Borrowing Base. (a) The Administrative Agent may, in its sole and absolute discretion, and shall, at the request of the Majority Lenders, on any date, calculate the Borrowing Base and shall provide written notice thereof to the Borrower. To the extent any such calculation results in a Borrowing Base Deficiency, the Administrative Agent shall deliver a notice to the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made by the Borrower as a result of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b). (b) Notwithstanding the foregoing or anything to the contrary contained herein, the Borrower shall have the right to dispute the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest error. (c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.
Appears in 5 contracts
Sources: Credit Agreement (Home Point Capital Inc.), Credit Agreement (Home Point Capital Inc.), Credit Agreement (Home Point Capital Inc.)
Borrowing Base. (a) The Borrowing Base shall be determined in accordance with Section 2.08(b) by the Administrative Agent may, in its sole and absolute discretion, and shall, at with the request concurrence of the Majority LendersLenders and is subject to redetermination in accordance with Section 2.08(d). Upon any redetermination of the Borrowing Base, on such redetermination shall remain in effect until the next Redetermination Date. So long as any dateof the Commitments are in effect or any LC Exposure or Loans are outstanding hereunder, calculate this facility shall be governed by the then effective Borrowing Base. During the period from and after the Closing Date until the first redetermination or reduction pursuant to Section 2.08, the amount of the Borrowing Base shall be $155,000,000 (the “Initial Borrowing Base”) which amount is comprised of the Oil and Gas Properties Collateral Value.
(b) Upon receipt of the reports required by Section 8.07 and such other reports, data and supplemental information as may from time to time be reasonably requested by the Administrative Agent (the “Engineering Reports”), the Borrowing Base shall be redetermined for each Borrowing Base Period and each such redetermination shall be effective as of the date set forth in such notice of redetermination delivered by the Administrative Agent to Borrower (the “Scheduled Redetermination Date”). The Oil and Gas Properties Collateral Value shall be determined based upon the loan collateral value assigned to the Mortgaged Properties. The Borrowing Base shall be equal to the sum of the Oil and Gas Properties Collateral Value and such other credit factors (including without limitation the assets, liabilities, cash flow, business, properties, prospects, management and ownership of the Borrower and its Subsidiaries) which the Lenders deem significant. The Lenders’ determination of the Borrowing Base shall be in their sole discretion and shall provide written notice thereof not be subject to review or challenge. Upon each redetermination of the Borrower. To the extent any such calculation results in a Borrowing Base DeficiencyBase, the Administrative Agent shall deliver a notice recommend to the Borrower and each Lender (Lenders a “new Borrowing Base Deficiency Notice”), setting forth and the calculation thereof (which Lenders in accordance with their customary policies and procedures for extending credit to oil and gas reserve-based customers shall be conclusive absent manifest error), and establish the redetermined Borrowing Base by unanimous agreement in the event of any increase in the Borrowing Base Required Payment and by agreement of at least the Majority Lenders in the event of any redetermination to be made maintain or reduce the Borrowing Base. If a redetermined Borrowing Base is not approved by the Borrower as a result Administrative Agent and the applicable Lenders within twenty (20) days of such calculation (which amount shall be paid in accordance with Section 2.9). At the submission to the Lenders by the Administrative Agent’s discretionAgent of its recommended Borrowing Base, the Administrative Agent may obtain valuation reports with respect shall notify each Lender that the recommended Borrowing Base has not been approved and request that each Lender submit to the Administrative Agent Asset Value from within ten (10) days thereafter its proposed Borrowing Base. Promptly following the 10th day after such request, the Administrative Agent shall determine the Borrowing Base for such Redetermination by calculating the highest Borrowing Base then acceptable to the Administrative Agent and a Valuation Agentnumber of Lenders sufficient to constitute Majority Lenders (or all Lenders in the case of an increase). If the Borrower does not furnish the Engineering Reports by the date required, the Lenders may nonetheless determine a new Borrowing Base. It is expressly understood that the Lenders shall have no obligation to determine the Borrowing Base at any time and from time particular amount, either in relation to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees Maximum Revolving Credit Amount or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b)otherwise.
(bc) Notwithstanding the foregoing or anything to the contrary contained herein, the The Borrower shall have the right to dispute reduce the amount of the Borrowing Base upon not less than thirty (30) days’ prior written notice to the Administrative Agent (who shall promptly notify the Lenders) of the reduction, which shall specify the effective date thereof and the amount of such reduction (which shall not be less than $1,000,000 or any whole multiple of $1,000,000 in excess thereof, no more than an amount which would cause a Borrowing Base Deficiency) and shall be irrevocable and effective only upon receipt by the Administrative Agent. The Borrowing Base once reduced at Borrower’s calculation election may not be reinstated by Borrower, nor shall Lenders be obligated to determine the Borrowing Base at any subsequent Scheduled Redetermination Date or other Special Borrowing Base Determination at any particular amount, either in relation to the Borrowing Base prior or subsequent to any such optional reduction by Borrower.
(d) In addition to “Scheduled Redeterminations” pursuant to Section 2.08(b), the Borrower and the Majority Lenders may each request one (1) additional redetermination of the Borrowing Base during each Borrowing Base Period. In the event the Borrower or Majority Lenders request a “Special Borrowing Base Determination” pursuant to this Section 2.08(d), the Borrower shall deliver written notice of such request to the Administrative Agent Asset Value by notifying which shall include: (i) Engineering Report(s) prepared as of a date not more than thirty (30) calendar days prior to the date of such request, and (ii) such other information as Administrative Agent and the Lenders within three shall request prepared as of a date not more than thirty (330) Business Days after calendar days prior to the date of such request. Likewise, in the event the Lenders exercise their option for a Special Borrowing Base Determination, the Administrative Agent shall give the Borrower receives a notice of the redetermined Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If which shall state the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average effective date of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest errorredetermination.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Atlas Energy Resources, LLC), Revolving Credit Agreement (Atlas Energy Resources, LLC), Revolving Credit Agreement (Atlas Resources Public #16-2007 (B) L.P.)
Borrowing Base. (a) The Administrative Agent may, in its sole and absolute discretion, and shall, at the request of the Majority Lenders, on any date, calculate the Borrowing Base and shall provide written notice thereof to the Borrower. To the extent any such calculation results in a Borrowing Base Deficiency, the Administrative Agent shall deliver a notice to the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made by the Borrower as a result of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b).
(b) Notwithstanding the foregoing or anything to the contrary contained herein, except during an Acknowledgment Agreement Trigger Period, the Borrower shall have the right to dispute the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties heretoParties, absent manifest error.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.
Appears in 1 contract
Borrowing Base. As used in this Agreement, the term "Borrowing Base" means at any time, an amount equal to the aggregate of (a) eighty-five percent (85%) of the amount of Eligible Receivables, plus (b) the lesser of (x) sixty-five percent (65%) of the amount of Eligible Inventory or (y) Twenty-five Million Dollars ($25,000,000). The Administrative Borrowing Base shall be computed based on the Borrowing Base Report most recently delivered to and accepted by the Agent in its reasonable discretion. In the event the Borrower fails to furnish a Borrowing Base Report required by Section 2.1.4 below, the Agent may, in its reasonable discretion exercised from time to time and without limiting other rights and remedies under this Agreement, direct the Lenders to suspend the making of or limit advances under the Revolving Loan. The Borrowing Base shall be reduced by all amounts credited to the Collateral Account (if and to the extent a Collateral Account is required by the terms of this Agreement) since the date of the most recent Borrowing Base Report and by the amount of any Account or any Inventory which was included in the Borrowing Base, but which the Agent determines fails to meet the respective criteria applicable from time to time for Eligible Receivables or Eligible Inventory. If at any time the total of the aggregate principal amount of the Revolving Loan and Outstanding Letter of Credit Obligations exceeds the Borrowing Base, a borrowing base deficiency ("Borrowing Base Deficiency") shall exist. Each time a Borrowing Base Deficiency exists, the Borrower, at the sole and absolute discretion, and shall, at the request discretion of the Majority LendersAgent exercised from time to time, on any date, calculate shall pay the Borrowing Base and shall provide written notice thereof Deficiency ON DEMAND to the BorrowerAgent for the benefit of the Lenders from time to time. To Without implying any limitation on the extent any such calculation results in a Borrowing Base Deficiency, the Administrative Agent shall deliver a notice to the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made by the Borrower as a result of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports 's discretion with respect to the Administrative Borrowing Base, the criteria for Eligible Receivables and for Eligible Inventory contained in the respective definitions of Eligible Receivables and of Eligible Inventory are in part based upon the business operations of the Borrower and the Subsidiary Guarantors existing on or about the date of this Agreement and upon information and records furnished to the Agent Asset Value by the Borrower and the Subsidiary Guarantors. If at any time or from a Valuation Agenttime to time hereafter, the business operations of the Borrower and/or any of the Subsidiary Guarantors change in any material respect or such information and records furnished to the Agent are materially incorrect or misleading, the Agent in its reasonable discretion, may at any time and from time to time on a non-binding basisduring the duration of this Agreement change such criteria, add new criteria, make existing criteria less onerous, or remove existing criteria; provided provided, however, that any such change in, or addition or removal of criteria shall be effective only after notice thereof from the Agent to the Borrower. Except in emergency circumstances, the Agent agrees to use its commercially reasonable efforts to consult with the Borrower prior to the effective date of any addition to, or change in, eligibility criteria, but that the Agent shall have no obligation or duty to reach an agreement with the Borrower as a condition of, or prior to, imposing any changes in, or additions to, eligibility criteria. The Agent shall not be responsible for payment of any costs, expenses, fees communicate such changed or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b).
(b) Notwithstanding the foregoing or anything additional criteria to the contrary contained herein, the Borrower shall have the right from time to dispute the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated time either orally or in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest errorwriting.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.
Appears in 1 contract
Sources: Financing and Security Agreement (BPC Holding Corp)
Borrowing Base. (a) The Administrative Agent mayLoan Agreement is hereby amended to eliminate from the definition of Eligible Accounts Receivable any account receivable due from any person located outside the United States, including, without limitation, any account receivable due from any person located in any territory of the United States, including such accounts owing to Code-Alarm, any Guarantor or any Foreign Subsidiary whether or not such accounts are insured (collectively, "Foreign Accounts"); provided, however, that NBD, in its sole and absolute discretion, and shallmay, at the upon request of the Majority LendersCode-Alarm, on any dateallow Code-Alarm to include as Eligible Accounts Receivables, calculate the Borrowing Base one or more Foreign Accounts which are supported by Letters of Credit issued to NBD by commercial banks in form and shall provide written notice thereof substance acceptable to the Borrower. To the extent any such calculation results in a Borrowing Base Deficiency, the Administrative Agent shall deliver a notice to the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made by the Borrower as a result of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b)NBD.
(b) Notwithstanding The Parties acknowledge and agree that in the foregoing or anything past, certain accounts receivable have been included in the Borrowing Base Formula which accounts receivable did not qualify as "Eligible Accounts Receivable" under the Loan Agreement, including, without limitation, those categories of receivables described on Exhibit F. The Parties also acknowledge and agree that NBD has informed them that NBD believes that in the past certain inventory has been included in the Borrowing Base Formula which inventory NBD believes did not qualify as "Eligible Inventory" under the Loan Agreement, including, without limitation, those categories of inventory described on Exhibit F. For convenience, all accounts receivable and inventory that do not meet the definition of "Eligible Accounts Receivable" and "Eligible Inventory" under the Loan Agreement, as amended hereby, including, without limitations, those categories of receivables and inventory described in Exhibit F, are referred to the contrary contained herein, collectively, as "Ineligible Receivables" and "Ineligible Inventory." Without limiting the Borrower discretion granted to NBD under the Loan Agreement to reasonably deem at any time for any reason that certain inventory or accounts receivable are ineligible, the Parties acknowledge and agree that the items set forth on Exhibit F shall be Ineligible Accounts Receivable and Ineligible Inventory, notwithstanding that certain of such receivables or inventory may have been included in the right to dispute the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest errorpast.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.
Appears in 1 contract
Sources: Amendment and Forbearance Agreement (Code Alarm Inc)
Borrowing Base. (a) The Administrative Agent may, in its sole and absolute discretion, and shall, at the request of the Majority Lenders, on any date, calculate the Borrowing Base and shall provide written notice thereof On or prior to the Borrower. To the extent any such calculation results in a Borrowing Base DeficiencyInitial Funding Date, the Administrative Agent Borrowers shall deliver a notice to the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth Agent the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made by the Borrower as a result of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Initial Collateral Value from a Valuation Agent, at any time and from time to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b)Report.
(b) Notwithstanding After the foregoing or anything Initial Funding Date, the Borrowers shall deliver to the contrary contained hereinLender Agent an updated Monthly Collateral Report no less frequently than once per calendar month and no later than the eleventh Business Day of each calendar month (commencing with December 2008). For purposes of preparing each Collateral Value Report, the Borrower Borrowers shall have calculate the right to dispute the Administrative Agent’s calculation Collateral Value of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report Qualifying Collateral in accordance with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest errorSchedule 2.04.
(c) Any costsThe Borrowers shall calculate, expensesor cause to be calculated, fees the Collateral Value of the Qualifying Collateral in accordance with Schedule 2.04 and the Borrowing Base on every Business Day following the Initial Funding Date; it being understood that the Collateral Value of assets consisting of Eligible Warehouse Loans or Supporting Assets for the Flume No. 8 Note or any other amounts due Asset which the Lender Agent may so designate in the applicable Collateral Addition Designation Notice may be calculated using the most recent Carrying Value for such assets as periodically recalculated by the Obligors in accordance with their standard practices and owing procedures. The Borrowers shall deliver, electronically or otherwise, the results of the calculations required under this clause (b) to the Lender Agent by the close of the applicable Business Day.
(d) At the reasonable request of the Lender Agent, the Borrowers shall provide any Valuation reports, files, spreadsheets or other materials used by the Obligors in calculating the Borrowing Base as of any date of determination. If the Lender Agent or Dealer shall dispute the calculation of the Borrowing Base as of any date of determination, the calculation by the Lender Agent of such Borrowing Base shall be binding for all purposes hereunder and the Borrowers shall make the payment, if any, required by Section 2.08(b) in connection with such recalculated Borrowing Base.
(e) The Borrowers shall notify the engagement Lender Agent if at any time they determine that on any day the Outstanding Aggregate Loan Amount as of such Valuation Agent or Dealer in connection with a day exceeded the Borrowing Base Dispute pursuant to Section 2.6(b) shall be an Obligation as of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7such day.
Appears in 1 contract
Borrowing Base. The Borrower represents, warrants and covenants as follows:
(a) The Administrative Agent may, At the time any Eligible Account Receivable is included in its sole and absolute discretion, and shall, at the request of the Majority Lenders, on any date, calculate the Borrowing Base and shall provide written notice thereof to the Borrower. To extent of the extent any value of such calculation results Eligible Account Receivable as reflected in a the Borrowing Base DeficiencyBase, the Administrative Agent such Eligible Account Receivable shall deliver a notice conform to the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made by the Borrower as a result definition of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b)Eligible Account Receivable.
(b) Notwithstanding The Borrower is, and as to Eligible Inventory to be acquired after the foregoing date hereof and to be included in the Borrowing Base, shall be the owner of all Eligible Inventory to be included in the Borrowing Base and (except for the liens for carrier, warehouse, customs and similar statutory liens arising in the ordinary course of business) shall neither create nor suffer to exist any lien or anything to the contrary contained herein, the Borrower shall have the right to dispute encumbrance thereon or security interest therein in favor of any Person other than the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest error.
(c) Any costsThe Borrower is the owner of the Canton Cast-Roll Facility and shall neither create nor suffer to exist any lien or encumbrance thereon or security interest therein in favor of any Person other than the Administrative Agent (other than the Mortgage and liens permitted by the Mortgage).
(d) The Borrower shall give the Administrative Agent on the Effective Date a list of, expenses, fees and other amounts due and owing thereafter shall give thirty (30) days written notice prior to any Valuation Agent change in, each warehouse location at which inventory is or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall will be an Obligation kept and each office of the Borrower at which the records of the Borrower pertaining to Accounts Receivable and contract rights are kept. All Eligible Inventory is and shall become due be kept, and payable all records pertaining to Accounts Receivable and contract rights are and shall be kept, only at locations of which the Administrative Agent has been given notice as provided in this (S)8.14
(e) The Borrower shall promptly notify the Administrative Agent of any of the following events of which any senior or executive officer of the Borrower becomes aware: any material loss or depreciation in value of Eligible Inventory or the Canton Cast-Roll Facility and the amount of the loss or depreciation; rejection, return, repossession or loss of any material amount of goods giving rise to Eligible Accounts Receivable; material damage to any such goods; any request by an account debtor for any credits or adjustments of Eligible Accounts Receivable which are material in the aggregate; any adjustments of the amounts owing on Eligible Accounts Receivable which are material in the aggregate; any other disputes in respect of Eligible Accounts Receivable, Eligible Inventory or the Canton Cast-Roll Facility which are material in the aggregate; any other event which materially affects Eligible Inventory, Eligible Accounts Receivable, the Canton Cast-Roll Facility or the value or amount thereof, provided, that during any period when Eligible Accounts Receivable are being determined on a daily basis, all applicable adjustments to the amount thereof shall be taken on the immediately succeeding Monthly Payment Date day such adjustment(s) are made, and shall not be delayed by virtue of this (S)8.14(e). For purposes of this (S)8.14(e), "material" shall mean involving amounts in accordance with Section 2.7excess of $500,000.
Appears in 1 contract
Sources: Revolving Credit Agreement (Blue Steel Capital Corp)
Borrowing Base. The Borrower represents, warrants and covenants as follows:
(a) The Administrative Agent may, At the time any Eligible Account Receivable is included in its sole and absolute discretion, and shall, at the request of the Majority Lenders, on any date, calculate the Borrowing Base and shall provide written notice thereof to the Borrower. To extent of the extent any value of such calculation results Eligible Account Receivable as reflected in a the Borrowing Base DeficiencyBase, the Administrative Agent such Eligible Account Receivable shall deliver a notice conform to the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made by the Borrower as a result definition of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b)Eligible Account Receivable.
(b) Notwithstanding The Borrower is, and as to Eligible Inventory to be acquired after the foregoing date hereof and to be included in the Borrowing Base, shall be the owner of all Eligible Inventory to be included in the Borrowing Base and (except for the liens for carrier, warehouse, customs and similar statutory liens arising in the ordinary course of business) shall neither create nor suffer to exist any lien or anything to the contrary contained herein, the Borrower shall have the right to dispute encumbrance thereon or security interest therein in favor of any Person other than the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest error.
(c) Any costsThe Borrower is the owner of the Canton Cast-Roll Facility and shall neither create nor suffer to exist any lien or encumbrance thereon or security interest therein in favor of any Person other than the Administrative Agent (other than liens permitted by the Mortgage).
(d) The Borrower shall give the Administrative Agent on the Effective Date a list of, expenses, fees and other amounts due and owing thereafter shall give thirty (30) days written notice prior to any Valuation Agent change in, each warehouse location at which inventory is or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall will be an Obligation kept and each office of the Borrower at which the records of the Borrower pertaining to Accounts Receivable and contract rights are kept. All Eligible Inventory is and shall become due be kept, and payable all records pertaining to Accounts Receivable and contract rights are and shall be kept, only at locations of which the Administrative Agent has been given notice as provided in this Section 8.14(d).
(e) The Borrower shall promptly notify the Administrative Agent of any of the following events of which any senior or executive officer of the Borrower becomes aware: any material loss or depreciation in value of Eligible Inventory or the Canton Cast-Roll Facility and the amount of the loss or depreciation; rejection, return, repossession or loss of any material amount of goods giving rise to Eligible Accounts Receivable; material damage to any such goods; any request by an account debtor for any credits or adjustments of Eligible Accounts Receivable which are material in the aggregate; any adjustments of the amounts owing on Eligible Accounts Receivable which are material in the immediately succeeding Monthly Payment Date aggregate; any other disputes which are material in accordance with Section 2.7.the aggregate; any other event which materially affects Eligible Inventory, Eligible 79 -71-
Appears in 1 contract
Sources: Revolving Credit Agreement (Republic Technologies International Holdings LLC)
Borrowing Base. (a) The Administrative Agent may3.1 Unless subject to further adjustment pursuant to the other provisions of this Section 3, in its sole and absolute discretionby execution of this Amendment, and shall, at the request each of the Majority LendersAdministrative Agent, on any datethe Required Borrowing Base Lenders and the Borrower agree that, calculate during the period from the date hereof to the date of the next determination of the Borrowing Base and shall provide written notice thereof pursuant to the Borrower. To provisions of Section 2.8 of the extent any such calculation results in a Borrowing Base DeficiencyCredit Agreement, the Administrative Agent shall deliver a notice to the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base shall equal $1,700,000,000. Notwithstanding the foregoing, the Applicable Borrowing Base remains subject to adjustment due to changes in the Borrowing Base Reduction Amount as set forth in the Credit Agreement.
3.2 In the event of the consummation of the Gulf of Mexico Divestiture (as herein defined), by execution of this Amendment, each of the Administrative Agent, the Required Payment Borrowing Base Lenders and the Borrower agree that, during the period from the date hereof to be made the date of the next determination of the Borrowing Base pursuant to the provisions of Section 2.8 of the Credit Agreement, the Borrowing Base shall equal the then current Borrowing Base (initially $1,700,000,000 pursuant to Section 3.1) less $200,000,000. Notwithstanding the foregoing, the Applicable Borrowing Base remains subject to adjustment due to changes in the Borrowing Base Reduction Amount as set forth in the Credit Agreement.
3.3 For purposes of this Amendment, the “Gulf of Mexico Divestiture” means the divestiture by the Borrower of a 50% interest in the Borrower’s assets located in the Gulf of Mexico, pursuant to that certain Purchase and Sale Agreement, dated as a result of such calculation (which amount shall April 20, 2006, among the Borrower, as seller, and MitEnergy Upstream LLC, as buyer, as may be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, at any time and amended from time to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b).
(b) Notwithstanding the foregoing or anything to the contrary contained herein, the Borrower shall have the right to dispute the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest error.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7the terms thereof.
Appears in 1 contract
Sources: Credit Agreement (Pogo Producing Co)
Borrowing Base. (a) The Administrative Agent may, in its sole and absolute discretion, and shall, at the request of the Majority Lenders, If on any date the aggregate original principal amount of all Advances shall exceed the Borrowing Base, determined as of such date, calculate Borrower shall either (i) immediately pay the amount of such excess to Lender together with interest accrued thereon to (but not including) the date of such payment and such amounts shall be applied by Lender when received in good, collected funds as set forth in Section 2.3(a)(ii) or Section 2.3(b) hereof, as applicable, or (ii) if applicable, provided no Event of Default or Amortization Triggering Event has occurred, pledge to Lender (A) unencumbered and unsold Timeshare Interests which shall constitute Pledged Intervals (which comply with all requirements set forth in Section 2.1 and Section 6 hereof), (B) Additional Resorts or (C) increase the aggregate principal amount of Eligible Notes Receivable pledged to Lender, as applicable, sufficient to cure such Borrowing Base and shall provide written notice thereof deficiency within fifteen (15) Business Days; provided, however that, unless otherwise agreed to the Borrower. To the extent any such calculation results in a Borrowing Base Deficiencyby Lender, the Administrative Agent shall deliver a notice to the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made by the Borrower as a result of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costspermitted to pledge additional unsold Timeshare Interests, expenses, fees Additional Properties or other amounts in connection with Eligible Notes Receivable to cure such valuation report except in connection with a Borrowing Base Dispute pursuant deficiency more than once each calendar quarter. The pledge and delivery to Lender of additional Eligible Notes Receivable shall comply with the document delivery and recordation requirements set forth in Section 2.6(b).
(b) Notwithstanding the foregoing or anything 3.5 of this Agreement and shall be accompanied by a written certification of Borrower to the contrary contained hereineffect that such additional Pledged Notes Receivable are Eligible Notes Receivable and that, giving effect to the pledge to Lender of such Eligible Note Receivable, the outstanding unpaid principal balance of the Loan is equal to or less than the Borrowing Base. If (i) the outstanding principal amount of Inventory Advances hereunder shall exceed the then applicable Inventory Advance Maximum Amount, (ii) the outstanding principal amount of Acquisition Advances hereunder shall exceed $15,000,000, or (iii) the outstanding principal amount of the Loan hereunder shall exceed $50,000,000, Borrower shall have immediately pay the right to dispute the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest error.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement amount of such Valuation Agent or Dealer in connection excess to Lender together with a Borrowing Base Dispute pursuant interest accrued thereon to Section 2.6(b(but not including) the date of such payment and such amounts shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date applied by Lender when received in accordance with good, collected funds as set forth in Section 2.72.3(a)(ii) hereof.
Appears in 1 contract
Sources: Inventory Loan and Security Agreement (Silverleaf Resorts Inc)
Borrowing Base. (a) The Administrative Agent may, in its sole and absolute discretion, and shall, at the request As of the Majority LendersClosing Date, on any date, calculate Eligible Property may become a Borrowing Base Property and be included in the Borrowing Base and shall provide written notice thereof as of the Closing Date upon receipt by the Agent of (A) a pro forma Compliance Certificate giving effect to the Borrower. To inclusion of such Eligible Property in the extent any Borrowing Base, including a calculation of annualized Net Operating Income for such calculation results in a Borrowing Base DeficiencyProperty; provided, however, that for the Properties referred to on Schedule 5A.04(d) as Doylestown Health & Wellness and St. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as applicable, the Administrative Agent annualized aggregate Net Operating Income attributable to such Properties shall deliver a notice to be based upon quarterly income from tenants occupying such Properties under leases in place minus pro forma operating expenses and minus Capital Reserves (the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (calculations of which shall be conclusive absent manifest errorsubject to Agent’s approval), rather than the results for the fiscal quarter most recently ended; (B) historical (to the extent such Property has been operational for a calendar quarter or more) or pro forma operating statements and occupancy reports (to the Borrowing Base Required Payment to be made by extent such statements or reports exist, the Borrower as a result hereby acknowledging that the absence of such calculation (which amount shall be paid in accordance with Section 2.9). At statements or reports may impair the Administrative Agent’s discretion, the Administrative Agent may ability to obtain valuation reports Required Lender approval) with respect to such Eligible Property; (C) an Eligible Property Compliance Certificate for such Eligible Property, satisfactory to the Administrative Agent; (D) evidence of insurance for such Eligible Property as required under the Loan Documents; (E) Uniform Commercial Code searches showing no Liens on such Eligible Property other than the Permitted Encumbrances, and no Liens on the Equity Interests in the owner or lessee (as the case may be) of such Eligible Property that have been pledged to Agent Asset Value from a Valuation Agent, at any time and from time to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b5A.01(a); and (F) each of the Real Property Support Documents for such Eligible Property.
(b) Notwithstanding In the foregoing or anything case of Eligible Properties requested to be included in the Borrowing Base after the Closing Date (including without limitation the ▇▇▇▇▇▇▇▇ Property), the Agent shall make its determination as to the contrary contained herein, inclusion in the Borrower shall have the right to dispute the Administrative Agent’s calculation Borrowing Base of such Eligible Property qualifying as such by compliance with items (a)-(f) of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders definition of “Eligible Property” within three (3) 10 Business Days after of receipt by the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and Agent of the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest error.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection ’s request therefor together with the engagement of such Valuation Agent or Dealer documentation described in connection with a Borrowing Base Dispute pursuant to this Section 2.6(b) shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.5A.
Appears in 1 contract
Borrowing Base. (a) The Administrative Agent may, in its sole and absolute discretion, and shall, at the request of the Majority Lenders, on any date, calculate the Borrowing Base and shall provide written notice thereof to the Borrower. To the extent any such calculation results in a Borrowing Base Deficiency, the Administrative Agent shall deliver a notice to the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made by the Borrower as a result of such calculation (which amount shall be paid determined in accordance with Section 2.9). At the Administrative Agent’s discretion, 2.08(b) by the Administrative Agent may obtain valuation reports with respect the concurrence of the Lenders and is subject to redetermination in accordance with Section 2.08(d). Upon any redetermination of the Administrative Agent Asset Value Borrowing Base, such redetermination shall remain in effect until the next successive Redetermination Date. So long as any of the Commitments are in effect or any LC Exposure or Loans are outstanding hereunder, this facility shall be governed by the then effective Borrowing Base. During the period from a Valuation Agent, at any time and from time to time on a non-binding basis; provided that after the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute Closing Date until the first redetermination pursuant to Section 2.6(b2.08 or adjusted pursuant to Section 8.07(b), the amount of the Borrowing Base shall be $5,000,000 (the “Initial Borrowing Base”).
(b) Notwithstanding Upon receipt of the foregoing or anything reports required by Section 8.07 and such other reports, data and supplemental information as may from time to time be reasonably requested by the Administrative Agent (the “Engineering Reports”), the Borrowing Base shall be redetermined for each Borrowing Base Period and each such redetermination shall be effective as of the date set forth in such notice of redetermination (the “Scheduled Redetermination Date”). The Borrowing Base shall be determined based upon the loan collateral value assigned to the contrary contained hereinMortgaged Properties and such other credit factors (including without limitation the assets, liabilities, cash flow, business, properties, prospects, management and ownership of the Borrower) which the Lenders deem significant. The Lenders’ determination of the Borrowing Base shall be in their sole discretion and shall not be subject to review or challenge. Upon each redetermination of the Borrowing Base, the Administrative Agent shall recommend to the Lenders a new Borrowing Base and the Lenders in accordance with their customary policies and procedures for extending credit to oil and gas reserve-based customers shall (by unanimous agreement) establish the redetermined Borrowing Base. If the Borrower does not furnish the Engineering Reports by the date required, the Lenders may nonetheless determine a new Borrowing Base. It is expressly understood that the Lenders shall have no obligation to determine the Borrowing Base at any particular amount, either in relation to the Maximum Revolving Credit Amount or otherwise.
(c) In addition to “Scheduled Borrowing Base Determinations” pursuant to Section 2.08(b), the Borrower and the Lenders may each request one (1) additional redetermination of the Borrowing Base during each Borrowing Base Period. In the event the Borrower requests a “Special Borrowing Base Determination” pursuant to this Section 2.08(d), the Borrower shall have the right deliver written notice of such request to dispute the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying which shall include: (i) Engineering Report(s) prepared as of a date not more than thirty (30) calendar days prior to the date of such request, and (ii) such other information as Administrative Agent and the Lenders within three shall request prepared as of a date not more than thirty (330) Business Days after calendar days prior to the date of such request. Likewise, in the event the Lenders exercise their option for a Special Borrowing Base Determination, the Administrative Agent shall give the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average notice of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest errorredetermined Borrowing Base.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.
Appears in 1 contract
Sources: Credit Agreement (Georesources Inc)
Borrowing Base. (a) The Administrative Agent may, in its sole and absolute discretion, and shall, at Admission of Projects into the request Borrowing Base.
(i) As of the Majority Lendersdate hereof, on any date, calculate the Lenders have admitted into the Borrowing Base and shall provide written notice thereof to as Eligible Projects the Borrower. To Projects listed on Schedule 3.1 attached hereto, with the extent any such calculation results in a amount of the Borrowing Base Deficiencyattributable thereto as is set forth in respect of each such Project on Schedule 3.1.
(ii) If Borrower desires that Lenders admit a Project into the Borrowing Base, Borrower shall notify Agent thereof in writing. No Project will be evaluated by Lenders for potential inclusion into the Administrative Borrowing Base unless it is a domestic operating regional retail shopping mall or retail strip shopping center, and unless and until Borrower delivers to Agent shall deliver a notice to the Borrower and each Lender the following, in form and substance acceptable to Agent:
(a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made A) A current operating statement for such Project audited or certified by the Borrower as a result of such calculation (which amount shall be paid being true and correct in all material respects and prepared in accordance with Section 2.9). At GAAP and a comparative sales report for the Administrative Agent’s discretioncurrent period and for the previous two (2) fiscal years or, if such Project has been in operation only for a lesser period, such lesser period; and
(B) A current rent roll for such Project, certified by Borrower as being true and correct in all material respects and a operating and occupancy history of such Project for the Administrative Agent may obtain valuation reports with respect previous three (3) fiscal years or, if such Project has been in operation only for a lesser period, such lesser period, in form satisfactory to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time certified by Borrower and the management agent of such Project to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b)true and correct.
(biii) Notwithstanding Within ten (10) days after the foregoing or anything to the contrary contained herein, the Borrower shall have the right to dispute the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after have received the foregoing documents and information, each Lender shall notify the Agent whether or not such Lender is willing to consider such Project and the Agent shall notify the Borrower receives a as to whether the Agent and the Lenders are prepared to consider such Project for inclusion in the Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”)Base; provided, however, that failure to give such notice within such period shall not constitute approval to consider such Project as an Eligible Project. If the Lenders agree to so consider such Project, Agent will promptly notify Borrower initiates and obtain an Appraisal of such Project in order to determine the Appraised Value thereof. Upon request of Borrower, Agent shall notify Borrower of the reasons, to the Agent's knowledge, for any Lender's rejection of a Project as an Eligible Project. No Project will be further evaluated by Lenders for potential inclusion into the Borrowing Base Disputeunless and until Borrower delivers to the Agent and each Lender the following, in form and substance acceptable to Agent and/or the Majority Lenders:
(A) A copy of the most recent ALTA Owner's Policy of Title Insurance covering such Project showing the identity of the fee titleholder thereto and all matters of record;
(B) Copies of all documents of record reflected in Schedule B of the Owner's Policy of Title Insurance and a copy of the most recent real estate tax ▇▇▇▇ and notice of assessment; 30
(C) A survey of such Project certified by a surveyor licensed in the applicable jurisdiction to have been prepared in accordance with the then effective Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys;
(D) A "Phase I" environmental assessment of such Project not more than twelve (12) months old;
(E) A certificate from a licensed engineer or other professional satisfactory to Agent that such Project is not located in a Special Flood Hazard Area as defined by the Administrative AgentFederal Insurance Administration;
(F) Copies of (I) all Major Leases, on one hand(II) all Major Agreements, (III) the form or forms of tenant lease used at such Project, and (IV) all material maintenance or service agreements affecting such Project;
(G) In the Borrower, case of a Project which was owned by Borrower or any Wholly Owned Subsidiary of Borrower or Subpartnership on the other handEffective Date, shall each promptly direct separate Valuation Agentsa summary, to prepare prepared by a valuation report Senior Officer or appropriate vice president of the CBL Properties, Inc., of any engineering, mechanical, structural or maintenance studies performed with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated Project or, in the two valuation reports submitted case of any other Project, copies of any engineering, mechanical, structural or maintenance studies performed (if not previously performed, such studies shall be required by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage on behalf of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest error.Lenders) with respect to such Project;
(cH) Any costsEvidence that such Project complies with applicable zoning and land use laws;
(I) A schedule of all personal property, expenses, fees including intangible personal property owned by Borrower or any Wholly Owned Subsidiary of Borrower or Subpartnership and other amounts due and owing to any Valuation Agent or Dealer used in connection with the engagement maintenance or operation of such Valuation Project; and
(J) Such other information reasonably requested by Agent in order to evaluate the Project for potential inclusion in the Borrowing Base.
(iv) Within thirty (30) days after the delivery to the Lenders of all information and other documents required hereby or Dealer requested by the Agent relating to the Project proposed by Borrower as an Eligible Project (including, but not limited to, an Appraisal in connection respect of such Project), each Lender shall notify the Agent whether such Lender approves such Project as an Eligible Project and the Agent shall provide Borrower with written notice of whether the Supermajority Lenders have approved a Borrowing Base Dispute pursuant Project as an Eligible Project and, if so approved, the Approved Percentage applicable to Section 2.6(b) such Project; provided, however, that failure to give such notice within such period shall be not constitute approval of such Project as an Obligation Eligible Project; provided, further, that is such Project is not approved as an Eligible Project, the Agent shall, upon the request of the Borrower, notify Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.as to Agent's understanding of why such Project was not approved as an Eligible Project;
Appears in 1 contract
Borrowing Base. As used in this Agreement, the term "Borrowing Base" means at any time, an amount equal to eighty percent (a80%) of the amount of Eligible Receivables or Twenty Five Million ($25,000,000), whichever is less. The Administrative Agent Borrowing Base may be revised by the Lender in its sole but reasonable discretion based on the results of the Lender's prefunding audit or any subsequent audit. The Borrowing Base shall be computed based on the Borrowing Base Report most recently delivered to the Lender, in form satisfactory to the Lender. In the event the Borrowers fail to furnish a Borrowing Base Report required by Section 2.1.4 below, or in the event the Lender reasonably believes that a Borrowing Base Report is no longer accurate, the Lender may, in its sole and absolute discretiondiscretion exercised from time to time and without limiting its other rights and remedies under this Agreement, and shall, at suspend the request making of or limit advances under the Majority Lenders, on Revolving Loan. The Borrowing Base shall be subject to reduction by the amount of any date, calculate Receivable which was included in the Borrowing Base but which the Lender determines fails to meet the criteria applicable from time to time for Eligible Receivables. If at any time the total of the aggregate principal amount of the Revolving Loan and Outstanding Letter of Credit Obligations exceed the Borrowing Base, a borrowing base deficiency ("Borrowing Base Deficiency") shall provide written notice thereof to the Borrowerexist. To the extent any such calculation results in Each time a Borrowing Base DeficiencyDeficiency exists, the Administrative Agent Borrowers at the sole and absolute discretion of the Lender exercised from time to time shall deliver a notice to pay the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth ON DEMAND to the calculation thereof (which shall be conclusive absent manifest error), and Lender from time to time. Without implying any limitation on the Borrowing Base Required Payment to be made by the Borrower as a result of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports Lender's discretion with respect to the Administrative Agent Asset Value Borrowing Base, the criteria for Eligible Receivables contained in the definition of Eligible Receivables are in part based upon the business operations of the Borrowers existing on or about the Closing Date and upon information and records furnished to the Lender by the Borrowers. If at any time or from a Valuation Agenttime to time hereafter, the business operations of the Borrowers change or such information and records furnished to the Lender is incorrect or misleading, the Lender in its discretion, may at any time and from time to time on a non-binding basis; provided that during the Borrower shall not be responsible for payment duration of any costs, expenses, fees this Agreement change such criteria or other amounts in connection with add new criteria. The Lender may communicate such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b).
(b) Notwithstanding the foregoing changed or anything additional criteria to the contrary contained herein, the Borrower shall have the right Borrowers from time to dispute the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated time either orally or in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest errorwriting.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.
Appears in 1 contract
Sources: Financing and Security Agreement (Dispatch Management Services Corp)
Borrowing Base. (a) (a) The Administrative Agent may, in its sole and absolute discretion, and shall, at the request of the Majority Lenders, on any date, calculate the Borrowing Base and shall provide written notice thereof to the Borrower. To the extent any such calculation results in a Borrowing Base Deficiency, the Administrative Agent shall deliver a notice to the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made by the Borrower as a result of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b).
(b) Notwithstanding the foregoing or anything to the contrary contained herein, except during an Acknowledgment Agreement Trigger Period, the Borrower shall have the right to dispute the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties heretoParties, absent manifest error.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.
Appears in 1 contract
Borrowing Base. (a) The Administrative Agent may, in its sole and absolute discretion, and shall, at Admission of Projects into the request Borrowing Base.
(i) As of the Majority Lendersdate hereof, on any date, calculate the Lenders have admitted into the Borrowing Base and shall provide written notice thereof to as Eligible Projects the Borrower. To Projects listed on Schedule 3.1 attached hereto, with the extent any such calculation results in a amount of the Borrowing Base Deficiencyattributable thereto as is set forth in respect of each such Project on Schedule 3.1.
(ii) If Borrower desires that Lenders admit a Project into the Borrowing Base, Borrower shall notify Agent thereof in writing. No Project will be evaluated by Lenders for potential inclusion into the Administrative Borrowing Base unless it is a domestic operating regional retail shopping mall or retail strip shopping center, and unless and until Borrower delivers to Agent shall deliver a notice to the Borrower and each Lender the following, in form and substance acceptable to Agent:
(a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made A) A current operating statement for such Project audited or certified by the Borrower as a result of such calculation (which amount shall be paid being true and correct in all material respects and prepared in accordance with Section 2.9). At GAAP and a comparative sales report for the Administrative Agent’s discretioncurrent period and for the previous two (2) fiscal years or, if such Project has been in operation only for a lesser period, such lesser period; and
(B) A current rent roll for such Project, certified by Borrower as being true and correct in all material respects and a operating and occupancy history of such Project for the Administrative Agent may obtain valuation reports with respect previous three (3) fiscal years or, if such Project has been in operation only for a lesser period, such lesser period, in form satisfactory to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time certified by Borrower and the management agent of such Project to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b)true and correct.
(biii) Notwithstanding Within ten (10) days after the foregoing or anything to the contrary contained herein, the Borrower shall have the right to dispute the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after have received the foregoing documents and information, each Lender shall notify the Agent whether or not such Lender is willing to consider such Project and the Agent shall notify the Borrower receives a as to whether the Agent and the Lenders are prepared to consider such Project for inclusion in the Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”)Base; provided, however, that failure to give such notice within such period shall not constitute approval to consider such Project as an Eligible Project. If the Lenders agree to so consider such Project, Agent will promptly notify Borrower initiates and obtain an Appraisal of such Project in order to determine the Appraised Value thereof. Upon request of Borrower, Agent shall notify Borrower of the reasons, to the Agent's knowledge, for any Lender's rejection of a Project as an Eligible Project. No Project will be further evaluated by Lenders for potential inclusion into the Borrowing Base Disputeunless and until Borrower delivers to the Agent and each Lender the following, in form and substance acceptable to Agent and/or the Majority Lenders:
(A) A copy of the most recent ALTA Owner's Policy of Title Insurance covering such Project showing the identity of the fee titleholder thereto and all matters of record;
(B) Copies of all documents of record reflected in Schedule B of the Owner's Policy of Title Insurance and a copy of the most recent real estate tax ▇▇▇▇ and notice of assessment;
(C) A survey of such Project certified by a surveyor licensed in the applicable jurisdiction to have been prepared in accordance with the then effective Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys;
(D) A "Phase I" environmental assessment of such Project not more than twelve (12) months old;
(E) A certificate from a licensed engineer or other professional satisfactory to Agent that such Project is not located in a Special Flood Hazard Area as defined by the Administrative AgentFederal Insurance Administration;
(F) Copies of (I) all Major Leases, on one hand(II) all Major Agreements, (III) the form or forms of tenant lease used at such Project, and (IV) all material maintenance or service agreements affecting such Project;
(G) In the Borrower, case of a Project which was owned by Borrower or any Wholly Owned Subsidiary of Borrower or Subpartnership on the other handEffective Date, shall each promptly direct separate Valuation Agentsa summary, to prepare prepared by a valuation report Senior Officer or appropriate vice president of CBL Properties, Inc., of any engineering, mechanical, structural or maintenance studies performed with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated Project or, in the two valuation reports submitted case of any other Project, copies of any engineering, mechanical, structural or maintenance studies performed (if not previously performed, such studies shall be required by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage on behalf of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest error.Lenders) with respect to such Project;
(cH) Any costsEvidence that such Project complies with applicable zoning and land use laws;
(I) A schedule of all personal property, expenses, fees including intangible personal property owned by Borrower or any Wholly Owned Subsidiary of Borrower or Subpartnership and other amounts due and owing to any Valuation Agent or Dealer used in connection with the engagement maintenance or operation of such Valuation Project; and
(J) Such other information reasonably requested by Agent in order to evaluate the Project for potential inclusion in the Borrowing Base.
(iv) Within thirty (30) days after the delivery to the Lenders of all information and other documents required hereby or Dealer requested by the Agent relating to the Project proposed by Borrower as an Eligible Project (including, but not limited to, an Appraisal in connection respect of such Project), each Lender shall notify the Agent whether such Lender approves such Project as an Eligible Project and the Agent shall provide Borrower with written notice of whether the Supermajority Lenders have approved a Borrowing Base Dispute pursuant Project as an Eligible Project and, if so approved, the Approved Percentage applicable to Section 2.6(b) such Project; provided, however, that failure to give such notice within such period shall be not constitute approval of such Project as an Obligation Eligible Project; provided, further, that is such Project is not approved as an Eligible Project, the Agent shall, upon the request of the Borrower, notify Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.as to Agent's understanding of why such Project was not approved as an Eligible Project;
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Borrowing Base. (a) The Administrative Agent may, in its sole and absolute good faith discretion, and shall, at the request of the Majority Lenders, on any date, calculate the Borrowing Base and shall provide written notice thereof to the Borrower. To the extent any such calculation results in a Borrowing Base DeficiencyMandatory Prepayment Event, the Administrative Agent shall deliver a notice to the Borrower and each Lender (a “Borrowing Base Deficiency Mandatory Prepayment Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment any payments required to be made by the Borrower as a result of such calculation (which amount shall be paid due and owing as provided in Section 2.9. For purposes of determining the Borrowing Base in accordance with this Section 2.92.6, the Administrative Agent shall adjust the Administrative Agent Asset Value to include the Derivatives Termination Value of the Borrower’s rights in any Portfolio ▇▇▇▇▇▇ pledged as Collateral hereunder (and solely for the purposes of determining the Borrowing Base for the purposes of this Section 2.6, net of any cash posted with respect to such Portfolio ▇▇▇▇▇▇), as such Derivatives Termination Value is determined by the Administrative Agent in its discretion, exercised in good faith, at any time and from time-to-time on a daily basis or more frequently, taking into consideration the ▇▇▇▇▇▇ ▇▇▇ Advance Rate or ▇▇▇▇▇▇▇ Mac Advance Rate, as applicable. At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b).
(b) Notwithstanding the foregoing or anything to the contrary contained herein, the Borrower shall have the right to dispute the Administrative Agent’s calculation of the Administrative Agent Asset Value (other than the Derivatives Termination Value) by notifying the Administrative Agent and the Lenders within three five (35) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”)Mandatory Prepayment Notice. If the Borrower initiates a Borrowing Base Disputedisputes the Administrative Agent’s determination of any Administrative Agent Asset Value, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to each prepare a valuation report with respect to such the Administrative Agent Asset Value. The average of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties heretoParties, absent manifest error.
(c) To the extent a Mandatory Prepayment Event remains following the determination of any Valuation Agent Market Value Percentage in accordance with clause (b), such Mandatory Prepayment Event shall be paid as provided in Section 2.9. Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection accordance with a Borrowing Base Dispute pursuant to this Section 2.6(b) 2.6 shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.
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Borrowing Base. (ai) The Administrative Agent may, in its sole During the period commencing on the date hereof and absolute discretion, and shall, at ending on the request date the first redetermination of the Majority Lenders, on any date, calculate the Borrowing Base and shall provide written notice thereof to becomes effective as provided in clause (ii) of this Section 1.04(b), the Borrower. To the extent any such calculation results in a Borrowing Base Deficiencyshall be $60,000,000 which amount has been determined on the basis of the Initial Reserve Evaluation Report.
(ii) As promptly as practicable following the receipt of the Reserve Evaluation Report on each Report Delivery Date, the Administrative Agent (in consultation with the Lenders) shall deliver a notice (A) redetermine the Borrowing Base on the basis of such Reserve Evaluation Report in the manner provided in clause (iii) of this Section 1.04(b), (B) notify the Lenders of such redetermination and (C) if such redetermination is approved by the Required Lenders, notify the Borrower and the Lenders of the Borrowing Base as so redetermined; provided that the Agent shall notify the Borrower on or prior to each Determination Date as to whether or not the Required Lenders have redetermined the Borrowing Base. Such redetermined Borrowing Base shall become effective on the Determination Date immediately following the Report Delivery Date for such Reserve Evaluation Report (or such later date as notified by the Administrative Agent to the Borrower and each Lender (the Lenders) and shall remain effective until again redeter- Credit Agreement mined pursuant to this Section 1.04. Each date on which a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and redetermination of the Borrowing Base Required Payment to be made becomes effective as provided in the preceding sentence is herein called a "Redetermination Date".
(iii) Each redetermination by the Borrower as a result of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent of the Borrowing Base (and the Required Lenders' approval thereof) shall be made on the basis of parameters which may obtain valuation reports with respect include the Present Value of Reserves attributable to Hydrocarbon Properties as set forth in the related Reserve Evaluation Report, as adjusted by the Administrative Agent Asset Value from a Valuation Agentwith the approval of the Required Lenders, at in its and their reasonable discretion, using the rates, factors, values, estimates, assumptions and computations set forth in such Reserve Evaluation Report and any time and other relevant information or factors (such adjustments being herein called "Borrowing Base Assumptions").
(iv) As used herein, "Borrowing Base" shall mean the amount specified in clause (i) of this Section 1.04(b) hereof as redetermined from time to time on a non-binding basis; as provided that the Borrower shall not be responsible for payment in clauses (ii) and (iii) of any coststhis Section 1.04(b), expenses, fees or other amounts each such redetermination to become effective as provided in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(bsaid clause (ii).
(b) Notwithstanding the foregoing or anything to the contrary contained herein, the Borrower shall have the right to dispute the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest error.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.
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Borrowing Base. (a) The Administrative Agent may, in its sole and absolute discretion, and shall, at Admission of Projects into the request Borrowing Base.
(i) As of the Majority Lendersdate hereof, on any date, calculate the Lenders have admitted into the Borrowing Base and shall provide written notice thereof to as Eligible Projects the Borrower. To Projects listed on Schedule 3.1 attached hereto, with the extent any such calculation results in a amount of the Borrowing Base Deficiencyattributable thereto as is set forth in respect of each such Project on Schedule 3.1.
(ii) If Borrower desires that Lenders admit a Project into the Borrowing Base, Borrower shall notify Agent thereof in writing. No Project will be evaluated by Lenders for potential inclusion into the Administrative Borrowing Base unless it is a domestic operating regional retail shopping mall or retail strip shopping center, and unless and until Borrower delivers to Agent shall deliver a notice to the Borrower and each Lender the following, in form and substance acceptable to Agent:
(a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made A) A current operating statement for such Project audited or certified by the Borrower as a result of such calculation (which amount shall be paid being true and correct in all material respects and prepared in accordance with Section 2.9). At GAAP and a comparative sales report for the Administrative Agent’s discretioncurrent period and for the previous two (2) fiscal years or, if such Project has been in operation only for a lesser period, such lesser period; and
(B) A current rent roll for such Project, certified by Borrower as being true and correct in all material respects and a operating and occupancy history of such Project for the Administrative Agent may obtain valuation reports with respect previous three (3) fiscal years or, if such Project has been in operation only for a lesser period, such lesser period, in form satisfactory to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time certified by Borrower and the management agent of such Project to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b)true and correct.
(biii) Notwithstanding Within ten (10) days after the foregoing or anything to the contrary contained herein, the Borrower shall have the right to dispute the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after have received the foregoing documents and information, each Lender shall notify the Agent whether or not such Lender is willing to consider such Project and the Agent shall notify the Borrower receives a as to whether the Agent and the Lenders are prepared to consider such Project for inclusion in the Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”)Base; provided, however, that failure to give such notice within such period shall not constitute approval to consider such Project as an Eligible Project. If the Lenders agree to so consider such Project, Agent will promptly notify Borrower initiates and obtain an Appraisal of such Project in order to determine the Appraised Value thereof. Upon request of Borrower, Agent shall notify Borrower of the reasons, to the Agent's knowledge, for any Lender's rejection of a Project as an Eligible Project. No Project will be further evaluated by Lenders for potential inclusion into the Borrowing Base Disputeunless and until Borrower delivers to the Agent and each Lender the following, in form and substance acceptable to Agent and/or the Majority Lenders:
(A) A copy of the most recent ALTA Owner's Policy of Title Insurance covering such Project showing the identity of the fee titleholder thereto and all matters of record;
(B) Copies of all documents of record reflected in Schedule B of the Owner's Policy of Title Insurance and a copy of the most recent real estate tax ▇▇▇▇ and notice of assessment;
(C) A survey of such Project certified by a surveyor licensed in the applicable jurisdiction to have been prepared in accordance with the then effective Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys;
(D) A "Phase I" environmental assessment of such Project not more than twelve (12) months old;
(E) A certificate from a licensed engineer or other professional satisfactory to Agent that such Project is not located in a Special Flood Hazard Area as defined by the Administrative AgentFederal Insurance Administration;
(F) Copies of (I) all Major Leases, on one hand(II) all Major Agreements, (III) the form or forms of tenant lease used at such Project, and (IV) all material maintenance or service agreements affecting such Project;
(G) In the Borrower, case of a Project which was owned by Borrower or any Wholly Owned Subsidiary of Borrower or Subpartnership on the other handEffective Date, shall each promptly direct separate Valuation Agentsa summary, to prepare prepared by a valuation report Senior Officer or appropriate vice president of the CBL Properties, Inc., of any engineering, mechanical, structural or maintenance studies performed with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated Project or, in the two valuation reports submitted case of any other Project, copies of any engineering, mechanical, structural or maintenance studies performed (if not previously performed, such studies shall be required by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage on behalf of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest error.Lenders) with respect to such Project;
(cH) Any costsEvidence that such Project complies with applicable zoning and land use laws;
(I) A schedule of all personal property, expenses, fees including intangible personal property owned by Borrower or any Wholly Owned Subsidiary of Borrower or Subpartnership and other amounts due and owing to any Valuation Agent or Dealer used in connection with the engagement maintenance or operation of such Valuation Project; and
(J) Such other information reasonably requested by Agent in order to evaluate the Project for potential inclusion in the Borrowing Base.
(iv) Within thirty (30) days after the delivery to the Lenders of all information and other documents required hereby or Dealer requested by the Agent relating to the Project proposed by Borrower as an Eligible Project (including, but not limited to, an Appraisal in connection respect of such Project), each Lender shall notify the Agent whether such Lender approves such Project as an Eligible Project and the Agent shall provide Borrower with written notice of whether the Supermajority Lenders have approved a Borrowing Base Dispute pursuant Project as an Eligible Project and, if so approved, the Approved Percentage applicable to Section 2.6(b) such Project; provided, however, that failure to give such notice within such period shall be not constitute approval of such Project as an Obligation Eligible Project; provided, further, that is such Project is not approved as an Eligible Project, the Agent shall, upon the request of the Borrower, notify Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.as to Agent's understanding of why such Project was not approved as an Eligible Project;
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Borrowing Base. (aUpon written notice from the Borrowers to the Administrative Agent, the Borrowers may select to have the availability of the Revolving Loans subject to the Borrowing Base. In the event of such selection, the Borrowers shall not be required to satisfy the covenants related to Funded Debt contained in Section 2.7(b) The and Section 6.2(c) hereof. In the event of such selection, the Borrowers shall be entitled to borrow Revolving Loans up to the amount of the Borrowing Base minus the Letter of Credit Liabilities then outstanding minus, the amount of Term Loans then outstanding with respect to which a Term Loans Amortization Commencement Date has not occurred. At any time the Revolving Loans are subject to the Borrowing Base, the Borrowers may request that the Lenders approve having the availability of the Revolving Loans be subject to the covenants related to Funded Debt contained in Section 2.7(b) and Section 6.2(c) hereof in lieu of the Borrowing Base. Effective upon delivery of written notice by the Administrative Agent mayto the Borrowers of such consent of the Required Lenders, delivered in its their sole and absolute discretion, and shall, at the request availability of the Majority Lenders, on any date, calculate Revolving Loans shall cease to be subject to the Borrowing Base and shall provide written notice thereof be subject to the Borrowercovenants related to Funded Debt contained in Section 2.7(b) and Section 6.2(c). To At any time the extent any such calculation results in a availability of the Revolving Loans is subject to the Borrowing Base, the Borrowing Base Deficiency, shall be determined in good faith by the Administrative Agent shall deliver a notice to monthly concurrently with the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and delivery of the Borrowing Base Required Payment Report to be made by the Borrower as a result of such calculation (which amount shall be paid delivered in accordance with Section 2.98.1(k). At In addition, at any time the Administrative Agent’s discretionavailability of the Revolving Loans is subject to the Borrowing Base, the Administrative Agent Borrowing Base may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, be redetermined at any time and from time to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b).
(b) Notwithstanding the foregoing or anything to the contrary contained herein, the Borrower shall have the right to dispute the Administrative Agent’s calculation of by the Administrative Agent Asset Value by notifying in good faith upon the Administrative Agent occurrence and during the Lenders within three (3) Business Days after the Borrower receives continuation of a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest errorDefault.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.
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Borrowing Base. (a) The Administrative Agent may, in its sole and absolute discretion, and shall, at During the request period from the Closing Date to the date of the Majority Lenders, on any date, calculate initial determination of the Borrowing Base and shall provide written notice thereof pursuant to the Borrower. To provisions of this Section 2.9, the extent any such calculation results in a Borrowing Base DeficiencyLoan Parties, the Administrative Agent, the Syndication Agent shall deliver a notice to and the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth Lenders agree that the calculation thereof (which shall be conclusive absent manifest error), and initial amount of the Borrowing Base Required Payment to be made by the Borrower as a result of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(bOne Billion Five Hundred Million Dollars ($1,500,000,000).
(b) Notwithstanding Upon each delivery of a Reserve Report pursuant to Section 8.3.10, together with such engineering and other data from the foregoing or anything Borrower as is customarily provided, the Syndication Agent shall, within a reasonable period of time, make a good faith determination of the proposed Borrowing Base, and promptly thereafter the Administrative Agent will propose by notice in writing to the contrary contained hereinLenders such Borrowing Base for acceptance by (i) the Required Borrowing Base Lenders with respect to any reaffirmations or reductions in the Borrowing Base and (ii) the Required Increasing Borrowing Base Lenders with respect to any increases in the Borrowing Base. If such Borrowing Base, as proposed by the Administrative Agent is accepted by the Applicable Borrowing Base Lenders, then such accepted Borrowing Base shall be communicated by the Administrative Agent to the Borrower on or before 30 days following the date of delivery of such Reserve Report (the “Applicable Date”); provided that if such proposed Borrowing Base is not approved by the Applicable Borrowing Base Lenders prior to the Applicable Date, then the Applicable Borrowing Base Lenders will establish and agree to a Borrowing Base established using criteria agreed upon by the Applicable Borrowing Base Lenders, and such amount will be communicated to the Borrower, within 30 days following the Applicable Date. Any Lender that shall fail to reject the proposed Borrowing Base within fifteen (15) days of notice of the proposed Borrowing Base shall be deemed to have approved the proposed amount of such Borrowing Base. The new Borrowing Base shall become effective as of the date that the Borrower receives notification from the Administrative Agent of the new Borrowing Base, and until that time, the old Borrowing Base shall continue to be in effect. The Borrowing Base, as determined and established pursuant to this Section 2.9 shall be subject, at all times, to the redetermination or adjustment of the then effective Borrowing Base as a result of a redetermination of the Borrowing Base pursuant to Section 2.9(c) or 2.9(d) or an adjustment of the Borrowing Base pursuant to Section 8.2.16(e) [Sale of Proved Reserves; Pooling].
(c) Not more than once in any fiscal year, and, in addition, at any time upon notice from the Borrower of a proposed acquisition which would result in any Permitted Acquisition Lien, the Administrative Agent upon the instruction of the Syndication Agent or the Required Borrowing Base Lenders (or the Administrative Agent without such instruction), may request from the Borrower an Alternate Reserve Report for the purpose of redetermining the Borrowing Base, and the Borrower shall have the right to dispute request a redetermination of the Borrowing Base one time between the delivery of Reserve Reports by sending a written notice to the Administrative Agent’s calculation Agent of such request along with an Alternate Reserve Report. In connection with any redetermination of the Borrowing Base related to a delivery of an Alternate Reserve Report, the Syndication Agent shall make a good faith determination, in a reasonably prompt manner, of a new Borrowing Base, and the Administrative Agent shall propose by notice in writing, in a reasonably prompt manner, such new Borrowing Base to the Lenders, and the Applicable Borrowing Base Lenders shall agree to review in a reasonably prompt manner, and (if acceptable) approve a new Borrowing Base, which shall become effective upon receipt by the Borrower of notice of such new Borrowing Base. Any Lender that shall fail to reject the proposed Borrowing Base within fifteen (15) days of notice of the proposed Borrowing Base shall be deemed to have approved the proposed amount of such Borrowing Base. In connection with any such redetermination of the Borrowing Base, the Borrower shall deliver promptly upon the request of the Administrative Agent Asset Value an Alternate Reserve Report to the Administrative Agent; provided that the Borrower’s failure to deliver such Alternate Reserve Report shall not preclude or impact the making of such redetermination of the Borrowing Base by notifying the Administrative Agent or the approval of such Borrowing Base by the Applicable Borrowing Base Lenders.
(d) At the request of the Administrative Agent, the Syndication Agent or the Required Borrowing Base Lenders, in their sole discretion, the Borrowing Base shall be adjusted in conformity with Section 2.9(c) contemporaneously with (i) the sale, transfer, lease, contribution or other conveyance in one or more transactions after the date of the latest redetermination or adjustment of the Borrowing Base pursuant to this Agreement by any Loan Party to one or more Persons (other than another Loan Party), of Proved Reserves with an aggregate value exceeding 5% of the Borrowing Base then in effect (whether directly or indirectly by means of the sale of equity interests in a Loan Party or otherwise) pursuant to Section 8.2.16(e) [Sale of Proved Reserves; Pooling] and (ii) the early monetization or early termination of any Hedge Agreements relied on by the Administrative Agent, the Syndication Agent and the Lenders in determining the Borrowing Base that has an economic value exceeding five percent (5%) of the Borrowing Base then in effect.
(e) The Borrowing Base shall represent the good faith determination by the Administrative Agent and the Lenders within three (3) Business Days after Syndication Agent, of the Borrower receives a loan value of the Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base DisputeProperties based upon, then the Administrative Agentamong other things, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated information contained in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest error.
(c) Any costs, expenses, fees Reserve Report and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7the applicable definitions and provisions herein contained, the Syndication Agent’s standard policies regarding energy lending, industry lending practices, and consideration for the nature of the facilities established hereunder. The Borrower acknowledges that the determination of the Borrowing Base contains an equity cushion (market value in excess of the value of all Indebtedness of the Loan Parties), which is acknowledged by the Borrower to be essential for the adequate protection of the Administrative Agent and the Lenders.
Appears in 1 contract
Borrowing Base. Notwithstanding anything in the Credit Agreement or any other Loan Document, commencing on the date of this Amendment and continuing at all times thereafter the Borrower shall not permit the sum of (a) The Administrative Agent maythe outstanding principal amount of all Revolving Credit Advances, in its sole Facility A Term Loan Advances and absolute discretionFacility B Term Loan Advances and (b) without duplication, and shallthe Reimbursement Obligations, at to exceed the request book value of the Majority Lenders, on any date, calculate the Borrowing Base and shall provide written notice thereof to the Borrower. To the extent any such calculation results in a Borrowing Base Deficiency, the Administrative Agent shall deliver a notice to Liquid Assets of the Borrower and each Lender (a “Borrowing Base Deficiency Notice”)other Obligor. For purposes hereof, setting forth "Liquid Assets" shall mean net accounts receivable, net inventory and cash balances. 5. CAPITAL EXPENDITURES. Notwithstanding anything in the calculation thereof (which Credit Agreement or any other Loan Document, during the Waiver Period the Borrower shall be conclusive absent manifest error)not, and shall not permit any of its Subsidiaries to, make any Capital Expenditures in an aggregate amount that exceeds $12,000,000. 6. AMENDMENT FEE. Borrower shall pay to the Borrowing Base Required Payment Administrative Agent, for the pro rata benefit of the Lenders that execute and deliver this Amendment to be made the Administrative Agent (or its counsel) not later than 5:00 p.m., Dallas time, December 8, 1999, an amendment fee in an amount equal to the product of (a) 0.20% multiplied by (b) with respect to each Lender which is owed Facility A Term Loan Advances or Facility B Term Loan Advances, the Borrower as a result aggregate amount of Facility A Term Loan Advances and Facility B Term Loan Advances owed to such calculation (which amount Lender. Such amendment fee shall be paid in accordance with immediately available funds and shall be payable only if the conditions set forth in Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect 11 of this Amendment have been satisfied and shall be due and payable to each Lender eligible for payment pursuant to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b).
(b) Notwithstanding the foregoing or anything to the contrary contained herein, the Borrower shall have the right to dispute the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) preceding sentence no later than two Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Valueconditions set forth in Section 11 of this Amendment have been satisfied. The average Borrower agrees that the failure to pay the amendment fee provided in this Section 6 shall, after the expiration of any applicable grace period, be an Event of Default under Section 8.1(b)(ii) of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest errorCredit Agreement.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.
Appears in 1 contract
Borrowing Base. Borrowings under the Line of Credit Note will be based on a Borrowing Base formula and at no time will the outstanding principal balance of the Loan exceed the lesser of (a1) The Administrative Agent may$10,000,000.00 or (2) the sum of 80% of Eligible Domestic Accounts Receivable plus 40% of Eligible Inventory (which inventory portion of the Loan will be capped at $4,000,000.00) minus the aggregate face amount of all outstanding Letters of Credit as hereinafter defined. Borrower, at its expense shall deliver or cause to be delivered to Bank within 30 days of written request by Bank throughout the term of the Loan, an Eligible Inventory Report, in form satisfactory to Bank from Borrower or at Bank's option, some other inspector chosen by Bank listing all of Borrower's Eligible Inventory on hand. On the day of a draw request, the Borrower shall submit to Bank a certification, in form satisfactory to Bank, that Borrower is not in default under the Loan Agreement, the Line of Credit Note, or other Loan Documents. Borrower on a consolidated basis, will provide Borrowing Base Certificates and accounts receivables aging lists monthly, or at any such time as required by Bank, which Borrowing Base Certificate shall calculate the availability under the full commitment of the Line, in form attached hereto as Exhibit "A", or such other form as Bank determines to be acceptable in its sole and absolute discretion, and shall, at . Included in the request calculation shall be any Letters of Credit which are being secured by the Majority Lenders, on any date, calculate the Loan. The monthly Borrowing Base Certificate and shall provide written notice thereof to the Borrower. To the extent any such calculation results in a Borrowing Base Deficiency, the Administrative Agent shall deliver a notice to the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which accounts receivable aging list shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made by the Borrower as a result provided within 20 days of such calculation (which amount shall be paid in accordance with Section 2.9)month end. At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, If at any time and from time to time on a non-binding basis; provided that the Borrower shall not be responsible for payment outstanding balance of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a the Note exceeds the Borrowing Base Dispute pursuant to Section 2.6(b).
(b) Notwithstanding the foregoing or anything to the contrary contained hereinBase, the Borrower shall have 30 days to cure such default."
10. AS A MATERIAL INDUCEMENT FOR BANK TO EXECUTE THIS AMENDMENT, BORROWER DOES HEREBY RELEASE, WAIVE, DISCHARGE, COVENANT NOT TO ▇▇▇, ACQUIT, SATISFY AND FOREVER DISCHARGE BANK, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS AND ITS AFFILIATES AND ASSIGNS FROM ANY AND ALL LIABILITY, CLAIMS, COUNTERCLAIMS, DEFENSES, ACTIONS, CAUSES OF ACTION, SUITS, CONTROVERSIES, AGREEMENTS, PROMISES AND DEMANDS WHATSOEVER IN LAW OR IN EQUITY WHICH BORROWER EVER HAD, NOW HAVE, OR WHICH ANY PERSONAL REPRESENTATIVE, SUCCESSOR, HEIR OR ASSIGN OF BORROWER HEREAFTER CAN, SHALL OR MAY HAVE AGAINST BANK, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, AND ITS AFFILIATES AND ASSIGNS, FOR, UPON OR BY REASON OF ANY MATTER, CAUSE OR THING WHATSOEVER THROUGH THE DATE THEREOF. BORROWER FURTHER EXPRESSLY AGREES THAT THE FOREGOING RELEASE AND WAIVER AGREEMENT IS INTENDED TO BE AS BROAD AND INCLUSIVE AS PERMITTED BY THE LAWS OF THE STATE OF FLORIDA. IN ADDITION TO, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND IN CONSIDERATION OF BANK'S EXECUTION OF THIS AMENDMENT, BORROWER COVENANTS WITH AND WARRANT UNTO BANK, AND ITS AFFILIATES AND ASSIGNS, THAT THERE EXIST NO CLAIMS, COUNTERCLAIMS, DEFENSES, OBJECTIONS, OFFSETS OR CLAIMS OF OFFSETS AGAINST BANK OR THE OBLIGATION OF BORROWER TO PAY THE LOAN TO BANK WHEN AND AS THE SAME BECOMES DUE AND PAYABLE.
11. Notwithstanding any provision to the right to dispute the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated contrary contained in the two valuation reports submitted by Agreements, the Valuation Agents shall become parties agree to add the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest error.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.following thereto:
Appears in 1 contract
Sources: Loan Agreement and Security Agreement (Elcotel Inc)
Borrowing Base. So long as any Loan or other obligation hereunder shall remain unpaid or unsatisfied, Borrower shall, and shall cause each member of the Consolidated Group to, represent, warrant and covenant as follows:
(a) The Administrative Agent mayLoan Parties are the owners of all assets eligible for inclusion in the Borrowing Base, including, without limitation, Unrestricted Cash, Tower Construction Projects, Developable Land, Units, Tower Units, Finished Land Inventory, Eligible Joint Ventures, Eligible Excluded Subsidiaries and the Amenities the value of which is to be included in its sole and absolute discretion, and shall, at the request of the Majority Lenders, on any date, calculate the Borrowing Base and shall provide written notice neither create nor suffer to exist any Lien (other than Customary Permitted Liens) thereon; and
(b) One of the Loan Parties is the owner of each Developed Lot, Developed Parcel, Tower Unit, Tower Construction Project, and Unit, the value of which is to be included in the Borrowing Base and shall neither create nor suffer to exist any Lien (other than Customary Permitted Liens) thereon, nor sell, assign, transfer or create or suffer to exist any Lien (other than Customary Permitted Liens) in any Housing Purchase Contract or other right constituting proceeds thereof to or in favor of any other Person. For the Borrower. To purpose of computing the extent any Borrowing Base, Borrower shall furnish to Administrative Agent information with such calculation results in a Borrowing Base Deficiency, the specificity as Administrative Agent shall deliver a notice to the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made by the Borrower as a result of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time to time on a non-binding basis; provided that require in the Borrower shall not be responsible for payment form of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a the Borrowing Base Dispute pursuant to Section 2.6(b).
(b) Notwithstanding the foregoing Report, or anything to the contrary contained hereinin such other form and substance and at such times, the Borrower shall have the right to dispute the in each case, as may be reasonably requested by Administrative Agent’s , including a certificate signed by a Responsible Officer of Borrower showing a calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”attaching all documentation used in such calculations). If the Borrower initiates a sum of (i) the Total Outstandings plus (ii) the outstanding principal balance of the Senior Notes is greater than or equal to sixty percent (60%) of the Borrowing Base DisputeBase, then the Administrative Agent, on one hand, and the Borrower, on the other hand, such information shall each promptly direct separate Valuation Agents, be provided to prepare a valuation report with respect to such Administrative Agent Asset Value. The average monthly within forty-five (45) days of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage last day of the related MSRs that constitute Eligible Assetsimmediately preceding month; and if the sum of (i) the Total Outstandings plus (ii) the outstanding principal balance of the Senior Notes is less than sixty percent (60%) of the Borrowing Base, binding upon all parties hereto, absent manifest error.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) information shall be an Obligation provided to Administrative Agent quarterly within forty-five (45) days of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7preceding quarter end.
Appears in 1 contract
Borrowing Base. (a) The Administrative Agent may, in its sole and absolute discretion, and shall, at the request aggregate outstanding principal amount of the Majority Lenders, on any date, calculate the Borrowing Base and shall provide written notice thereof to the Borrower. To the extent any such calculation results in a Borrowing Base Deficiency, the Administrative Agent shall deliver a notice to the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made by the Borrower as a result of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, at any time and all amounts from time to time on a non-binding basisadvanced under the Revolving Line of Credit Loan pursuant to the terms of Section 2.4 of the Loan Agreement dated May 2, 2016 between Bank and Borrower (as amended, restated or modified, the "Loan Agreement") shall not exceed the Maximum Amount. Any defined terms used but not otherwise defined herein shall have such meaning ascribed to such terms in the Loan Agreement. This Agreement is subject to the terms and conditions set forth in the Loan Agreement. "Maximum Amount" shall mean the lesser of $10,000,000.00 or the Borrowing Base. The "Borrowing Base" at any time, shall be equal to the sum of (i) 90% of Prime Government Receivables; provided that (ii) 80% of Commercial Accounts Receivable, and (iii) 50% of Unbilled Receivables, which are to be billed within thirty (30) days less such availability reserves applicable to the Borrower as the Lender deems appropriate. "Commercial Receivables" means Eligible Account Receivables other than Prime Government Receivables or Unbilled Receivables which have resulted from an amount due owing from account debtors. "Prime Government Receivables" means Eligible Accounts Receivables which have resulted from an amount due and owing directly from the U.S. Government or any department or agency thereof. "Unbilled Prime Government Receivables" means Eligible Prime Government Accounts Receivables, notwithstanding their unbilled status which have resulted from unbilled costs actually incurred and arising out of work actually performed by the Borrower under written contracts with the U.S. Government which (i) have been accepted by the U.S. Government and (ii) are properly billable to the U.S. Government in accordance with the applicable contract “Eligible Accounts Receivable” shall mean all Accounts Receivable of Borrower and any of its Subsidiaries which have been created in the ordinary course of Borrower's or such Subsidiary’s business and upon which Borrower's or such Subsidiary’s right to receive payment is {N0109914 } 3 5421512 absolute and not contingent upon the fulfillment of any condition whatsoever, and shall not include: any account which remains unpaid more than ninety (90) days past due from the date of the invoice or sixty (60) days from the stated due date or which has been written off the books of the Borrower or otherwise designated as uncollectible by Borrower (it being understood that, in determining the aggregate amount from the same Customer that is unpaid hereunder, there shall be responsible for payment excluded the amount of any costs, expenses, fees or other amounts in connection with net credit balances relating to accounts due from such valuation report except in connection with Customer which are unpaid more than sixty (60) after the stated due date); any account which represents an obligation of a Borrowing Base Dispute pursuant to Section 2.6(b).
(b) Notwithstanding the foregoing or anything to the contrary contained herein, the Borrower shall have the right to dispute the Administrative Agent’s calculation Customer which is not a resident of the Administrative Agent Asset Value United States or Canada unless such account is supported by notifying the Administrative Agent a letter of credit in form and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, substance reasonably acceptable to prepare a valuation report Bank; any account with respect to such Administrative Agent Asset Value. The average which there is another contra account but only to the extent of the midpoint values indicated amount owed by Borrower to the Customer; any account which represents an obligation of any local, state or federal governmental agency or entity, unless Borrower is not prohibited from assigning the account and is able to does assign its right to payment of such account to the Bank, in a manner reasonably satisfactory to Bank, so as to comply with the Assignment of Claims Act of 1940, as amended; any account which arises from the sale to an account debtor on a guaranteed sale, sale-or-return, sale-on-approval, consignment, or any other repurchase or return basis but such accounts shall only be excluded from Eligible Accounts Receivable only during the length of time of any such repurchase or return obligations; any account which arises from the sale to a Customer on a cash-on-delivery basis; any account for which there exists a right of set off, defense or discount, except regular discounts allowed in the two valuation reports submitted by ordinary course of business to promote prompt payment and for which no defense or counterclaim has been asserted, but such accounts shall only be excluded from Eligible Accounts Receivable to the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest error.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement extent of such Valuation Agent asserted right of setoff, defense or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7.discount;
Appears in 1 contract
Sources: Loan Agreement (DLH Holdings Corp.)
Borrowing Base. (a) The Administrative Agent may, in its sole and absolute discretion, and shall, at On the request basis of the Majority Lenders, on any date, calculate the Borrowing Base and shall provide written notice thereof reports furnished to the Borrower. To Agent (including without limitation the extent any such calculation results in a Borrowing Base Deficiency, the Administrative Agent shall deliver a notice reports furnished pursuant to the Borrower Section 7.1(d)(viii) and each Lender (a “Borrowing Base Deficiency Notice”ix), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made by the Borrower as a result of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports ) with respect to the Administrative Borrowing Base Properties, using such reasonable assumptions as the Agent Asset Value from a Valuation Agent, at any time shall specify (including without limitation discount rates and projected hydrocarbon price assumptions) and such other or additional information as may be requested from time to time on a non-binding basis; provided that time, the Borrower Agent shall not be responsible for payment determine, with the approval of any coststhe Required Lenders, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(bat least semi-annually as of May 15 and November 15 of each year (scheduled).
, or at such other or additional times as the Required Lenders in their sole discretion may elect (b) Notwithstanding the foregoing or anything to the contrary contained hereinunscheduled). In addition, the Borrower Company shall have the right to dispute request one unscheduled Borrowing Base determination between each scheduled Borrowing Base determination. The Borrowing Base will be determined by the Administrative Agent’s calculation Agent and each of the Administrative Lenders in its sole discretion based upon the loan collateral value that it in its sole discretion assigns to the Borrowing Base Properties based upon such credit factors (including, without limitation, any diversification, hold limits or other internal credit policies of the Agent Asset Value by notifying or any Lender in effect from time to time, the Administrative assets, senior and subordinate liabilities, cash flow, hedged and unhedged exposure to oil and gas prices, foreign exchange rates and interests rates, businesses, properties, prospects, management and ownership of the Company and its subsidiaries and the Partnerships) as it in its sole discretion deems significant. The Agent and the Lenders within three (3) Business Days after will have no obligation to agree upon or determine the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”)at any particular amount, whether in relation to the Aggregate Commitments or otherwise. If the Borrower initiates a Required Lenders cannot agree on the Borrowing Base, the Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, shall be set on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The basis of the weighted arithmetic average of the midpoint values indicated in the two valuation reports submitted Borrowing Bases determined by the Valuation Agents shall become individual Lenders. Notwithstanding anything to the conclusive Valuation Agent Market Value Percentage contrary set forth above, the amount of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest error.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall may not be an Obligation increased at any time without the consent of 100% of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7Lenders.
Appears in 1 contract
Borrowing Base. The Borrower represents, warrants and covenants as follows:
(a) The Administrative Agent may, At the time any Eligible Account Receivable is included in its sole and absolute discretion, and shall, at the request of the Majority Lenders, on any date, calculate the Borrowing Base and to the extent of the value of such Eligible Account Receivable as reflected in the Borrowing Base, such Eligible Account Receivable shall provide be a valid account representing an undisputed indebtedness incurred by the account debtor for goods held subject to delivery instructions or theretofore shipped or delivered pursuant to a contract of sale; there shall be no setoffs or counterclaims against the account; no agreement under which any deduction or discount may be claimed shall have been made with the account debtor unless written notice thereof has theretofore been or concurrently is given to the Borrower. To Agent; no agreement under which any goods may be returned shall have been made with the extent any such calculation results in a Borrowing Base Deficiency, the Administrative Agent shall deliver a notice to the Borrower account debtor; and each Lender (a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made by the Borrower as a result of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time to time on a non-binding basis; provided that the Borrower shall not be responsible for payment the lawful owner of any costs, expenses, fees or other amounts such Eligible Account Receivable and shall have good right to subject the same to a security interest in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(b)favor of the Agent.
(b) Notwithstanding The Borrower is, and as to Eligible Inventory to be acquired after the foregoing date hereof and to be included in the Borrowing Base, shall be the owner of all Eligible Inventory to be included in the Borrowing Base and (except for the liens for carrier, warehouse, customs and similar statutory liens arising in the ordinary course of business) shall neither create or anything suffer to the contrary contained hereinexist any lien or encumbrance thereon or security interest therein nor sell, the Borrower shall have the assign, transfer or create or suffer to exist any lien or encumbrance on or security interest in any account or contract right to dispute or in favor of any Person other than the Administrative Agent’s calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base Dispute, then the Administrative Agent, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest error.
(c) Any costsThe Borrower shall give the Agent on the Effective Date a list of, expenses, fees and other amounts due and owing thereafter shall give thirty (30) days written notice prior to any Valuation Agent change in, each warehouse location at which inventory is or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall will be an Obligation kept and each office of the Borrower at which the records of the Borrower pertaining to Eligible Accounts Receivable and contract rights are kept. All Eligible Inventory is and shall become due be kept, and payable all records pertaining to Eligible Accounts and contract rights are and shall be kept, only at locations of which the Agent has been given notice as provided in this Section 8.14(c).
(d) The Borrower shall promptly notify the Agent of any of the following events of which any senior or executive officer of the Borrower becomes aware: any material loss or depreciation in value of Eligible Inventory and the amount of the loss or depreciation; rejection, return, repossession or loss of any material amount of goods giving rise to any Eligible Account Receivable; material damage to any such goods; any request by an account debtor for any credits or adjustments of Eligible Accounts Receivable which are material in the aggregate; any adjustments of the amounts owing on Eligible Accounts Receivable which are material in the aggregate; any other disputes which are material in the aggregate; any other event which materially affects Eligible Inventory or Eligible Accounts Receivable or the value or amount thereof, PROVIDED, that during any period when Eligible Accounts Receivable are being determined on a daily basis, all applicable adjustments to the amount thereof shall be taken on the immediately succeeding Monthly Payment Date day such adjustment(s) are made, and shall not be delayed by virtue of this Section 8.14(d). For purposes of this Section 8.14(d), "material" shall mean involving amounts in accordance with Section 2.7excess of $1,000,000 in the aggregate in the case of Eligible Accounts Receivable and $5,000,000 in the aggregate in the case of Eligible Inventory.
Appears in 1 contract
Sources: Revolving Credit Agreement (Republic Engineered Steels Inc)
Borrowing Base. (a) The Administrative Agent may, in its sole and absolute discretion, and shall, at During the request period from the Closing Date to the date of the Majority Lenders, on any date, calculate initial determination of the Borrowing Base and shall provide written notice thereof pursuant to the Borrower. To provisions of this Section 2.9, the extent any such calculation results in a Borrowing Base DeficiencyLoan Parties, the Administrative Agent, the Syndication Agent shall deliver a notice to and the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth Lenders agree that the calculation thereof (which shall be conclusive absent manifest error), and initial amount of the Borrowing Base Required Payment to be made by the Borrower as a result of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time to time on a non-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(bOne Billion Two Hundred Fifty Million Dollars ($1,250,000,000).
(b) Notwithstanding Upon each delivery of a Reserve Report pursuant to Section 8.3.10, together with such engineering and other data from the foregoing or anything Borrower as is customarily provided, the Syndication Agent shall, within a reasonable period of time, make a good faith determination of the proposed Borrowing Base, and promptly thereafter the Administrative Agent will propose by notice in writing to the contrary contained hereinLenders such Borrowing Base for acceptance by (i) the Required Borrowing Base Lenders with respect to any reaffirmations or reductions in the Borrowing Base and (ii) the Required Increasing Borrowing Base Lenders with respect to any increases in the Borrowing Base. If such Borrowing Base, as proposed by the Administrative Agent is accepted by the Applicable Borrowing Base Lenders, then such accepted Borrowing Base shall be communicated by the Administrative Agent to the Borrower on or before 30 days following the date of delivery of such Reserve Report (the “Applicable Date”); provided that if such proposed Borrowing Base is not approved by the Applicable Borrowing Base Lenders prior to the Applicable Date, then the Applicable Borrowing Base Lenders will establish and agree to a Borrowing Base established using criteria agreed upon by the Applicable Borrowing Base Lenders, and such amount will be communicated to the Borrower, within 30 days following the Applicable Date. Any Lender that shall fail to reject the proposed Borrowing Base within fifteen (15) days of notice of the proposed Borrowing Base shall be deemed to have approved the proposed amount of such Borrowing Base. The new Borrowing Base shall become effective as of the date that the Borrower receives notification from the Administrative Agent of the new Borrowing Base, and until that time, the old Borrowing Base shall continue to be in effect. The Borrowing Base, as determined and established pursuant to this Section 2.9 shall be subject, at all times, to the redetermination or adjustment of the then effective Borrowing Base as a result of a redetermination of the Borrowing Base pursuant to Sections 2.9(c) or 2.9(d) or an adjustment of the Borrowing Base pursuant to Section 8.2.16(e) [Sale of Proved Reserves; Pooling].
(c) Not more than once in any fiscal year, and, in addition, at any time upon notice from the Borrower of a proposed acquisition which would result in any Permitted Acquisition Lien, the Administrative Agent upon the instruction of the Syndication Agent or the Required Borrowing Base Lenders (or the Administrative Agent without such instruction), may request from the Borrower an Alternate Reserve Report for the purpose of redetermining the Borrowing Base, and the Borrower shall have the right to dispute request a redetermination of the Borrowing Base one time between the delivery of Reserve Reports by sending a written notice to the Administrative Agent’s calculation Agent of such request along with an Alternate Reserve Report. In connection with any redetermination of the Borrowing Base related to a delivery of an Alternate Reserve Report, the Syndication Agent shall make a good faith determination, in a reasonably prompt manner, of a new Borrowing Base, and the Administrative Agent shall propose by notice in writing, in a reasonably prompt manner, such new Borrowing Base to the Lenders, and the Applicable Borrowing Base Lenders shall agree to review in a reasonably prompt manner, and (if acceptable) approve a new Borrowing Base, which shall become effective upon receipt by the Borrower of notice of such new Borrowing Base. Any Lender that shall fail to reject the proposed Borrowing Base within fifteen (15) days of notice of the proposed Borrowing Base shall be deemed to have approved the proposed amount of such Borrowing Base. In connection with any such redetermination of the Borrowing Base, the Borrower shall deliver promptly upon the request of the Administrative Agent Asset Value an Alternate Reserve Report to the Administrative Agent; provided that the Borrower’s failure to deliver such Alternate Reserve Report shall not preclude or impact the making of such redetermination of the Borrowing Base by notifying the Administrative Agent or the approval of such Borrowing Base by the Applicable Borrowing Base Lenders.
(d) At the request of the Administrative Agent, the Syndication Agent or the Required Borrowing Base Lenders, in their sole discretion, the Borrowing Base shall be adjusted in conformity with Section 2.9(c) contemporaneously with (i) the sale, transfer, lease, contribution or other conveyance in one or more transactions after the date of the latest redetermination or adjustment of the Borrowing Base pursuant to this Agreement by any Loan Party to one or more Persons (other than another Loan Party), of Proved Reserves with an aggregate value exceeding 5% of the Borrowing Base then in effect (whether directly or indirectly by means of the sale of equity interests in a Loan Party or otherwise) pursuant to Section 8.2.16(e) [Sale of Proved Reserves; Pooling] and (ii) the early monetization or early termination of any Hedge Agreements relied on by the Administrative Agent, the Syndication Agent and the Lenders in determining the Borrowing Base that has an economic value exceeding five percent (5%) of the Borrowing Base then in effect.
(e) The Borrowing Base shall represent the good faith determination by the Administrative Agent and the Lenders within three (3) Business Days after Syndication Agent, of the Borrower receives a loan value of the Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”). If the Borrower initiates a Borrowing Base DisputeProperties based upon, then the Administrative Agentamong other things, on one hand, and the Borrower, on the other hand, shall each promptly direct separate Valuation Agents, to prepare a valuation report with respect to such Administrative Agent Asset Value. The average of the midpoint values indicated information contained in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage of the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest error.
(c) Any costs, expenses, fees Reserve Report and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7the applicable definitions and provisions herein contained, the Syndication Agent’s standard policies regarding energy lending, industry lending practices, and consideration for the nature of the facilities established hereunder. The Borrower acknowledges that the determination of the Borrowing Base contains an equity cushion (market value in excess of the value of all Indebtedness of the Loan Parties), which is acknowledged by the Borrower to be essential for the adequate protection of the Administrative Agent and the Lenders.
Appears in 1 contract
Borrowing Base. (a) The Administrative Agent may, in its sole and absolute discretion, and shall, at During the request period from the Closing Date to the date of the Majority Lenders, on any date, calculate initial determination of the Borrowing Base and shall provide written notice thereof pursuant to the Borrower. To the extent any such calculation results in a Borrowing Base Deficiencyprovisions of this Section 2.9, the Loan Parties, the Co-Administrative Agent shall deliver a notice to Agents and the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth Banks agree that the calculation thereof (which shall be conclusive absent manifest error), and initial amount of the Borrowing Base Required Payment to be made by the Borrower as a result of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time to time on a nonThree Hundred Eighty-binding basis; provided that the Borrower shall not be responsible for payment of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Borrowing Base Dispute pursuant to Section 2.6(bFive Million Dollars ($385,000,000.00).
(b) Notwithstanding Upon each delivery of a Reserve Report pursuant to Section 8.3.10 on or before the foregoing or anything respective dates required thereby, then with respect to the contrary contained hereinDecember 31 Reserve Report or June 30 Reserve Report, as the case may be, the Technical Agent shall make a determination of the proposed Borrowing Base, and promptly thereafter the Co-Administrative Agents will propose by notice in writing to the Lenders a Borrowing Base for acceptance by the Required Borrowing Base Lenders. If such Borrowing Base, as proposed by the Co-Administrative Agents is accepted by the Required Borrowing Base Lenders, then such accepted Borrowing Base shall be communicated by the Paying Agent to the Borrower on or before 30 days following the date of delivery of such Reserve Report (the “Applicable Date”); provided that if such proposed Borrowing Base is not approved by the Required Borrowing Base Lenders prior to the Applicable Date then the Required Borrowing Base Lenders will establish and agree to a Borrowing Base established using criteria agreed upon by the Required Borrowing Base Lenders, and such amount will be communicated to the Borrower, within 30 days following the Applicable Date. Any Lender that shall fail to reject the proposed Borrowing Base within fifteen (15) days of notice of the proposed Borrowing Base shall be deemed to have approved the proposed amount of such Borrowing Base. The new Borrowing Base shall become effective as of the date that the Borrower receives notification from the Paying Agent of the new Borrowing Base, and until that time, the old Borrowing Base shall continue to be in effect. The Borrowing Base, as determined and established pursuant to this Section 2.9 shall be subject, at all times, to the redetermination or adjustment of the then effective Borrowing Base as a result of a redetermination of the Borrowing Base pursuant to Sections 2.9(c) or 2.9(d) or an adjustment of the Borrowing Base pursuant to 8.2.17(v).
(c) The Co-Administrative Agents upon the instruction of the Required Borrowing Base Lenders (and the Co-Administrative Agents without such instruction, one time between the delivery of Reserve Reports) shall, at any time, request from the Borrower an Alternate Reserve Report for the purpose of redetermining the Borrowing Base, and the Borrower shall have the right to dispute the Administrative Agent’s calculation request a redetermination of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (one time between the delivery of Reserve Reports by sending a “written notice to the Paying Agent of such request along with an Alternate Reserve Report. In connection with any redetermination of the Borrowing Base Dispute”). If related to a delivery of an Alternate Reserve Report, the Borrower initiates Co-Administrative Agents shall propose by notice in writing, in a reasonably prompt manner, a new Borrowing Base Dispute, then the Administrative Agent, on one handBase, and the BorrowerRequired Borrowing Base Lenders shall agree to review in a reasonably prompt manner, on and (if acceptable) approve a new Borrowing Base, which shall become effective upon receipt by the other hand, Borrower of notice of such new Borrowing Base. Any Lender that shall each promptly direct separate Valuation Agents, fail to prepare a valuation report with respect to such Administrative Agent Asset Value. The average reject the proposed Borrowing Base within fifteen (15) days of notice of the midpoint values indicated in proposed Borrowing Base shall be deemed to have approved the two valuation reports submitted proposed amount of such Borrowing Base. In connection with any such redetermination of the Borrowing Base, the Borrower shall deliver promptly upon the request of the Co-Administrative Agents an Alternate Reserve Report to the Co-Administrative Agents; provided that the Borrower’s failure to deliver such Alternate Reserve Report shall not preclude or impact the making of such redetermination of the Borrowing Base by the Valuation Co-Administrative Agents shall become or the conclusive Valuation Agent Market Value Percentage approval of such Borrowing Base by the related MSRs that constitute Eligible Assets, binding upon all parties hereto, absent manifest errorRequired Borrowing Base Lenders.
(cd) Any costsAt the request of the Co-Administrative Agents or the Required Lenders, expensesin their sole discretion, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) shall may be an Obligation of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date redetermined in accordance conformity with Section 2.7.Section
Appears in 1 contract
Sources: Credit Agreement (Consol Energy Inc)
Borrowing Base. So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, Borrower shall, and cause each member of the Consolidated Group to, represent, warrant and covenant as follows:
(a) The Administrative Agent mayLoan Parties are the owners of all assets eligible for inclusion in the Borrowing Base, including, without limitation, Unrestricted Cash, Tower Construction Projects, Developable Land, Units, Tower Units, Finished Land Inventory, Eligible Joint Ventures, Eligible Excluded Subsidiaries and the Amenities the value of which is to be included in its sole and absolute discretion, and shall, at the request of the Majority Lenders, on any date, calculate the Borrowing Base and shall provide written notice neither create nor suffer to exist any Lien (other than Customary Permitted Liens) thereon; and
(b) One of the Loan Parties is the owner of each Developed Lot, Developed Parcel, Tower Unit, Tower Construction Project, and Unit, the value of which is to be included in the Borrowing Base and shall neither create nor suffer to exist any Lien (other than Customary Permitted Liens) thereon, nor sell, assign, transfer or create or suffer to EXHIBIT 10.1 exist any Lien (other than Customary Permitted Liens) in any Housing Purchase Contract or other right constituting proceeds thereof to or in favor of any other Person. For the Borrower. To purpose of computing the extent any Borrowing Base, Borrower shall furnish to Administrative Agent information with such calculation results in a Borrowing Base Deficiency, the specificity as Administrative Agent shall deliver a notice to the Borrower and each Lender (a “Borrowing Base Deficiency Notice”), setting forth the calculation thereof (which shall be conclusive absent manifest error), and the Borrowing Base Required Payment to be made by the Borrower as a result of such calculation (which amount shall be paid in accordance with Section 2.9). At the Administrative Agent’s discretion, the Administrative Agent may obtain valuation reports with respect to the Administrative Agent Asset Value from a Valuation Agent, at any time and from time to time on a non-binding basis; provided that require in the Borrower shall not be responsible for payment form of any costs, expenses, fees or other amounts in connection with such valuation report except in connection with a Exhibit D (the "Borrowing Base Dispute pursuant to Section 2.6(bReport").
(b) Notwithstanding the foregoing , or anything to the contrary contained hereinin such other form and substance and at such times, the Borrower shall have the right to dispute the in each case, as may be reasonably requested by Administrative Agent’s , including a certificate signed by a Responsible Officer of Borrower showing a calculation of the Administrative Agent Asset Value by notifying the Administrative Agent and the Lenders within three (3) Business Days after the Borrower receives a Borrowing Base Deficiency Notice (a “Borrowing Base Dispute”attaching all documentation used in such calculations). If the Borrower initiates a sum of (i) the Total Outstandings plus (ii) the outstanding principal balance of the Senior Notes is greater than or equal to sixty percent (60%) of the Borrowing Base DisputeBase, then the Administrative Agent, on one hand, and the Borrower, on the other hand, such information shall each promptly direct separate Valuation Agents, be provided to prepare a valuation report with respect to such Administrative Agent Asset Value. The average monthly within forty-five (45) days of the midpoint values indicated in the two valuation reports submitted by the Valuation Agents shall become the conclusive Valuation Agent Market Value Percentage last day of the related MSRs that constitute Eligible Assetsimmediately preceding month; and if the sum of (i) the Total Outstandings plus (ii) the outstanding principal balance of the Senior Notes is less than sixty percent (60%) of the Borrowing Base, binding upon all parties hereto, absent manifest error.
(c) Any costs, expenses, fees and other amounts due and owing to any Valuation Agent or Dealer in connection with the engagement of such Valuation Agent or Dealer in connection with a Borrowing Base Dispute pursuant to Section 2.6(b) information shall be an Obligation provided to Administrative Agent quarterly within forty-five (45) days of the Borrower and shall become due and payable on the immediately succeeding Monthly Payment Date in accordance with Section 2.7preceding quarter end.
Appears in 1 contract
Sources: Senior Unsecured Revolving Credit Agreement (Wci Communities Inc)