，以下條款仍適用)。如果作爲受支持QFC的一方的承保實體(每個，「受保方」)受到美國特別決議制度下的訴訟程序的約束，該受支持QFC和該QFC信用支持(以及在該受支持QFC和該QFC信用支持中或之下的任何權益和義務，以及確保該受支持QFC或該QFC信用支持的任何財產權利)從該受覆蓋方轉讓的效力程度將與在美國特別決議制度下的有效程度相同，前提是受支持的QFC和該QFC信用支持(以及任何此類利益，財產上的義務和權利)受美國或美國一個州的法律管轄。如果承保方或承保方的BHC法案附屬公司根據美國特別決議制度、貸款文件下可能適用於該受支持的QFC或任何可能被行使的QFC信用支持的違約權利受到訴訟程序的約束
154如果受支持的QFC和貸款文件受美國或美國某個州的法律管轄，則允許行使此類承保方的程度不得超過根據美國特別決議制度可以行使的違約權利。在不限制前述規定的情況下，雙方理解並同意，各方關於違約貸款人的權利和補救措施在任何情況下都不影響任何承保方關於所支持的QFC或任何QFC信用支持的權利。第12.22節現有信貸協議。自生效之日起，本協議將全部取代和取代現有的信貸協議；但條件是：(A)在該日期，現有信貸協議項下未償還的所有貸款、信用證和其他債務、義務和債務應繼續構成本協議項下的貸款、信用證和其他債務、義務和負債；(B)本協議或本協議項下任何貸款文件的簽署和交付不應構成當事人之間關係的更新、再融資或任何其他根本變化；(C)貸款、信用證和本協議項下其他未償債務、義務和債務，在緊接生效日期之前的現有信貸協議項下未償還的範圍內，(D)保證貸方在現有信貸協議下的「義務」(定義見現有信貸協議)及貸方在現有信貸協議下的權利、責任、責任及義務的留置權，以及作爲其一方的「貸款文件」(定義見現有信貸協議)不得終絕，而應予以結轉，並須擔保經修訂、續期、延長及重述的該等義務及責任。[簽名從下一頁開始]
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]