Common use of Availability Date Clause in Contracts

Availability Date. The obligations of the Lenders to make Loans on the Available Date shall become effective on the date on which each of the following conditions is satisfied (or waived in accordance with Section 11.02): (a) The Effective Date shall have occurred. (b) The Administrative Agent and the Lead Lender shall have received a Borrowing Request acceptable to the Administrative Agent and the Lead Lender and in accordance with Section 2.02 setting forth the amount of the Loans requested by the Borrower on the Availability Date and the accounts to which such Loans are to be funded. (c) The Administrative Agent and the Lead Lender shall be satisfied that all actions and proceedings required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Anti-Trust Improvements Act of 1976, as amended) have been taken and the transactions required thereunder have been duly and validly taken and consummated. (d) The representations and warranties of each Credit Party set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the Availability Date (other than those representations and warranties that are subject to a materiality qualifier, in which case such representations and warranties shall be true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (other than those representations and warranties that are subject to a materiality qualifier, in which case such representations and warranties are true and correct in all respects as of such earlier date). (e) At the time of and immediately after giving effect to the funding of the Loans, no Default shall have occurred and be continuing. (f) The Administrative Agent and the Lead Lender shall have received a solvency certificate dated the Availability Date and signed by a Financial Officer of the Borrower. (g) The Administrative Agent and the Lead Lender shall have received duly executed Mortgages in form and substance reasonably satisfactory to the Administrative Agent and the Lead Lender necessary or appropriate to grant, evidence and perfect Liens on Oil and Gas Interests of the Borrower and its Restricted Subsidiaries in favor of the Administrative Agent as required by Section 6.10. (h) The Administrative Agent and the Lead Lender shall have received evidence that arrangements have been made for (i) a director, officer or other representative of Ares and (ii) a person with significant experience as an executive officer in the oil and gas industry, in each case reasonably acceptable to the Lead Lender, to be appointed as members of the board of directors of the Borrower. (i) The Administrative Agent and the Lead Lender shall have received a duly executed copy of the Warrant Agreement and all other conditions precedent existing under the Warrant Purchase Agreement have been satisfied in accordance with the terms of the Warrant Purchase Agreement. (j) The Administrative Agent and the Lead Lender shall receive a duly executed certificate of a Responsible Officer, dated as of the Availability Date, confirming that (a) the Credit Parties have satisfied the conditions precedent in this Section 5.02, (b) the conditions precedent to the RBL Amendment have been satisfied in accordance with the terms of the RBL Amendment and (c) the conditions precedent to the Warrant Purchase Agreement have been satisfied in accordance with the terms of the Warrant Purchase Agreement. (k) The Administrative Agent and the Lenders shall have received all fees and other amounts due and payable on or prior to the Availability Date under this Agreement, and reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder, including all reasonable fees, expenses and disbursements of counsel for the Administrative Agent and Lead Lender to the extent invoiced on or prior to the Availability Date, together with such additional amounts as shall constitute such counsel’s reasonable estimate of expenses and disbursements to be incurred by such counsel in connection with the recording and filing of Mortgages (and/or Mortgage amendments) and financing statements; provided, that, such estimate shall not thereafter preclude further settling of accounts between the Borrower and the Administrative Agent. (l) Each Lender that has requested the delivery of a promissory note pursuant to and in accordance with Section 2.04(e) shall have received promissory notes duly executed by the Borrower. (m) The Administrative Agent and the Lead Lender shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Availability Date) of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Credit Parties, covering such matters relating to the Credit Parties, this Agreement or the Transactions as the Lead Lender shall reasonably request to the extent not already covered pursuant to Section 5.01(c) above. The Credit Parties hereby request such counsel to deliver such opinion. The Lead Lenders shall notify the Administrative Agent of the Availability Date and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 11.02) at or prior to 5:00 p.m., New York City time, on March 31, 2016 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).

Availability Date. The obligations Commitments of the Lenders to make Loans on the Available Date hereunder shall become effective on not be available for Borrowing hereunder until the date on which each of the following conditions is satisfied (or waived in accordance with Section 11.029.02): (a) The Effective Date Administrative Agent (or its counsel) shall have occurredreceived from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement. (b) The Administrative Agent and the Lead Lender shall have received a Borrowing Request acceptable favorable written opinions (addressed to the Administrative Agent and the Lead Lender Lenders and in accordance with Section 2.02 setting forth the amount of the Loans requested by the Borrower on dated the Availability Date and the accounts to which such Loans are to be funded. (cDate) The Administrative Agent and the Lead Lender shall be satisfied that all actions and proceedings required under the ▇▇▇▇-▇▇▇▇▇-of Fried, Frank, Harris, S▇▇▇▇▇▇ Anti-Trust Improvements Act of 1976& J▇▇▇▇▇▇▇ LLP and J▇▇ ▇▇▇▇▇▇▇▇▇, or such other counsel as amended) have been taken and the transactions required thereunder have been duly and validly taken and consummated. (d) The representations and warranties of each Credit Party set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of reasonably satisfactory to the Availability Date (other than those representations and warranties that are subject to a materiality qualifierAdministrative Agent, in which each case such representations and warranties shall be true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (other than those representations and warranties that are subject to a materiality qualifier, in which case such representations and warranties are true and correct in all respects as of such earlier date). (e) At the time of and immediately after giving effect to the funding of the Loans, no Default shall have occurred and be continuing. (f) The Administrative Agent and the Lead Lender shall have received a solvency certificate dated the Availability Date and signed by a Financial Officer of the Borrower. (g) The Administrative Agent and the Lead Lender shall have received duly executed Mortgages in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Lead Lender necessary Borrower, each Guarantor, the Loan Documents (other than the Fee Letter) or appropriate to grant, evidence and perfect Liens on Oil and Gas Interests of the Borrower and its Restricted Subsidiaries in favor of Transactions as the Administrative Agent as required by Section 6.10shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion. (hc) The Administrative Agent and the Lead Lender shall have received evidence that arrangements a certificate of the Secretary or an Assistant Secretary of the Parent, the Company and each other Guarantor (if any) attaching copies of its certificate of incorporation and by-laws, a good standing certificate for it and resolutions of its Board of Directors authorizing execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party. (d) The Administrative Agent shall have been made for received an incumbency certificate of an officer of the Parent, the Company and each other Guarantor (iif any) in respect of each of the officers who are authorized to sign this Agreement and the other Loan Documents to which each is a directorparty on its behalf 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 representative of Ares communications in connection with this Agreement, the other Loan Documents and (ii) a person with significant experience as an executive officer in the oil transactions contemplated hereby and gas industry, in each case reasonably acceptable to the Lead Lender, to be appointed as members of the board of directors of the Borrowerthereby. (i) The representations and warranties of the Credit Parties set forth in this Agreement shall be true and correct on and as of the Availability Date (giving effect to the Transactions and any Borrowing occurring on the Availability Date); and (ii) no Default shall have occurred and be continuing as of the Availability Date (giving effect to the Transactions and any Borrowing occurring on the Availability Date), and the Administrative Agent and the Lead Lender shall have received a duly executed copy certificate, dated the Availability Date and signed by the Financial Officer of the Warrant Agreement Borrower confirming the matters referred to in clause (i) and all other conditions precedent existing under clause (ii). (f) The Merger shall be consummated (i) on or before December 8, 2009 or, subject to the Warrant Purchase Agreement have been satisfied provisions of the Merger Agreement, such later date (not later than March 8, 2010) to which the “End Date” is extended in accordance with the terms of the Warrant Purchase Agreement. Merger Agreement as in effect on the Signing Date (jthe “Outside Closing Date”) The Administrative Agent and the Lead Lender shall receive a duly executed certificate of a Responsible Officer, dated as of the Availability Date, confirming that (aii) the Credit Parties have satisfied the conditions precedent in this Section 5.02, (b) the conditions precedent to the RBL Amendment have been satisfied in accordance with the terms of the RBL Amendment Merger Agreement as in effect on the Signing Date (and (c) the conditions precedent no provision or condition thereof shall have been waived, amended, supplemented or otherwise modified in any respect materially adverse to the Warrant Purchase Agreement have been satisfied in accordance with Company, the terms of Lenders or the Warrant Purchase AgreementAdministrative Agent without the Required Lenders’ prior written consent, not to be unreasonably withheld). (kg) The Lenders and the Administrative Agent and the Lenders shall have received all fees and other amounts invoiced expenses due and payable by the Credit Parties on or prior to the Availability Date, including, (x) fees payable on or prior to the Availability Date under this Agreement, pursuant to the Fee Letter and (y) reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder, including all reasonable fees, expenses Credit Parties hereunder and disbursements of counsel for under the Fee Letter. (h) The Administrative Agent and Lead Lender shall have received a certificate from the Chief Financial Officer of the Company certifying that the ratio of Total Debt to Capitalization of the Credit Group (giving pro forma effect to the extent invoiced on or Transactions) as of the last day of the fiscal quarter most recently ended at least 45 days prior to the Availability DateDate shall not exceed 60%. (i) The Parent (and any other guarantor of any of the other Credit Facilities or the Senior Notes) shall have executed and delivered a Guarantor Joinder Agreement, together with such additional amounts certificates and opinions of counsel with respect thereto as the Administrative Agent may reasonably request, all of which shall constitute such counsel’s reasonable estimate of expenses and disbursements be in customary form reasonably satisfactory to be incurred by such counsel in connection with the recording and filing of Mortgages (and/or Mortgage amendments) and financing statementsAdministrative Agent; provided, that, such estimate provided that Parent shall not thereafter preclude further settling of accounts between be required to have so delivered a Guarantor Joinder Agreement if it shall have been designated the Borrower, and the Company shall have become a Guarantor, in each case in accordance with Section 2.18. The Administrative Agent shall notify the Borrower and the Administrative Agent. (l) Each Lender that has requested the delivery Lenders of a promissory note pursuant to and in accordance with Section 2.04(e) shall have received promissory notes duly executed by the Borrower. (m) The Administrative Agent and the Lead Lender shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Availability Date) of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Credit Parties, covering such matters relating to the Credit Parties, this Agreement or the Transactions as the Lead Lender shall reasonably request to the extent not already covered pursuant to Section 5.01(c) above. The Credit Parties hereby request such counsel to deliver such opinion. The Lead Lenders shall notify the Administrative Agent of the Availability Date and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 11.029.02) at or prior to 5:00 3:00 p.m., New York City time, on March 31, 2016 the Outside Closing Date (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).