EX-10.1 2 tm218814d1_ex10-1.htm EXHIBIT 10.1

 

Exhibit 10.1

 

Execution Version

 

RESTRUCTURING SUPPORT AGREEMENT

 

This Restructuring Support Agreement (including the exhibits attached hereto, as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof, this “Agreement”), dated as of March 9, 2021, is entered into by and among (i) Sundance Energy Inc., a Delaware corporation (“Parent”), (ii) each direct and indirect wholly-owned, domestic subsidiary of Parent party hereto (each a “Sundance Subsidiary”, and together with Parent, the “Company”), (iii) the Prepetition RBL Agent (as defined below), in its capacity as such, (iv) the Prepetition RBL Lenders (as defined below) party hereto (the “Consenting RBL Lenders”), (v) the Prepetition Term Loan Agent (as defined below), in its capacity as such, and (vi) the Prepetition Term Lenders (as defined below) party hereto (the “Consenting Term Lenders”). Each of the foregoing are referred to herein individually as a “Party”, and collectively as the “Parties.”

 

RECITALS

 

WHEREAS, reference is made to that certain Credit Agreement, dated as of July 18, 2018 (as amended, modified, or supplemented from time to time), by and among Parent, Sundance Energy, Inc., a Colorado corporation, as borrower, the guarantors party thereto from time to time, Toronto Dominion (Texas) LLC, as successor administrative agent to Natixis, New York Branch (in such capacity, together with any successor agent, the “Prepetition RBL Agent”), and the lenders party thereto from time to time (the “Prepetition RBL Lenders,” and such agreement, as amended, modified, or supplemented from time to time in accordance with the terms thereof and hereof, the “Prepetition RBL Credit Agreement,” and such facility thereunder, the “Prepetition RBL Facility”). Any and all claims and obligations arising under or in connection with the Prepetition RBL Credit Agreement and related loan documents are defined herein as the “Prepetition RBL Claims.” As of the date hereof, the Prepetition RBL Facility had an aggregate principal amount outstanding of approximately $146,950,000.00 (the “Aggregate Outstanding RBL Amount”), plus accrued but unpaid interest, fees, costs, and expenses;

 

WHEREAS, reference is made to that certain Amended & Restated Term Loan Credit Agreement, dated as of April 23, 2018 (as amended, modified, or supplemented from time to time), by and among Parent, Sundance Energy, Inc., a Colorado corporation, as borrower, the guarantors party thereto from time to time, Morgan Stanley Capital Administrators Inc. as administrative agent (in such capacity, together with any successor agent, the “Prepetition Term Loan Agent”), and the lenders party thereto from time to time (the “Prepetition Term Lenders,” and such agreement, as amended, modified, or supplemented from time to time in accordance with the terms thereof and hereof, the “Prepetition Term Loan Credit Agreement,” and such facility thereunder, the “Prepetition Term Loan Facility”). Any and all claims and obligations arising under or in connection with the Prepetition Term Loan Credit Agreement and related loan documents are defined herein as the “Prepetition Term Loan Claims.” As of the date hereof, the Prepetition Term Loan Facility had an aggregate principal amount outstanding of approximately $252,997,054.45 (the “Aggregate Outstanding Term Loan Amount”), plus accrued but unpaid interest, fees, costs, and expenses;

 

 

 

 

WHEREAS, reference is made to (i) that certain Intercreditor Agreement, dated as of April 23, 2018, executed by Sundance Energy, Inc., a Colorado corporation, Sundance Australia, Armadillo E&P, Inc., Sea Eagle Ford, LLC, Natixis, New York Branch, and Morgan Stanley Energy Capital Inc. (the “ICA”); (ii) that certain Supplement No. 1 to the Intercreditor Agreement, dated as of January 13, 2020, among Sundance Energy, Inc., a Colorado corporation, and certain subsidiaries and affiliates thereof, Toronto Dominion (Texas) LLC, as successor in interest to Natixis, New York Branch, and Morgan Stanley Capital Administrators Inc. (f/k/a Morgan Stanley Energy Capital Inc.) (the “ICA Supplement”); and (iii) that certain Acknowledgment Letter and Joinder under Intercreditor Agreement, dated January 13, 2020 from Toronto Dominion (Texas) LLC to Morgan Stanley Capital Administrators Inc. and acknowledged by Sundance Energy, Inc. and the other grantors party thereto (the “Acknowledgment and Joinder,” together with the ICA and ICA Supplement, collectively, the “Intercreditor Agreement”);

 

WHEREAS, the Parties have engaged in good-faith, arm’s-length negotiations regarding the principal terms of a prepackaged chapter 11 plan of reorganization through which the Company will seek to restructure its debt obligations and capital structure and recapitalize the Company in accordance with and subject to the terms and conditions set forth herein and in the proposed prepackaged chapter 11 plan of reorganization attached hereto as Exhibit A (including any exhibits, supplements and schedules attached thereto, and as the same may be amended, modified, or supplemented from time to time in accordance with the terms hereof and thereof, the “Plan”)1 and incorporated herein by reference. The restructuring contemplated in this Agreement and the Plan is referred to in this Agreement as the “Transaction”;

 

WHEREAS, each of the Parties has reviewed, or has had the opportunity to review, the Plan and this Agreement; and

 

WHEREAS, the Parties desire to express to each other their mutual support and commitment in respect of the matters discussed in this Agreement on the terms and conditions set forth herein and in the Plan.

 

NOW, THEREFORE, in consideration of the promises, covenants, and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

 

1.             The Transaction

 

Subject to the terms and conditions of this Agreement, the Plan and the other exhibits attached hereto, each Party agrees as follows until this Agreement has been terminated with respect to it in accordance with Section 6 below:

 

 

1Capitalized terms used but not otherwise defined herein are defined in accordance with the Plan, which is expressly made part of this Agreement and incorporated herein by reference.

 

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a.             Generally. Each of the Parties will use commercially reasonable efforts to cause to occur, and cooperate in, the prompt consummation of the Transaction on terms and conditions consistent in all respects with the Plan and this Agreement. The agreements, representations, warranties, covenants, and obligations of the Company under or in connection with this Agreement are joint and several in all respects, but the agreements, representations, warranties, covenants, and obligations of the Consenting Creditors2 under or in connection with this Agreement are several (and not joint) in all respects. Any breach or violation of this Agreement by a Party shall not result in liability for any other Party.

 

b.             Form of Transaction. The Transaction shall be effectuated through jointly administered prepackaged voluntary cases to be commenced by the Company (the “Chapter 11 Cases”) under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (as amended, the “Bankruptcy Code”) in the United States Bankruptcy Court for the Southern District of Texas (the “Bankruptcy Court”) that shall contemplate confirmation of the Plan and implementation of the Transaction in accordance with the Plan, this Agreement and the following documents (together with the Plan, the “Prepetition Definitive Documents”):

 

(1)              the disclosure statement used to solicit votes on the Plan (the “Disclosure Statement”), the ballots, and other materials used to solicit votes on the Plan;

 

(2)              the motion seeking (a) entry of the Combined Disclosure Statement and Confirmation Order, (b) approval of the solicitation materials and procedures set forth therein, and (c) to schedule a combined hearing to consider such no later than forty-five (45) calendar days after the Petition Date (the “Confirmation Motion”);

 

(3)              any “first day” pleadings to be filed by the Company in connection with the Chapter 11 Cases (other than administerial pleadings) (the “First Day Pleadings”);

 

(4)              the credit agreement, attached hereto as Exhibit B, by and among Parent, Sundance Energy, Inc., a Colorado corporation, as borrower, each other Sundance Subsidiaries as guarantor, Morgan Stanley Capital Administrators Inc. as administrative agent (in such capacity, the “DIP Agent”), and the Consenting Term Lenders (in such capacity, the “DIP Lenders,” and such agreement, as amended, modified, or supplemented from time to time in accordance with the terms thereof and hereof, the “DIP Credit Agreement,” and such facility thereunder, the “DIP Facility”) pursuant to which the DIP Lenders will provide debtor-in-possession financing to the Company, and the interim debtor-in-possession financing and cash collateral order (including the approved budget attached thereto (the “Budget”)), attached hereto as Exhibit C (the “Interim Financing Order”); and

 

(5)              the executed debt commitment letter agreement attached hereto as Exhibit D (the “Exit Debt Commitment Letter”), pursuant to which the Consenting RBL Lenders have committed to provide an exit reserve based credit facility (the “Exit RBL Facility”) and an exit first lien second out term loan facility (the “Exit Second Out Term Loan Facility”) to the Reorganized Company3 on the Plan Effective Date (defined below); which credit agreement would include, if necessary, an exit third out term loan facility with respect to any Prepetition RBL Lenders who are “Non-Participating RBL Lenders” (as defined in the Plan) (the “Exit Third Out Term Loan Facility”) to which is attached final form of the credit agreement for the combined Exit RBL Facility, the Exit Second Out Term Loan Facility, and the Exit Third Out Term Loan Facility (the “Exit Facilities Credit Agreement”).

 

 

2The term Consenting Creditorsmeans, collectively, the Consenting RBL Lenders and the Consenting Term Lenders (each, individually, a Consenting Creditor).

 

3The term Reorganized Company, as used herein, means the Company, from and after the effective date of the Plan, as reorganized under and pursuant to the Plan, including any successor thereto (to the extent applicable), by merger, consolidation, transfer of all, or substantially all its assets, or otherwise.

 

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2.             Agreement Effective Date

 

This Agreement shall become effective on the date and time that completed signature pages to this Agreement have been executed and delivered to each other counterpart by (a) the Company, (b) Prepetition RBL Lenders holding at least 66 2/3% of the outstanding aggregate principal amount of the Prepetition RBL Claims (the “Super-Majority RBL Lenders”), and (c) Prepetition Term Lenders holding 100% of the outstanding aggregate principal amount of the Prepetition Term Loan Claims (such date, the “Agreement Effective Date”). The terms and provisions of this Agreement, and the rights, agreements, covenants, and the obligations of the Parties hereunder, shall not become effective or binding until the occurrence of the Agreement Effective Date.

 

3.             All Parties: Implementation of the Transaction

 

Subject to the terms and conditions of this Agreement and the exhibits attached hereto, each Party hereby covenants and agrees, from the Agreement Effective Date until this Agreement has been terminated as to it in accordance with Section 6 below:

 

a.             to negotiate in good faith, prior to the date that the first Chapter 11 Case is commenced (the “Petition Date”), the Prepetition Definitive Documents;

 

b.             to negotiate in good faith all additional definitive documents implementing, achieving or relating to the Transaction or described in or contemplated by this Agreement or the Plan (collectively, such documents, together with the Prepetition Definitive Documents, the “Definitive Documents”), including, but not limited to:

 

(1)              the order of the Bankruptcy Court approving the Disclosure Statement and confirming the Plan (the “Combined Disclosure Statement and Confirmation Order”);

 

(2)              any pleading in support of entry of the Combined Disclosure Statement and Confirmation Order, other than the Confirmation Motion (the “Other Confirmation Pleadings”);

 

(3)              any “second day” pleadings and any other material motions, orders, and related documents to be filed by the Company in connection with the Chapter 11 Cases (other than administerial pleadings) (the “Second Day Pleadings”, and together with the Confirmation Motion, the First Day Pleadings, and the Other Confirmation Pleadings, the “Pleadings”);

 

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(4)              the agreements, documents, exhibits, annexes and schedules relating to the DIP Facility (collectively, and together with the DIP Credit Agreement, the “DIP Financing Documents”) and final debtor-in-possession financing and cash collateral orders substantially identical to the Interim Financing Order, mutatis mutandis, (the “Final Financing Order”, and together with the Interim Financing Order, the “Financing Orders”), in each case, consistent in all respects with the DIP Credit Agreement and Interim Financing Order;

 

(5)              the Exit Facilities Credit Agreement, all exhibits, annexes and schedules thereto and all other agreements and documents relating to the Exit RBL Facility, the Exit Second Out Term Loan Facility, and the Exit Third Out Term Loan Facility (collectively, the “Exit Facilities Documents”), in each case, consistent in all respects with the Exit Debt Commitment Letter;

 

(6)              documents, if any, relating to the issuance of equity by the Reorganized Company on the Plan Effective Date (the “Equity Issuance Documents”);

 

(7)              the compilation of documents and forms of documents, agreements, schedules, and exhibits to the Plan to be filed by the Company with the Bankruptcy Court (the “Plan Supplement”); and

 

(8)              all constituent documents and corporate governance documents (including any charter, bylaws, LLC or operating agreement or shareholders’ agreement) relating to the Reorganized Company and the identity of officers and directors of the Reorganized Company (collectively, “Governance Materials”), in each case, consistent in all respects with the consistent in all respects with the term sheet attached hereto as Exhibit E (the “Governance Term Sheet”).

 

The terms and conditions of (a) each Definitive Document other than the Governance Materials (whether or not contained in the Plan Supplement), the Pleadings and the Combined Disclosure Statement and Confirmation Order will be (i) consistent in all respects with this Agreement, the Plan and the applicable exhibits to this Agreement, and (ii) otherwise in form and substance acceptable to the Company, the Prepetition RBL Agent, and the Consenting Term Lenders holding more than 50% of the aggregate principal amount outstanding under the Prepetition Term Loan Credit Agreement held by all of the Consenting Term Lenders (the “Required Consenting Term Lenders”), except as otherwise expressly set forth in the Plan, (b) the Governance Materials will be (i) consistent in all respects with this Agreement and the Plan, and (ii) otherwise in form and substance acceptable to the Company and each Consenting Term Lender, and (c) the Pleadings and the Combined Disclosure Statement and Confirmation Order will be (i) consistent in all respects with this Agreement and the Plan, and (ii) otherwise in form and substance reasonably acceptable to the Company, the Prepetition RBL Agent and the Required Consenting Term Lenders.

 

c.             to promptly execute and deliver (to the extent they are a party thereto) and otherwise use commercially reasonable efforts to support the prompt consummation of the Transaction and any other transactions contemplated by the Definitive Documents; and

 

d.             not to object to, delay, impede, commence any proceeding, or take any other action to interfere, directly or indirectly, in any material respect with the prompt consummation of the Transaction (or instruct, direct, encourage or support any person or entity to do any of the foregoing).

 

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4.             Support of the Transaction

 

a.            Consenting Creditors Support. Subject to the terms and conditions of this Agreement and the exhibits attached hereto, each Consenting Creditor agrees that, until this Agreement has been terminated as to it in accordance with Section 6, it will:

 

(i)             give any notice, order, instruction, or direction to the Prepetition RBL Agent or Prepetition Term Loan Agent, as applicable, necessary to give effect to the Transaction;

 

(ii)            not object to, or otherwise commence any proceeding to oppose, and not instruct or direct the Prepetition RBL Agent or Prepetition Term Loan Agent, as applicable, to object to, or otherwise commence any proceeding to oppose the Transaction, the confirmation or consummation of the Plan (subject to satisfaction of the conditions to effectiveness contained in the Plan (the “Plan Conditions”)), or approval of the Disclosure Statement;

 

(iii)           not take any action (and not instruct or direct the Prepetition RBL Agent or Prepetition Term Loan Agent, as applicable, to take any action) (including, without limitation, (1) initiating or joining in any legal proceeding or filing any pleading or (2) breaching its obligations under the Exit Debt Commitment Letter or DIP Credit Agreement, as applicable) that is inconsistent in any material respect with its obligations under this Agreement or that would hinder, prevent, delay or impede the consummation of the Transaction (other than a proceeding or pleading seeking a determination (A) that a Plan Condition has not been satisfied or (B) as to whether this Agreement has been validly terminated or breached); provided, that this Section 4(a)(iii) shall not limit a Consenting Creditor’s rights under the Exit Debt Commitment Letter or a DIP Lender’s rights under the DIP Credit Agreement, as applicable;

 

(iv)           provided that such Consenting Creditor has been solicited in accordance with sections 1125 and 1126 of the Bankruptcy Code, if applicable, and other applicable law, vote all claims (as defined in Section 101(5) of the Bankruptcy Code) beneficially owned by such Consenting Creditor or for which it is the nominee, investment manager, or advisor for beneficial holders thereof, to accept the Plan in accordance with the applicable procedures set forth in the Disclosure Statement and accompanying voting materials, and return a duly-executed ballot in connection therewith no later than the applicable deadline set forth in the Disclosure Statement;

 

(v)            not change, withdraw or revoke (or seek to change, withdraw or revoke) its participation in the Transaction or any vote to accept the Plan; provided, however, that notwithstanding anything in this Agreement to the contrary, each Consenting Creditor’s vote shall be automatically revoked (and, upon such revocation, deemed void ab initio) immediately following (and solely in the event of) the termination of this Agreement pursuant to Section 6 with respect to such Consenting Creditor (regardless of whether any deadline for votes, or for withdrawal thereof, set forth in the Disclosure Statement has passed) (it being agreed that the Company shall not oppose any attempt by such Consenting Creditor to change or withdraw (or cause to change or withdraw) such vote or consent at such time); provided, further, that this Section 4(a)(v) shall not limit a Consenting Creditor’s rights under the Exit Debt Commitment Letter or a DIP Lender’s rights under the DIP Credit Agreement, as applicable;

 

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(vi)           not “opt out” of or object to any releases, indemnity or exculpation provided under the Plan (and to the extent required by such ballot, affirmatively “opt in” to such releases, indemnity and exculpation); and

 

(vii)          not support or vote in favor (or instruct or direct the Prepetition RBL Agent or Prepetition Term Loan Agent, as applicable, to support or vote in favor) of any plan of reorganization or liquidation proposed or filed, or to be proposed or filed, in the Chapter 11 Cases other than the Plan.

 

Notwithstanding the foregoing, in the event that (i) the Bankruptcy Court does not approve the debtor releases and exculpation as described in the Plan pursuant to the Plan and the Combined Disclosure Statement and Confirmation Order and (ii) this Agreement has not been terminated as of the date of entry of the Combined Disclosure Statement and Confirmation Order, then each Consenting Creditor covenants and agrees to support and not object to the Reorganized Company providing such debtor releases and exculpation (and, to the extent applicable, take reasonable steps to cause the Reorganized Company to provide such debtor releases and exculpation) as promptly as reasonably possible after the occurrence of the date on which the Transaction is substantially consummated in accordance with the terms and conditions of the Definitive Documents (the “Transaction Effective Date”) (and each Consenting Creditor covenants and agrees not to object to, delay, impede, or take any other action (including to instruct or direct any other person or entity) to interfere with the prompt consummation thereof), which covenants and agreements shall survive the termination of this Agreement.

 

b.             Definitive Documents; Other Rights Reserved. The agreements, covenants, and obligations of each Party under Section 1, Section 3, this Section 4 and Section 5 are conditioned upon and subject to the terms and conditions of the Transaction and the Definitive Documents being consistent in all respects with this Agreement and the Plan and, as applicable, the Exit Debt Commitment Letter and Governance Term Sheet, and until the termination of this Agreement in accordance with its terms, the Debtors and Consenting RBL Lenders shall not amend, modify, voluntarily terminate (except as set forth therein), replace or supplement the Exit Debt Commitment Letter without the prior written consent of the Consenting Term Lenders, excluding waivers of any conditions precedent to the obligations of the Consenting RBL Lenders thereunder (in the Consenting RBL Lenders’ sole discretion). Unless expressly limited herein, nothing contained herein shall limit the ability of a Consenting Creditor to (i) consult with the Company or any other Party (or any of their respective professionals or advisors) or (ii) appear and be heard concerning any matter arising in the Chapter 11 Cases; provided, that such consultation or appearance is not inconsistent with such Party’s covenants and obligations under this Agreement.

 

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5.             Company’s Obligations to Support the Transaction

 

a.             Subject to the terms and conditions of this Agreement and the exhibits attached hereto, and until this Agreement has been terminated as to it in accordance with Section 6, the Company shall:

 

(i)             support and take all steps reasonably necessary, or reasonably requested by the Consenting Creditors, to promptly consummate the Transaction pursuant to the Plan (including the entry of the Combined Disclosure Statement and Confirmation Order) as expeditiously as practicable under applicable law on terms and conditions consistent in all respects with this Agreement, the Milestones (as defined below) and the Plan;

 

(ii)            to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Transaction contemplated herein, take all steps reasonably necessary and desirable to address any such impediment, including to negotiate in good faith appropriate additional or alternative provisions (consistent with the terms of this Agreement and the Plan) to address any such impediment, in each case, in a manner reasonably acceptable to the Prepetition RBL Agent and the Prepetition Term Loan Agent, as applicable;

 

(iii)           use commercially reasonable efforts to seek additional support for the Transaction from its other material stakeholders, if any, not party hereto to the extent reasonably necessary to consummate the Transaction;

 

(iv)           use commercially reasonable efforts to obtain any and all required governmental, regulatory, and/or third-party approvals to effectuate the Transaction as expeditiously as practicable (if any, and to the extent such approvals are not overridden by the Bankruptcy Code);

 

(v)            oppose any objections and any appeals by parties in interest relating to the Transaction, including without limitation, the First Day Pleadings, the Second Day Pleadings, the Other Confirmation Pleadings, the Financing Orders, and the Combined Disclosure Statement and Confirmation Order;

 

(vi)           not take any action that is inconsistent with, or is intended or is reasonably likely to interfere with or impede or delay consummation of, the Transaction;

 

(vii)          not file or otherwise support any motion or pleading challenging the amount, validity, enforceability, priority, or perfection, or seeking avoidance, subordination, recharacterization or other similar relief with respect to the Prepetition RBL Claims or the Prepetition Term Loan Claims, as applicable, or the liens and security interests securing the Prepetition RBL Claims or Prepetition Term Loan Claims, as applicable, and timely object to any motion seeking standing to bring such challenges;

 

(viii)         not file or otherwise pursue a chapter 11 plan or any other Definitive Document that is inconsistent with the terms of this Agreement, the Plan or the Exit Debt Commitment Letter;

 

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(ix)            provide draft copies of all orders, motions or applications related to the Transaction (other than administerial documents), including all First Day Pleadings, Second Day Pleadings and Other Confirmation Pleadings, the Plan, the Disclosure Statement, any proposed amendments or supplements to the Plan, form of ballots, and other solicitation materials in respect of the Plan, the proposed Combined Disclosure Statement and Confirmation Order, the Financing Orders and any other Definitive Documents the Company intends to file with the Bankruptcy Court to counsel to the Prepetition RBL Agent (Haynes and Boone, LLP) and counsel to the Prepetition Term Loan Agent (Simpson Thacher & Bartlett LLP) (collectively, “Agents’ Counsels”), if reasonably practicable, at least two (2) Business Days prior to the date when the Company intends to file any such motion or application (provided that if delivery of such motions, orders, or materials at least two (2) Business Days in advance is not reasonably practicable prior to filing, such motion, order, or application shall be delivered as soon as reasonably practicable prior to filing), and consult in good faith with Agents’ Counsels regarding, and consider in good faith any changes proposed by Agents’ Counsels with respect to, the form and substance of any such proposed filing with the Bankruptcy Court;

 

(x)             timely file with the Bankruptcy Court a written objection to any motion filed with the Bankruptcy Court seeking the entry of an order (A) directing the appointment of an examiner with expanded powers or a trustee, (B) converting any of the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (C) dismissing any of the Chapter 11 Cases, or (D) modifying or terminating the Company’s exclusive right to file or solicit acceptances of a plan of reorganization;

 

(xi)            except as contemplated by this Agreement or any Definitive Documents, (A) operate its businesses without material change in such operations and (B) not dispose of any material assets unless the Agents’ Counsels have consented thereto in writing, such consent not to be unreasonably withheld and given in accordance with the terms of the Intercreditor Agreement and Financing Orders, as applicable, in each case, in accordance with its business judgment;

 

(xii)           use commercially reasonable efforts to preserve in all material respects its current business organizations and keep available the services of its current officers and material employees (in each case, other than voluntary resignations, terminations for cause, or terminations consistent with applicable fiduciary duties);

 

(xiii)          reasonably promptly after obtaining knowledge thereof, provide written notice to the Agents’ Counsels of any failure of any Company Party (of which the Company has actual knowledge) to comply with or satisfy, in any material respect, any representation, covenant, condition or agreement hereunder;

 

(xiv)         promptly after obtaining knowledge thereof, or within one (1) Business Day of written notice from a Consenting Creditor, provide written notice to the Agents’ Counsels of any: (A) occurrence, or failure to occur, of any event, of which the Company has actual knowledge, which could reasonably be expected to cause any covenant of the Company contained in this Agreement not to be satisfied in any material respect; (B) filing or commencement of, or the threat in writing of, any action, suit (whether in state or federal court), proceeding, receivership, involuntary petition in bankruptcy, or other proceeding for the appointment of a trustee, custodian, sequestrator, conservator or similar official for the Company or for any material portion of its assets; (C) receipt by the Company of any notice from any governmental body in connection with this Agreement or the Transaction; and (D) receipt of any notice from any party alleging that the consent of such party is or may be required in connection with the transactions contemplated by the Transaction;

 

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(xv)            pay, in accordance with the procedures set forth in the Financing Orders, all reasonable and documented fees and expenses of (A) the Prepetition RBL Agent, including the fees, charges and disbursements of (i) Haynes and Boone, LLP, as counsel; (ii) Dacarba LLC, an Opportune Company, as financial advisor; (iii) any conflict counsel or expert as may be reasonably required by the Prepetition RBL Agent in the Chapter 11 Cases; and (iv) the reasonable, documented (summary invoices shall suffice) and reimbursable fees, costs and expenses of up to $10,000 for K&L Gates LLP, as counsel to ABN AMRO Capital USA, LLC and up to $10,000 for Luskin, Stern & Eisler LLP, as counsel to Credit Agricole Corporate and Investment Bank (collectively, the “Prepetition RBL Adequate Protection Fees and Expenses”), provided that the aggregate fees, costs and expenses paid or reimbursed to either K&L Gates LLP or Luskin, Stern & Eisler LLP pursuant to this Restructuring Support Agreement, the Plan and/or the Financing Orders shall not exceed $10,000 for each respective firm, and (B) the Prepetition Term Loan Agent, including the fees, charges and disbursements of Simpson Thacher & Bartlett LLP, as counsel, Locke Lord LLP, as local counsel, and Houlihan Lokey Capital, Inc., as financial advisor, in each case, in accordance with the engagement letters of such professional signed by the Company (collectively, the “Restructuring Expenses”), and unless otherwise agreed by the Company and the applicable firm, the Company shall (i) following entry of the Interim Financing Order, in accordance with the procedures set forth therein, pay (x) all Restructuring Expenses accrued but unpaid as of such date (to the extent invoiced) and (y) fund or replenish, as the case may be, any retainers reasonably requested by any of the foregoing professionals; and (ii) on the Plan Effective Date, so long as this Agreement has not been terminated as to all Parties, pay all accrued and unpaid Restructuring Expenses incurred up to (and including) the Plan Effective Date (to the extent invoiced), without any requirement for individual time detail, Bankruptcy Court review or further Bankruptcy Court order; provided, that notwithstanding the foregoing, nothing herein shall limit any rights and obligations of the Company with respect to its review and payment of the Restructuring Expenses as provided in the Financing Orders;

 

(xvi)           notify the Agents’ Counsels of any governmental or third-party complaints, litigations, investigations, or hearings (or communications indicating that the same may be contemplated or threatened) that could reasonably be expected to prevent, hinder, or delay the consummation of the Transaction of which the Company had actual knowledge by furnishing written notice to the Agents’ Counsels as soon as reasonably practicable, but in no event later than one (1) Business Day of actual knowledge of such event;

 

(xvii)          notify the Agents’ Counsels, within one (1) Business Day of receipt, a copy of any written offer, proposal, term sheet, or any other written indication of interest received by the Company for the purchase of any material Oil and Gas Properties (other than for the sale of Hydrocarbons in the ordinary course of business) (each as defined in the Prepetition RBL Agreement) or any other material real or personal property assets, in each case, of the Company;

 

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(xviii)       cooperate, and cause each Sundance Subsidiary and affiliate, and each of their respective, officers, directors, employees, and advisors to cooperate, with (A) the respective advisors to the Prepetition RBL Agent and Prepetition Term Loan Agent, in their review, analysis, and evaluation of the Company’s financial affairs, finances, financial conditions, business, and operations (including historical financial information and projections) and (B) the Prepetition RBL Agent, the Consenting RBL Lenders, the Prepetition Term Loan Agent and the Consenting Term Lenders and their respective designees and advisors in furnishing information reasonably available to the Company as soon as reasonably practicable upon request by the Prepetition RBL Agent, the Consenting RBL Lenders, the Prepetition Term Loan Agent, the Consenting Term Lenders and their respective designees and advisors; provided, that such information shall be subject to any confidentiality agreements between the Company and the Prepetition RBL Agent, the Consenting RBL Lenders, the Prepetition Term Loan Agent and the Consenting Term Lenders, as applicable;

 

(xix)          not file any amended U.S. federal or state or local income tax return, enter into any closing agreement with respect to material taxes, consent to any extension or waiver of the limitations period applicable to any material tax claims or assessment, change any accounting methods, practices or periods for tax purposes, make or request any tax ruling, enter into any tax sharing or similar agreement or arrangement, or settle any tax material claim or assessment, or take or fail to take any action outside the ordinary course of business (except to the extent expressly contemplated by the Plan) if such action or failure to act would cause (prior to, on, or following, the Plan Effective Date) a change to the tax status of any Company Party (or of any consolidated, combined or unitary group of which a Company Party is a member) or be expected to cause (prior to, on, or following, the Plan Effective Date), individually or in the aggregate, a material adverse tax consequence to the Company Parties, in each case, unless the Company Parties have (A) received the written consent, not to be unreasonably withheld, conditioned or delayed, of the Required Consenting Term Lenders, and (B) provided the Prepetition RBL Agent no less than five (5) calendar days’ written notice of such action; and

 

(xx)           without the prior written consent of the Required Consenting Term Lenders (which shall not be unreasonably withheld, delayed, or conditioned), (A) amend or propose to amend any of their respective organizational documents (other than as may be reasonably necessary to implement the Chapter 11 Cases), (B) authorize, create or issue any additional equity interests in any of the Company Parties, or redeem, purchase, acquire, declare any distribution on or make any distribution on any equity interests in any of the Company Parties, (C) engage in any merger, consolidation, acquisition, disposition, investment, dividend, incurrence of liens or indebtedness, or other similar transaction outside of the ordinary course of business, or (D) enter into or adopt any new compensation or employee benefit arrangements (or amend, modify, or terminate any existing compensation or employee benefit arrangements) including any employee retention or incentive plan. The Company Parties shall provide the Prepetition RBL Agent prompt notice of any request made to the Consenting Term Lenders for consent pursuant to this clause.

 

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b.             Notwithstanding anything to the contrary herein, the Company shall be entitled, at any time prior to confirmation of the Plan, to solicit, encourage and initiate any offer or proposal from, or engage in any discussions or negotiations with any person or entity concerning any actual or proposed transaction involving any or all of (i) a competing plan of reorganization or other financial and/or corporate restructuring of the Company, (ii) the issuance, sale or other disposition of any equity or debt interests, or any material assets, of the Company, or (iii) a merger, consolidation, business combination, liquidation, recapitalization, refinancing or similar transaction involving the Company, in each case to the extent the Parent’s board of directors determines in good faith, after consulting with outside counsel, that such transaction would: (A) result in a payment in full, in cash on the Plan Effective Date4 of: (1) unless otherwise agreed to in writing by the Super-Majority RBL Lenders, all Prepetition RBL Claims (including hedge termination claims and other claims constituting Secured Obligations under the Prepetition RBL Agreement) and (2) unless otherwise agreed to in writing by the Required Consenting Term Lenders, all obligations arising under the DIP Financing Documents, (B) unless otherwise agreed to in writing by the Required Consenting Term Lenders, result in the treatment of the Prepetition Term Loan Claims under the applicable chapter 11 plan in a manner that does not “impair” such claims within the meaning of section 1124 of the Bankruptcy Code and (C) not take longer to consummate than the Transaction (such transaction, a “Superior Alternative Transaction”) and that failure to pursue such Superior Alternative Transaction would be inconsistent with the fiduciary duties of Parent’s board of directors. The Company shall deliver to the advisors to the Prepetition RBL Agent and the Prepetition Term Loan Agent all written communications delivered to or received by the Company or any of its advisors, within one (1) Business Day of actual receipt thereof, making or materially modifying any offer or proposal concerning any actual or proposed Superior Alternative Transaction (irrespective of whether the Company believes the proposed Superior Alternative Transaction is, in fact, higher, better, or superior to the Transaction), including, without limitation, copies of all expressions of interest, term sheets, letters of interest, offers, and proposed agreements related to the foregoing, and the advisors may, in their discretion, share such materials with the applicable Consenting Creditors, with such information to be received and maintained by such Consenting Creditors in accordance with any confidentiality obligations agreed to between the Company and each of the applicable Parties.

 

c.             Subject to the terms of the Financing Orders, each Company Party acknowledges and agrees and shall not dispute that, after the commencement of the Chapter 11 Cases, the giving of notice of termination of this Agreement by any Party solely in accordance with the terms of this Agreement shall not be a violation of the automatic stay of section 362 of the Bankruptcy Code (and each Company Party hereby waives, to the fullest extent permitted by law, the applicability of the automatic stay to the giving of such notice); provided, however, that nothing herein shall prejudice any Party’s rights to argue that the giving of notice of default or termination was not proper under the terms of this Agreement.

 

6.             Termination

 

a.             All Parties. This Agreement shall terminate as to all Parties upon the earliest to occur of any of the following:

 

(i)             the Plan Effective Date;

 

(ii)            the Plan Effective Date has not occurred on or prior to 11:59 p.m. prevailing Eastern Time, on June 14, 2021 (the “Outside Date”), as such date may be further extended in writing from time to time by the Company, the Prepetition RBL Agent, and the Required Consenting Term Lenders;

 

 

4Or, on the closing date of such transaction, if the closing occurs prior to the Plan Effective Date.

 

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(iii)           the occurrence of the DIP Termination Date under and as defined in the Financing Orders;

 

(iv)           the Company, the Prepetition RBL Agent, and the Required Consenting Term Lenders mutually agree to such termination in writing; or

 

(v)            this Agreement is terminated pursuant to and in accordance with paragraph (b) or (c) of this Section 6.

 

b.             The Company. The Company may terminate this Agreement with respect to all Parties by written notice to the other Parties upon the occurrence of any of the following events:

 

(i)             upon a material breach by any Consenting Creditor of its obligations, representations, warranties, or covenants hereunder (a “Defaulting Creditor”), which breach is not cured within five (5) Business Days after the Company delivers written notice and a description of such breach to the Defaulting Creditor and all other Consenting Creditors in accordance with Section 19 hereof; provided, however, the Company may not terminate this Agreement if (1) the Consenting RBL Lenders and the Consenting Term Lenders that remain after excluding such Defaulting Creditor still constitute the Super-Majority RBL Lenders and the holders of at least 66 2/3% of the aggregate outstanding principal amount of the Prepetition Term Loan Claims (the “Super-Majority Term Lenders”), respectively or (2) an action is pending before any court of competent jurisdiction seeking an order directing the Defaulting Creditor to perform such breached obligations or covenants under this Agreement (a “Specific Performance Action”);

 

(ii)            the Parent’s board of directors determines, in good faith and based upon advice of legal counsel, in an exercise of their fiduciary duties, to consummate a Superior Alternative Transaction, and the Company provides prompt (but no more than two (2) Business Days) written notice of such determination to the Consenting Creditors;

 

(iii)           the Bankruptcy Court enters an order converting one or more of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code or dismissing any of the Chapter 11 Cases; or

 

(iv)           the Bankruptcy Court or other governmental authority with jurisdiction shall have issued any order, injunction or other decree or taken any other action, in each case, which has become final and non-appealable and which restrains, enjoins or otherwise prohibits the implementation of the Transaction or declares this Agreement or any material provision contained herein to be unenforceable.

 

c.             Consenting Creditors. This Agreement may be terminated (x) with respect to the Consenting RBL Lenders, by the Super-Majority RBL Lenders, and (y) with respect to the Consenting Term Lenders, by the Super-Majority Consenting Term Lenders, in each case by written notice to the other Parties, upon the occurrence of any of the following events:

 

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(i)                 upon a material breach by the Company of its obligations, representations, warranties, or covenants hereunder which is adverse to the terminating Consenting Creditor, which breach is not (a) cured within five (5) Business Days after the delivery of a written notice of such breach from a Consenting Creditor or (b) cured pursuant to the procedures set forth in paragraphs 22 and 24 of the DIP Financing Orders;

 

(ii)              (a) with respect to the Consenting RBL Lenders, any Consenting Term Lender: (1) materially breaches its obligations, representations, warranties, or covenants hereunder, which breach is not cured within five (5) Business Days after the delivery of a written notice of such breach from the Consenting RBL Lenders; or (2) accelerates the Prepetition Term Loan Claims, commences an involuntary bankruptcy case against the Company, or forecloses, takes any enforcement action, or otherwise exercises any remedy against or realizes upon any portion of the assets of the Company having, individually or in the aggregate, a market value in excess of $1 million; and (b) with respect to the Consenting Term Lenders, any Consenting RBL Lender accelerates the Prepetition RBL Claims (other than an acceleration related to the termination of a hedge contract by a Consenting RBL Lender that is a hedge contract counterparty), commences an involuntary bankruptcy case against the Company, or forecloses, takes any enforcement action, or otherwise exercises any remedy against or realizes upon any portion of the assets of the Company having, individually or in the aggregate, a market value in excess of $1 million;

 

(iii)            upon the failure to timely satisfy any of the following milestones (as may be extended from time to time in accordance with this Agreement, collectively the “Milestones” and each a “Milestone”), unless such Milestone is extended with the written consent, not to be unreasonably withheld or delayed, of the Prepetition RBL Agent5 and the Required Consenting Term Lenders:

 

A.        on or prior to March 10, 2021, the Company shall have commenced solicitation of votes to accept or reject the Plan from the Prepetition RBL Lenders and the Prepetition Term Lenders (the “Solicitation Commencement Date”);

 

B.       on or prior to the Petition Date, the Exit Debt Commitment Letter shall have been executed and delivered by all parties thereto;

 

C.       within two (2) Business Days of the Solicitation Commencement Date, the Petition Date shall have occurred;

 

D.       no later than one (1) calendar day after the Petition Date, the Company shall have filed with the Bankruptcy Court (1) a motion seeking entry of the Financing Orders, (2) the Plan and Disclosure Statement, and (3) the Confirmation Motion;

 

E.       no later than three (3) Business Days after the Petition Date, the Bankruptcy Court shall have entered (1) the Interim Financing Order and (2) an order scheduling the combined hearing and granting conditional approval of the Disclosure Statement;

 

 

 

5       Any extension of a Milestone by more than three (3) Business Days shall require consent from the Super-Majority RBL Lenders.

 

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F.       no later than forty-five (45) calendar days after the Petition Date, the Bankruptcy Court shall have entered the Final Financing Order;

 

G.       no later than forty-five (45) calendar days after the Petition Date, the Bankruptcy Court shall have entered the Combined Disclosure Statement and Confirmation Order; and

 

H.       no later than fourteen (14) calendar days after the date of entry of the Combined Disclosure Statement and Confirmation Order, all conditions to the effectiveness of the Plan shall have been satisfied or waived in accordance with the terms of the Plan (such actual effective date, the “Plan Effective Date”);

 

provided, that the right to terminate this Agreement under this Section 6(c)(iii) shall not be available to any Consenting Creditor if the failure of any Milestone to occur is caused by, or results from, the breach by such Consenting Creditor of its covenants, agreements or other obligations under this Agreement; provided, further, that the Milestones consisting of the entry of orders or judicial resolution by the Bankruptcy Court, shall be automatically extended (but in no event beyond the Outside Date) solely to the extent that it is not reasonably feasible to hold and conclude a hearing (if necessary) prior to the applicable Milestone due to closure of the Bankruptcy Court or the inability of the Bankruptcy Court’s schedule to accommodate such hearing in accordance with the Milestone; provided, further, that the Milestone set forth in Section 6(c)(iii)(G) shall be extended by up to thirty-five (35) days (but in no event beyond the Outside Date), if the Required Consenting Term Lenders have, if reasonably necessary, permitted additional availability under the DIP Facility to finance the Company’s projected cash needs during such extension;

 

(iv)             the Bankruptcy Court or any other court of competent jurisdiction enters an order reversing, staying, dismissing or vacating either of the Financing Orders, or modifying or amending either of the Financing Orders in a manner adverse to the Prepetition RBL Lenders, without the consent of the Prepetition RBL Agent;

 

(v)               the termination of the Company Parties’ authority to use cash collateral pursuant to the Financing Orders, which has not been cured (if susceptible to cure) or waived in accordance with the terms thereof within five (5) Business Days after either Agents’ Counsel delivers written notice to the Company and the DIP Agent of its intent to terminate this Agreement pursuant to this Section 6(c)(v);

 

(vi)             the Company withdraws the Plan or Disclosure Statement, or the Company files any motion or pleading with the Bankruptcy Court that is materially inconsistent with this Agreement or the Plan and (a) such motion or pleading has not been withdrawn or (b) the Bankruptcy Court has not issued an order directing the Debtor to refile the Plan, Disclosure Statement, or withdraw such motion or pleading, as applicable, in each case within five (5) Business Days after either Agents’ Counsel delivers written notice to the Company and the DIP Agent of its intent to terminate this Agreement pursuant to this Section 6(c)(vi);

 

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(vii)          the Bankruptcy Court grants relief that is inconsistent with this Agreement, the Plan, or any Prepetition Definitive Document in any material respect (and such relief is materially adverse to the terminating Consenting Creditor) and (A) the Super-Majority RBL Lenders or the Required Consenting Term Lenders provide notice to the Company within five (5) Business Days after the date such relief is granted that such relief is inconsistent with this Agreement, the Plan, or a Prepetition Definitive Document in a material respect and materially adverse to the applicable Consenting Creditor, and (B) the Company has not sought a stay of such relief within fourteen (14) days after the date such relief is granted; provided, that the right to terminate this Agreement under this Section 6(c)(vii) shall not be available to any Consenting Creditor if such relief was sought or requested by such Consenting Creditor;

 

(viii)        the Bankruptcy Court enters an order (1) voluntarily dismissing any of the Chapter 11 Cases, (2) converting any of the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (3) appointing a trustee, receiver, or examiner with expanded powers beyond those set forth in Sections 1104(a)(3) and (4) of the Bankruptcy Code;

 

(ix)             the Bankruptcy Court enters an order approving debtor-in-possession financing (other than the DIP Facility) on terms that are not acceptable to the Super-Majority RBL Lenders or the Required Consenting Term Lenders;

 

(x)               the Bankruptcy Court authorizes the Debtors to enter into a binding agreement for a Superior Alternative Transaction;

 

(xi)             the Bankruptcy Court or other governmental authority with jurisdiction shall have issued any order, injunction or other decree or taken any other action, in each case, which has become final and non-appealable and which restrains, enjoins or otherwise prohibits the implementation of the Transaction; or

 

(xii)          either the Consenting RBL Lenders or the Consenting Term Lenders terminate this Agreement with respect to themselves, in each case as a group.

 

d.                  Limitation on Termination. For the avoidance of doubt, (i) any right to terminate this Agreement as to the Consenting RBL Lenders may be exercised only by the Super-Majority RBL Lenders on behalf of all Consenting RBL Lenders, and may not be exercised by one or more individual Consenting RBL Lenders not constituting the Super-Majority RBL Lenders and (ii) any right to terminate this Agreement as to the Consenting Term Lenders may be exercised only by the Required Consenting Term Lenders on behalf of all Consenting Term Lenders, and may not be exercised by one or more individual Consenting Term Lenders not constituting the Required Consenting Term Lenders. If either the Super-Majority RBL Lenders or the Required Consenting Term Lenders terminate this Agreement with respect to the Prepetition RBL Claims or the Prepetition Term Loan Claims, respectively, then the Agreement shall remain in full force and effect as to the other Parties, as applicable.

 

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e.                   Effect of Termination. If this Agreement is terminated pursuant to this Section 6, any and all further agreements, obligations, and covenants of the applicable Parties as to whom this Agreement is terminated hereunder shall be terminated without further liability (except for such agreements, obligations, and covenants that expressly survive such termination). Upon such termination, each Party shall have all the rights and remedies that it would have had and shall be entitled to take all actions, whether with respect to the Transaction or otherwise, that it would have been entitled to take had it not entered into this Agreement, including all rights and remedies available to it at law, contract, in equity or otherwise; provided, however, that (i) no termination of this Agreement shall relieve any Party from liability for its breach or non-performance of its obligations hereunder prior to the date of such termination; and (ii) the right to terminate this Agreement under this Section 6 shall not be available to any Party whose failure to fulfill any of its material obligations under this Agreement has been the cause of, or resulted in, the occurrence of the proposed termination event.

 

7.                  Representations of the Company

 

Parent and each Sundance Subsidiary hereby jointly and severally represents and warrants to the other Parties that the following statements are true and correct in all material respects as of the date hereof:

 

a.                   Power and Authority. It is validly existing and in good standing under the laws of its jurisdiction of incorporation or organization and has all requisite corporate, partnership or limited liability company power and authority to enter into this Agreement and to carry out the Transaction contemplated by, and perform its obligations under, this Agreement.

 

b.                  Authorization. The execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary corporate, partnership or limited liability company action on its part.

 

c.                   No Conflicts. The execution and delivery of this Agreement and the performance of its obligations hereunder do not and shall not (i) violate any provision of law, rule, or regulation applicable to it or its organizational documents or (ii) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party or under its organizational documents.

 

d.                  Governmental Consents. The execution and delivery of this Agreement and the performance of its obligations hereunder do not and shall not require any registration or filing with, consent or approval of, or notice to, or other action to, with or by, any federal, state or other governmental authority or regulatory body, other than (i) such filings as may be necessary and/or required for disclosure by the Securities and Exchange Commission; (ii) the filing of a pre-merger notification and report form under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, including the rules and regulations promulgated thereunder (the “HSR Act”), which, to the extent required, have been or will be made, and (iii) such filings as may be necessary or required in connection with the Chapter 11 Cases.

 

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e.                   Binding Obligation. This Agreement is the legally valid and binding obligation of it, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization moratorium, or other similar laws relating to or relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.

 

f.                    No Litigation. No litigation or proceeding before any court, arbitrator, or administrative or governmental body is pending against it that would adversely affect its ability to enter into this Agreement or perform its obligations hereunder.

 

g.                  Representation. It has been represented by counsel in connection with this Agreement and the Transaction, and it has had the contents hereof fully explained by such counsel and is fully aware of such contents and legal effect.

 

h.                  No Claims. To the best of its knowledge, there are no actions, suits, orders, directives or other legal or regulatory proceedings instituted, pending or threatened against any current or former officer, director or employee of the Company (in their respective capacities as such) before any court or arbitrator or any governmental authority or instituted by any governmental authority, which action, suit, order, directive or other legal or regulatory proceeding would require, or be subject to, indemnity or reimbursement by the Company.

 

i.                    No Undisclosed Material Liabilities. There are no material liabilities or obligations of the Company of any kind whatsoever, whether accrued, contingent, absolute, determined or determinable, and there is no existing condition, situation or set of circumstances that would reasonably be expected to result in such a liability or obligation other than: (i) liabilities or obligations disclosed and provided for the in the Company’s balance sheet or in the notes thereto; (ii) liabilities or obligations incurred in the ordinary course of business consistent with past practices since December 31, 2020; (iii) liabilities and obligations (including fees and expenses of attorneys and other professionals) incurred in connection with the Chapter 11 Cases; and (iv) liabilities or obligations disclosed and provided for in the Budget.

 

j.                    No Material Non-Debtor Assets. None of the foreign subsidiaries of the Debtors own any material assets or have any material liabilities or obligations

 

k.                  No RBL Commitments.  Except as otherwise expressly set forth in the Exit Debt Commitment Letter, the Prepetition RBL Lenders have no commitments or obligations to provide any further financing or loans, including the issuance, increase or extension of any letter of credit, to the Company.

 

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8.                  Representations of the Consenting Creditors

 

Each of the Consenting Creditors severally, but not jointly, represents and warrants to the other Parties that the following statements are true and correct in all material respects as of the date hereof (or as of the date such Consenting Creditor becomes a Party hereto) with respect to itself only:

 

a.                   Holdings by Consenting Creditors. (A) It either (i) is the sole legal and beneficial owner of the principal amount of Prepetition RBL Claims and/or Prepetition Term Loan Claims set forth opposite its name on Schedule A attached hereto and all related claims, rights and causes of action arising out of or in connection with or otherwise relating thereto (for each such Consenting Creditor, the “Consenting Creditor Claims”), in each case free and clear of all claims, liens, encumbrances, charges, equity options, proxy, voting restrictions, rights of first refusal, or other limitations on disposition of any kind, or (ii) has sole investment or voting discretion with respect to such Consenting Creditor Claims and has the power and authority to bind the beneficial owner(s) of such Consenting Creditor Claims to the terms of this Agreement, (B) it is entitled (for its own accounts or for the accounts of such other owners) to all of the rights and economic benefits of such Consenting Creditor Claims, (C) in the case of (i) each Consenting RBL Lender, it does not directly or indirectly own or control any principal amount of Prepetition RBL Claims or other claims arising under the Prepetition RBL Credit Agreement against the Company other than the Consenting Creditor Claims identified next to its name on Schedule A hereto, and (ii) each Consenting Term Lender, it does not directly or indirectly own or control any principal amount of Prepetition Term Loan Claims or other claims arising under the Prepetition Term Loan Credit Agreement against the Company other than the Consenting Creditor Claims identified next to its name on Schedule A hereto, and (D) it has full and sole power and authority to vote on and consent to matters concerning such Consenting Creditor Claims with respect to the Transaction.

 

b.                  Prior Transfers. It has made no prior assignment, sale, grant, pledge, conveyance, or other transfer of, and has not entered into any agreement to assign, sell, grant, pledge, convey or otherwise transfer, in whole or in part, any portion of its right, title, or interests in its Consenting Creditor Claims or its voting rights with respect thereto.

 

c.                   Power and Authority. It has all requisite corporate, partnership or limited liability company power and authority to enter into this Agreement and to carry out the Transaction contemplated by, and perform its obligations under, this Agreement.

 

d.                  Authorization. The execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary corporate, partnership or limited liability company action on its part.

 

e.                   No Conflicts. The execution and delivery of this Agreement and the performance of its obligations hereunder do not and shall not (i) violate any provision of law, rule, or regulation applicable to it or its certificate of incorporation or by-laws (or other organizational documents) or (ii) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it is a party or under its certificate of incorporation or by-laws (or other organizational documents).

 

f.                    Governmental Consents. The execution and delivery of this Agreement and the performance of its obligations hereunder do not and shall not require any registration or filing with, consent or approval of, or notice to, or other action to, with or by, any federal, state or other governmental authority or regulatory body, other than (i) such filings as may be necessary and/or required for disclosure by the Securities and Exchange Commission, (ii) any necessary filings under the HSR Act, which, to the extent required, have been or will be made, and (iii) such filings as may be necessary or required in connection with the Chapter 11 Cases.

 

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g.                  Binding Obligation. This Agreement is the legally valid and binding obligation of it, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization moratorium, or other similar laws relating to or relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.

 

h.                  No Litigation. No litigation or proceeding before any court, arbitrator, or administrative or governmental body is pending against it that would adversely affect its ability to enter into this Agreement or perform its obligations hereunder.

 

i.                    Representation. It has been represented by counsel in connection with this Agreement and the Transaction, and has had the contents hereof fully explained by such counsel and is fully aware of such contents and legal effect.

 

j.                    Accredited Investor. It is (i) a sophisticated investor with respect to the transactions described herein with sufficient knowledge and experience in financial and business matters and is capable of evaluating the merits and risks of owning and investing in securities of the Company (including any securities that may be issued in connection with the Transaction), making an informed decision with respect thereto, and evaluating properly the terms and conditions of this Agreement, and it has made its own analysis and decision to enter in this Agreement, (ii) an “accredited investor” as defined in Rule 501 of the Securities Act of 1933 (as amended) or a “qualified institutional buyer” as defined in Rule 144A of the Securities Act of 1933 (as amended) and (iii) acquiring any securities that may be issued in connection with the Transaction for its own account and not with a view to the distribution thereof. Each Consenting Creditor hereby further confirms that it has made its own decision to execute this Agreement based upon its own independent assessment of documents and information available to it, as it deemed appropriate and sufficient.

 

9.                  Additional Claims and Interests

 

This Agreement shall in no way be construed to preclude a Consenting Creditor from acquiring additional claims against or interests in the Company (collectively, the “Additional Claims/Interests”). However, in the event a Consenting Creditor (or any of their respective controlled funds) shall acquire any such Additional Claims/Interests after the date hereof (or holds such Additional Claims/Interests as of the date hereof), (a) such Additional Claims/Interests shall automatically be deemed, without further notice to or action of any Party, to be subject to the terms and conditions of this Agreement and (b) such Consenting Creditor shall assume the corresponding obligations of the prior holder under the Exit Debt Commitment Letter and/or the DIP Credit Agreement, as applicable.

 

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10.              Transfer of Claims and Existing Equity Interests

 

a.                   Each Consenting Creditor agrees that, until this Agreement has been terminated as to it in accordance with Section 6, it will not, directly or indirectly, (i) sell, transfer, pledge, assign, hypothecate, grant an option on, or otherwise convey or dispose of any of its Consenting Creditor Claims (except in connection with consummation of the Transaction), or (ii) grant any proxies, deposit any of the Consenting Creditor Claims into a voting trust or enter into a voting agreement with respect to any of the Consenting Creditor Claims (collectively, a “Claim Transfer”), unless, in each case, such transferee or other recipient is either a Party hereto or has executed and delivered to the Company (with copy to the Agents’ Counsels) (1) a joinder to this agreement, substantially in the form attached hereto as Exhibit F and (2) an agreement to assume such Consenting Creditor’s obligations under the Exit Debt Commitment Letter, subject to the Company’s consent rights as provided therein, and/or the DIP Credit Agreement, as applicable. A Consenting Creditor making a Claim Transfer pursuant to this Section 10 is referred to as a “Transferor” and a transferee receiving a Claim Transfer pursuant to this Section 10 is referred to as a “Transferee.” Any attempted or proposed Claim Transfer that does not comply with the foregoing shall be deemed void ab initio and of no force or effect.

 

b.                  Upon compliance with the requirements of Section 10(a) of this Agreement, (i) with respect to Consenting Creditor Claims held by the relevant Transferee upon consummation of a Claim Transfer in accordance herewith, such Transferee is deemed to make all of the representations, warranties, and covenants of a Consenting RBL Lender or Consenting Term Lender, as applicable, set forth in this Agreement and, as applicable, the Exit Debt Commitment Letter and/or the DIP Credit Agreement, in each case as of the date of such Claim Transfer and (ii) the Transferee shall be deemed a Consenting RBL Lender and party to the Exit Debt Commitment Letter and/or a Consenting Term Lender, as applicable, and the Transferor shall be deemed to relinquish its rights (and be released from its obligations) under this Agreement to the extent of its rights and obligations in respect of such transferred Consenting Creditor Claims. No Consenting Creditor shall have any liability under this Agreement arising from or related to the failure of its transferee to comply with the terms of this Agreement.

 

c.                   Notwithstanding anything to the contrary herein, (i) this Section 10 shall not preclude any Consenting Creditor from transferring Consenting Creditor Claims, together with the corresponding obligations under the Debt Commitment Letter and/or Exit Commitment Letter, as applicable, to affiliates of such Consenting Creditor (each, an “Affiliate Transferee”), which Affiliate Transferee shall be deemed a Consenting Creditor, and the Consenting Creditor that transferred such Claims to the Affiliate Transferee shall be deemed to relinquish its rights (and be released from its obligations) under this Agreement to the extent of its rights and obligations in respect of such transferred Claims; (ii) the restrictions on Claim Transfer set forth in this Section 10 shall not apply to the grant of any liens or encumbrances on any Consenting Creditor Claims in favor of a bank or broker-dealer holding custody of such Consenting Creditor Claims in the ordinary course of business and which lien or encumbrance is released upon the Claim Transfer of such Consenting Creditor Claims; and (iii) a Qualified Marketmaker6 that acquires any of the Consenting Creditor Claims with the purpose and intent of acting as a Qualified Marketmaker for such Consenting Creditor Claims shall not be required to execute and deliver to counsel a Joinder or otherwise agree to be bound by the terms and conditions set forth in this Agreement if such Qualified Marketmaker transfers such Consenting Creditor Claims (by purchase, sale, assignment, participation, or otherwise) solely to a Consenting Creditor, an Affiliate Transferee or a Transferee in accordance with this Section 10 (including, for the avoidance of doubt, the requirement that such Transferee execute a Joinder and assume such Consenting Creditor’s obligations under the Exit Debt Commitment Letter) within five (5) Business Days.

 

 

 

6      As used herein, the term “Qualified Marketmaker” means an entity that (a) holds itself out to the public or the applicable private markets as standing ready in the ordinary course of business to purchase from customers and sell to customers claims against the Company (or enter with customers into long and short positions in claims against the Company), in its capacity as a dealer or market maker in claims against the Company and (b) is, in fact, regularly in the business of making a market in claims against issuers or borrowers (including debt securities or other debt).

 

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d.                  This Section 10 shall not impose any obligation on the Company to issue any “cleansing letter” or otherwise publicly disclose information for the purpose of enabling a Consenting Creditor to transfer any of its Consenting Creditor Claims. Notwithstanding anything to the contrary herein, to the extent the Company and another Party have entered into a confidentiality agreement, the terms of such confidentiality agreement shall continue to apply and remain in full force and effect according to its terms, and this Agreement does not supersede any rights or obligations otherwise arising under such confidentiality agreement.

 

11.              Prior Negotiations

 

This Agreement and the exhibits attached hereto set forth in full the terms of agreement between the Parties and is intended as the full, complete and exclusive contract governing the relationship between the Parties with respect to the transactions contemplated herein, superseding all other discussions, promises, representations, warranties, agreements and understandings, whether written or oral, between or among the Parties with respect thereto; provided, that any confidentiality agreement between or among the Parties shall remain in full force and effect in accordance with its terms; provided, further, that the Parties intend to enter into the Definitive Documents after the date hereof to consummate the Transaction.

 

12.              Forbearance

 

a.                   Subject to Section 12(b), from March 1 until valid termination of this Agreement pursuant to Section 6 with respect to such Consenting RBL Lender, each Consenting RBL Lender severally and not jointly agrees to: (i) not instruct the Prepetition RBL Agent to exercise any rights or remedies it may have under the Prepetition RBL Credit Agreement or any other Loan Document (as defined in the Prepetition RBL Credit Agreement) (collectively, the “RBL Loan Documents”) or under applicable state, federal or foreign law or otherwise with respect to any of the alleged, existing or anticipated Defaults or Events of Default (as such terms are defined in the Prepetition RBL Credit Agreement) listed on Schedule B-1 hereto (the “Specified RBL Defaults”), (ii) if the Prepetition RBL Agent takes any action inconsistent with such Consenting RBL Lender’s obligations under this Agreement, such Consenting RBL Lender shall instruct and use commercially reasonable efforts to cause the Prepetition RBL Agent to cease and refrain from taking such actions, and (iii) waive or forbear from the exercise of any rights or remedies it may have under the RBL Loan Documents or under applicable state, federal or foreign law or otherwise with respect to the Specified RBL Defaults or any acceleration that may occur automatically without action of any party as a result of the operation of the RBL Loan Documents, solely due to the Specified RBL Defaults (the obligations set forth in this clause (a), the “RBL Forbearance”).

 

22

 

 

b.                  Each Consenting RBL Lender’s obligations under the RBL Forbearance shall terminate immediately following the termination of the Term Loan Forbearance, and one (1) Business Day following the occurrence of any of the following events or circumstances and the provision of notice by such Consenting RBL Lender to the other Parties of such occurrence:

 

(i)                 this Agreement is validly terminated in accordance with Section 6 hereof as to such Consenting RBL Lender; or

 

(ii)              other than during the pendency of the Chapter 11 Cases, the occurrence and continuation of an Event of Default (as such term is defined in the Prepetition RBL Credit Agreement) other than the Specified RBL Defaults, unless waived pursuant to the terms of the Prepetition RBL Credit Agreement.

 

c.                   Subject to Section 12(d), from March 1 until valid termination of this Agreement pursuant to Section 6 with respect to such Consenting Term Lender, each Consenting Term Lender severally and not jointly agrees to: (i) not instruct the Prepetition Term Loan Agent to exercise any rights or remedies it may have under the Prepetition Term Loan Credit Agreement or any other Loan Document (as defined in the Prepetition Term Loan Credit Agreement) (collectively, the “Term Loan Documents”) or under applicable state, federal or foreign law or otherwise with respect to any of the alleged, existing or anticipated Defaults or Events of Default (as such terms are defined in the Term Loan Documents) listed on Schedule B-2 hereto (the “Specified Term Loan Defaults”), (ii) if the Prepetition Term Loan Agent takes any action inconsistent with such Consenting Term Lender’s obligations under this Agreement, such Consenting Term Lender shall instruct and use commercially reasonable efforts to cause the Prepetition Term Loan Agent to cease and refrain from taking such actions, and (iii) waive or forbear from the exercise of any rights or remedies it may have under the Term Loan Documents or under applicable state, federal or foreign law or otherwise with respect to the Specified Term Loan Defaults or any acceleration that may occur automatically without action of any party as a result of the operation of the Term Loan Documents, solely due to the Specified Term Loan Defaults (the obligations set forth in this clause (a), the “Term Loan Forbearance”).

 

d.                  Each Consenting Term Lender’s obligations under the Term Loan Forbearance shall terminate one (1) Business Day following the occurrence of any of the following events or circumstances and the provision of notice by such Consenting Term Lender to the other Parties of such occurrence:

 

(i)                 this Agreement is validly terminated in accordance with Section 6 hereof as to such Consenting Term Lender; or

 

(ii)              other than during the pendency of the Chapter 11 Cases, the occurrence and continuation of an Event of Default (as such term is defined in the Prepetition Term Loan Credit Agreement) other than the Specified Term Loan Defaults, unless waived pursuant to the terms of the Prepetition Term Loan Credit Agreement.

 

e.                   The execution, delivery and effectiveness of this Agreement, including this Section 12, shall not operate as a waiver of any right, power or remedy of any Consenting Creditor under the RBL Loan Documents or Term Loan Documents, as applicable, nor constitute a waiver of any provision of the RBL Loan Documents or Term Loan Documents. On and after the Agreement Effective Time, this Agreement shall for all purposes constitute an RBL Loan Document and Term Loan Document.

 

23

 

 

 

f.                    Execution of this Agreement by the Consenting Term Lenders constitutes a direction by the Consenting Term Lenders that the Prepetition Term Loan Agent, in accordance with this Agreement, act or refrain from acting. Each Consenting Term Lender agrees that the Prepetition Term Loan Agent shall not be required to act against the Company if such action is contrary to the terms of this Agreement.

 

13.              Amendment or Waiver

 

a.                   Other than as set forth in Section 13(b), this Agreement, including any exhibits or schedules hereto, may not be waived, modified, amended, or supplemented except with the written consent of the Company, the Super-Majority RBL Lenders, and the Required Consenting Term Lenders (such consent not to be unreasonably withheld, conditioned, or delayed).

 

b.                  Notwithstanding Section 13(a):

 

(i)                 any waiver, modification, amendment, or supplement to this Section 13 shall require the written consent of the Company and each Consenting Creditor;

 

(ii)              any waiver, modification, amendment, or supplement to the definition of “Super-Majority RBL Lenders” shall require the written consent of (A) each Consenting RBL Lender, (B) the Company, and (C) the Required Consenting Term Lenders;

 

(iii)             any waiver, modification, amendment, or supplement to the definitions of “Required Consenting Term Lenders” and “Super-Majority Term Lenders” shall require the written consent of (A) each Consenting Term Lender, (B) the Company, and (C) the Prepetition RBL Agent; and

 

(iv)             any change, modification, or amendment to this Agreement or the Plan that treats or affects any Consenting Creditor’s Claims arising under the Prepetition RBL Credit Agreement or Prepetition Term Loan Credit Agreement, respectively, in a manner that is materially and adversely disproportionate, on an economic or non-economic basis, to the manner in which any of the other respective Consenting Creditors are treated (after taking into account each of the Consenting Creditor’s respective holdings, as applicable, in the Company and the recoveries contemplated by the Plan (as in effect on the date hereof)) shall require the written consent of such materially adversely and disproportionately affected Consenting Creditor.

 

c.                   In the event that a materially adversely and disproportionately affected Consenting Creditor does not consent to a waiver, change, modification, or amendment to this Agreement requiring the consent of each Consenting Creditor (“Non-Consenting Creditor”), but such waiver, change, modification, or amendment receives the consent of Consenting Creditors constituting Super-Majority RBL Lenders and Super-Majority Term Lenders, this Agreement shall be deemed to have been terminated only as to such Non-Consenting Creditor, and this Agreement shall continue in full force and effect in respect of all other Consenting Creditors subject to the terms of this Agreement. Notwithstanding the foregoing, the Company may amend, modify, or supplement this Agreement or the Plan from time to time without the consent of any Consenting Creditor to cure any ambiguity, defect (including any technical defect), or inconsistency, so long as (A) the Company obtains the consent of the Prepetition RBL Agent and the Required Consenting Term Lenders and (B) any such amendments, modifications, or supplements do not materially adversely affect the rights, interests, or treatment of similarly situated Consenting Creditors under this Agreement or the Plan.

 

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14.              WAIVER OF JURY TRIAL

 

EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE EXHIBITS ATTACHED HERETO.

 

15.              Governing Law and Consent to Jurisdiction and Venue

 

This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to such state’s choice of law provisions which would require the application of the law of any other jurisdiction. By its execution and delivery of this Agreement, each of the Parties hereby irrevocably and unconditionally agrees for itself that any legal action, suit or proceeding against it with respect to any matter arising under or arising out of or in connection with this Agreement or the exhibits attached hereto or for recognition or enforcement of any judgment rendered in any such action, suit or proceeding, shall be brought in the United States District Court for the Southern District of New York and only to the extent such court lacks jurisdiction, in the New York State Supreme Court sitting in the Borough of Manhattan, and by execution and delivery of this Agreement, each of the Parties hereby irrevocably accepts and submits itself to the jurisdiction of such courts, generally and unconditionally, with respect to any such action, suit or proceeding. Notwithstanding the foregoing consent to jurisdiction and venue, upon any commencement of the Chapter 11 Cases and until the Plan Effective Date, each of the Parties agrees that the Bankruptcy Court shall have exclusive jurisdiction of all matters arising out of or in connection with this Agreement or the exhibits attached hereto during the pendency of the Chapter 11 Cases.

 

16.              Specific Performance

 

It is understood and agreed by the Parties that, without limiting any rights or remedies available under applicable law or in equity, money damages would not be a sufficient remedy for any breach of this Agreement by any Party and each non-breaching Party shall be entitled to specific performance and injunctive or other equitable relief (without the posting of a bond or other undertaking and without proof of actual damages) as a remedy of any such breach, including, without limitation, an order of the Bankruptcy Court or other court of competent jurisdiction requiring any Party to comply promptly with any of its obligations hereunder.

 

25 

 

 

17.              Reservation of Rights; Settlement Discussions

 

Except as expressly provided in this Agreement or the exhibits attached hereto, nothing herein is intended to, or does, in any manner, waive, limit, impair or restrict the ability of each Party to protect and preserve its rights, remedies and interests. Notwithstanding anything to the contrary contained in this Agreement or the exhibits attached hereto, nothing in this Agreement or the exhibits attached hereto shall be, or shall be deemed to be or constitute: (i) a release, waiver, novation, cancellation, termination or discharge of the Consenting Creditor Claims (or any security interest or lien securing such claims); or (ii) an amendment, modification or waiver of any term or provision of the Prepetition RBL Facility or Prepetition Term Loan Facility or any related loan document, which are hereby reserved and reaffirmed in full. If the Transaction is not consummated, or if this Agreement is terminated for any reason, the Parties hereto fully reserve any and all of their respective rights and remedies thereunder and applicable law.

 

This Agreement and the Transaction are part of a proposed settlement of a dispute among the Parties. Nothing herein shall be deemed an admission of any kind. Pursuant to Federal Rule of Evidence 408, any applicable state rules of evidence and any other applicable law, foreign or domestic, this Agreement and the exhibits attached hereto and all negotiations relating thereto shall not be admissible into evidence in any proceeding other than a proceeding to enforce the terms of this Agreement or the exhibits attached hereto (as applicable).

 

18.              Headings; Recitals

 

The section headings of this Agreement are for convenience of reference only and shall not, for any purpose, be deemed a part of this Agreement. The recitals to this Agreement are true and correct and incorporated by reference into this Section 18.

 

19.              Notice

 

Any notices or other communications required or permitted under, or otherwise in connection with, this Agreement shall be in writing and shall be deemed to have been duly given when delivered in person, by email, or upon confirmation of receipt when transmitted by facsimile transmission (but only if followed by transmittal by national overnight courier or hand for delivery on the next Business Day) or on receipt after dispatch by registered or certified mail, postage prepaid, or on the next Business Day if transmitted by national overnight courier, addressed in each case as follows:

 

If to the Company:

 

Sundance Energy Inc.

1050 17th Street, Suite 700

Denver, CO 80265

Attn: Eric McCrady

Telephone: 303.543.5700

Email:   EMcCrady@sundanceenergy.net

 

26 

 

 

with a copy to:

 

Latham & Watkins LLP

885 Third Avenue

New York, NY 10022-4834

Attn:   David A. Hammerman

 Keith A. Simon

 Annemarie V. Reilly

 Jeffrey T. Mispagel

Telephone: 212.906.1200

Fax: 212.751.4864

Email: david.hammerman@lw.com

  keith.simon@lw.com

  annemarie.reilly@lw.com

  jeffrey.mispagel@lw.com

 

-and-

 

Hunton Andrews Kurth LLP

600 Travis Street, Suite 4200

Houston, TX 77002

Attn:   Timothy A. (“Tad”) Davidson II

Ashley L. Harper

Philip M. Guffy

Telephone: 713-220-4200

Fax: 713-220-4285

Email: taddavidson@HuntonAK.com

ashleyharper@HuntonAK.com

pguffy@HuntonAK.com

 

If to the Prepetition RBL Agent:

 

To the address (if any) specified on the signature page of this Agreement for the Prepetition RBL Agent

 

with a copy to:

 

Haynes and Boone, LLP

1221 McKinney Street, Suite 4000

Houston, TX 77010

Attn:   Austin Elam

J. Frasher Murphy

Eli O. Columbus

Telephone: 713.547.2000

Fax: 713.236.5430

Email: austin.elam@haynesboone.com

frasher.murphy@haynesboone.com

eli.columbus@haynesboone.com

 

If to any Consenting RBL Lender:

 

To the address (if any) specified on the signature page of this Agreement for the applicable Consenting RBL Lender

 

27 

 

 

If to the Prepetition Term Loan Agent:

 

To the address (if any) specified on the signature page of this Agreement for the Prepetition Term Loan Agent

 

with a copy to:

 

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, NY 10017

Attn: Robert Rabalais; Michael Torkin; David Zylberberg

Telephone: 212.455.2000

Fax: 212.455.2402

Email: rrabalais@stblaw.com

michael.torkin@stblaw.com

david.zylberberg@stblaw.com

 

If to any Consenting Term Lender:

 

To the address (if any) specified on the signature page of this Agreement for the applicable Consenting Term Lender

 

 

20.              Successors and Assigns

 

Subject to Section 10, neither this Agreement nor any of the rights or obligations hereunder may be assigned by any Party hereto, without the prior written consent of the other Parties hereto (in each case such consent not to be unreasonably withheld), and then only to a Person who has agreed to be bound by the provisions of this Agreement. This Agreement is intended to and shall bind and inure to the benefit of the Parties and their respective successors, permitted assigns, heirs, executors, administrators and representatives.

 

21.              No Third-Party Beneficiaries

 

Unless expressly stated herein, this Agreement shall be solely for the benefit of the Parties hereto and no other person or entity shall be a third party beneficiary hereof or shall otherwise be entitled to enforce any provision hereof.

 

22.              Counterparts

 

This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same agreement. Any Party hereto may execute and deliver a counterpart of this Agreement by delivery by facsimile transmission or electronic mail of a signature page of this Agreement signed by such Party, and any such facsimile or electronic mail signature shall be treated in all respects as having the same effect as having an original signature.

 

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23.              No Consideration

 

It is hereby acknowledged by the Parties that no pecuniary consideration shall be due or paid to the Parties in exchange for their support of the Transaction or vote to accept the Plan, other than the obligations imposed upon such Party pursuant to the terms of this Agreement.

 

24.              Acknowledgement; Not a Solicitation

 

This Agreement does not constitute, and shall not be deemed to constitute (i) an offer for the purchase, sale, exchange, hypothecation, or other transfer of securities for purposes of the Securities Act of 1933 and the Securities Exchange Act of 1934 (or any other federal or state law or regulation), or (ii) a solicitation of votes on the Plan for purposes of the Bankruptcy Code. The vote of each Consenting Creditor to accept or reject the Plan shall not be solicited except in accordance with applicable law.

 

25.              Public Announcement and Filings

 

Except as required by applicable law or regulation, the rules of any applicable stock exchange or regulatory body, or by any Party to enforce or preserve its rights under this Agreement against any other Party:

 

a.                   no Party shall, nor shall it permit any of its respective affiliates to, make any public announcement in respect of this Agreement or the Transaction without the prior written consent of the Company, the Prepetition RBL Agent and the Required Consenting Term Lenders (in each case such consent not to be unreasonably withheld); provided, that drafts of any press releases by the Company regarding the Transaction shall be submitted to the Agents’ Counsels at least two (2) Business Days prior to making any such disclosure, if reasonably practicable;

 

b.                  no Party or its advisors shall disclose to any Person (including, for the avoidance of doubt, any other Consenting Creditor), other than advisors to the Company, the Prepetition RBL Agent and the Prepetition Term Loan Agent, the principal amount or percentage of any Prepetition RBL Claims or Prepetition Term Loan Claims held by any Consenting Creditor without such Consenting Creditor’s express prior written consent; provided, however, that the Company shall not be required to keep confidential the aggregate holdings of all Consenting Creditors, and each Consenting Creditor hereby consents to the disclosure of the execution of this Agreement by the Company, and the terms and contents hereof (provided that all holdings information shall not be disclosed except on an aggregate basis for all Consenting Term Lenders and all Consenting RBL Lenders, respectively) in the Plan, the Disclosure Statement filed therewith, and any filings by the Company with the Bankruptcy Court or the Securities and Exchange Commission; and

 

c.                   any public filing of this Agreement, with the Bankruptcy Court or otherwise, that includes executed pages, schedules or exhibits to this Agreement shall include such pages, schedules and exhibits only in redacted form with respect to the holdings of each Consenting Creditor; provided, that the holdings disclosed in such signature pages, schedules or exhibits may be filed in unredacted form with the Bankruptcy Court under seal.

 

29 

 

 

26.              Relationship Among Parties

 

It is understood and agreed that no Party has any duty of trust or confidence in any form with any other Party, and there are no commitments among or between them, in each case arising solely from or in connection with this Agreement. No prior history, pattern or practice of sharing confidences among or between the Parties shall in any way affect or negate this understanding and agreement. Nothing contained in this Agreement, and no action taken by any Consenting Creditor hereto is intended to constitute the Consenting Creditors as a partnership, an association, a joint venture, or any other kind of entity, or create a presumption that any Consenting Creditor is in any way acting in concert or as a member of a “group” with any other Consenting Creditor within the meaning of Rule 13d-5 under the Securities Exchange Act of 1934, as amended.

 

27.              No Strict Construction

 

Each Party acknowledges that it has received adequate information to enter into this Agreement, and that this Agreement and the exhibits attached hereto have been prepared through the joint efforts of all of the Parties. Neither the provisions of this Agreement or the exhibits attached hereto nor any alleged ambiguity herein or therein shall be interpreted or resolved against any Party on the ground that such Party’s counsel drafted this Agreement or the exhibits attached hereto, or based on any other rule of strict construction.

 

28.              Remedies Cumulative; No Waiver

 

All rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any right, power, or remedy thereof by any Party shall not preclude the simultaneous or later exercise of any other such right, power, or remedy by such Party. The failure of any Party hereto to exercise any right, power, or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon strict compliance by any other Party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by such Party of its right to exercise any such or other right, power, or remedy or to demand such strict compliance.

 

29.              Severability

 

If any portion of this Agreement or the exhibits attached hereto shall be held to be invalid, unenforceable, void or voidable, or violative of applicable law, the remaining portions of this Agreement and the exhibits attached hereto (as applicable) so far as they may practicably be performed shall remain in full force and effect and binding on the Parties hereto, provided that, this provision shall not operate to waive any condition precedent to any event set forth herein.

 

30 

 

 

30.              Time of Essence

 

Time is of the essence in the performance of each of the obligations of the Parties and with respect to all covenants and conditions to be satisfied by the Parties in this Agreement and all documents, acknowledgments and instruments delivered in connection herewith. If any time period or other deadline provided in this Agreement expires on a day that is not a Business Day,7 then such time period or other deadline, as applicable, shall be deemed extended to the next succeeding Business Day.

 

31.              Additional Parties

 

Without in any way limiting the provisions hereof, additional Prepetition RBL Lenders and Prepetition Term Lenders, if any, may elect to become Parties by executing and delivering to the Company a counterpart hereof. Such additional Prepetition RBL Lenders and Prepetition Term Lenders shall become a Party to this Agreement as a Consenting RBL Lender or Consenting Term Lender, as applicable, in accordance with the terms of this Agreement.

 

32.              Rules of Interpretation

 

For purposes of this Agreement, unless otherwise specified: (a) each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and the neuter gender; (b) all references herein to “Articles”, “Sections”, and “Exhibits” are references to Articles, Sections, and Exhibits of this Agreement; and (c) the words ‘‘herein,’’ “hereof,” “hereunder” and ‘‘hereto’’ refer to this Agreement in its entirety rather than to a particular portion of this Agreement.

 

33.              Email Consents

 

Where a written consent, acceptance, approval, or waiver is required pursuant to or contemplated under this Agreement, such written consent, acceptance, approval, or waiver shall be deemed to have occurred if, by agreement between counsel to the Parties submitting and receiving such consent, acceptance, approval, or waiver, it is conveyed in writing (including electronic mail) between each such counsel without representations or warranties of any kind on behalf of such counsel.

 

34.              Acknowledgments

 

The Parties understand that the Consenting RBL Lenders and the Consenting Term Lenders are engaged in a wide range of financial services and businesses. In furtherance of the foregoing, the Parties acknowledge and agree that, to the extent a Consenting RBL Lender or Consenting Term Lender expressly indicates on its signature page hereto that it is executing this Agreement on behalf of specific trading desk(s) or business group(s) of the Consenting RBL Lender or Consenting Term Lender, the obligations set forth in this Agreement shall only apply to such trading desk(s) or business group(s) and shall not apply to any other trading desk or business group of the Consenting RBL Lender or Consenting Term Lender so long as they are not acting at the direction or for the benefit of such Consenting RBL Lender or Consenting Term Lender or such Consenting RBL Lender’s or Consenting Term Lender’s investment in the Company; provided, that the foregoing shall not diminish or otherwise affect the obligations and liability therefor of any legal entity that (i) executes this Agreement or (ii) on whose behalf this Agreement is executed by a Consenting RBL Lender or Consenting Term Lender.

 

 

7 The term “Business Day means any day, other than a Saturday, Sunday or “legal holiday” (as defined in Bankruptcy Rule 9006(a)).

 

31 

 

 

35.              No Recourse

 

This Agreement only may be enforced against the Consenting Creditor parties hereto (and then only to the extent of the specific obligations undertaken by such parties in this Agreement). All claims or causes of action (whether in contract, tort, equity or any other theory) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement, may be made only against the Persons that are expressly identified as Consenting Creditor parties hereto (and then only to the extent of the specific obligations undertaken by such parties herein). No past, present or future direct or indirect director, manager, officer, employee, incorporator, member, partner, stockholder, equity holder, trustee, affiliate, controlling person, agent, attorney or other representative of any Consenting Creditor party hereto (including any person negotiating or executing this Agreement on behalf of such party hereto), nor any past, present or future direct or indirect director, manager, officer, employee, incorporator, member, partner, stockholder, equity holder, trustee, affiliate, controlling person, agent, attorney or other representative of any of the foregoing (other than any of the foregoing that is a Consenting Creditor party hereto), shall have any liability with respect to this Agreement or with respect to any proceeding (whether in contract, tort, equity or any other theory that seeks to “pierce the corporate veil” or impose liability of an entity against its owners or affiliates or otherwise) that may arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement.

 

[Remainder of page intentionally left blank; signature pages follow.]

 

32 

 

 

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed and delivered by their respective duly authorized signatories, solely in their respective capacity as such and not in any other capacity, as of the date first set forth above.

 

  SUNDANCE ENERGY INC., a Delaware corporation
         
    By: /s/ Eric McCrady
      Name: Eric McCrady
      Title: President and Chief Executive Officer
         
  SUNDANCE ENERGY, INC., a Colorado corporation
         
    By: /s/ Eric McCrady
      Name: Eric McCrady
      Title: President and Chief Executive Officer
         
  ARMADILLO E&P, INC., a Delaware corporation
         
    By: /s/ Eric McCrady
      Name: Eric McCrady
      Title: President and Chief Executive Officer
         
  SEA EAGLE FORD, LLC, a Texas limited liability company
         
    By: /s/ Eric McCrady
      Name: Eric McCrady
      Title: President and Chief Executive Officer

 

[Signature Page to Restructuring Support Agreement for the Company]

 

 

 

 

 

APOLLO KINGS ALLEY CREDIT FUND LP

By: Apollo Kings Alley Credit Fund Management, LLC, its investment manager

 

By: /s/ Laurie Medley  
Name: Laurie Medley  
Title: Vice President  

 

Address for Notice:

 

c/o Apollo Management Holdings, L.P.

9 West 57th Street, 43rd Floor

New York, New York 10019

Attn: General Counsel
Email: lmedley@apollo.com
  jelworth@apollo.com
  arafalska@apollo.com
  dvogel@apollo.com
  chwong@apollo.com

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

APOLLO TOWER CREDIT FUND, L.P.

By: Apollo Tower Credit Management, LLC, its investment manager

 

By: /s/ Laurie Medley  
Name: Laurie Medley  
Title: Vice President  

 

Address for Notice:

 

c/o Apollo Management Holdings, L.P.

9 West 57th Street, 43rd Floor

New York, New York 10019

Attn: General Counsel
Email: lmedley@apollo.com
  jelworth@apollo.com
  arafalska@apollo.com
  dvogel@apollo.com
  chwong@apollo.com

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

APOLLO UNION STREET PARTNERS, L.P.

By: Apollo Union Street Management, LLC, its investment manager

 

By: /s/ Laurie Medley  
Name: Laurie Medley  
Title: Vice President  

 

Address for Notice:

 

c/o Apollo Management Holdings, L.P.

9 West 57th Street, 43rd Floor

New York, New York 10019

Attn: General Counsel
Email: lmedley@apollo.com
  jelworth@apollo.com
  arafalska@apollo.com
  dvogel@apollo.com
  chwong@apollo.com

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

TRANQUILIDADE DIVERSIFIED INCOME ICAV

an Umbrella Irish Collective Asset-Management Vehicle with Segregated Liability between its Sub-Funds, acting in respect of its Sub-Fund, Tranquilidade Multi-Credit Strategy Fund

 

By: Apollo Management International LLP,

its portfolio manager, solely in its capacity as Portfolio Manager and not in its individual corporate capacity

 

By: AMI (Holdings), LLC its member

 

By: /s/ Joseph D. Glatt  
Name: Joseph D. Glatt  
Title: Vice President  

 

Address for Notice:

 

c/o Apollo Capital Management, L.P.

9 West 57th Street, 43rd Floor

New York, New York 10019

Attn: General Counsel
Email: jglatt@apollo.com
  mlotito@apollo.com
  dvogel@apollo.com
  chwong@apollo.com

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

APOLLO MOULTRIE CREDIT FUND L.P.

By: Apollo Moultrie Credit Fund Management, LLC, its investment manager

 

By: /s/ Joseph D. Glatt  
Name: Joseph D. Glatt  
Title: Vice President  

 

Address for Notice:

 

c/o Apollo Capital Management, L.P.

9 West 57th Street, 43rd Floor

New York, New York 10019

Attn: General Counsel
Email: jglatt@apollo.com
  mlotito@apollo.com
  dvogel@apollo.com
  chwong@apollo.com

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

APOLLO TACTICAL VALUE SPN INVESTMENTS, L.P.

By: Apollo Tactical Value SPN Management, LLC, its investment manager

 

By: /s/ Joseph D. Glatt  
Name: Joseph D. Glatt  
Title: Vice President  

 

Address for Notice:

 

c/o Apollo Capital Management, L.P.

9 West 57th Street, 43rd Floor

New York, New York 10019

Attn: General Counsel
Email: jglatt@apollo.com
  mlotito@apollo.com
  dvogel@apollo.com
  chwong@apollo.com

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

APOLLO TR ENHANCED LEVERED YIELD LLC

By: Apollo TR Enhanced Management LLC, its manager

 

By: /s/ Joseph D. Glatt  
Name: Joseph D. Glatt  
Title: Vice President  

 

Address for Notice:

 

c/o Apollo Capital Management, L.P.

9 West 57th Street, 43rd Floor

New York, New York 10019

Attn: General Counsel
Email: jglatt@apollo.com
  mlotito@apollo.com
  dvogel@apollo.com
  chwong@apollo.com

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

APOLLO TR OPPORTUNISTIC LTD.

By: Apollo Total Return Management, LLC, its investment manager

And by: Apollo Total Return Enhanced Management, LLC, its investment manager

 

By: /s/ Joseph D. Glatt  
Name: Joseph D. Glatt  
Title: Vice President  

 

Address for Notice:

 

c/o Apollo Capital Management, L.P.

9 West 57th Street, 43rd Floor

New York, New York 10019

Attn: General Counsel
Email: jglatt@apollo.com
  mlotito@apollo.com
  dvogel@apollo.com
  chwong@apollo.com

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

MPI (LONDON) LIMITED

By: Apollo TRF MP Management LLC, its investment manager

 

By: /s/ Joseph D. Glatt  
Name: Joseph D. Glatt  
Title: Vice President  

 

Address for Notice:

 

c/o Apollo Capital Management, L.P.

9 West 57th Street, 43rd Floor

New York, New York 10019

Attn: General Counsel
Email: jglatt@apollo.com
  mlotito@apollo.com
  dvogel@apollo.com
  chwong@apollo.com

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

APOLLO ATLAS MASTER FUND, LLC

By: Apollo Atlas Management, LLC, its investment manager

 

By: /s/ Joseph D. Glatt  
Name: Joseph D. Glatt  
Title: Vice President  

 

Address for Notice:

 

c/o Apollo Capital Management, L.P.

9 West 57th Street, 43rd Floor

New York, New York 10019

Attn: General Counsel
Email: jglatt@apollo.com
  mlotito@apollo.com
  dvogel@apollo.com
  chwong@apollo.com

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

 

AMISSIMA DIVERSIFIED INCOME ICAV

an Umbrella Irish Collective Asset-Management Vehicle with Segregated Liability between its Sub-Funds, acting in respect of its Sub-Fund Amissima Assicurazioni Multi- Credit Strategy Fund

 

By: Apollo Management International LLP,

its portfolio manager, solely in its capacity as Portfolio Manager and not in its individual corporate capacity

 

By: AMI (Holdings), LLC

its member

 

By: /s/ Joseph D. Glatt  
Name: Joseph D. Glatt  
Title: Vice President  

 

Address for Notice:

 

c/o Apollo Capital Management, L.P.

9 West 57th Street, 43rd Floor

New York, New York 10019

Attn:       General Counsel

Email:      jglatt@apollo.com

mlotito@apollo.com

dvogel@apollo.com

chwong@apollo.com

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

 

DIVERSIFIED LOAN FUND-PRIVATE DEBT A S.A R.L.

 

By: /s/ Ian Fitzgerald  
Name: Ian Fitzgerald  
Title: Authorized Signatory  

 

Address for Notice:

 

Ares Management Corporation

245 Park Ave 44th Floor

New York, NY 10167

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

CION ARES DIVERSIFIED CREDIT FUND

 

By: /s/ Ian Fitzgerald  
Name: Ian Fitzgerald  
Title: Authorized Signatory  

 

Address for Notice:

 

Ares Management Corporation

245 Park Ave 44th Floor

New York, NY 10167

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

SALI MULTI-SERIES FUND, L.P.-ARES CREDIT STRATEGIES INSURANCE DEDICATED FUND SERIES

 

By: /s/ Ian Fitzgerald  
Name: Ian Fitzgerald  
Title: Authorized Signatory  

 

Address for Notice:

 

Ares Management Corporation

245 Park Ave 44th Floor

New York, NY 10167

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

ARES DIRECT FINANCE I LP

 

By: /s/ Ian Fitzgerald  
Name: Ian Fitzgerald  
Title: Authorized Signatory  

 

Address for Notice:

 

Ares Management Corporation

245 Park Ave 44th Floor

New York, NY 10167

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

ARES CAPITAL CORPORATION

 

By: /s/ Ian Fitzgerald  
Name: Ian Fitzgerald  
Title: Authorized Signatory  

 

Address for Notice:

 

Ares Management Corporation

245 Park Ave 44th Floor

New York, NY 10167

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

MORGAN STANLEY CAPITAL GROUP INC.

in its capacity as a Prepetition Term Lender

 

By: /s/ Parker Corbin  
Name: Parker Corbin  
Title: Chairman, President, CEO  

 

Address for Notice:

 

1585 Broadway, 16th Floor

New York, New York 10036

Attention: David Lazarus

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

MORGAN STANLEY CAPITAL GROUP INC.

in its capacity as a Prepetition RBL Lender

 

By: /s/ Parker Corbin  
Name: Parker Corbin  
Title: Chairman, President, CEO  

 

Address for Notice:

 

1585 Broadway, 16th Floor

New York, New York 10036

Attention: David Lazarus

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

MORGAN STANLEY CAPITAL ADMINISTRATORS INC.

in its capacity as the Prepetition Term Loan Agent

 

By: /s/ David Lazarus  
Name: David Lazarus  
Title: President  

 

Address for Notice:

 

1585 Broadway, 16th Floor

New York, New York 10036

Attention: David Lazarus

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor]

 

 

 

 

AG ENERGY FUNDING, LLC

 

By: /s/ Todd Dittmann  
Name: Todd Dittmann  
Title: Authorized Person  

 

Address for Notice:

 

245 Park Ave, 24th Floor

New York, NY 10167

Attention: Chad Hanover

Phone Number: 212-883-4117

 

[Signature Page to Restructuring Support Agreement for Consenting Creditor

 

 

 

 

Schedule A 

 

Holdings of each Consenting Creditor

 

 

 

 

Schedule B-1 

 

Specified RBL Defaults

 

1.The Borrower did not furnish the July 1, 2020 reserve report and associated certificate on or before October 30, 2020, which resulted in an event of default under Section 10.01(e) of the Prepetition RBL Credit Agreement.

 

2.The Borrower failed to comply with certain terms of the Prepetition Term Loan Credit Agreement, resulting in an event of default under such agreement and triggering the right of the Prepetition Term Lenders to accelerate the payment of their debt, which in turn resulted in an event of default under Section 10.01(g) of the Prepetition RBL Credit Agreement.

 

3.As a result of certain obligations owed to Calfrac Well Services, the Borrower incurred debt in excess of $5,000,000 in the aggregate at any one time outstanding, which resulted in an event of default under Section 10.01(d) of the Prepetition RBL Credit Agreement.

 

4.The Borrower did not comply with the required ratio of consolidated current assets to consolidated current liabilities as of the last day of the fiscal quarters ending on September 30, 2020, and December 31, 2020, resulting in an event of default under Section 10.01(d) of the Prepetition RBL Credit Agreement.

 

5.The Borrower did not comply with the required ratio of total debt to EBITDAX as of the last day of the fiscal quarters ending on September 30, 2020, and December 31, 2020, resulting in an event of default under Section 10.01(d) of the Prepetition RBL Credit Agreement.

 

6.The Borrower exceeded permitted general and administrative expense limitations in the second and third fiscal quarters of 2020, resulting in events of default under Section 10.01(d) of the Prepetition RBL Credit Agreement.

 

7.The Borrower failed to maintain the Required Hedges, resulting in an event of default under Section 10.01(e) of the Prepetition RBL Credit Agreement.

 

8.The Borrower terminated certain swap agreements on or prior to December 18, 2020 without the requisite consents, resulting in an event of default under Section 10.01(d) of the Prepetition RBL Credit Agreement.

 

9.The Borrower anticipates that it will not be in compliance with Section 9.01(a), Section 9.01(b) and Section 9.01(c) as of the last day of the fiscal quarter ending on March 31, 2021, which will result in an event of default under Section 10.01(d) of the Prepetition RBL Credit Agreement.

 

 

 

 

10.To the extent also constituting events of default under Section 10.01(g) of the Prepetition RBL Credit Agreement, the events of default listed in Schedule B-2 are incorporated herein by reference.

 

11.The Borrower failed to furnish to the Administrative Agent prompt notice of the occurrence of the Defaults described on this Schedule B-1, resulting in an event of default under Section 10.01(d) of the Prepetition RBL Credit Agreement.

 

 

 

 

Schedule B-2 

 

Specified Term Loan Defaults

 

1.The Borrower did not furnish the July 1, 2020 reserve report and associated certificate on or before October 30, 2020, which resulted in an event of default under Section 10.01(e) of the Prepetition Term Loan Credit Agreement.

 

2.The Borrower did not furnish the July 1, 2020 reserve report as rolled forward by the Borrower through September 30, 2020 on or before November 30, 2020, which resulted in an event of default under Section 10.01(d) of the Prepetition Term Loan Credit Agreement.

 

3.As a result of certain obligations owed to Calfrac Well Services, the Borrower incurred debt in excess of $5,000,000 in the aggregate at any one time outstanding, which resulted in an event of default under Section 10.01(d) of the Prepetition Term Loan Credit Agreement.

 

4.The Borrower did not provide the ratio of total proved PV-9 to total debt calculation as of the last day of the fiscal quarter ending on June 30, 2020, which resulted in an event of default under Section 10.01(d) of the Prepetition Term Loan Credit Agreement.

 

5.The Borrower did not comply with the required ratio of total proved PV-9 to total debt as of the last day of the fiscal quarters ending on September 30, 2020 and December 31, 2020, resulting in events of default under Section 10.01(d) of the Prepetition Term Loan Credit Agreement.

 

6.The Borrower did not enter into a restructuring support agreement with respect to a workout or restructuring of the revolving debt under the Prepetition RBL Credit Agreement and the secured obligations under the Prepetition Term Loan Credit Agreement on or prior to November 30, 2020, which resulted in an event of default under Section 10.01(d) of the Prepetition Term Loan Credit Agreement.

 

7.The Borrower exceeded permitted general and administrative expense limitations in the second and third fiscal quarters of 2020, resulting in events of default under Section 10.01(d) of the Prepetition Term Loan Credit Agreement.

 

8.The Borrower did not make the $5,779,388.89 interest payment payable on December 31, 2020 with respect to the loans under the Prepetition Term Loan Facility, which resulted in an event of default under Section 10.01(b) of the Prepetition Term Loan Credit Agreement if not remedied within the period specified therein.

 

 

 

 

9.The Borrower did not cause the deposit account of the Borrower held with Bank of America, N.A. with an account number ending in 1093 to be subject to a deposit account control agreement in accordance with Section 8.21 of the Prepetition Term Loan Credit Agreement, resulting in an event of default under Section 10.01(d) of the Prepetition Term Loan Credit Agreement.

 

10.The Borrower failed to maintain the Required Hedges in accordance with Section 8.17 of the Prepetition Term Loan Credit Agreement, resulting in an event of default under Section 10.01(e) of the Prepetition Term Loan Credit Agreement.

 

11.The Borrower failed to comply with Section 9.11(f) of the Prepetition Term Loan Credit Agreement due to the early termination of certain Swap Agreements on or prior to December 18, 2020, without Required Lender consent, resulting in an event of default under Section 10.01(d) of the Prepetition Term Loan Credit Agreement.

 

12.The Borrower anticipates that it will not be in compliance with Section 9.01(a) and Section 9.01(b) as of the last day of the fiscal quarter ending on March 31, 2021, which will result in an event of default under Section 10.01(d) of the Prepetition Term Loan Credit Agreement.

 

13.To the extent also constituting events of default under Section 10.01(g) of the Prepetition Term Loan Credit Agreement, the events of default listed in Schedule B-1 are incorporated herein by reference.

 

  14. The Borrower failed to give furnish to the Administrative Agent prompt notice of the occurrence of the Defaults described on this Schedule B-2, resulting in an event of default under Section 10.01(d) of the Prepetition Term Loan Credit Agreement.

 

 

 

 

Index of Defined Terms

 

Acknowledgement and Joinder” shall have the meaning set forth in the Recitals.

 

Additional Claims/Interests” shall have the meaning set forth in Section 9.

 

Affiliate Transferee” shall have the meaning set forth in Section 10(c).

 

Agents’ Counsels” shall have the meaning set forth in Section 5(a)(ix).

 

Aggregate Outstanding RBL Amount” shall have the meaning set forth in the Recitals.

 

Aggregate Outstanding Term Loan Amount” shall have the meaning set forth in the Recitals.

 

Agreement” shall have the meaning set forth in the Preamble.

 

Agreement Effective Date” shall have the meaning set forth in Section 2.

 

Bankruptcy Code” shall have the meaning set forth in Section 1(b).

 

Bankruptcy Court” shall have the meaning set forth in Section 1(b).

 

Budget” shall have the meaning set forth in Section 1(b)(4).

 

Business Day” shall have the meaning set forth in Section 30.

 

Chapter 11 Cases” shall have the meaning set forth in Section 1(b).

 

Claim Transfer” shall have the meaning set forth in Section 10(a).

 

Combined Disclosure Statement and Confirmation Order” shall have the meaning set forth in Section 3(b)(1).

 

Company” shall have the meaning set forth in the Preamble.

 

Confirmation Motion” shall have the meaning set forth in Section 1(b)(2).

 

Consenting Creditor” shall have the meaning set forth in Section 1(a).

 

Consenting Creditor Claim” shall have the meaning set forth in Section 8(a).

 

Consenting RBL Lenders” shall have the meaning set forth in the Preamble.

 

Consenting Term Lenders” shall have the meaning set forth in the Preamble.

 

 

 

 

Defaulting Creditor” shall have the meaning set forth in Section 6(b)(i).

 

Definitive Documents” shall have the meaning set forth in Section 3(b).

 

DIP Agent” shall have the meaning set forth in Section 1(b)(4).

 

DIP Credit Agreement” shall have the meaning set forth in Section 1(b)(4).

 

DIP Facility” shall have the meaning set forth in Section 1(b)(4).

 

DIP Financing Documents” shall have the meaning set forth in Section 3(b)(4).

 

DIP Lenders” shall have the meaning set forth in Section 1(b)(4).

 

Disclosure Statement” shall have the meaning set forth in Section 1(b)(1).

 

Equity Issuance Documents” shall have the meaning set forth in Section 3(b)(6).

 

Exit Debt Commitment Letter” shall have the meaning set forth in Section 1(b)(5).

 

Exit Facilities Credit Agreement” shall have the meaning set forth in Section 1(b)(5).

 

Exit Facilities Documents” shall have the meaning set forth in Section 3(b)(5).

 

Exit RBL Facility” shall have the meaning set forth in Section 1(b)(5).

 

Exit Second Out Term Loan Facility” shall have the meaning set forth in Section 1(b)(5).

 

Exit Third Out Term Loan Facility” shall have the meaning set forth in Section 1(b)(5).

 

Final Financing Order” shall have the meaning set forth in Section 3(b)(4).

 

Financing Orders” shall have the meaning set forth in Section 3(b)(4).

 

First Day Pleadings” shall have the meaning set forth in Section 1(b)(3).

 

Governance Materials” shall have the meaning set forth in Section 3(b)(8).

 

Governance Term Sheet” shall have the meaning set forth in Section 3(b)(8).

 

HSR Act” shall have the meaning set forth in Section 7(d).

 

ICA” shall have the meaning set forth in the Recitals.

 

 

 

 

ICA Supplement” shall have the meaning set forth in the Recitals.

 

Interim Financing Order” shall have the meaning set forth in Section 1(b)(4).

 

Intercreditor Agreement” shall have the meaning set forth in the Recitals.

 

Milestone” and “Milestones” shall have the meaning set forth in Section 6(c)(iii).

 

Non-Consenting Creditor” shall have the meaning set forth in Section 13(c).

 

Other Confirmation Pleadings” shall have the meaning set forth in Section 3(b)(2).

 

Outside Date” shall have the meaning set forth in Section 6(a)(ii).

 

Parent” shall have the meaning set forth in the Preamble.

 

Party and “Parties” shall have the meaning set forth in the Preamble.

 

Petition Date” shall have the meaning set forth in Section 3(a).

 

Plan” shall have the meaning set forth in the Recitals.

 

Plan Conditions” shall have the meaning set forth in Section 4(a)(ii).

 

Plan Effective Date” shall have the meaning set forth in Section 6(c)(iii)(H).

 

Plan Supplement” shall have the meaning set forth in Section 3(b)(7).

 

Pleadings” shall have the meaning set forth in Section 3(b)(3).

 

Prepetition Definitive Documents” shall have the meaning set forth in Section 1(b).

 

Prepetition RBL Agent” shall have the meaning set forth in the Recitals.

 

Prepetition RBL Claims” shall have the meaning set forth in the Recitals.

 

Prepetition RBL Credit Agreement” shall have the meaning set forth in the Recitals.

 

Prepetition RBL Facility” shall have the meaning set forth in the Recitals.

 

Prepetition RBL Lenders” shall have the meaning set forth in the Recitals.

 

Prepetition Term Lenders” shall have the meaning set forth in the Recitals.

 

Prepetition Term Loan Agent” shall have the meaning set forth in the Recitals.

 

 

 

 

Prepetition Term Loan Claims” shall have the meaning set forth in the Recitals.

 

Prepetition Term Loan Credit Agreement” shall have the meaning set forth in the Recitals.

 

Prepetition Term Loan Facility” shall have the meaning set forth in the Recitals.

 

Qualified Marketmaker” shall have the meaning set forth in Section 10(c).

 

RBL Forbearance” shall have the meaning set forth in Section 12(a).

 

RBL Loan Documents” shall have the meaning set forth in Section 12(a).

 

Reorganized Company” shall have the meaning set forth in Section 1(b)(5).

 

Required Consenting Term Lenders” shall have the meaning set forth in Section 3(b).

 

Restructuring Expenses” shall have the meaning set forth in Section 5(a)(xv).

 

Second Day Pleadings” shall have the meaning set forth in Section 3(b)(3).

 

Solicitation Commencement Date” shall have the meaning set forth in Section 6(c)(iii)(A).

 

Specific Performance Action” shall have the meaning set forth in Section 6(b)(i).

 

Specified RBL Defaults” shall have the meaning set forth in Section 12(a).

 

Specified Term Loan Defaults” shall have the meaning set forth in Section 12(c).

 

Sundance Subsidiary” shall have the meaning set forth in the Preamble.

 

Super-Majority RBL Lenders” shall have the meaning set forth in Section 2.

 

Super-Majority Term Lenders” shall have the meaning set forth in Section 6(b)(i).

 

Superior Alternative Transaction” shall have the meaning set forth in Section 5(b).

 

Term Loan Documents” shall have the meaning set forth in Section 12(c).

 

Term Loan Forbearance” shall have the meaning set forth in Section 12(c).

 

Transaction” shall have the meaning set forth in the Recitals.

 

 

 

 

Transaction Effective Date” shall have the meaning set forth in Section 4(a).

 

Transferee” shall have the meaning set forth in Section 10(a).

 

Transferor” shall have the meaning set forth in Section 10(a).

 

 

 

 

 

Exhibit A

 

Plan

 

 

 

 

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS 

HOUSTON DIVISION

 

 

In re:

 

SUNDANCE ENERGY INC., et al.,1

 

Debtors.

 

 

x

:

:

:

:

:

:

x

 

Chapter 11

 

Case No. __-_____ (___)

 

(Joint Administration Requested)

 

 

JOINT PREPACKAGED PLAN OF REORGANIZATION FOR

SUNDANCE ENERGY INC. AND ITS AFFILIATE DEBTORS

UNDER CHAPTER 11 OF THE BANKRUPTCY CODE

 

 

HUNTON ANDREWS KURTH LLP LATHAM & WATKINS LLP

Timothy A. (“Tad”) Davidson II

Ashley L. Harper

Philip M. Guffy

600 Travis Street, Suite 4200

Houston, Texas 77002

Telephone: (713) 220-4200

Facsimile: (713) 220-4285

David A. Hammerman

Keith A. Simon

Annemarie V. Reilly

Jeffrey T. Mispagel

885 Third Avenue

New York, New York 10022

Telephone: (212) 906-1200

Facsimile: (212) 751-4864

 

Proposed Counsel for the Debtors and Debtors-in-Possession

 

Dated:     March [●], 2021

 

 
1The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are Sundance Energy Inc. (9225), Sundance Energy, Inc. (3113), Armadillo E&P, Inc. (2735), and SEA Eagle Ford, LLC (8743). The Debtors’ address is 1050 17th Street, Suite 700, Denver, CO 80265.

 

 

NO CHAPTER 11 CASES HAVE BEEN COMMENCED AT THIS TIME. THIS PREPACKAGED PLAN OF REORGANIZATION, AND THE SOLICITATION MATERIALS ACCOMPANYING THIS PLAN, HAVE NOT BEEN APPROVED BY THE BANKRUPTCY COURT AS CONTAINING “ADEQUATE INFORMATION” WITHIN THE MEANING OF SECTION 1125(a) OF THE BANKRUPTCY CODE. UPON COMMENCEMENT OF THE CHAPTER 11 CASES, THE DEBTORS EXPECT TO SEEK PROMPTLY AN ORDER OF THE BANKRUPTCY COURT (1) APPROVING THE ADEQUACY OF THE DISCLOSURE STATEMENT, (2) APPROVING THE SOLICITATION OF VOTES AS HAVING BEEN IN COMPLIANCE WITH SECTIONS 1125 AND 1126(b) OF THE BANKRUPTCY CODE; AND (3) CONFIRMING THE PLAN PURSUANT TO SECTION 1129 OF THE BANKRUPTCY CODE.

 

 

TABLE OF CONTENTS

 

Article I. RULES OF INTERPRETATION, COMPUTATION OF TIME AND DEFINED TERMS 1
  A. Rules of Interpretation; Computation of Time 1
  B. Defined Terms 2
       
Article II. ADMINISTRATIVE, dip facility, AND PRIORITY TAX CLAIMS 15
  A. Administrative Claims 15
  B. DIP Facility Claims 16
  C. Priority Tax Claims 16
       
Article III. CLASSIFICATION AND TREATMENT OF CLASSIFIED CLAIMS AND EQUITY INTERESTS 17
  A. Summary 17
  B. Classification and Treatment of Claims and Equity Interests 17
  C. Special Provision Governing Unimpaired Claims 22
  D. Elimination of Vacant Classes 22
  E. PPP Loan 22
       
Article IV. ACCEPTANCE OR REJECTION OF THE PLAN 23
  A. Presumed Acceptance of Plan 23
  B. Deemed Rejection of Plan 23
  C. Voting Classes 23
  D. Acceptance by Impaired Class 23
  E. Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code; Cram Down 23
  F. Votes Solicited in Good Faith 23
       
Article V. MEANS FOR IMPLEMENTATION OF THE PLAN 24
  A. Restructuring Transactions 24
  B. Continued Corporate Existence 24
  C. Vesting of Assets in the Reorganized Debtors Free and Clear of Liens and Claims 25
  D. Exit Facilities Loan Documents 25
  E. No Discharge or Release of Prepetition RBL Liens 26
  F. New Common Equity Interests 26
  G. New Stockholders Agreement; 26
  H. Management Incentive Plan 27
  I. Plan Securities and Related Documentation; Exemption from Securities Laws 27
  J. Release of Liens and Claims 28
  K. Organizational Documents of the Reorganized Debtors 29
  L. Directors and Officers of the Reorganized Debtors 29
  M. Corporate Action 29
  N. Cancellation of Notes, Certificates and Instruments 30
  O. Old Sundance Subsidiary Interests 31

i

 

  P. Sources of Cash for Plan Distributions 31
  Q. Funding and Use of Professional Fee Claim Reserve 31
  R. Holders of Royalty and Working Interests 32
  S. Payment of Fees and Expenses of Certain Creditors 32
       
Article VI. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES 32
  A. Assumption of Executory Contracts and Unexpired Leases 32
  B. Cure of Defaults; Assignment of Executory Contracts and Unexpired Leases 33
  C. Rejection of Executory Contracts and Unexpired Leases 34
  D. Claims on Account of the Rejection of Executory Contracts or Unexpired Leases 35
  E. D&O Liability Insurance Policies 35
  F. Indemnification Provisions 36
  G. Employment Plans 36
  H. Hedge Agreements 36
  I. Insurance Contracts 37
  J. Extension of Time to Assume or Reject 37
  K. Modifications, Amendments, Supplements, Restatements, or Other Agreements 37
  L. Oil and Gas Leases 37
       
Article VII. PROVISIONS GOVERNING DISTRIBUTIONS 38
  A. Distributions for Claims Allowed as of the Effective Date 38
  B. No Postpetition Interest on Claims 38
  C. Distributions by the Reorganized Debtors or Other Applicable Distribution Agent 38
  D. Delivery and Distributions; Undeliverable or Unclaimed Distributions 38
  E. Compliance with Tax Requirements 40
  F. Allocation of Plan Distributions Between Principal and Interest 41
  G. Means of Cash Payment 41
  H. Timing and Calculation of Amounts to Be Distributed 41
  I. Setoffs 41
       
Article VIII. PROCEDURES FOR RESOLVING CONTINGENT,  UNLIQUIDATED AND DISPUTED CLAIMS 42
  A. Resolution of Disputed Claims 42
  B. No Distributions Pending Allowance 43
  C. Distributions on Account of Disputed Claims Once They Are Allowed and Additional Distributions on Account of Previously Allowed Claims 43
  D. Reserve for Disputed Claims 43
       
Article IX. CONDITIONS PRECEDENT TO CONFIRMATION AND CONSUMMATION OF THE PLAN 44
  A. Conditions Precedent to Confirmation 44
  B. Conditions Precedent to Consummation 44

ii

 

  C. Waiver of Conditions 45
  D. Effect of Non-Occurrence of Conditions to Confirmation or Consummation 46
       
Article X. RELEASE, discharge, INJUNCTION AND RELATED PROVISIONS 46
  A. General 46
  B. Release of Claims and Causes of Action 47
  C. Waiver of Statutory Limitations on Releases 49
  D. Discharge of Claims and Equity Interests 49
  E. Exculpation 50
  F. Preservation of Causes of Action 51
  G. Injunction 51
  H. Binding Nature Of Plan 52
  I. Protection Against Discriminatory Treatment 52
  J. Integral Part of Plan 52
       
Article XI. RETENTION OF JURISDICTION 53
   
Article XII. MISCELLANEOUS PROVISIONS 54
  A. Substantial Consummation 54
  B. Payment of Statutory Fees; Post-Effective Date Fees and Expenses 54
  C. Conflicts 55
  D. Modification of Plan 55
  E. Revocation or Withdrawal of Plan 55
  F. Successors and Assigns 55
  G. Reservation of Rights 56
  H. Further Assurances 56
  I. Severability 56
  J. Service of Documents 56
  K. Exemption from Transfer Taxes Pursuant to Section 1146(a) of the Bankruptcy Code 58
  L. Certain Tax Matters 58
  M. Governing Law 59
  N. Tax Reporting and Compliance 59
  O. Exhibits and Schedules 59
  P. No Strict Construction 59
  Q. Entire Agreement 59
  R. Closing of Chapter 11 Cases 59
  S. 2002 Notice Parties 59

iii

 

EXHIBITS

 

Exhibit A Restructuring Support Agreement

i

 

PLAN SCHEDULES

 

Plan Schedule 1 Exit Facilities Credit Agreement
   
Plan Schedule 2 Amended/New Organizational Documents
   
Plan Schedule 3 Schedule of Litigation Claims
   
Plan Schedule 4 Members of New Board
   
Plan Schedule 5 Schedule of Rejected Executory Contracts and Unexpired Leases

ii

 

JOINT PREPACKAGED PLAN OF REORGANIZATION FOR

SUNDANCE ENERGY INC. AND ITS AFFILIATE DEBTORS

UNDER CHAPTER 11 OF THE BANKRUPTCY CODE

 

Sundance Energy Inc. and the other above-captioned debtors and debtors-in-possession (each a “Debtor” and, collectively, the “Debtors”) jointly propose the following prepackaged plan of reorganization (this “Plan”) for the treatment of the outstanding Claims (as defined below) against, and Equity Interests (as defined below) in, each of the Debtors. Although proposed jointly for administrative purposes, this Plan constitutes a separate Plan for each Debtor for the treatment of outstanding Claims against and Equity Interests in each Debtor pursuant to the Bankruptcy Code (as defined below). This Plan is not premised upon the substantive consolidation of the Debtors with respect to the Classes of Claims or Equity Interests set forth in the Plan. The Debtors are the proponents of this Plan within the meaning of section 1129 of the Bankruptcy Code. Reference is made to the Disclosure Statement (as such term is defined herein and distributed contemporaneously herewith) for a discussion of the Debtors’ history, business, results of operations, historical financial information, and projections, and for a summary and analysis of this Plan, the treatment provided for herein and certain related matters. There also are other agreements and documents, which shall be filed with the Bankruptcy Court (as defined below), that are referenced in this Plan or the Disclosure Statement as Exhibits and Plan Schedules. All such Exhibits and Plan Schedules are incorporated into and are a part of this Plan as if set forth in full herein. Subject to certain restrictions and requirements set forth in section 1127 of the Bankruptcy Code, Bankruptcy Rule 3019 and the terms and conditions set forth in this Plan, the Debtors reserve the right to alter, amend, modify, revoke or withdraw this Plan prior to its substantial consummation.

 

Article I.

RULES OF INTERPRETATION, COMPUTATION OF TIME AND DEFINED TERMS

 

A.Rules of Interpretation; Computation of Time

 

For purposes herein: (a) in the appropriate context, each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and the neuter gender; (b) except as otherwise provided herein, any reference herein to a contract, lease, instrument, release, or other agreement or document shall mean as it may be amended, modified or supplemented from time to time (in accordance with the Restructuring Support Agreement and this Plan, in each case to the extent applicable); (c) any reference to an Entity as a Holder of a Claim or an Equity Interest includes that Entity’s successors and assigns; (d) unless otherwise specified, all references herein to “Articles”, “Sections”, “Exhibits” and “Plan Schedules” are references to Articles, Sections, Exhibits and Plan Schedules hereof or hereto; (e) unless otherwise stated, the words ‘‘herein,’’ “hereof,” “hereunder” and ‘‘hereto’’ refer to this Plan in its entirety rather than to a particular portion of this Plan; (f) except as otherwise specifically provided herein, any provision in this Plan, the Exhibits and Plan Schedules hereto, and the Plan Supplement shall be in form and substance consistent in all respects with the Restructuring Support Agreement and subject to the consent and consultation rights of the parties thereto (as specified in the Restructuring Support Agreement) in all respects; (g) captions and headings to Articles and Sections are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation hereof; (h) the rules of construction set forth in section 102 of the Bankruptcy Code shall apply to this Plan; (i) references to a specific article, section, or subsection of any statute, rule, or regulation expressly referenced herein shall, unless otherwise specified, include any amendments to or successor provisions of such article, section, or subsection in effect as of the date of this Plan; (j) any term used in capitalized form herein that is not otherwise defined but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning assigned to that term in the Bankruptcy Code or the Bankruptcy Rules, as the case may be; (k) references to “shareholders,” “directors,” and/or “officers” shall also include “members” and/or “managers,” as applicable, as such terms are defined under the applicable state limited liability company laws; (l) the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, and shall be deemed to be followed by the words “without limitation”; (m) any reference in this Plan to “$” or “dollars” shall mean U.S. dollars; and (n) all references to statutes, regulations, orders, rules of courts, and the like shall mean as amended from time to time, and as applicable to the Chapter 11 Cases, unless otherwise stated. Except as otherwise specifically provided in this Plan to the contrary, references in this Plan to “the Debtors” or to “the Reorganized Debtors” shall mean “the Debtors and the Reorganized Debtors”, as applicable, to the extent the context requires.

 

 

Unless otherwise specifically stated herein, the provisions of Bankruptcy Rule 9006(a) shall apply in computing any period of time prescribed or allowed herein. If the date on which a transaction may occur pursuant to this Plan shall occur on a day that is not a Business Day, then such transaction shall instead occur on the next succeeding Business Day.

 

B.Defined Terms

 

Unless the context otherwise requires, the following terms shall have the following meanings when used in capitalized form herein:

 

510(b) Equity Claim” means any Claim subordinated pursuant to section 510(b) of the Bankruptcy Code.

 

Accrued Professional Compensation” means, with respect to a particular Professional, an Administrative Claim of such Professional for compensation for services rendered or reimbursement of costs, expenses or other charges incurred on or after the Petition Date and prior to and including the Effective Date.

 

Administrative Claim” means a Claim for costs and expenses of administration of the Chapter 11 Cases that are Allowed under sections 503(b), 507(a)(2), 507(b), or 1114(e)(2) of the Bankruptcy Code, including, without limitation: (a) any actual and necessary costs and expenses incurred on or after the Petition Date and through the Effective Date of preserving the Estates and operating the businesses of the Debtors; (b) Professional Fee Claims and any other compensation for legal, financial, advisory, accounting, and other services and reimbursement of expenses Allowed by the Bankruptcy Court under sections 328, 330, 331 or 503(b) of the Bankruptcy Code to the extent incurred on or after the Petition Date and through the Effective Date; (c) all fees and charges assessed against the Estates under section 1930, chapter 123, of title 28, United States Code; and (d) the Cure Claim Amounts.

 

Affiliate” means an “affiliate”, as defined in section 101(2) of the Bankruptcy Code.

 

Affiliate Debtor(s)” means, individually or collectively, any Debtor or Debtors other than Parent.

 

Allowed” means, with respect to a Claim or Equity Interest (a) any Claim or Equity Interest as to which no objection to allowance has been interposed (either in the Bankruptcy Court or in the ordinary course of business) on or before the applicable time period fixed by applicable non-bankruptcy law or such other applicable period of limitation fixed by the Bankruptcy Code, the Bankruptcy Rules or the Bankruptcy Court, or as to which any objection has been determined by a Final Order, either before or after the Effective Date, to the extent such objection is determined in favor of the respective Holder; (b) any Claim or Equity Interest as to which the liability of the Debtors and the amount thereof are determined by a Final Order of a court of competent jurisdiction other than the Bankruptcy Court, either before or after the Effective Date; or (c) any Claim or Equity Interest expressly deemed Allowed by this Plan.

 2

 

Amended/New Organizational Documents” means, as applicable, the amended and restated or new applicable organizational documents of Reorganized Parent which shall be consistent in all respects with the Restructuring Support Agreement and the Governance Term Sheet, in substantially the form Filed with the Plan Supplement and otherwise in form and substance acceptable to the Debtors and each Consenting Term Lender.

 

Avoidance Actions” means any and all avoidance, recovery, subordination or similar actions or remedies that may be brought by and on behalf of the Debtors or their Estates under the Bankruptcy Code or applicable non-bankruptcy law, including, without limitation, actions or remedies arising under chapter 5 of the Bankruptcy Code.

 

Ballots” means the ballots accompanying the Disclosure Statement upon which Holders of Impaired Claims entitled to vote shall, among other things, indicate their acceptance or rejection of this Plan in accordance with this Plan and the procedures governing the solicitation process.

 

Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§ 101-1532, as amended from time to time and as applicable to the Chapter 11 Cases.

 

Bankruptcy Court” means the United States Bankruptcy Court for the Southern District of Texas, Houston Division, or any other court having jurisdiction over the Chapter 11 Cases.

 

Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure and the Local Rules of the Bankruptcy Court, in each case as amended from time to time and as applicable to the Chapter 11 Cases.

 

Business Day” means any day, other than a Saturday, Sunday or “legal holiday” (as defined in Bankruptcy Rule 9006(a)).

 

CARES Act” means the Coronavirus Aid, Relief and Economic Security Act, Pub. L. 116-136, 135 Stat 281.

 

Cash” means the legal tender of the United States of America or the equivalent thereof.

 

Cash Paydown” means the payment in Cash of the portion of the Allowed Prepetition RBL Claims equal to the difference between (x) the total amount of Allowed Prepetition RBL Claims (as set forth in Article III.B.4(b) of this Plan) minus (y) $122.5 million.

 

Causes of Action” means any claims, causes of action (including Avoidance Actions), demands, actions, suits, obligations, liabilities, cross-claims, counterclaims, offsets, or setoffs of any kind or character whatsoever, in each case whether known or unknown, contingent or non-contingent, matured or unmatured, suspected or unsuspected, foreseen or unforeseen, direct or indirect, choate or inchoate, existing or hereafter arising, under statute, in contract, in tort, in law, or in equity, or pursuant to any other theory of law, federal or state, whether asserted or assertable directly or derivatively in law or equity or otherwise by way of claim, counterclaim, cross-claim, third party action, action for indemnity or contribution or otherwise, based in whole or in part upon any act or omission or other event occurring prior to the Petition Date or during the course of the Chapter 11 Cases, including through the Effective Date.

 

Chapter 11 Case(s)” means (a) when used with reference to a particular Debtor, the case under chapter 11 of the Bankruptcy Code commenced by such Debtor in the Bankruptcy Court, and (b) when used with reference to all Debtors, the jointly-administered cases under chapter 11 of the Bankruptcy Code commenced by the Debtors in the Bankruptcy Court.

 3

 

Claim” means any “claim” (as defined in section 101(5) of the Bankruptcy Code) against any Debtor.

 

Claims Register” means the official register of Claims maintained by the Solicitation Agent.

 

Class” means a category of Holders of Claims or Equity Interests as set forth in Article III hereof pursuant to section 1122(a) of the Bankruptcy Code.

 

Collateral” means any property or interest in property of the Debtors’ Estates that is subject to a valid and enforceable Lien to secure a Claim.

 

Combined Hearing” means the combined hearing held by the Bankruptcy Court pursuant to sections 105(d)(2)(B)(vi) and 1128 of the Bankruptcy Code to consider (i) final approval of the Disclosure Statement under sections 1125 and 1126(b) of the Bankruptcy Code and (ii) confirmation of this Plan, as such hearing may be adjourned or continued from time to time.

 

Commission” means the U.S. Securities and Exchange Commission.

 

Confirmation” means the occurrence of the Confirmation Date, subject to all conditions specified in Article IX of this Plan having been satisfied or waived pursuant to Article IX of this Plan.

 

Confirmation Date” means the date on which the clerk of the Bankruptcy Court enters the Confirmation Order on the docket of the Bankruptcy Court in the Chapter 11 Cases.

 

Confirmation Order” means the order of the Bankruptcy Court (i) approving the Disclosure Statement and (ii) confirming this Plan pursuant to sections 1125, 1126(b) and 1129 of the Bankruptcy Code, which order shall be consistent in all respects with the Restructuring Support Agreement and otherwise in form and substance reasonably acceptable to the Debtors, the Prepetition RBL Agent and the Required Consenting Term Lenders.

 

Consenting RBL Lenders” means those Holders of the Prepetition RBL Claims that are party to the Restructuring Support Agreement as “Consenting RBL Lenders” thereunder.

 

Consenting Term Lenders” means those Holders of the Prepetition Term Loan Claims that are party to the Restructuring Support Agreement as “Consenting Term Lenders” thereunder.

 

Consummation” means the occurrence of the Effective Date.

 

Cure Claim Amount” has the meaning set forth in Article VI.B of this Plan.

 

Cure Objection Deadline” means the date and time by which objections by a counterparty to an Executory Contract or Unexpired Lease to a proposed assumption, or proposed assumption and assignment under this Plan, or any related cure amount, must be Filed with the Bankruptcy Court.

 

D&O Liability Insurance Policies” means all insurance policies (including, without limitation, the D&O Tail Policy, any general liability policies, any errors and omissions policies, and, in each case, any agreements, documents, or instruments related thereto) in effect as of the Petition Date and providing coverage for liability of any Debtor’s directors, managers, and officers.

 

D&O Tail Policy” means that certain directors’ and officers’ liability insurance policy purchased by the Debtors on or about February 24, 2021.

 4

 

Debtor(s)” means, individually, any of the above-captioned Entities and, collectively, all of the above-captioned Entities, as debtors and debtors-in-possession in the Chapter 11 Cases.

 

Debtor Release” has the meaning set forth in Article X.B hereof.

 

Debtor Releasing Parties” means the Debtors, in their respective individual capacities and as debtors-in-possession, and on behalf of themselves and their respective Estates, including, without limitation, any successor to the Debtors or any Estate representative appointed or selected pursuant to section 1123(b)(3) of the Bankruptcy Code, and the Reorganized Debtors.

 

DIP Agent” means Morgan Stanley Capital Administrators, Inc., or its duly appointed successor, in its capacity as administrative agent under the DIP Credit Agreement.

 

DIP Credit Agreement” means that certain Junior Secured Debtor-in-Possession Credit Agreement to be entered into by and among the Debtors, the DIP Agent, and the DIP Lenders, as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof prior to the Effective Date.

 

DIP Facility” means the debtor-in-possession term loan credit facility provided by the DIP Lenders under the DIP Credit Agreement.

 

DIP Facility Claims” means any and all Claims arising from, under, or in connection with the DIP Credit Agreement or any other DIP Loan Documents, including Claims for all principal amounts outstanding, interest, fees, expenses, costs, and other charges, all other “Secured Obligations” as defined in the DIP Credit Agreement, and all obligations of the Debtors to the DIP Lenders under the DIP Orders.

 

DIP Facility Liens” means the Liens securing the payment of the DIP Facility Claims.

 

DIP Lenders” means the lenders party to the DIP Credit Agreement from time to time.

 

DIP Loan Documents” means the “Loan Documents” as defined in the DIP Credit Agreement, as well as the DIP Orders, in each case as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof prior to the Effective Date.

 

DIP Orders” means the Interim DIP Order and the Final DIP Order.

 

Disclosure Statement” means that certain Disclosure Statement for the Joint Prepackaged Plan Of Reorganization For Sundance Energy Inc. And Its Affiliate Debtors Under Chapter 11 Of The Bankruptcy Code, dated as of March [●], 2021 (as amended, supplemented, or modified from time to time).

 

Disputed” means any Claim, or any portion thereof, that has not been Allowed, but has not been disallowed pursuant to this Plan or a Final Order of the Bankruptcy Court or other court of competent jurisdiction.

 

Distribution Agent” means the Reorganized Debtors or any party designated by the Reorganized Debtors to serve as distribution agent under this Plan. For purposes of distributions under this Plan to the Holders of Allowed DIP Facility Claims, Allowed Prepetition RBL Claims, and Allowed Prepetition Term Loan Claims, the DIP Agent, the Prepetition RBL Agent, and the Prepetition Term Loan Agent, respectively, will be and shall act as the Distribution Agent.

 5

 

Distribution Record Date” means the date for determining which Holders of Claims are eligible to receive distributions under this Plan, which date shall be the Effective Date, subject to Article VII.D of this Plan.

 

DTC” means the Depository Trust Company.

 

Effective Date” means the first Business Day on which the conditions specified in Article IX of this Plan have been satisfied or waived in accordance with the terms of Article IX.

 

Entity” means an “entity” as defined in section 101(15) of the Bankruptcy Code.

 

Equity Interest” means (a) any Equity Security in any Debtor, including, without limitation, all issued, unissued, authorized or outstanding shares of common or preferred stock and other ownership interests, together with (i) any options, warrants or contractual rights to purchase or acquire any such Equity Securities at any time with respect to any Debtor, and all rights arising with respect thereto and (ii) the rights of any Entity to purchase or demand the issuance of any of the foregoing and shall include: (1) conversion, exchange, voting, participation, and dividend rights; (2) liquidation preferences; (3) options, warrants, and call and put rights; (4) restricted stock units, performance stock units, restricted stock awards, and share-appreciation rights; and (5) any Outstanding Incentive Equity Interests, and (b) any 510(b) Equity Claim, in each case, as in existence immediately prior to the Effective Date.

 

Equity Security” means an “equity security” as defined in section 101(16) of the Bankruptcy Code.

 

Estate(s)” means, individually, the estate of each of the Debtors and, collectively, the estates of all of the Debtors created under section 541 of the Bankruptcy Code.

 

Exchange Act” means the Securities Exchange Act of 1934, 15 U.S.C. §§  78a et seq., as now in effect or hereafter amended, and any rules and regulations promulgated thereunder.

 

Exculpated Parties” means, collectively, and in each case in its capacity as such: (a) the Debtors; (b) the Reorganized Debtors; (c) the Consenting RBL Lenders; (d) the Consenting Term Lenders; (e) the RBL Agent; (f) the Term Loan Agent; (g) the DIP Agent; (h) the DIP Lenders; and (i) each Related Party of each Entity in clauses (a) through (h).

 

Exculpation” means the exculpation provision set forth in Article X.E hereof.

 

Executive KERP/KEIP” means the key employee retention plan and key employee incentive plan for five of the Debtors’ insider executive officers approved on December 9, 2020 by the Board of Directors of Parent.

 

Executory Contract” means a contract to which any Debtor is a party that is subject to assumption or rejection under section 365 of the Bankruptcy Code.

 

Exhibit” means an exhibit annexed to either this Plan or as an appendix to the Disclosure Statement (as such exhibits are amended, modified or otherwise supplemented from time to time).

 

Exit Debt Commitment Letter” means the debt commitment letter, dated as of March 9, 2021, attached as Exhibit D to the Restructuring Support Agreement, pursuant to which the Consenting RBL Lenders commit to provide the Exit RBL Facility and the Exit Second Out Term Loan Facility on the Effective Date.

 6

 

Exit Facilities” means, collectively, (i) the Exit RBL Facility, (ii) the Exit Second Out Term Loan Facility, and (iii) if necessary, the Exit Third Out Term Loan Facility, in each case as contemplated under the Exit Facilities Credit Agreement.

 

Exit Facilities Agent” means the administrative agent and collateral agent under the Exit Facilities Credit Agreement, solely in its capacity as such.

 

Exit Facilities Credit Agreement” means the amendment and restatement of the Prepetition RBL Credit Agreement, in substantially the form attached as Exhibit A to the Exit Debt Commitment Letter and Filed with the Plan Supplement, which credit agreement shall contain terms and conditions acceptable to the Debtors, the Prepetition RBL Agent, and the Required Consenting Term Lenders.

 

Exit Facilities Loan Documents” means the Exit Facilities Credit Agreement and any other guarantee, security agreement, deed of trust, mortgage, and other documents (including UCC financing statements), contracts, and agreements entered into with respect to, or in connection with, the Exit Facilities Credit Agreement.

 

Exit Facilities Loans” means the loans contemplated under the Exit Facilities Credit Agreement.

 

Exit RBL Facility” means the first out senior secured revolving credit facility, as contemplated in the Exit Debt Commitment Letter and Exit Facilities Credit Agreement.

 

Exit Second Out Term Loan Facility” means the senior secured second out term loan facility, as contemplated in the Exit Debt Commitment Letter and Exit Facilities Credit Agreement.

 

Exit Third Out Term Loan Facility” means, if necessary, the senior secured third out term loan facility, as contemplated in the Exit Facilities Credit Agreement.

 

File” or “Filed” or “Filing” means file, filed or filing with the Bankruptcy Court or its authorized designee in the Chapter 11 Cases.

 

Final DIP Order” means the final order entered by the Bankruptcy Court authorizing the Debtors to enter into the DIP Facility and use cash collateral, which shall be in form and substance acceptable to the Debtors, the Prepetition RBL Agent, and the DIP Lenders.

 

Final Order” means an order or judgment of the Bankruptcy Court, or other court of competent jurisdiction with respect to the subject matter, as entered on the docket in any Chapter 11 Case or the docket of any court of competent jurisdiction, and as to which the time to appeal, or seek certiorari or move for a new trial, reargument, or rehearing has expired and no appeal or petition for certiorari or other proceedings for a new trial, reargument, or rehearing has been timely taken, or as to which any appeal that has been taken or any petition for certiorari that has been or may be timely filed has been withdrawn or resolved by the highest court to which the order or judgment was appealed or from which certiorari was sought or the new trial, reargument, or rehearing shall have been denied, resulted in no stay pending appeal of such order, or has otherwise been dismissed with prejudice; provided, however, that the possibility that a motion under Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules, may be filed with respect to such order shall not preclude such order from being a Final Order.

 

General Unsecured Claim” means any Claim (including, for the avoidance of doubt, any Hedge Claim that is not a Secured Claim arising from a transaction terminated prior to the Effective Date) that is not a/an Administrative Claim (including a Professional Fee Claim), DIP Facility Claim, Priority Tax Claim, Secured Tax Claim, Other Priority Claim, Other Secured Claim, Intercompany Claim, Prepetition Debt Claim, or 510(b) Equity Claim.

 7

 

Governance Term Sheet” means the term sheet attached as Exhibit E to the Restructuring Support Agreement.

 

Governmental Unit” means a “governmental unit” as defined in section 101(27) of the Bankruptcy Code.

 

Hedge Agreement” means any commodity hedge transaction pursuant to an ISDA Master Agreement to which one or more of the Debtors is a contract counterparty and which was not terminated prior to the Effective Date.

 

Hedge Claim” means any Claim arising from commodity hedge transactions pursuant to an ISDA Master Agreement and Schedules thereto.

 

Hedge Order” means an order entered by the Bankruptcy Court approving the Debtors’ entry into the Postpetition Hedge Agreements (as defined in the Hedge Order) with the Postpetition Hedging Lenders (as defined in the Hedge Order), which shall be in form and substance reasonably acceptable to the Debtors, the Prepetition RBL Agent, and the Postpetition Hedging Lenders.

 

Holder” means an Entity holding a Claim or Equity Interest.

 

Impaired” means, when used in reference to a Claim or Equity Interest, a Claim or Equity Interest that is “impaired” within the meaning of section 1124 of the Bankruptcy Code.

 

Indemnification Provisions” means, collectively, each of the provisions in existence as of the Effective Date (whether in corporate charters, by-laws, limited liability company agreements, other organizational documents, board resolutions, employment contracts or otherwise) whereby any Debtor agrees to indemnify, reimburse, provide contribution or advance fees and expenses to or for the benefit of, defend, exculpate, or limit the liability of, any Indemnified Party.

 

Indemnified Parties” means each of the Debtors’ respective current and former directors, officers, managers, agents, and employees in their respective capacities as such.

 

Insurance Contract” means all insurance policies and all surety bonds and related agreements of indemnity that have been issued at any time to, or provide coverage to, any of the Debtors and all agreements, documents, or instruments relating thereto.

 

Intercompany Claim” means any Claim against any of the Debtors held by another Debtor, other than an Administrative Claim.

 

Interim DIP Order” means any interim order entered by the Bankruptcy Court authorizing the Debtors to enter into the DIP Facility and use cash collateral, which shall be acceptable to the Debtors, the Prepetition RBL Agent and the DIP Lenders.

 

Lien” means a “lien” as defined in section 101(37) of the Bankruptcy Code, and, with respect to any property or asset, includes, without limitation, any mortgage, lien, pledge, charge, security interest or other encumbrance of any kind, or any other type of preferential arrangement that has the practical effect of creating a security interest, in respect of such property or asset.

 8

 

Litigation Claims” means the claims, rights of action, suits or proceedings, whether in law or in equity, whether known or unknown, that any Debtor or any Estate may hold against any Person or Entity, including, without limitation, the Causes of Action of the Debtors or their Estates, in each case solely to the extent of the Debtors’ or their Estates’ interest therein. A non-exclusive list of the Litigation Claims held by the Debtors as of the Effective Date will be Filed with the Plan Supplement, which shall be deemed to include any derivative actions filed against any Debtor as of the Effective Date.

 

Local Rules” means the Bankruptcy Local Rules for the Southern District of Texas.

 

Management Incentive Plan” means a management incentive plan to be entered into by Reorganized Parent on the Effective Date, which shall (i) provide for the grant of 6% of the New Common Equity Interests (which may be in the form of a combination of options, restricted stock units, and/or other full value or appreciation awards exercisable, exchangeable, or convertible into such New Common Equity Interests) on a fully diluted basis to certain members of senior management, to be allocated as determined by the New Board and (ii) otherwise contain terms and conditions (including the form of awards, allocation of awards, vesting and performance metrics) that are customary for similar type equity plans and acceptable to the Reorganized Debtors and the Required Consenting Term Lenders.

 

MIP Equity” means the New Common Equity Interests issued pursuant to or in connection with the Management Incentive Plan.

 

New Board” means the initial members of the board of directors or other governing body of Reorganized Parent, whose appointment and powers shall be consistent in all respects with the Governance Term Sheet. The members of the New Board shall be Filed with the Plan Supplement.

 

New Common Equity Interests” means the shares of common stock of Reorganized Parent authorized to be issued pursuant to this Plan and the Amended/New Organizational Documents, including any authorized but unissued units, shares or other equity interests.

 

New Common Equity Interests DIP Pool” means 38.0338% of the New Common Equity Interests issued on the Effective Date, prior to dilution by the MIP Equity, to be issued in exchange for the DIP Facility Claims; provided, that in the discretion of the Required Consenting Term Lenders the New Common Equity Interests DIP Pool shall be increased to include equity to be issued in exchange for Case Extension Loans (if any) (as defined in the DIP Credit Agreement), which shall be subject to dilution by the MIP Equity.

 

New Common Equity Interests Term Loan Pool” means 61.9662% of the New Common Equity Interests issued on the Effective Date, prior to dilution by the MIP Equity and equity issued in exchange for Case Extension Loans (if any) (which shall be subject to dilution by the MIP Equity), to be issued in exchange for the Prepetition Term Loan Claims.

 

New Stockholders Agreement” means the stockholders agreement of Reorganized Parent, in substantially the form Filed with the Plan Supplement, which agreement shall contain terms and conditions acceptable to the Debtors and the Required Consenting Term Lenders.

 

Non-Debtor Releasing Parties” means, each of, and in each case in its capacity as such (a) the Consenting RBL Lenders; (b) the Consenting Term Lenders; (c) the Prepetition RBL Agent; (d) the Prepetition Term Loan Agent; (e) the DIP Agent; (f) the DIP Lenders; (g) the Distribution Agents; (h) each Holder of a Claim in a Voting Class that votes to accept this Plan; (i) each Holder of a Claim in a Voting Class that votes to reject this Plan or abstains from voting on this Plan and does not affirmatively elect to “opt out” of the Third Party Release as provided on its respective ballot; (j) each Holder of a Claim or Equity Interest in a Non-Voting Class that does not affirmatively elect to “opt out” of the Third Party Release as provided on its respective Release Opt Out Form; and (k) each Related Party of each Entity in clauses (a) through (j).

 9

 

Non-Participating RBL Lender” means any Prepetition RBL Lender that elects not to participate in the Exit RBL Facility; provided that any Holder of an Allowed Prepetition RBL Claim that votes to reject this Plan or abstains from voting on this Plan shall constitute a Non-Participating RBL Lender.

 

Non-Voting Classes” means, collectively, Classes 1-3 and 6-9.

 

Notice” has the meaning set forth in Article XII.J of this Plan.

 

Oil and Gas Lease” means any instrument, conveyance, or other document in favor of any Debtor by which a leasehold, working interest, easement, right-of-way or other right to extract, transport or inject oil, gas or other liquid or gaseous hydrocarbons or liquids or gases produced or used in connection with such Debtor’s oil and gas exploration, development and production operations is created.

 

Oil and Gas Properties” means all Oil and Gas Leases, Royalty and Working Interests, and any other rights, titles, interests, and estates in and to oil and gas leases, oil, gas, and mineral leases, or other liquid or gaseous hydrocarbon leases, mineral fee interests, overriding royalty and royalty interests, net profit interests and production payment interests, or any similar type of interests, including any reserved or residual interests of whatever nature owned or held by the Debtors.

 

Old Sundance Subsidiary Interests” means, collectively, the Equity Interests in each Sundance Subsidiary, in each case as in existence immediately prior to the Effective Date.

 

Old Parent Interests” means the Equity Interests in Parent, as in existence immediately prior to the Effective Date.

 

Other Priority Claim” means any Claim entitled to priority in right of payment under section 507(a) of the Bankruptcy Code, other than an Administrative Claim, a DIP Facility Claim, or a Priority Tax Claim.

 

Other Secured Claim” means any Secured Claim (including, for the avoidance of doubt, any Hedge Claim arising from a transaction terminated prior to the Effective Date) other than an Administrative Claim, a DIP Facility Claim, a Secured Tax Claim, a Prepetition RBL Claim or a Prepetition Term Loan Claim.

 

Outstanding Incentive Equity Interests” means any and all options, performance stock units, restricted stock units, share appreciation rights, restricted stock awards, or any other agreements, arrangements, or commitments of any character, kind, or nature to acquire, exchange for, or convert into an Old Parent Interest or that are payable based on the value of an Old Parent Interest, as in existence immediately prior to the Effective Date.

 

Parent” means Sundance Energy Inc., a Delaware corporation.

 

Person” means a “person” as defined in section 101(41) of the Bankruptcy Code and also includes any natural person, corporation, general or limited partnership, limited liability company, firm, trust, association, government, governmental agency or other Entity, whether acting in an individual, fiduciary or other capacity.

 10

 

Petition Date” means the date on which the Debtors commence the Chapter 11 Cases.

 

Plan” means this Joint Prepackaged Plan Of Reorganization For Sundance Energy Inc. And Its Affiliate Debtors Under Chapter 11 Of The Bankruptcy Code, dated March [●], 2021, including the Exhibits and Plan Schedules and all supplements, appendices, and schedules thereto, either in its present form or as the same may be amended, supplemented, or modified from time to time.

 

Plan Objection Deadline” means the date and time by which objections to Confirmation and Consummation of this Plan must be Filed with the Bankruptcy Court.

 

Plan Schedule” means a schedule annexed to this Plan or an appendix to the Disclosure Statement (as amended, modified or otherwise supplemented from time to time).

 

Plan Securities” has the meaning set forth in Article V.I of this Plan.

 

Plan Securities and Documents” has the meaning set forth in Article V.I of this Plan.

 

Plan Supplement” means, collectively, the compilation of documents and forms of documents, and all exhibits, attachments, schedules, agreements, documents and instruments referred to therein, ancillary or otherwise, including, without limitation, the Exhibits and Plan Schedules, all of which are incorporated by reference into, and are an integral part of, this Plan, as all of the same may be amended, supplemented, or modified from time to time, in a manner in form and substance consistent in all respects with the Restructuring Support Agreement. The Exhibits and Plan Schedules (or substantially final forms thereof) shall be Filed with the Bankruptcy Court at least seven (7) days prior to the Plan Objection Deadline.

 

PPP” means the Paycheck Protection Program created by the CARES Act.

 

PPP Loan” means the loan in the amount of $1,912,248.00 received by the Debtors pursuant to the PPP funded by KeyBank, N.A. on May 12, 2020.

 

Prepetition Debt Claims” means, collectively, the Prepetition RBL Claims and the Prepetition Term Loan Claims.

 

Prepetition Loan Documents” means, collectively, the Prepetition RBL Credit Agreement, the Prepetition RBL Loan Documents, the Prepetition Term Loan Credit Agreement, and the Prepetition Term Loan Documents.

 

Prepetition RBL Agent” means Toronto Dominion (Texas) LLC, as successor administrative agent to Natixis, New York Branch, in its capacity as administrative agent under the Prepetition RBL Credit Agreement.

 

Prepetition RBL Agent and Prepetition RBL Lenders’ Fees and Expenses” means all reasonable and documented fees and expenses of the Prepetition RBL Agent and the Prepetition RBL Lenders, including the prepetition and postpetition fees and expenses of: (i) Haynes and Boone, LLP, (ii) Dacarba LLC, an Opportune Company, (iii) any conflict counsel or expert as may be reasonably required by the Prepetition RBL Agent in the Chapter 11 Cases, in their respective capacity as advisors to the Prepetition RBL Agent, and (iv) the reasonable, documented (summary invoices shall suffice) and reimbursable fees, costs and expenses of up to $10,000 for K&L Gates LLP, as counsel to ABN AMRO Capital USA, LLC and up to $10,000 for Luskin, Stern & Eisler LLP, as counsel to Credit Agricole Corporate and Investment Bank, provided that the aggregate fees, costs and expenses paid or reimbursed to either K&L Gates LLP or Luskin, Stern & Eisler LLP pursuant to the Restructuring Support Agreement, this Plan, and the Financing Orders shall not exceed $10,000 for each respective firm.

 11

 

Prepetition RBL Claims” means any and all Claims arising under or in connection with the Prepetition RBL Credit Agreement and the Prepetition RBL Loan Documents.

 

Prepetition RBL Credit Agreement” means that certain Credit Agreement, dated as of July 18, 2018, by and among Parent, SEI, as borrower, the guarantors party thereto from time to time, the Prepetition RBL Agent, and the Prepetition RBL Lenders, as amended, supplemented, or modified from time to time prior to the Petition Date.

 

Prepetition RBL Lenders” means the lenders party to the Prepetition RBL Credit Agreement from time to time.

 

Prepetition RBL Liens” means the Liens securing the payment of the Prepetition RBL Claims.

 

Prepetition RBL Loan Documents” means the “Loan Documents” as defined in the Prepetition RBL Credit Agreement, in each case as amended, supplemented, or modified from time to time prior to the Petition Date.

 

Prepetition Term Loan Claims” means any and all Claims arising under or in connection with the Prepetition Term Loan Credit Agreement and the Prepetition Term Loan Documents.

 

Prepetition Term Loan Credit Agreement” means that certain Credit Agreement, dated as of April 23, 2018, by and among Parent, SEI, as borrower, the guarantors party thereto from time to time, the Prepetition Term Loan Agent, and the Prepetition Term Loan Lenders, as amended, supplemented, or modified from time to time prior to the Petition Date.

 

Prepetition Term Loan Agent” means Morgan Stanley Capital Administrators Inc., in its capacity as administrative agent under the Prepetition Term Loan Credit Agreement.

 

Prepetition Term Loan Agent Fees and Expenses” means all reasonable and documented fees and expenses of Simpson Thacher & Bartlett LLP, Locke Lord LLP, and Houlihan Lokey Capital, Inc., in their respective capacity as advisors to the Prepetition Term Loan Agent.

 

Prepetition Term Loan Documents” means the “Loan Documents” as defined in the Prepetition Term Loan Credit Agreement, in each case as amended, supplemented, or modified from time to time prior to the Petition Date.

 

Prepetition Term Loan Lenders” means the lenders party to the Prepetition Term Loan Credit Agreement from time to time.

 

Prepetition Term Loan Liens” means the Liens securing the payment of the Prepetition Term Loan Claims.

 

Priority Tax Claim” means any Claim of a Governmental Unit of the kind specified in section 507(a)(8) of the Bankruptcy Code.

 

Pro Rata” means the proportion that an Allowed Claim in a particular Class bears to the aggregate amount of Allowed Claims in that Class.

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Professional” means any Person or Entity retained by the Debtors in the Chapter 11 Cases pursuant to section 327, 328, or 363 of the Bankruptcy Code (other than an ordinary course professional).

 

Professional Fee Claim” means a Claim for Accrued Professional Compensation under sections 328, 330, 331, or 503 of the Bankruptcy Code.

 

Professional Fee Claim Reserve” means the reserve established and maintained by the Reorganized Debtors from Cash on hand existing immediately prior to the Effective Date to pay in full in Cash the Professional Fee Claims incurred on or prior to the Effective Date, as and when such Claims become Allowed.

 

Related Parties” means, collectively, with respect to any Entity or Person, such Entity’s or Person’s respective predecessors, successors, assigns and present and former Affiliates (whether by operation of law or otherwise) and subsidiaries, and each of their respective current and former directors, managers, officers, equity holders (regardless of whether such interests are held directly or indirectly), affiliated investment funds or investment vehicles, predecessors, participants, successors, assigns, subsidiaries, affiliates, managed accounts or funds, partners, limited partners, general partners, principals, members (including ex officio members and managing members), management companies, fund advisors, employees, agents, trustees, advisory or subcommittee board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, and other professionals, in each case acting in such capacity at any time on or after the date of the Restructuring Support Agreement, and any Person or Entity claiming by or through any of them, including such Related Party’s respective heirs, executors, estates, servants, and nominees; provided, however, that no insurer of any Debtor shall constitute a Related Party.

 

Release” means the release given by the Releasing Parties to the Released Parties as set forth in Article X.B hereof.

 

Release Opt Out Form” means the form to be provided to Holders (other than Debtors) of Claims and Equity Interests in Non-Voting Classes through which such Holders may elect to affirmatively opt out of the Third Party Release.

 

Released Party” means each of, and in each case in its capacity as such: (a) the Debtors; (b) the Reorganized Debtors; (c) the Consenting RBL Lenders; (d) the Consenting Term Lenders; (e) the Prepetition RBL Agent; (f) the Prepetition Term Loan Agent; (g) the DIP Agent; (h) the DIP Lenders; and (i) each Related Party of each Entity in clauses (a) through (h); provided that any Holder of a Claim or Equity Interest that votes against this Plan (to the extent such Holder’s Claim is in a Voting Class), objects to this Plan, or objects to or opts out of the Third Party Release contained herein, shall not be a “Released Party.”

 

Releasing Party” means, collectively, the Debtor Releasing Parties and the Non-Debtor Releasing Parties.

 

Reorganized Debtors” means, subject to the Restructuring Transactions, the Debtors as reorganized pursuant to this Plan on or after the Effective Date, and their respective successors.

 

Reorganized Parent” means, subject to the Restructuring Transactions, Sundance Energy Inc., a Delaware corporation, as reorganized pursuant to this Plan on or after the Effective Date, and its successors, or the new parent of the Reorganized Debtors, whether by merger, consolidation or otherwise, and which may be a corporation, limited liability company or partnership, as determined by the Debtors and the Required Consenting Term Lenders.

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Required Consenting Term Lenders” means the “Required Consenting Term Lenders” under, and as defined by, the Restructuring Support Agreement.

 

Restructuring Documents” means collectively, the documents and agreements (and the exhibits, schedules, annexes and supplements thereto) necessary to implement, or entered into in connection with, this Plan, including, without limitation, the Plan Supplement, the Exhibits, the Plan Schedules, the Amended/New Organizational Documents, the Exit Facilities Loan Documents, the Plan Securities and Documents, and any other “Definitive Documents” as defined in the Restructuring Support Agreement.

 

Restructuring Support Agreement” means that certain Restructuring Support Agreement, dated as of March 9, 2021, by and among the Debtors, the Prepetition RBL Agent, the Consenting RBL Lenders, the Prepetition Term Loan Agent and the Consenting Term Lenders (as amended, supplemented or modified from time to time), attached as Exhibit A to this Plan.

 

Restructuring Transactions” has the meaning ascribed thereto in Article V.A of this Plan.

 

Royalty and Working Interests” means the cost-bearing working interests granting the holder thereof the right to exploit oil and gas and associated hydrocarbons, and the non-costbearing royalties and mineral interests in the production of hydrocarbons, in each case, solely to the extent that the applicable interest is considered an interest in real property under applicable law.

 

Secured Claim” means a Claim that is secured by a Lien on property in which any of the Debtors’ Estates have an interest or that is subject to setoff under section 553 of the Bankruptcy Code, to the extent of the value of the Claim holder’s interest in such Estate’s interest in such property or to the extent of the amount subject to setoff, as applicable, as determined pursuant to section 506(a) of the Bankruptcy Code or, in the case of setoff, pursuant to section 553 of the Bankruptcy Code.

 

Secured Tax Claim” means any Secured Claim which, absent its secured status, would be entitled to priority in right of payment under section 507(a)(8) of the Bankruptcy Code.

 

Securities Act” means the Securities Act of 1933, 15 U.S.C. §§ 77c-77aa, as now in effect or hereafter amended, and the rules and regulations promulgated thereunder.

 

SEI” means Sundance Energy, Inc., a Colorado corporation.

 

Solicitation Agent” means Prime Clerk LLC, in its capacity as solicitation, notice, claims and balloting agent for the Debtors.

 

Specified Employee Plans” has the meaning set forth in Article VI.G of this Plan.

 

Stamp or Similar Tax” means any stamp tax, recording tax, conveyance fee, intangible or similar tax, mortgage tax, personal or real property tax, real estate transfer tax, sales tax, use tax, transaction privilege tax (including, without limitation, such taxes on prime contracting and owner-builder sales), privilege taxes (including, without limitation, privilege taxes on construction contracting with regard to speculative builders and owner builders), and other similar taxes or fees imposed or assessed by any Governmental Unit.

 

Sundance Subsidiary” means each direct and indirect, wholly-owned subsidiary of Parent.

 

Third Party Release” has the meaning set forth in Article X.B hereof.

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Unexpired Lease” means a lease to which any Debtor is a party that is subject to assumption or rejection under section 365 of the Bankruptcy Code.

 

Unimpaired” means, with respect to a Class of Claims or Equity Interests, a Claim or an Equity Interest that is “unimpaired” within the meaning of section 1124 of the Bankruptcy Code.

 

Unused Cash Reserve Amount” means the remaining Cash, if any, in the Professional Fee Claim Reserve after all obligations and liabilities for which such reserve was established are paid, satisfied, and discharged in full in Cash or are disallowed by Final Order in accordance with this Plan.

 

Voting Classes” means Classes 4 and 5.

 

Voting Deadline” means the date approved by the Bankruptcy Court as the date and time by which all Ballots must be received by the Solicitation Agent.

 

Voting Record Date” means the applicable date for determining (a) which Holders of Claims in the Voting Classes are entitled, as applicable, to receive the Disclosure Statement and to vote to accept or reject this Plan, and (b) which Holders of Claims and Equity Interests in the Non-Voting Classes are entitled, as applicable, to receive the Release Opt Out Form.

 

Article II.

ADMINISTRATIVE, dip facility, AND PRIORITY TAX CLAIMS

 

A.Administrative Claims

 

Generally. Subject to the paragraph below regarding Professional Fee Claims, to the extent such Claim has not already been paid in full during the Chapter 11 Cases, on the later of the Effective Date or the date on which an Administrative Claim becomes an Allowed Administrative Claim, or, in each such case, as soon as practicable thereafter, each Holder of an Allowed Administrative Claim (other than an Allowed Professional Fee Claim), in full and final satisfaction, settlement, discharge and release of, and in exchange for, such Claim, shall receive, at the option of the Debtors or the Reorganized Debtors, as applicable, and with the consent of the Required Consenting Term Lenders: (a) payment in full in Cash in an amount equal to the due and unpaid portion of such Allowed Administrative Claim; (b) such other less favorable treatment as to which the Debtors or the Reorganized Debtors, as applicable, and the Holder of such Allowed Administrative Claim shall have agreed upon in writing; or (c) such other treatment as permitted by section 1129(a)(9) of the Bankruptcy Code; provided, however, that Administrative Claims incurred by any Debtor in the ordinary course of business may be paid in the ordinary course of business by such applicable Debtor or Reorganized Debtor in accordance with such applicable terms and conditions relating thereto without further notice to or order of the Bankruptcy Court.

 

Professional Fee Claims. Professionals or other Entities asserting a Professional Fee Claim for services rendered before the Effective Date must File and serve on the Reorganized Debtors and such other Entities who are designated in the Confirmation Order an application for final allowance of such Professional Fee Claim no later than forty-five (45) calendar days following the Effective Date; provided that the Reorganized Debtors shall pay Professionals in the ordinary course of business for any work performed after the Effective Date, including those reasonable and documented fees and expenses incurred by Professionals after the Effective Date in connection with the implementation and consummation of this Plan, in each case without further application or notice to or order of the Bankruptcy Court.

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Objections to Professional Fee Claims. Objections to any Professional Fee Claim must be Filed and served on the Reorganized Debtors and the requesting party by no later than twenty-one (21) days after the Filing of the applicable final request for payment of the Professional Fee Claim. Each Holder of an Allowed Professional Fee Claim shall be paid in full in Cash by the Reorganized Debtors, including from the Professional Fee Claim Reserve, within five (5) Business Days after entry of the order approving such Allowed Professional Fee Claim. The Reorganized Debtors shall not commingle any funds contained in the Professional Fee Claim Reserve and shall use such funds to pay only the Professional Fee Claims, as and when allowed by order of the Bankruptcy Court. Notwithstanding anything to the contrary contained in this Plan, the failure of the Professional Fee Claim Reserve to satisfy in full the Allowed Professional Fee Claims shall not, in any way, operate or be construed as a cap or limitation on the amount of Professional Fee Claims due and payable by the Reorganized Debtors. The Professional Fee Claim Reserve shall be maintained in trust for the Professionals and shall not be considered property of the Debtors’ Estates; provided that the Reorganized Debtors shall have a reversionary interest in the Unused Cash Reserve Amount. To the extent that funds held in the Professional Fee Claim Reserve do not or are unable to satisfy the full amount of the Allowed Professional Fee Claims, such Professionals shall have an Allowed Administrative Claim for any such deficiency, which shall be satisfied in full in Cash in accordance with Article II.A of this Plan.

 

B.DIP Facility Claims

 

Except to the extent that a holder of a DIP Facility Claim agrees to less favorable treatment, in full and final satisfaction, settlement, release, and discharge of, and in exchange for each DIP Facility Claim, on the Effective Date each holder of a DIP Facility Claim shall receive its Pro Rata share (determined based on the aggregate principal amount of DIP Facility Claims held by such Holder as a percentage of all DIP Facility Claims outstanding on the Effective Date) of the New Common Equity Interests DIP Pool (subject to dilution by the MIP Equity).

 

C.Priority Tax Claims

 

Subject to Article VIII hereof, to the extent such claim has not already been paid in full during the Chapter 11 Cases, on the Effective Date, or as soon as reasonably practicable thereafter, each Holder of an Allowed Priority Tax Claim shall receive, in full and final satisfaction, settlement, discharge and release of, and in exchange for, such Allowed Priority Tax Claim, at the option of the Debtors or Reorganized Debtors, as applicable, and with the consent of the Required Consenting Term Lenders: (a) payment in full in Cash in an amount equal to the due and unpaid portion of such Allowed Priority Tax Claim; (b) such other less favorable treatment as to which the Debtors or Reorganized Debtors, as applicable, and the Holder of such Allowed Priority Tax Claim shall have agreed upon in writing; (c) such other treatment such that the Holder will not be Impaired pursuant to section 1124 of the Bankruptcy Code; or (d) pursuant to and in accordance with sections 1129(a)(9)(C) and 1129(a)(9)(D) of the Bankruptcy Code, Cash in an aggregate amount of such Allowed Priority Tax Claim payable in regular installment payments over a period ending not more than five (5) years after the Petition Date, plus simple interest at the rate required by applicable non-bankruptcy law on any outstanding balance from the Effective Date, or such lesser rate as is agreed to in writing by a particular taxing authority and the Debtors or Reorganized Debtors, as applicable, pursuant to section 1129(a)(9)(C) of the Bankruptcy Code; provided, however, that Priority Tax Claims arising out of obligations incurred by any Debtor in the ordinary course of business may be paid in the ordinary course of business by such applicable Debtor or Reorganized Debtor in accordance with such applicable terms and conditions relating thereto without further notice to or order of the Bankruptcy Court. Any installment payments to be made under clause (c) or (d) above shall be made in equal quarterly Cash payments beginning on the Effective Date (or as soon as reasonably practicable thereafter), and continuing on a quarterly basis until payment in full of the applicable Allowed Priority Tax Claim.

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Article III.

CLASSIFICATION AND TREATMENT
OF CLASSIFIED CLAIMS AND EQUITY INTERESTS

 

A.Summary

 

This Plan constitutes a separate plan of reorganization for each Debtor. All Claims and Equity Interests, except Administrative Claims, DIP Facility Claims, and Priority Tax Claims, are placed in the Classes set forth below. For all purposes under this Plan, each Class will contain sub-Classes for each of the Debtors (i.e., there will be nine (9) Classes for each Debtor); provided, that any Class that is vacant as to a particular Debtor will be treated in accordance with Article III.D below.

 

The categories of Claims and Equity Interests listed below classify Claims and Equity Interests for all purposes, including, without limitation, for voting, confirmation and distribution pursuant hereto and pursuant to sections 1122 and 1123(a)(1) of the Bankruptcy Code. This Plan deems a Claim or Equity Interest to be classified in a particular Class only to the extent that the Claim or Equity Interest qualifies within the description of that Class and shall be deemed classified in a different Class to the extent that any remaining portion of such Claim or Equity Interest qualifies within the description of such different Class. A Claim or Equity Interest is in a particular Class only to the extent that any such Claim or Equity Interest is Allowed in that Class and has not been paid, released, disallowed or otherwise settled prior to the Effective Date.

 

Summary of Classification and Treatment of Classified Claims and Equity Interests

 

Class

 

Claim/Equity Interest

 

Status

 

Voting Rights

             
1.   Other Priority Claims   Unimpaired   Presumed to Accept
2.   Other Secured Claims   Unimpaired   Presumed to Accept
3.   Secured Tax Claims   Unimpaired   Presumed to Accept
4.   Prepetition RBL Claims   Impaired   Entitled to Vote
5.   Prepetition Term Loan Claims   Impaired   Entitled to Vote
6.   General Unsecured Claims   Unimpaired   Presumed to Accept
7.   Intercompany Claims   Impaired   Presumed to Accept
8.   Old Parent Interests   Impaired   Deemed to Reject
9.   Old Sundance Subsidiary Interests   Unimpaired   Presumed to Accept

 

B.Classification and Treatment of Claims and Equity Interests

 

1.Class 1 - Other Priority Claims

 

(a)Classification: Class 1 consists of the Other Priority Claims.

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(b)Treatment: Subject to Article VIII hereof, to the extent such Class 1 Claim has not already been paid in full during the Chapter 11 Cases, on the Effective Date, or as soon as reasonably practicable thereafter, each Holder of an Allowed Class 1 Claim shall receive in full and final satisfaction, settlement, discharge and release of, and in exchange for, such Class 1 Claim, at the option of the Debtors or the Reorganized Debtors, as applicable, and with the consent of the Required Consenting Term Lenders: (a) payment in full in Cash in an amount equal to the due and unpaid portion of such Allowed Class 1 Claim; (b) such other less favorable treatment as to which the Debtors or Reorganized Debtors, as applicable, and the Holder of such Allowed Class 1 Claim shall have agreed upon in writing; or (c) such other treatment such that such Allowed Class 1 Claim will be rendered Unimpaired in accordance with section 1124 of the Bankruptcy Code; provided, however, that Class 1 Claims incurred by any Debtor in the ordinary course of business may be paid in the ordinary course of business by such applicable Debtor or Reorganized Debtor in accordance with the terms and conditions of any agreements relating thereto without further notice to or order of the Bankruptcy Court.

 

(c)Voting: Class 1 is an Unimpaired Class, and the Holders of Claims in Class 1 are conclusively presumed to have accepted this Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class 1 are not entitled to vote to accept or reject this Plan. Holders of Claims in Class 1 will be provided a Release Opt Out Form solely for purposes of affirmatively opting out of the Third Party Release.

 

2.Class 2 - Other Secured Claims

 

(a)Classification: Class 2 consists of the Other Secured Claims. Class 2 consists of separate subclasses for each Other Secured Claim.

 

(b)Treatment: Subject to Article VIII hereof, to the extent such Class 2 Claim has not already been paid in full during the Chapter 11 Cases, on the Effective Date, or as soon as reasonably practicable thereafter, each Holder of an Allowed Class 2 Claim shall receive in full and final satisfaction, settlement, discharge and release of, and in exchange for, such Allowed Class 2 Claim, at the option of the Debtors or the Reorganized Debtors, as applicable, and with the consent of the Required Consenting Term Lenders: (a) payment in full in Cash in an amount equal to the due and unpaid portion of such Allowed Class 2 Claim; (b) the return or abandonment of the Collateral securing such Allowed Class 2 Claim; (c) reinstatement of such Allowed Class 2 Claim; (d) such other less favorable treatment as to which the Debtors or Reorganized Debtors, as applicable, and the Holder of such Allowed Class 2 Claim shall have agreed upon in writing; or (e) such other treatment such that such Allowed Class 2 Claim will be rendered Unimpaired in accordance with section 1124 of the Bankruptcy Code; provided, however, that Class 2 Claims incurred by any Debtor in the ordinary course of business may be paid in the ordinary course of business by such applicable Debtor or Reorganized Debtor in accordance with the terms and conditions of any agreements relating thereto without further notice to or order of the Bankruptcy Court.

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(c)Voting: Class 2 is an Unimpaired Class, and the Holders of Claims in Class 2 are conclusively presumed to have accepted this Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class 2 are not entitled to vote to accept or reject this Plan. Holders of Claims in Class 2 will be provided a Release Opt Out Form solely for purposes of affirmatively opting out of the Third Party Release.

 

3.Class 3 - Secured Tax Claims

 

(a)Classification: Class 3 consists of the Secured Tax Claims.

 

(b)Treatment: Subject to Article VIII hereof, to the extent such Class 3 Claim has not already been paid in full during the Chapter 11 Cases, on the Effective Date, or as soon as reasonably practicable thereafter, each Holder of an Allowed Class 3 Claim shall receive in full and final satisfaction, settlement, discharge and release of, and in exchange for, such Allowed Class 3 Claim, at the option of the Debtors or the Reorganized Debtors, as applicable, and with the consent of the Required Consenting Term Lenders: (a) payment in full in Cash in an amount equal to the due and unpaid portion of such Allowed Class 3 Claim; (b) such other less favorable treatment as to which the Debtors or the Reorganized Debtors, as applicable, and the Holder of such Allowed Class 3 Claim shall have agreed upon in writing; (c) the return or abandonment of the Collateral securing such Allowed Class 3 Claim; (d) such other treatment such that such Allowed Class 3 Claim will be rendered Unimpaired in accordance with section 1124 of the Bankruptcy Code; or (e) pursuant to and in accordance with sections 1129(a)(9)(C) and 1129(a)(9)(D) of the Bankruptcy Code, Cash in an aggregate amount of such Allowed Class 3 Claim payable in regular installment payments over a period ending not more than five (5) years after the Petition Date, plus simple interest at the rate required by applicable non-bankruptcy law on any outstanding balance from the Effective Date, or such lesser rate as is agreed to in writing by a particular taxing authority and the Debtors or the Reorganized Debtors, as applicable, pursuant to section 1129(a)(9)(C) of the Bankruptcy Code; provided, however, that Class 3 Claims incurred by any Debtor in the ordinary course of business may be paid in the ordinary course of business by such applicable Debtor or Reorganized Debtor in accordance with such applicable terms and conditions relating thereto without further notice to or order of the Bankruptcy Court. Any installment payments to be made under clause (d) or (e) above shall be made in equal quarterly Cash payments beginning on the Effective Date (or as soon as reasonably practicable thereafter), and continuing on a quarterly basis thereafter until payment in full of the applicable Allowed Class 3 Claim.

 

(c)Voting: Class 3 is an Unimpaired Class, and the Holders of Claims in Class 3 shall be conclusively presumed to have accepted this Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, Holders of Claims in Class 3 are not entitled to vote to accept or reject this Plan. Holders of Claims in Class 3 will be provided a Release Opt Out Form solely for purposes of affirmatively opting out of the Third Party Release.

 

4.Class 4 - Prepetition RBL Claims

 

(a)Classification: Class 4 consists of the Prepetition RBL Claims.

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(b)Allowance: The Prepetition RBL Claims are deemed Allowed Prepetition RBL Claims in the aggregate principal amount of $146,950,000.00, plus all applicable accrued but unpaid interest at the applicable rate, fees, costs, charges, premiums or other amounts arising under the Prepetition RBL Credit Agreement and the Prepetition RBL Loan Documents through the Effective Date.

 

(c)Treatment: On the Effective Date, the Prepetition RBL Credit Agreement shall be deemed to be amended and restated in its entirety by the Exit Facilities Credit Agreement and, in full and final satisfaction, settlement, discharge and release of, and in exchange for, each Allowed Prepetition RBL Claim:

 

(i)each Holder of an Allowed Prepetition RBL Claim that votes to accept this Plan (and/or its designee) that is not otherwise a Non-Participating RBL Lender shall receive:

 

a.its Pro Rata share (determined as a percentage of all Allowed Prepetition RBL Claims held by Holders electing to participate in the Exit RBL Facility) of the loans and commitments under the Exit RBL Facility;

 

b.its Pro Rata share (determined as a percentage of all Allowed Prepetition RBL Claims held by Holders electing to participate in the Exit RBL Facility) of the loans under the Exit Second Out Term Loan Facility; and

 

c.its Pro Rata share (determined as a percentage of all Allowed Prepetition RBL Claims) of the Cash Paydown.

 

(ii)each Non-Participating RBL Lender (and/or its designee) shall receive:

 

a.loans under the Exit Third Out Term Loan Facility in a principal amount equal to the amount of such Holder’s Allowed Prepetition RBL Claim minus the amount of Cash Paydown received by such Holder; and

 

b.its Pro Rata share (determined as a percentage of all Allowed Prepetition RBL Claims) of the Cash Paydown.

 

(d)Voting: Class 4 is Impaired, and Holders of Claims in Class 4 are entitled to vote to accept or reject this Plan.

 

5.Class 5 - Prepetition Term Loan Claims

 

(a)Classification: Class 5 consists of the Prepetition Term Loan Claims.

 

(b)Allowance: The Prepetition Term Loan Claims are deemed Allowed Prepetition Term Loan Claims in the aggregate principal amount of $252,997,054.45, plus all accrued interest at the applicable rate, fees, costs, charges, premiums or other amounts arising under the Prepetition Term Loan Credit Agreement or the Prepetition Term Loan Documents through the Effective Date.

 

(c)Treatment: On the Effective Date, except to the extent that a Holder of an Allowed Class 5 Claim agrees, in writing, to less favorable treatment, in full and final satisfaction, settlement, discharge and release of, and in exchange for, each Allowed Class 5 Claim, each Holder of an Allowed Class 5 Claim shall receive its Pro Rata share of the New Common Equity Interests Term Loan Pool (subject to dilution by the MIP Equity).

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(d)Voting: Class 5 is Impaired, and Holders of Claims in Class 5 are entitled to vote to accept or reject this Plan.

 

6.Class 6 – General Unsecured Claims

 

(a)Classification: Class 6 consists of the General Unsecured Claims and the PPP Loan (if not forgiven as further set forth herein).

 

(b)Treatment: The legal, equitable, and contractual rights of the Holders of General Unsecured Claims are unaltered by this Plan. Except to the extent that a Holder of an Allowed Class 6 Claim has already been paid during the Chapter 11 Cases or such Holder agrees, in writing, to less favorable treatment, each Holder of an Allowed Class 6 Claim shall receive, in full and final satisfaction, settlement, discharge and release of, and in exchange for, such Allowed Class 6 Claim, at the option of the Debtors or the Reorganized Debtors, as applicable, and with the consent of the Required Consenting Term Lenders: (a) if such Allowed Class 6 Claim is due and payable on or before the Effective Date, payment in full, in Cash, of the due and unpaid portion of such Allowed Class 6 Claim on the Effective Date; (b) if such Allowed Class 6 Claim is not due and payable before the Effective Date, payment in the ordinary course of business consistent with past practices; or (c) such other treatment, as may be agreed upon in writing by the Debtors or the Reorganized Debtors (as applicable), the Required Consenting Term Lenders, and the Holder of such Allowed Class 6 Claim, such that the Allowed Class 6 Claim shall be rendered Unimpaired in accordance with section 1124 of the Bankruptcy Code.

 

(c)Voting: Class 6 is an Unimpaired Class, and the Holders of Claims in Class 6 are conclusively presumed to have accepted this Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class 6 are not entitled to vote to accept or reject this Plan. Holders of Claims in Class 6 will be provided a Release Opt Out Form solely for purposes of affirmatively opting out of the Third Party Release.

 

7.Class 7 – Intercompany Claims

 

(a)Classification: Class 7 consists of the Intercompany Claims.

 

(b)Treatment: On the Effective Date, each Class 7 Claim shall be, at the option of the Debtors or the Reorganized Debtors, as applicable, and with the consent of the Required Consenting Term Lenders, reinstated, compromised, or canceled and released without any distribution.

 

(c)Voting: Class 7 is Impaired. However, because the Holders of such Claims are Debtors, the Holders of Claims in Class 7 shall be conclusively presumed to have accepted this Plan. Therefore, Holders of Claims in Class 7 are not entitled to vote to accept or reject this Plan.

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8.Class 8 – Old Parent Interests

 

(a)Classification: Class 8 consists of the Old Parent Interests.

 

(b)Treatment: On the Effective Date, all Old Parent Interests shall be canceled, and each Holder of Old Parent Interests shall receive no recovery on account of such Old Parent Interests.

 

(c)Voting: Class 8 is Impaired, and Holders of Old Parent Interests in Class 8 are conclusively deemed to have rejected this Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore, Holders of Old Parent Interests are not entitled to vote to accept or reject this Plan. Holders of Old Parent Interests in Class 8 will be provided a Release Opt Out Form solely for purposes of affirmatively opting out of the Third Party Release.

 

9.Class 9 - Old Sundance Subsidiary Interests

 

(a)Classification: Class 9 consists of the Old Sundance Subsidiary Interests.

 

(b)Treatment: Subject to the Restructuring Transactions, all Old Sundance Subsidiary Interests shall remain effective and outstanding on the Effective Date and shall be owned and held by the same Person or Entity that held and/or owned such Old Sundance Subsidiary Interests immediately prior to the Effective Date.

 

(c)Voting: Class 9 is an Unimpaired Class, and the Holders of the Old Sundance Subsidiary Interests in Class 9 are conclusively presumed to have accepted this Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the Holders of the Old Sundance Subsidiary Interests in Class 9 are not entitled to vote to accept or reject this Plan.

 

C.Special Provision Governing Unimpaired Claims

 

Except as otherwise provided herein, nothing under this Plan shall affect or limit the Debtors’ or the Reorganized Debtors’ rights and defenses (whether legal or equitable) in respect of any Unimpaired Claims, including, without limitation, all rights in respect of legal and equitable defenses to or setoffs or recoupments against any such Unimpaired Claims.

 

D.Elimination of Vacant Classes

 

Any Class of Claims that is not occupied as of the commencement of the Combined Hearing by an Allowed Claim or a claim temporarily allowed under Bankruptcy Rule 3018, or as to which no vote is cast, shall be deemed eliminated from this Plan for purposes of voting to accept or reject this Plan and for purposes of determining acceptance or rejection of this Plan by such Class pursuant to section 1129(a)(8) of the Bankruptcy Code.

 

E.PPP Loan

 

The Debtors have used the proceeds of the PPP Loan to pay “forgivable expenses” as that term is defined under the PPP and CARES Act. As such, it is anticipated that the full amount of the PPP Loan will be forgiven in accordance with the terms of the PPP and CARES Act. To the extent any portion of the PPP Loan is not forgiven in accordance with the terms of the PPP and CARES Act, such portion of the PPP Loan (if any) shall be treated as General Unsecured Claim in Class 6 and, if Allowed, shall be paid in full in Cash as it becomes due and payable.

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Article IV.

ACCEPTANCE OR REJECTION OF THE PLAN

 

A.Presumed Acceptance of Plan

 

Classes 1, 2, 3, 6 and 9 are Unimpaired under this Plan. Therefore, the Holders of Claims or Equity Interests in such Classes are conclusively presumed to have accepted this Plan pursuant to section 1126(f) of the Bankruptcy Code and are not entitled to vote to accept or reject this Plan. Class 7 is Impaired under this Plan; however, because the Holders of such Claims are Debtors, the Holders of Claims in Class 7 are conclusively presumed to have accepted this Plan.

 

B.Deemed Rejection of Plan

 

Class 8 is Impaired under the Plan and Holders of Old Parent Interests in such Class shall receive no distribution under this Plan on account of such Old Parent Interests. Therefore, the Holders of Equity Interests in such Class are deemed to have rejected this Plan pursuant to section 1126(g) of the Bankruptcy Code and are not entitled to vote to accept or reject this Plan. Such Holders will, however, receive a Release Opt Out Form to allow such Holders to affirmatively opt out of the Third Party Release.

 

C.Voting Classes

 

Classes 4 and 5 are Impaired under this Plan. The Holders of Claims in such Classes as of the Voting Record Date are entitled to vote to accept or reject this Plan.

 

D.Acceptance by Impaired Class

 

Pursuant to section 1126(c) of the Bankruptcy Code and except as otherwise provided in section 1126(e) of the Bankruptcy Code, an Impaired Class of Claims has accepted this Plan if the Holders of at least two-thirds (2/3) in dollar amount and more than one-half (1/2) in number of the Allowed Claims in such Class actually voting have voted to accept this Plan.

 

E.Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code; Cram Down

 

Section 1129(a)(10) of the Bankruptcy Code shall be satisfied for purposes of Confirmation by acceptance of this Plan by either of Class 4 or Class 5. The Debtors request confirmation of this Plan under section 1129(b) of the Bankruptcy Code with respect to any Impaired Class that does not accept this Plan pursuant to section 1126 of the Bankruptcy Code. The Debtors reserve the right, subject to the terms of the Restructuring Support Agreement, to modify this Plan or any Exhibit or Plan Schedule in order to satisfy the requirements of section 1129(b) of the Bankruptcy Code, if necessary.

 

F.Votes Solicited in Good Faith

 

The Debtors have, and upon the Confirmation Date shall be deemed to have, solicited votes on this Plan from the Voting Classes in good faith and in compliance with the applicable provisions of the Bankruptcy Code, including, without limitation, sections 1125 and 1126 of the Bankruptcy Code, and any applicable non-bankruptcy law, rule, or regulation governing the adequacy of disclosure in connection with the solicitation. Accordingly, the Debtors, the Reorganized Debtors, and each of their respective Related Parties shall be entitled to, and upon the Confirmation Date are hereby granted, the protections of section 1125(e) of the Bankruptcy Code.

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Article V.

 

MEANS FOR IMPLEMENTATION OF THE PLAN

 

A.Restructuring Transactions

 

Without limiting any rights and remedies of the Debtors or Reorganized Debtors under this Plan or applicable law, but in all cases subject to the terms and conditions of the Restructuring Support Agreement and the Restructuring Documents (in each case to the extent applicable) and any consents or approvals required thereunder, the entry of the Confirmation Order shall constitute authorization for the Debtors and Reorganized Debtors, as applicable, to take, or to cause to be taken, all actions necessary or appropriate to consummate and implement the provisions of this Plan prior to, on and after the Effective Date, including such actions as may be necessary or appropriate to issue the Plan Securities, effectuate a corporate restructuring of their respective businesses, to otherwise simplify the overall corporate structure of the Reorganized Debtors, or to reincorporate certain of the Affiliate Debtors under the laws of jurisdictions other than the laws of which the applicable Affiliate Debtors are presently formed or incorporated. Such restructuring may include one or more issuances, mergers, amalgamations, consolidations, restructures, dispositions, liquidations, dissolutions, or creations of one or more new Entities, as may be determined by the Debtors or Reorganized Debtors to be necessary or appropriate, but in all cases subject to the terms and conditions of this Plan and the Restructuring Documents and any consents or approvals required hereunder or thereunder (collectively, the “Restructuring Transactions”).

 

All such Restructuring Transactions taken, or caused to be taken, shall be deemed to have been authorized and approved by the Bankruptcy Court upon the entry of the Confirmation Order. The actions to effectuate the Restructuring Transactions may include: (i) the execution and delivery of appropriate agreements or other documents of issuance, merger, amalgamation, consolidation, restructuring, disposition, liquidation, or dissolution containing terms that are consistent with the terms of this Plan and that satisfy the applicable requirements of applicable state law and such other terms to which the applicable Entities may agree; (ii) the execution and delivery of appropriate instruments of issuance, transfer, assignment, assumption, or delegation of any asset, property, right, liability, duty, or obligation on terms consistent with the terms of this Plan and having such other terms to which the applicable Entities may agree; (iii) the filing of appropriate certificates or articles of merger, amalgamation, consolidation, or dissolution pursuant to applicable state law; (iv) the creation of one or more new Entities; and (v) all other actions that the applicable Entities determine to be necessary or appropriate, including, without limitation, making filings or recordings that may be required by applicable state law in connection with such transactions, but in all cases subject to the terms and conditions of this Plan and the Restructuring Documents and any consents or approvals required hereunder or thereunder.

 

B.Continued Corporate Existence

 

Subject to the Restructuring Transactions permitted by Article V.A of this Plan, after the Effective Date, the Reorganized Debtors shall continue to exist as separate legal Entities in accordance with the applicable law in the respective jurisdiction in which they are incorporated or formed and pursuant to their respective certificates or articles of incorporation and by-laws, or other applicable organizational documents, in effect immediately prior to the Effective Date, except to the extent such certificates or articles of incorporation and by-laws, or other applicable organizational documents, are amended, restated or otherwise modified under this Plan. Notwithstanding anything to the contrary herein, the Claims against a particular Debtor or Reorganized Debtor shall remain the obligations solely of such respective Debtor or Reorganized Debtor and shall not become obligations of any other Debtor or Reorganized Debtor solely by virtue of this Plan or the Chapter 11 Cases.

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C.Vesting of Assets in the Reorganized Debtors Free and Clear of Liens and Claims

 

Except as otherwise expressly provided in this Plan, the Confirmation Order, or any Restructuring Document, pursuant to sections 1123(a)(5), 1123(b)(3), 1141(b) and (c) and other applicable provisions of the Bankruptcy Code, on and after the Effective Date, all property and assets of the Estates of the Debtors, including all Oil and Gas Properties, all claims, rights, and Litigation Claims of the Debtors, and any other assets or property acquired by the Debtors or the Reorganized Debtors during the Chapter 11 Cases or under or in connection with this Plan (other than Claims or Causes of Action subject to the Debtor Release, the Professional Fee Claim Reserve and any rejected Executory Contracts and/or Unexpired Leases), shall vest in the Reorganized Debtors free and clear of all Claims, Liens, charges, and other encumbrances, subject to the Restructuring Transactions and Liens that survive the occurrence of the Effective Date as described in Article III of this Plan (including, without limitation, each Prepetition RBL Credit Agreement Lien and other Liens that secure the Exit Facilities and all other obligations of the Reorganized Debtors under the Exit Facilities Loan Documents and the Hedge Agreements. On and after the Effective Date, the Reorganized Debtors may (i) operate their respective businesses, (ii) use, acquire, and dispose of their respective property and (iii) compromise or settle any Claims, in each case without notice to, supervision of or approval by the Bankruptcy Court and free and clear of any restrictions of the Bankruptcy Code or the Bankruptcy Rules, other than restrictions expressly imposed by this Plan or the Confirmation Order.

 

D.Exit Facilities Loan Documents

 

On the Effective Date, the Debtors and the Reorganized Debtors, as applicable, shall be authorized to execute and deliver, and to consummate the transactions contemplated by, the Exit Facilities Loan Documents, in each case in the form attached to the Exit Debt Commitment Letter and otherwise in form and substance acceptable to the Prepetition RBL Agent and the Required Consenting Term Lenders, and without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule or the vote, consent, authorization or approval of any Person or Entity (other than as expressly required by the Exit Facilities Loan Documents). On the Effective Date, the Exit Facilities Loan Documents shall constitute legal, valid, binding and authorized indebtedness and obligations of the Reorganized Debtors, enforceable in accordance with their respective terms and such indebtedness and obligations shall not be, and shall not be deemed to be, enjoined or subject to discharge, impairment, release or avoidance under this Plan, the Confirmation Order or on account of the Confirmation or Consummation of this Plan. For the avoidance of doubt, any letter of credit issued and outstanding under the Prepetition RBL Credit Agreement on the Effective Date shall be deemed issued under the Exit Facilities Credit Agreement.

 

On and as of the Effective Date, all Prepetition RBL Lenders shall be deemed to be parties to, and bound by, the Exit Facilities Credit Agreement, without the need for execution thereof by any such applicable Prepetition RBL Lender; provided however that, with respect to any Prepetition RBL Lender that fails to execute and deliver its signature page to the Exit Facilities Credit Agreement, any portion of the Cash to be distributed pursuant to or in connection with this Plan to such Prepetition RBL Lender shall be treated as an undeliverable distribution pursuant to Article VII.D.4 of this Plan until such Prepetition RBL Lender executes and delivers to Reorganized Parent its signature page to the Exit Facilities Credit Agreement.

 

By voting to accept this Plan, each Prepetition RBL Lender thereby instructs and directs the Prepetition RBL Agent, pursuant to Article XI of the Prepetition RBL Credit Agreement, and each such vote to accept this Plan shall, for all purposes, constitute an instruction from such Prepetition RBL Lender directing the Prepetition RBL Agent and the Exit Facilities Agent (as applicable), to (i) act as Distribution Agent to the extent required by this Plan, (ii) execute and deliver the Exit Facilities Loan Documents (each to the extent it is a party thereto), as well as to execute, deliver, file, record and issue any notes, documents (including UCC financing statements), or agreements in connection therewith, to which the Exit Facilities Agent is a party and to promptly consummate the transactions contemplated thereby, and (iii) take any other actions required or contemplated to be taken by the Exit Facilities Agent and/or the Prepetition RBL Agent (as applicable) under this Plan or any of the Restructuring Documents to which it is a party.

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E.No Discharge or Release of Prepetition RBL Liens

 

Notwithstanding anything in this Plan to the contrary, all property and assets of the Estates of the Debtors, including, without limitation, all claims, rights and Litigation Claims of the Debtors and any property and assets acquired by the Debtors or the Reorganized Debtors during the Chapter 11 Cases or under or in connection with this Plan, shall remain encumbered by and subject to the Prepetition RBL Liens and other Liens granted under the Exit Facilities Loan Documents, which, as of the Effective Date, shall secure the Exit Facilities Loans and all other indebtedness and obligations of the Reorganized Debtors under and to the extent set forth in the Exit Facilities Loan Documents and the Hedge Agreements and such Liens (x) shall be and hereby are ratified, reaffirmed as valid, enforceable, and not avoidable, and deemed granted by the Reorganized Debtors and (y) shall not be, and shall not be deemed to be, impaired, discharged or released by this Plan, the Confirmation Order or on account of the Confirmation or Consummation of this Plan.

 

F.New Common Equity Interests

 

On the Effective Date, subject to the terms and conditions of the Restructuring Transactions, Reorganized Parent shall issue the shares of New Common Equity Interests in exchange for the DIP Facility Claims and Prepetition Term Loan Claims pursuant to this Plan and the Amended/New Organizational Documents. The shares of New Common Equity Interests shall carry voting rights in accordance with the Governance Term Sheet and the Amended/New Organizational Documents. Except as otherwise expressly provided in the Restructuring Support Agreement or this Plan, the Reorganized Parent shall not be obligated to register shares of New Common Equity Interests under the Securities Act or to list the shares of New Common Equity Interests for public trading on any securities exchange.

 

Distribution of the shares of New Common Equity Interests may be made by delivery of stock certificates or book-entry transfer thereof by the applicable Distribution Agent in accordance with this Plan and the Amended/New Organizational Documents. Upon the Effective Date, after giving effect to the transactions contemplated hereby, the authorized capital stock or other equity securities of the Reorganized Parent shall be the number of shares of New Common Equity Interests as may be designated in the Amended/New Organizational Documents.

 

G.New Stockholders Agreement;

 

Subject to the Restructuring Transactions permitted by Article V.A of this Plan, on the Effective Date, Reorganized Parent shall enter into, if applicable, the New Stockholders Agreement, which shall become effective and binding in accordance with its terms and conditions upon the parties thereto, without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule or the vote, consent, authorization or approval of any Entity (other than as expressly required by the New Stockholders Agreement).

 

On and as of the Effective Date, all of the Holders of New Common Equity Interests shall be deemed to be parties to the New Stockholders Agreement, if any, without the need for execution by such Holder. The New Stockholders Agreement, if any, shall be binding on all Entities receiving, and all Holders of, the New Common Stock (and their respective successors and assigns), whether such New Common Stock is received or to be received on or after the Effective Date and regardless of whether such Entity executes or delivers a signature page to the New Stockholders Agreement.

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H.Management Incentive Plan

 

On the Effective Date, the Reorganized Parent shall adopt and implement the Management Incentive Plan. The MIP Equity issued pursuant to the Management Incentive Plan shall dilute equally the shares of New Common Equity Interests otherwise distributed pursuant to or in connection with this Plan (including any authorized but unissued units, shares or other equity interests). The participants in the Management Incentive Plan, the allocations and form of the options and other equity-based compensation to such participants (including the amount of allocations and the timing of the grant of the options and other equity-based compensation), and the terms and conditions of such options and other equity-based compensation (including vesting, exercise prices, base values, hurdles, forfeiture, repurchase rights and transferability) shall be determined by the New Board.

 

I.Plan Securities and Related Documentation; Exemption from Securities Laws

 

On and after the Effective Date, the Debtors and the Reorganized Debtors, as applicable, are authorized to and shall provide or issue the New Common Equity Interests and any and all other securities to be distributed or issued under this Plan (collectively, the “Plan Securities”) and any and all other notes, stock, instruments, certificates, and other documents or agreements required to be distributed, issued, executed or delivered pursuant to or in connection with this Plan (collectively, the “Plan Securities and Documents”), in each case in form and substance acceptable to the Required Consenting Term Lenders, and without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule or the vote, consent, authorization or approval of any Entity.

 

The offer, distribution and issuance, as applicable, of the Plan Securities and Documents under this Plan shall be exempt from registration and prospectus delivery requirements under applicable securities laws (including Section 5 of the Securities Act or any similar state or local law requiring the registration and/or delivery of a prospectus for offer or sale of a security or registration or licensing of an issuer of a security) pursuant to section 1145(a) of the Bankruptcy Code, Section 4(a)(2) of the Securities Act or Regulation D promulgated thereunder and/or other applicable exemptions.

 

Plan Securities provided in reliance on the exemption from registration under the Securities Act (and any other applicable U.S. state or local law requiring registration prior to the offering, issuance or distribution of securities) pursuant to section 1145(a) of the Bankruptcy Code may be sold without registration to the extent permitted under section 1145 of the Bankruptcy Code. Such Plan Securities will not be “restricted securities” as defined in Rule 144(a)(3) under the Securities Act, and, subject to the terms of the New Stockholders Agreement and the Amended/New Organizational Documents, will be freely tradable and transferable by any initial recipient thereof that (i) is not an “affiliate” of the Debtors as defined in Rule 144(a)(1) under the Securities Act, (ii) has not been such an “affiliate” within 90 days of such transfer, and (iii) is not an entity that is an “underwriter” as defined in section 1145(b) of the Bankruptcy Code. Holders of Plan Securities that are prohibited from trading or transferring such securities as an “affiliate” or “underwriter” would, however, be permitted to trade or transfer Plan Securities without registration if they are able to comply with the applicable provisions of Rule 144 under the Securities Act or Rule 144A under the Securities Act or any other applicable registration exemption under the Securities Act, or if such securities are registered with the Commission pursuant to a registration statement.

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The offer, distribution and issuance, as applicable, of the Plan Securities and Documents under this Plan shall be exempt from registration and prospectus delivery requirements under applicable securities laws (including Section 5 of the Securities Act or any similar state or local law requiring the registration and/or delivery of a prospectus for offer or sale of a security or registration or licensing of an issuer of a security) pursuant to section 1145(a) of the Bankruptcy Code, Section 4(a)(2) of the Securities Act and/or other applicable exemptions. An offering of Plan Securities provided in reliance on the exemption from registration under the Securities Act pursuant to section 1145(a) of the Bankruptcy Code may be sold without registration to the extent permitted under section 1145 of the Bankruptcy Code and is deemed to be a public offering, and such Plan Securities may be resold without registration to the extent permitted under section 1145 of the Bankruptcy Code.

 

All New Common Equity Interests issued to Holders of Allowed Claims on account of their respective Claims may be issued without registration under the Securities Act or any similar federal, state, or local law in reliance on section 1145(a) of the Bankruptcy Code, Section 4(a)(2) of the Securities Act and/or other applicable exemptions.

 

Resale of any Plan Securities by Persons who receive any Plan Securities that are offered pursuant to an exemption under section 1145(a) of the Bankruptcy Code, who are deemed to be “underwriters” (as such term is defined in section 1145(b)(1) of the Bankruptcy Code) (collectively, the “Restricted Holders”) would not be exempted by section 1145 of the Bankruptcy Code from registration under the Securities Act. Restricted Holders would, however, be permitted to resell the Plan Securities that are offered pursuant to an exemption under section 1145(a) of the Bankruptcy Code without registration if they are able to comply with the provisions of Rule 144 under the Securities Act, or if such securities are registered with the Commission pursuant to a registration statement or otherwise. Plan Securities that are distributed pursuant to Section 4(a)(2) of the Securities Act may be resold pursuant to registration with the Commission or any applicable exemption therefrom.

 

Should the Reorganized Debtors elect, on or after the Effective Date, to reflect all or any portion of the ownership of New Common Equity Interests through the facilities of DTC (and any stock transfer agent), the Reorganized Debtors shall not be required to provide any further evidence to DTC (or any stock transfer agent) other than the Plan or Confirmation Order with respect to the treatment of such applicable portion of the New Common Equity Interests, and such Plan or Confirmation Order shall be deemed to be legal and binding obligations of the Reorganized Debtors in all respects.

 

DTC (and any stock transfer agent) shall be required to accept and conclusively rely upon the Plan and Confirmation Order in lieu of a legal opinion regarding whether the New Common Equity Interests are exempt from registration and/or eligible for DTC book-entry delivery, settlement, and depository services.

 

Notwithstanding anything to the contrary in the Plan, neither DTC nor any stock transfer agent may require a legal opinion regarding the validity of any transaction contemplated by the Plan, including, for the avoidance of doubt, whether the Plan Securities are exempt from registration and/or eligible for DTC book-entry delivery, settlement, and depository services.

 

J.Release of Liens and Claims

 

To the fullest extent provided under section 1141(c) and other applicable provisions of the Bankruptcy Code, except as otherwise provided herein (including, without limitation, Articles V.D and V.E of this Plan) or in any contract, instrument, release or other agreement or document entered into or delivered in connection with this Plan, on the Effective Date and concurrently with the applicable distributions made pursuant to Article VII hereof, all Liens, Claims, mortgages, deeds of trust, or other security interests against the assets or property of the Debtors or the Estates shall be fully released, canceled, terminated, extinguished and discharged, in each case without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule or the vote, consent, authorization or approval of any Person or Entity. The filing of the Confirmation Order with any federal, state, or local agency or department shall constitute good and sufficient evidence of, but shall not be required to effect, the termination of such Liens, Claims and other interests to the extent provided in the immediately preceding sentence. Any Person or Entity holding such Liens, Claims or interests shall, pursuant to section 1142 of the Bankruptcy Code, promptly execute and deliver to the Reorganized Debtors such instruments of termination, release, satisfaction and/or assignment (in recordable form) as may be reasonably requested by the Reorganized Debtors.

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K.Organizational Documents of the Reorganized Debtors

 

The respective organizational documents of each of the Debtors shall be amended and restated or replaced (as applicable) and shall be consistent in all respects with the Governance Term Sheet and shall be in form and substance acceptable to the Debtors and each Consenting Term Lender, and as necessary to satisfy the provisions of this Plan and the Bankruptcy Code. Such organizational documents shall: (i) to the extent required by section 1123(a)(6) of the Bankruptcy Code, include a provision prohibiting the issuance of non-voting equity securities; (ii) authorize the issuance of New Common Equity Interests in an amount not less than the amount necessary to permit the distributions thereof required or contemplated by this Plan; (iii) to the extent necessary or appropriate, include restrictions on the transfer of New Common Equity Interests; and (iv) to the extent necessary or appropriate, include such provisions as may be needed to effectuate and consummate this Plan and the transactions contemplated herein. After the Effective Date, the Reorganized Debtors may, subject to the terms and conditions of the Restructuring Documents, amend and restate their respective organizational documents as permitted by applicable law.

 

L.Directors and Officers of the Reorganized Debtors

 

The Reorganized Company will be managed by the New Board which shall be appointed by the Consenting Term Lenders in accordance with the Governance Term Sheet. The Consenting Term Lenders shall also have the right to appoint board observers to the New Board. The members and observers of the New Board shall, in each case, be appointed by the Consenting Term Lenders in accordance with the Governance Term Sheet and identified in the Plan Supplement as Plan Schedule 4. The initial new board of directors or other governing body of each Parent Subsidiary shall consist of one or more of the directors or officers of Reorganized Parent. Any directors elected pursuant to this section shall be subject to approval of the Bankruptcy Court pursuant to section 1129(a)(5) of the Bankruptcy Code.

 

Pursuant to and to the extent required by section 1129(a)(5) of the Bankruptcy Code, the Debtors will disclose, at or prior to the Combined Hearing, the identity and affiliations of any Person proposed to serve on the initial board of directors or be an officer of each of the Reorganized Debtors, and, to the extent such Person is an insider other than by virtue of being a director or an officer, the nature of any compensation for such Person. Each such director and officer shall serve from and after the Effective Date pursuant to applicable law and the terms of the Amended/New Organizational Documents and the other constituent and organizational documents of the applicable Reorganized Debtors. The existing boards of directors and other governing bodies of the Debtors will be deemed to have resigned on and as of the Effective Date, in each case without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule or the vote, consent, authorization or approval of any Person or Entity.

 

M.Corporate Action

 

Each of the Debtors and the Reorganized Debtors may take any and all actions to execute, deliver, File or record such contracts, instruments, releases and other agreements or documents and take such actions as may be necessary or appropriate to effectuate and implement the provisions of this Plan, including, without limitation, the issuance and the distribution of the securities to be issued pursuant hereto, and without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule or any requirement of further action, vote or other approval or authorization by the security holders, officers or directors of the Debtors or the Reorganized Debtors or by any other Person (except for those expressly required pursuant hereto or by the Restructuring Documents).

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Prior to, on or after the Effective Date (as appropriate), all matters provided for pursuant to this Plan that would otherwise require approval of the stockholders, directors, officers, managers, members or partners of the Debtors (as of prior to the Effective Date) shall be deemed to have been so approved and shall be in effect prior to, on or after the Effective Date (as appropriate) pursuant to applicable law and without any requirement of further action by such Person or Entity, or the need for any approvals, authorizations, actions or consents of or from any such Person or Entity.

 

As of the Effective Date, all matters provided for in this Plan involving the legal or corporate structure of the Debtors or the Reorganized Debtors (including, without limitation, the adoption of the Amended/New Organization Documents and similar constituent and organizational documents, and the selection of directors and officers for, each of the Reorganized Debtors), and any legal or corporate action required by the Debtors or the Reorganized Debtors in connection with this Plan including, without limitation, in connection with the authorization, execution and delivery of the Exit Facilities Loan Documents, shall be deemed to have occurred and shall be in full force and effect in all respects, in each case without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule or any requirement of further action, vote or other approval or authorization by any Person or Entity.

 

On and after the Effective Date, the appropriate officers of the Debtors and the Reorganized Debtors are authorized to issue, execute, and deliver, and consummate the transactions contemplated by, the contracts, agreements, documents, guarantees, pledges, consents, securities, certificates, resolutions and instruments contemplated by or described in this Plan in the name of and on behalf of the Debtors and the Reorganized Debtors, and without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule or any requirement of further action, vote or other approval or authorization by any Person or Entity. The secretary and any assistant secretary of the Debtors and the Reorganized Debtors shall be authorized to certify or attest to any of the foregoing actions.

 

N.Cancellation of Notes, Certificates and Instruments

 

On the Effective Date, except to the extent otherwise provided in this Plan (including, without limitation, Articles V.D and V.E of this Plan), all notes, stock, instruments, certificates, credit agreements and other agreements and documents evidencing or relating to the Prepetition Term Loan Claims, any Impaired Claim (other than the Prepetition RBL Claims) and/or the Old Parent Interests, shall be canceled and the obligations of the Debtors thereunder or in any way related thereto shall be fully released, terminated, extinguished and discharged, in each case without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule or any requirement of further action, vote or other approval or authorization by any Person or Entity; provided that the Prepetition Term Loan Documents shall continue in effect for the limited purpose of allowing Holders of Claims thereunder to receive, and allowing and preserving the rights of the Prepetition Term Loan Agent or other applicable Distribution Agent thereunder to make, distributions under this Plan. Except to the extent otherwise provided in this Plan (including, without limitation, Articles V.D and V.E of this Plan) and the Restructuring Documents, upon completion of all such distributions, the Prepetition Term Loan Documents and any and all notes, securities and instruments issued in connection therewith shall terminate completely without further notice or action and be deemed surrendered. For the avoidance of doubt, nothing in this paragraph shall apply to or affect or impair the Prepetition RBL Loan Documents or the Exit Facilities Loan Documents, which shall remain in full force and effect as of and after the Effective Date (as such Prepetition RBL Loan Documents are amended and restated pursuant to this Plan).

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O.Old Sundance Subsidiary Interests

 

On the Effective Date, the Old Sundance Subsidiary Interests shall, subject to the Restructuring Transactions, remain effective and outstanding, and shall be owned and held by the same applicable Person or Entity that held and/or owned such Old Sundance Subsidiary Interests immediately prior to the Effective Date. Each Sundance Subsidiary shall continue to be governed by the terms and conditions of its applicable organizational documents as in effect immediately prior to the Effective Date, except as amended or modified by this Plan.

 

P.Sources of Cash for Plan Distributions

 

All Cash necessary for the Debtors or the Reorganized Debtors, as applicable, to make payments required pursuant to this Plan will be obtained from their respective Cash balances, including Cash from operations, the DIP Facility, and the Exit Facilities. The Debtors and the Reorganized Debtors, as applicable, may also make such payments using Cash received from their subsidiaries through their respective consolidated cash management systems and the incurrence of intercompany transactions, but in all cases subject to the terms and conditions of the Restructuring Documents.

 

Q.Funding and Use of Professional Fee Claim Reserve

 

On the Effective Date, the Debtors shall fund the Professional Fee Claim Reserve in such amount as determined by the Debtors, with the consent of the Prepetition RBL Agent and the Required Consenting Term Lenders, or as determined by order of the Bankruptcy Court, as necessary in order to be able to pay in full in Cash the Professional Fee Claims, as and when Allowed.

 

The Cash contained in the Professional Fee Claim Reserve shall be used solely to pay the Allowed Professional Fee Claims, with the Unused Cash Reserve Amount (if any) being returned to the Reorganized Debtors within three (3) Business Days after determining the Unused Cash Reserve Amount. The Debtors and the Reorganized Debtors, as applicable, shall maintain detailed records of all payments made from the Professional Fee Claim Reserve, such that all payments and transactions shall be adequately and promptly documented in, and readily ascertainable from, their respective books and records.

 

The Professional Fee Claim Reserve shall be maintained in trust for the Professionals and shall not be considered property of the Debtors’ Estates; provided that the Reorganized Debtors shall have a reversionary interest in the Unused Cash Reserve Amount. To the extent that funds held in the Professional Fee Claim Reserve do not or are unable to satisfy the full amount of the Allowed Professional Fee Claims, such Professionals will have an Allowed Administrative Claim for any such deficiency, which shall be satisfied in full in Cash in accordance with Article II.A of this Plan.

 

After the Effective Date, neither the Debtors nor the Reorganized Debtors shall deposit any other funds or property into the Professional Fee Claim Reserve without further order of the Bankruptcy Court or otherwise commingle funds in the Professional Fee Claim Reserve. To the extent the Professional Fee Claim Reserve is insufficient to pay in full in Cash the obligations and liabilities for which such reserve was established, then the Reorganized Debtors shall, within five (5) Business Days, pay such obligations and liabilities in full in Cash.

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R.Holders of Royalty and Working Interests

 

Royalty and Working Interests shall not be affected or impaired in any manner by any provision of this Plan and the legal and equitable rights, interests, defenses, and obligations of holders of Royalty and Working Interests, with respect to such Royalty and Working Interests, shall not be impaired in any manner by the provisions of this Plan. Nor shall anything in this Plan impair the rights and defenses of the Debtors and Reorganized Debtors with respect to the Royalty and Working Interests.

 

The Debtors’ and Reorganized Debtors’ rights to dispute the amount of any payments on account of Royalty and Working Interests and to assert that prepetition Claims for such amounts have been paid or otherwise satisfied or discharged are expressly reserved; provided, however, that nothing in this Plan shall be deemed a finding or determination as to whether any such amounts owed by the Debtors on account of Royalty and Working Interests are a Claim, the type or classification of any such Claim, or if the amount has been satisfied or discharged. All parties’ rights are reserved with respect to any such finding or determination; provided, however, to the extent applicable, any holders of Royalty and Working Interests that have Allowed General Unsecured Claims shall be treated as provided in Article III hereof.

 

S.Payment of Fees and Expenses of Certain Creditors

 

The Debtors shall, on and after the Effective Date and to the extent invoiced, pay (i) the Prepetition RBL Agent and Prepetition RBL Lenders’ Fees and Expenses and (ii) the Prepetition Term Loan Agent Fees and Expenses (in each case whether accrued prepetition or postpetition and to the extent not otherwise paid during the Chapter 11 Cases), without the need for application by any such parties to the Bankruptcy Court, and without notice and a hearing pursuant to section 1129(a)(4) of the Bankruptcy Code or otherwise; provided, however, if the Debtors or Reorganized Debtors and any such Entity cannot agree with respect to the reasonableness of the fees and expenses (incurred prior to the Effective Date) to be paid to such party, the reasonableness of any such fees and expenses shall be determined by the Bankruptcy Court (with any undisputed amounts to be paid by the Debtors on or after the Effective Date (as applicable) and any disputed amounts to be escrowed by the Reorganized Debtors).

 

Article VI.

 

TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES

 

A.Assumption of Executory Contracts and Unexpired Leases

 

On the Effective Date, all Executory Contracts and Unexpired Leases of the Debtors will be assumed by the Debtors in accordance with, and subject to, the provisions and requirements of sections 365 and 1123 of the Bankruptcy Code, except for those Executory Contracts and Unexpired Leases that, in each case, with the consent of the Required Consenting Term Lenders:

 

(i)          have been assumed or rejected by the Debtors by prior order of the Bankruptcy Court;

 

(ii)         are the subject of a motion to reject filed by the Debtors pending on the Effective Date;

 

(iii)        are identified as rejected Executory Contracts and Unexpired Leases by the Debtors on Plan Schedule 5, to be Filed in the Plan Supplement, which Plan Schedule may be amended by the Debtors with the consent of the Required Consenting Term Lenders to add or remove Executory Contracts and Unexpired Leases by filing with the Bankruptcy Court an amended Plan Schedule and serving it on the affected non-Debtor contract parties prior to the Effective Date; or

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(iv)       are rejected or terminated pursuant to the terms of this Plan.

 

Without amending or altering any prior order of the Bankruptcy Court approving the assumption or rejection of any Executory Contract or Unexpired Lease, entry of the Confirmation Order by the Bankruptcy Court shall constitute approval of such assumptions pursuant to sections 365(a) and 1123 of the Bankruptcy Code.

 

To the extent any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned (as applicable) pursuant to this Plan or any prior order of the Bankruptcy Court (including, without limitation, any “change of control” provision) prohibits, restricts or conditions, or purports to prohibit, restrict or condition, or is modified, breached or terminated, or deemed modified, breached or terminated by, (i) the commencement of these Chapter 11 Cases or the insolvency or financial condition of any Debtor at any time before the closing of its respective Chapter 11 Case, (ii) any Debtor’s or any Reorganized Debtor’s assumption or assumption and assignment (as applicable) of such Executory Contract or Unexpired Lease or (iii) the Confirmation or Consummation of this Plan, then such provision shall be deemed modified such that the transactions contemplated by this Plan shall not entitle the non-debtor party thereto to modify or terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights or remedies with respect thereto, and any required consent under any such contract or lease shall be deemed satisfied by the Confirmation of this Plan.

 

Each Executory Contract and Unexpired Lease assumed and/or assigned pursuant to this Plan shall revest in and be fully enforceable by the applicable Reorganized Debtor or the applicable assignee in accordance with its terms and conditions, except as modified by the provisions of this Plan, any order of the Bankruptcy Court approving its assumption and/or assignment, or applicable law.

 

The inclusion or exclusion of a contract or lease on any schedule or exhibit shall not constitute an admission by any Debtor that such contract or lease is an Executory Contract or Unexpired Lease or that any Debtor has any liability thereunder.

 

B.Cure of Defaults; Assignment of Executory Contracts and Unexpired Leases

 

Any defaults under each Executory Contract and Unexpired Lease to be assumed, or assumed and assigned, pursuant to this Plan shall be satisfied, pursuant to and to the extent required by section 365(b)(1) of the Bankruptcy Code, by payment of the applicable default amount in Cash on or in connection with the Effective Date or on such other terms as the Bankruptcy Court may order or the parties to such Executory Contracts or Unexpired Leases may otherwise agree in writing (the “Cure Claim Amount”).

 

In the event of an assumption, or an assumption and assignment, of an Executory Contract or Unexpired Lease under this Plan, at least fourteen (14) days prior to the Cure Objection Deadline (or, in the case of an Executory Contract or Unexpired Lease removed from the Plan Schedule after such date, no later than one (1) Business Day after such removal), the Debtors shall File and serve upon counterparties to such Executory Contracts and Unexpired Leases, a notice of the proposed assumption, or proposed assumption and assignment, which will: (a) list the applicable Cure Claim Amount, if any; (b) if applicable, identify the party to which the Executory Contract or Unexpired Lease will be assigned; (c) describe the procedures for filing objections thereto; and (d) explain the process by which related disputes will be resolved by the Bankruptcy Court.

 

Any objection by a counterparty to an Executory Contract or Unexpired Lease to a proposed assumption, or proposed assumption and assignment under this Plan, or any related cure amount, must be Filed, served and actually received by the Debtors prior to the Cure Objection Deadline (notwithstanding anything in a proof of Claim to the contrary). Any counterparty to an Executory Contract or Unexpired Lease that fails to timely object to the proposed assumption, or proposed assumption and assignment, or cure amount will be deemed to have consented to such matters and will be deemed to have forever released and waived any objection to such proposed assumption, proposed assumption and assignment, and cure amount. The Confirmation Order shall constitute an order of the Bankruptcy Court approving each proposed assumption, or proposed assumption and assignment, of Executory Contracts and Unexpired Leases pursuant to sections 365 and 1123 of the Bankruptcy Code as of the Effective Date.

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In the event of a dispute regarding (a) the amount of any cure payment, (b) the ability of any Debtor or assignee to provide “adequate assurance of future performance” (within the meaning of section 365 of the Bankruptcy Code) under the Executory Contract or Unexpired Lease to be assumed, or assumed and assigned or (c) any other matter pertaining to assumption or assignment, the applicable cure payments required by section 365(b)(1) of the Bankruptcy Code shall be made following the entry of a Final Order resolving the dispute and approving such assumption, or assumption and assignment; provided, however, that following the resolution of any such dispute, the Debtors or the Reorganized Debtors, as applicable, may elect to reject such Executory Contract or Unexpired Lease in lieu of assuming or assigning it. The Debtors or the Reorganized Debtors, as applicable, shall be authorized to effect such rejection by filing a written notice of rejection with the Bankruptcy Court and serving such notice on the applicable counterparty within ten (10) days of the entry of such Final Order. Notwithstanding the foregoing, the Debtors, with the reasonable consent of the Required Consenting Term Lenders, or the Reorganized Debtors, as applicable, may settle any dispute regarding the amount of any Cure Claim without any further notice to or action, order or approval of the Bankruptcy Court.

 

Subject to any cure claims Filed with respect thereto, assumption or assumption and assignment of any Executory Contract or Unexpired Lease pursuant to this Plan shall result in the full release and satisfaction of any Claims or defaults, whether monetary or nonmonetary, including defaults of provisions restricting the change in control or ownership interest composition or other bankruptcy-related defaults, arising under any assumed Executory Contract or Unexpired Lease at any time prior to the effective date of assumption or assumption and assignment, in each case as provided in section 365 of the Bankruptcy Code. Any proofs of Claim filed with respect to an Executory Contract or Unexpired Lease that has been assumed or assumed and assigned by Final Order shall be deemed disallowed and expunged (subject to any cure claims Filed with respect thereto), without further notice to or action, order, or approval of the Bankruptcy Court.

 

With respect to any Executory Contract or Unexpired Lease assumed and assigned pursuant to this Plan, upon and as of the Effective Date, the applicable assignee shall be deemed to be substituted as a party thereto for the applicable Debtor party to such assigned Executory Contract or Unexpired Lease and, accordingly, the Debtors and the Reorganized Debtors shall be relieved, pursuant to and to the extent set forth in section 365(k) of the Bankruptcy Code, from any further liability under such assigned Executory Contract or Unexpired Lease.

 

C.Rejection of Executory Contracts and Unexpired Leases

 

The Debtors reserve the right (with the consent of the Required Consenting Term Lenders), at any time prior to the Effective Date, except as otherwise specifically provided herein, to seek to reject any Executory Contract or Unexpired Lease and to file a motion requesting authorization for the rejection of any such contract or lease. All Executory Contracts and Unexpired Leases listed on Plan Schedule 5 shall be deemed rejected as of the Effective Date. The Confirmation Order shall constitute an order of the Bankruptcy Court approving the rejections described in this Article VI pursuant to sections 365 and 1123 of the Bankruptcy Code as of the Effective Date. Rejection of any Executory Contract or Unexpired Lease pursuant to this Plan or otherwise shall not constitute a termination of any preexisting obligations owed to the Debtors or the Reorganized Debtors, as applicable, under such Executory Contracts or Unexpired Leases.

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D.Claims on Account of the Rejection of Executory Contracts or Unexpired Leases

 

All proofs of Claim with respect to Claims arising from the rejection of Executory Contracts or Unexpired Leases, pursuant to this Plan or the Confirmation Order, if any, must be Filed with the Bankruptcy Court within thirty (30) days after service of an order of the Bankruptcy Court (including the Confirmation Order) approving such rejection.

 

Any Person or Entity that is required to File a proof of Claim arising from the rejection of an Executory Contract or an Unexpired Lease that fails to timely do so shall be forever barred, estopped and enjoined from asserting such Claim, and such Claim shall not be enforceable, against the Debtors, the Reorganized Debtors or the Estates, and the Debtors, the Reorganized Debtors and their Estates and their respective assets and property shall be forever discharged from any and all indebtedness and liability with respect to such Claim unless otherwise ordered by the Bankruptcy Court or as otherwise provided herein. All such Claims shall, as of the Effective Date, be subject to the permanent injunction set forth in Article X.G hereof.

 

E.D&O Liability Insurance Policies

 

On the Effective Date, each D&O Liability Insurance Policy shall be deemed and treated as an Executory Contract that is and will be assumed by the Debtors (and assigned to the applicable Reorganized Debtors, if necessary) pursuant to section 365(a) and section 1123 of the Bankruptcy Code as to which no proof of Claim, request for administrative expense, or cure claim need be Filed, and all Claims arising from the D&O Liability Insurance Policies will survive the Effective Date and be Unimpaired. Unless previously effectuated by separate order entered by the Bankruptcy Court, entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the Debtors’ assumption of each of the D&O Liability Insurance Policies.

 

In furtherance of the foregoing, the Reorganized Debtors shall maintain and continue in full force and effect the D&O Liability Insurance Policies for the benefit of the insured Persons for the full term of such policies, and all insured Persons, including without limitation, any members, managers, directors, and officers of the Reorganized Debtors who served in such capacity at any time prior to the Effective Date or any other individuals covered by such D&O Liability Insurance Policies, shall be entitled to the full benefits of any such policies for the full term of such policies regardless of whether such insured Persons remain in such positions after the Effective Date. Notwithstanding the foregoing, after assumption of the D&O Liability Insurance Policies, nothing in this Plan or the Confirmation Order alters the terms and conditions of the D&O Liability Insurance Policies. Confirmation and Consummation of this Plan shall not impair or otherwise modify any available defenses of the Reorganized Debtors under the D&O Liability Insurance Policies. For the avoidance of doubt, the D&O Liability Insurance Policies shall continue to apply with respect to actions, or failures to act, that occurred on or prior to the Effective Date, subject to the terms and conditions of the D&O Liability Insurance Policies.

 

The Debtors are further authorized to take such actions, and to execute and deliver such documents, as may be reasonably necessary or appropriate to implement, maintain, cause the binding of, satisfy any terms or conditions of, or otherwise secure for the insureds the benefits of the D&O Tail Policy, without further notice to or order of the Bankruptcy Court or approval or consent of any Person or Entity. The Debtors shall provide notice of any such action to the Prepetition Term Loan Agent.

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F.Indemnification Provisions

 

On the Effective Date, all Indemnification Provisions shall be deemed and treated as Executory Contracts that are and shall be assumed by the Debtors (and assigned to the applicable Reorganized Debtors, if necessary) pursuant to section 365(a) and section 1123 of the Bankruptcy Code as to which no proof of Claim, request for administrative expense, or cure claim need be Filed, and all Claims arising from the Indemnification Provisions shall survive the Effective Date and be Unimpaired. Unless previously effectuated by separate order entered by the Bankruptcy Court, entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the Debtors’ assumption of each of the Indemnification Provisions. Confirmation and Consummation of this Plan shall not impair or otherwise modify any available defenses of the Reorganized Debtors or other applicable parties under the Indemnification Provisions. For the avoidance of doubt, the Indemnification Provisions shall continue to apply with respect to actions, or failures to act, that occurred on or prior to the Effective Date, subject to the terms and conditions of the Indemnification Provisions.

 

G.Employment Plans

 

All employment agreements and severance policies, and all employment, compensation and benefit plans, policies, and programs of the Debtors applicable to any of their respective officers, employees and retirees, including, without limitation, all workers’ compensation programs, savings plans, retirement plans, supplemental executive retirement (SERP) plans, healthcare plans, disability plans, retention plans, life and accidental death and dismemberment insurance plans, health and welfare plans, and 401(k) plans (collectively, the “Specified Employee Plans”) shall be deemed and treated as Executory Contracts under this Plan and on the Effective Date shall be assumed by the Debtors (and assigned to the Reorganized Debtors, if necessary) pursuant to section 365(a) and section 1123 of the Bankruptcy Code as to which no proof of Claim, request for administrative expense, or cure claim need be Filed; provided that severance payments to any “insider” (as defined in section 101(31) of the Bankruptcy Code) of the Debtors terminated during the Chapter 11 Cases shall be subject to sections 503(c)(2) and 502(b)(7) of the Bankruptcy Code, to the extent each section is applicable; provided further that notwithstanding anything in this Plan to the contrary, (x) all employee equity incentive plans of the Debtors in effect prior to the Effective Date shall be canceled on the Effective Date and all Outstanding Incentive Equity Interests received thereunder shall receive the same treatment as Old Parent Interests under this Plan and (y) the Executive KERP/KEIP will be cancelled on the Effective Date (and no Claims shall arise thereunder). After the Effective Date, the New Board shall, in its discretion, implement employee incentive or bonus plans as and when it deems appropriate; provided, however, that the Management Incentive Plan shall be implemented pursuant to and in accordance with the terms of this Plan, including Article V.H hereof. Unless previously effectuated by separate order entered by the Bankruptcy Court, entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the Debtors’ assumption of each of the Specified Employee Plans. Confirmation and Consummation of this Plan shall not impair or otherwise modify any available defenses of the Reorganized Debtors under the Specified Employee Plans.

 

H.Hedge Agreements

 

On the Effective Date and pursuant to the Hedge Order, each Hedge Agreement shall be deemed and treated as an Executory Contract that is and shall be assumed by the Reorganized Debtors pursuant to section 365(a) and section 1123 of the Bankruptcy Code as to which no proof of Claim, request for administrative expense, or cure claim need be Filed. Unless previously effectuated by separate order entered by the Bankruptcy Court, entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the Reorganized Debtors’ assumption of each of the Hedge Agreements. Confirmation and Consummation of this Plan shall not impair or otherwise modify any available defenses of the Reorganized Debtors under the Hedge Agreements.

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I.Insurance Contracts

 

On the Effective Date, each Insurance Contract shall be deemed and treated as an Executory Contract that is and shall be assumed by the Debtors (and assigned to the applicable Reorganized Debtors, if necessary) pursuant to section 365(a) and section 1123 of the Bankruptcy Code as to which no proof of Claim, request for administrative expense, or cure claim need be Filed. Unless previously effectuated by separate order entered by the Bankruptcy Court, entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the Debtors’ assumption of each of the Insurance Contracts. Confirmation and Consummation of this Plan shall not impair or otherwise modify any available defenses of the Reorganized Debtors or any insurer under the Insurance Contracts.

 

J.Extension of Time to Assume or Reject

 

Notwithstanding anything to the contrary set forth in Article VI of this Plan, in the event of a dispute as to whether a contract is executory or a lease is unexpired, the right of the Reorganized Debtors to move to assume or reject such contract or lease shall be extended until the date that is ten (10) days after entry of a Final Order by the Bankruptcy Court determining that the contract is executory or the lease is unexpired. The deemed assumption provided for in Article VI.A of this Plan shall not apply to any such contract or lease, and any such contract or lease shall be assumed or rejected only upon motion of the Reorganized Debtors following the Bankruptcy Court’s determination that the contract is executory or the lease is unexpired.

 

K.Modifications, Amendments, Supplements, Restatements, or Other Agreements

 

Unless otherwise provided in this Plan, each Executory Contract or Unexpired Lease that is assumed by the Debtors or the Reorganized Debtors shall include all modifications, amendments, supplements, restatements, or other agreements that in any manner affect such Executory Contract or Unexpired Lease, and all rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests, unless any of the foregoing has been previously rejected or repudiated or is rejected or repudiated hereunder. Modifications, amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of the Executory Contract or Unexpired Lease, or the validity, priority, or amount of any Claims that may arise in connection therewith.

 

L.Oil and Gas Leases

 

The Debtors’ Oil and Gas Leases are hereby assumed by the Debtors to the extent such leases are “unexpired leases” or “executory contracts” under section 365 of the Bankruptcy Code. Nothing in the Plan shall be deemed a finding or determination that any Oil and Gas Lease constitutes an “unexpired lease” or “executory contract” for purposes of section 365 of the Bankruptcy Code, and the Debtors’ rights to contest any such claim or allegation are expressly reserved. Nothing in the Plan alters or changes the underlying property rights associated with the Debtors’ Oil and Gas Leases, including, without limitation, rights related to Royalty and Working Interests.

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Article VII.

PROVISIONS GOVERNING DISTRIBUTIONS

 

A.Distributions for Claims Allowed as of the Effective Date

 

Except as otherwise provided in the “Treatment” sections in Article III hereof, initial distributions to be made on account of Claims that are Allowed Claims as of the Effective Date shall be made on the Effective Date or as soon thereafter as is practicable. Any payment or distribution required to be made under this Plan on a day other than a Business Day shall be made on the next succeeding Business Day. Distributions on account of Disputed Claims that first become Allowed Claims after the Effective Date shall be made pursuant to Article VIII hereof.

 

B.No Postpetition Interest on Claims

 

Unless otherwise specifically provided for in this Plan, the Confirmation Order or Final Order of the Bankruptcy Court, or required by applicable bankruptcy law (including, without limitation, as required pursuant to section 506(b) or section 511 of the Bankruptcy Code), postpetition interest shall not accrue or be paid on any Claims and no Holder of a Claim shall be entitled to interest accruing on or after the Petition Date on any Claim.

 

C.Distributions by the Reorganized Debtors or Other Applicable Distribution Agent

 

Other than as specifically set forth below or as otherwise provided in this Plan, the Reorganized Debtors or other applicable Distribution Agent shall make all distributions required to be distributed under this Plan. The Reorganized Debtors may employ or contract with other Entities to assist in or make the distributions required by this Plan and may pay the reasonable fees and expenses of such Entities and the Distribution Agents in the ordinary course of business. No Distribution Agent shall be required to give any bond or surety or other security for the performance of its duties unless otherwise ordered by the Bankruptcy Court.

 

The Distribution Agent shall be empowered to (a) effect all actions and execute all agreements, instruments and other documents necessary to perform its duties under this Plan, (b) make all distributions contemplated hereby, (c) empower professionals to represent it with respect to its responsibilities and (d) exercise such other powers as are necessary and proper to implement the provisions hereof.

 

Distributions on account of the Allowed DIP Facility Claims, Allowed Prepetition RBL Claims, and the Allowed Prepetition Term Loan Claims shall be made to (or in coordination with) the DIP Facility Agent, the Prepetition RBL Agent, and the Prepetition Term Loan Agent, as applicable, and such agent will be, and shall act as, the Distribution Agent with respect to its respective Class of Claims in accordance with the terms and conditions of this Plan and the applicable loan documents. All distributions to Holders of Allowed DIP Facility Claims, Allowed Prepetition RBL Claims, and Allowed Prepetition Term Loan Claims shall be deemed completed when made by the Reorganized Debtors to (or at the direction of) the DIP Facility Agent, the Prepetition RBL Agent, and the Prepetition Term Loan Agent, as applicable.

 

D.Delivery and Distributions; Undeliverable or Unclaimed Distributions

 

1.Record Date for Distributions

 

On the Distribution Record Date, the Claims Register shall be closed. Accordingly, the Debtors, the Reorganized Debtors or other applicable Distribution Agent will have no obligation to recognize the assignment, transfer or other disposition of, or the sale of any participation in, any Allowed Claim (other than Prepetition Debt Claims or DIP Facility Claims) that occurs after the close of business on the Distribution Record Date, and will be entitled for all purposes herein to recognize and distribute securities, property, notices and other documents only to those Holders of Allowed Claims (other than Prepetition Debt Claims or DIP Facility Claims) who are Holders of such Claims, or participants therein, as of the close of business on the Distribution Record Date. The Reorganized Debtors or other applicable Distribution Agent shall be entitled to recognize and deal for all purposes under this Plan with only those record holders stated on the Claims Register, or their books and records, as of the close of business on the Distribution Record Date; provided, however, that the Distribution Record Date shall not apply to the Prepetition Debt Claims or the DIP Facility Claims.

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2.Delivery of Distributions in General

 

Except as otherwise provided herein, the Debtors, the Reorganized Debtors or other applicable Distribution Agent, as applicable, shall make distributions to Holders of Allowed Claims, or in care of their authorized agents, as appropriate, at the address for each such Holder or agent as indicated on the Debtors’ or other applicable Distribution Agent’s books and records as of the date of any such distribution; provided, however, that the manner of such distributions shall be determined in the discretion of the applicable Distribution Agent (subject to the terms and conditions of the relevant Prepetition Loan Documents or DIP Loan Documents, in each case to the extent applicable); provided further, that the address for each Holder of an Allowed Claim shall be deemed to be the address set forth in the latest proof of Claim, if any, Filed by such Holder pursuant to Bankruptcy Rule 3001 as of the Distribution Record Date.

 

3.Minimum Distributions

 

Notwithstanding anything herein to the contrary, no Distribution Agent shall be required to make distributions or payments of less than $25.00 (whether in Cash or otherwise) or to make partial distributions or payments of fractions of dollars or New Common Equity Interests, in each case with respect to Impaired Claims. With respect to Impaired Claims, whenever any payment or distribution of a fraction of a dollar or a fraction of a share of New Common Equity Interest under this Plan would otherwise be called for, the actual payment or distribution will reflect a rounding of such fraction down to the nearest whole dollar or share of New Common Equity Interest (up or down), with half dollars and half shares of New Common Equity Interest or more being rounded up to the next higher whole number and with less than half dollars and half shares of New Common Equity Interest being rounded down to the next lower whole number (and no Cash shall be distributed in lieu of such fractional New Common Equity Interest).

 

No Distribution Agent shall have any obligation to make a distribution on account of an Allowed Claim that is Impaired under this Plan if the amount to be distributed to the specific Holder of an Allowed Claim on the Effective Date does not constitute a final distribution to such Holder and is or has an economic value less than $25.00, which shall be treated as an undeliverable distribution under Article VII.D.4 below.

 

4.Undeliverable Distributions

 

(a)Holding of Certain Undeliverable Distributions

 

If the distribution to any Holder of an Allowed Claim is returned to the Distribution Agent as undeliverable or is otherwise unclaimed, no further distributions shall be made to such Holder unless and until the Distribution Agent is notified in writing of such Holder’s then current address in accordance with the time frames described in Article VII.D.4(b) hereof, at which time (or as soon as reasonably practicable thereafter) all currently due but missed distributions shall be made to such Holder. Undeliverable distributions shall remain in the possession of the Reorganized Debtors or in the applicable reserve, subject to Article VII.D.4(b) hereof, until such time as any such distributions become deliverable. Undeliverable distributions shall not be entitled to any additional interest, dividends or other accruals of any kind on account of their distribution being undeliverable.

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(b)Failure to Claim Undeliverable Distributions

 

Any Holder of an Allowed Claim (or any successor or assignee or other Person or Entity claiming by, through, or on behalf of, such Holder) that does not assert a right pursuant to this Plan for an undeliverable or unclaimed distribution within ninety (90) days after the later of the Effective Date or the date such distribution is due shall be deemed to have forfeited its rights for such undeliverable or unclaimed distribution and shall be forever barred and enjoined from asserting any such rights for an undeliverable or unclaimed distribution against the Debtors or their Estates, the Reorganized Debtors or their respective assets or property, or any Distribution Agent. In such case, any Cash, Plan Securities, or other property reserved for distribution on account of such Claim shall become the property of the Reorganized Debtors free and clear of any Claims or other rights of such Holder with respect thereto and notwithstanding any federal or state escheat laws to the contrary. Any such Cash, Plan Securities and Documents, and/or other property, as applicable, shall thereafter be distributed or allocated in accordance with the applicable terms and conditions of this Plan. Nothing contained in this Plan shall require the Debtors, the Reorganized Debtors, or any Distribution Agent to attempt to locate any Holder of an Allowed Claim.

 

(c)Failure to Present Checks

 

Checks issued by the Distribution Agent on account of Allowed Claims shall be null and void if not negotiated within ninety (90) days after the issuance of such check. Requests for reissuance of any check shall be made directly to the Distribution Agent by the Holder of the relevant Allowed Claim with respect to which such check originally was issued. Any Holder of an Allowed Claim holding an un-negotiated check that does not request reissuance of such un-negotiated check within ninety (90) days after the date of mailing or other delivery of such check shall have its rights for such un-negotiated check discharged and be forever barred, estopped and enjoined from asserting any such right against the Debtors, their Estates, the Reorganized Debtors, or their respective assets or property. In such case, any Cash held for payment on account of such Claims shall become the property of the Reorganized Debtors, free and clear of any Claims or other rights of such Holder with respect thereto and notwithstanding any federal or state escheat laws to the contrary. Any such Cash shall thereafter be distributed or allocated in accordance with the applicable terms and conditions of this Plan.

 

E.Compliance with Tax Requirements

 

In connection with this Plan and all distributions hereunder, the Reorganized Debtors or other applicable Distribution Agent shall comply with all withholding and reporting requirements imposed by any federal, state, local, or foreign taxing authority, and all distributions hereunder shall be subject to any such withholding and reporting requirements. Notwithstanding any provision in this Plan to the contrary, the Reorganized Debtors or other applicable Distribution Agent shall be authorized to take any and all actions that may be necessary or appropriate to comply with such applicable withholding and reporting requirements. All Entities holding Claims shall be required to provide any information necessary to effect information reporting and the withholding of such taxes (or establish eligibility for an exclusion for the withholding of taxes), and each Holder of an Allowed Claim will have the sole and exclusive responsibility for the satisfaction and payment of any tax obligations imposed by any Governmental Unit, including income, withholding, and other tax obligations, on account of such distribution. Any amounts withheld or reallocated pursuant to this Article VII.E shall be treated as if distributed to the Holder of the Allowed Claim.

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F.Allocation of Plan Distributions Between Principal and Interest

 

To the extent that any Allowed Claim entitled to a distribution under this Plan is comprised of indebtedness and accrued but unpaid interest thereon, such distribution shall, to the extent permitted by applicable law, be allocated for income tax purposes to the principal amount of the Claim first and then, to the extent that the consideration exceeds the principal amount of the Claim, to the portion of such Claim representing accrued but unpaid interest.

 

G.Means of Cash Payment

 

Payments of Cash made pursuant to this Plan shall be in U.S. dollars and shall be made, at the option of the applicable Distribution Agent, by checks drawn on, or wire transfer from, a domestic bank selected by such Distribution Agent. Cash payments to foreign creditors may be made, at the option of such Distribution Agent, in such funds and by such means as are necessary or customary in a particular foreign jurisdiction.

 

H.Timing and Calculation of Amounts to Be Distributed

 

Except as otherwise provided in the “Treatment” sections in Article III hereof or as ordered by the Bankruptcy Court, on the Effective Date or as soon as reasonably practicable thereafter, each Holder of an Allowed Claim shall receive the full amount of the distributions that this Plan provides for Allowed Claims in the applicable Class. If and to the extent that there are Disputed Claims, distributions on account of any such Disputed Claims shall be made pursuant to the provisions set forth in the applicable class treatment or in Article VIII hereof. Except as otherwise provided herein, Holders of Claims shall not be entitled to interest, dividends or accruals on the distributions provided for herein, regardless of whether such distributions are delivered on or at any time after the Effective Date.

 

I.Setoffs

 

Without altering or limiting any of the rights and remedies of the Debtors and the Reorganized Debtors under section 502(d) of the Bankruptcy Code, all of which rights and remedies are hereby reserved, the Debtors and the Reorganized Debtors may, but shall not be required to, withhold (but not setoff except as set forth below) from the distributions called for hereunder on account of any Allowed Claim an amount equal to any claims, Causes of Action and Litigation Claims of any nature that the Debtors or the Reorganized Debtors may hold against the Holder of any such Allowed Claim; provided that, at least ten (10) days prior to effectuating such withholding, the Debtors or the Reorganized Debtors, as applicable, shall provide written notice thereof to the applicable Holder of such Claim, and all objections and defenses of such Holder to such withholding are preserved. In the event that any such claims, Causes of Action or Litigation Claims are adjudicated by Final Order or otherwise resolved against the applicable Holder, the Debtors and the Reorganized Debtors may, pursuant to section 553 of the Bankruptcy Code or applicable non-bankruptcy law, set off against any Allowed Claim and the distributions to be made pursuant hereto on account of such Allowed Claim (before any distribution is made on account of such Allowed Claim), the amount of such adjudicated or resolved claims, Causes of Action or Litigation Claims. Neither the failure to effect such a setoff nor the allowance of any Claim hereunder shall constitute a waiver or release by the Debtors or the Reorganized Debtors of any such claims, Causes of Action or Litigation Claims, all of which are reserved unless expressly released or compromised pursuant to this Plan or the Confirmation Order.

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Article VIII.

PROCEDURES FOR RESOLVING CONTINGENT,
UNLIQUIDATED AND DISPUTED CLAIMS

 

A.Resolution of Disputed Claims

 

1.Allowance of Claims

 

After the Effective Date, and except as otherwise provided in this Plan, the Reorganized Debtors shall have and shall retain any and all available rights and defenses that the Debtors had with respect to any Claim, including, without limitation, the right to assert any objection to Claims based on the limitations imposed by section 502 or section 510 of the Bankruptcy Code. The Debtors and the Reorganized Debtors may contest the amount and validity of any Disputed Claim in the ordinary course of business in the manner and venue in which such Claim would have been determined, resolved or adjudicated if the Chapter 11 Cases had not been commenced.

 

2.Disallowance of Certain Claims

 

Any Holders of Claims disallowed pursuant to section 502(d) of the Bankruptcy Code, unless and until expressly Allowed pursuant to this Plan, shall not receive any distributions on account of such Claims until such time as such Causes of Action against that Holder have been settled or a Final Order of the Bankruptcy Court with respect thereto has been entered and all sums due, if any, to the Debtors by that Holder have been turned over or paid to the Reorganized Debtors.

 

3.Prosecution of Objections to Claims

 

After the Confirmation Date but before the Effective Date, the Debtors, and after the Effective Date, the Reorganized Debtors, in each case, shall have the authority to File objections to Claims (other than Claims that are Allowed under this Plan) and settle, compromise, withdraw or litigate to judgment objections to any and all such Claims, regardless of whether such Claims are in an Unimpaired Class or otherwise; provided, however, this provision shall not apply to Professional Fee Claims, which may be objected to by any party-in-interest in these Chapter 11 Cases. From and after the Effective Date, the Reorganized Debtors may settle or compromise any Disputed Claim without any further notice to or action, order or approval of the Bankruptcy Court. The Reorganized Debtors shall have the sole authority to administer and adjust the Claims Register and their respective books and records to reflect any such settlements or compromises without any further notice to or action, order or approval of the Bankruptcy Court.

 

4.Claims Estimation

 

After the Confirmation Date but before the Effective Date, the Debtors, and after the Effective Date, the Reorganized Debtors may at any time request that the Bankruptcy Court estimate any Disputed Claim or contingent or unliquidated Claim pursuant to applicable law, including, without limitation, section 502(c) of the Bankruptcy Code, and the Bankruptcy Court shall retain jurisdiction under 28 U.S.C. § 1334 to estimate any such Claim, whether for allowance or to determine the maximum amount of such Claim, including during the litigation concerning any objection to any Claim or during the pendency of any appeal relating to any such objection. All of the aforementioned Claims objection, estimation and resolution procedures are cumulative and not exclusive of one another. Claims may be estimated and subsequently compromised, settled, withdrawn or resolved by any mechanism approved by the Bankruptcy Court. The rights and objections of all parties are reserved in connection with any such estimation.

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5.No Filings of Proofs of Claim

 

Except as otherwise provided in this Plan, Holders of Claims, including the Prepetition RBL Agent with respect to the Prepetition RBL Claims and the Prepetition Term Loan Agent with respect to the Prepetition Term Loan Claims, will not be required to File a proof of Claim, and except as provided in this Plan, no parties should File a proof of Claim. The Debtors do not intend to object in the Bankruptcy Court to the allowance of Claims Filed; provided, however, that the Debtors and the Reorganized Debtors, as applicable, reserve the right to object to any Claim that is entitled, or deemed to be entitled, to a distribution under this Plan or is rendered Unimpaired under this Plan. Instead, the Debtors intend to make distributions, as required by this Plan, in accordance with the books and records of the Debtors. Unless disputed by a Holder of a Claim, the amount set forth in the books and records of the Debtors will constitute the amount of the Allowed Claim of such Holder. If any such Holder of a Claim disagrees with the Debtors’ books and records with respect to the Allowed amount of such Holder’s Claim, such Holder must so advise the Debtors in writing within forty-five (45) calendar days after the occurrence of the Effective Date, in which event the Claim will become a Disputed Claim. The Debtors intend to attempt to resolve any such disputes consensually or through judicial means outside the Bankruptcy Court. Nevertheless, the Debtors may, in their discretion, File with the Bankruptcy Court (or any other court of competent jurisdiction) an objection to the allowance of any Claim or any other appropriate motion or adversary proceeding with respect thereto. All such objections will be litigated to Final Order; provided, however, that the Debtors may compromise, settle, withdraw, or resolve by any other method approved by the Bankruptcy Court any objections to Claims.

 

B.No Distributions Pending Allowance

 

Notwithstanding any other provision of this Plan to the contrary, no payments or distributions of any kind or nature shall be made with respect to all or any portion of a Disputed Claim unless and until all objections to such Disputed Claim have been settled or withdrawn or have been determined by Final Order, and the Disputed Claim has become Allowed pursuant to a Final Order.

 

C.Distributions on Account of Disputed Claims Once They Are Allowed and Additional Distributions on Account of Previously Allowed Claims

 

The Reorganized Debtors or other applicable Distribution Agent shall make distributions on account of any Disputed Claim that has become Allowed after the Effective Date at such time that such Claim becomes Allowed (or as soon as reasonably practicable thereafter). Such distributions will be made pursuant to the applicable provisions of Article VII of this Plan.

 

D.Reserve for Disputed Claims

 

The Debtors (with the consent of the Required Consenting Term Lenders), the Reorganized Debtors, and the Distribution Agent may, in their respective sole discretion, establish such appropriate reserves for Disputed Claims in the applicable Class(es) as it determines necessary and appropriate. Without limiting the foregoing, reserves (if any) for Disputed Claims shall equal, as applicable, an amount of Cash or Plan Securities equal to 100% of distributions to which Holders of Disputed Claims in each applicable Class would otherwise be entitled under this Plan as of such date if such Disputed Claims were Allowed based on the Debtors’ books and records; provided, however, that the Debtors and the Reorganized Debtors, as applicable, shall have the right to file a motion seeking to estimate any Disputed Claims.

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Article IX.

CONDITIONS PRECEDENT TO CONFIRMATION
AND CONSUMMATION OF THE PLAN

 

A.Conditions Precedent to Confirmation

 

It shall be a condition to Confirmation of this Plan that the following conditions shall have been satisfied or waived pursuant to the provisions of Article IX.C hereof:

 

1.      This Plan and the Restructuring Documents shall be in form and substance consistent in all material respects with the Restructuring Support Agreement (to the extent applicable) and otherwise in form and substance acceptable to the Debtors, the Prepetition RBL Agent and the Required Consenting Term Lenders; and

 

2.      The Confirmation Order shall have been entered by the Bankruptcy Court.

 

B.Conditions Precedent to Consummation

 

It shall be a condition to Consummation of this Plan that the following conditions shall have been satisfied or waived pursuant to the provisions of Article IX.C hereof.

 

1.      The Confirmation Order shall have been entered by the Bankruptcy Court and shall not have been reversed, stayed, amended, modified, dismissed, vacated, or reconsidered;

 

2.      The Bankruptcy Court shall have entered one or more Final Orders (which may include the Confirmation Order) authorizing the assumption, assumption and assignment and/or rejection of the Executory Contracts and Unexpired Leases by the Debtors as contemplated in this Plan and the Plan Supplement;

 

3.      This Plan, the Disclosure Statement and the other Restructuring Documents, and all other documents contained in any supplement to this Plan, including any exhibits, schedules, amendments, modifications, or supplements thereto or other documents contained therein, shall be in full force and effect and shall contain terms and conditions consistent in all material respects with the Restructuring Support Agreement, and, as applicable, the Exit Debt Commitment Letter, and in each case the exhibits attached thereto;

 

4.      The Exit Facilities Loan Documents shall be executed (or deemed to be executed) and delivered and shall be in full force and effect and the Exit Facilities shall be consummated concurrently with the Effective Date (with all conditions precedent (other than any conditions related to the Effective Date or certification by the Debtors that the Effective Date has occurred) to the effectiveness of the Exit Facilities having been satisfied or waived);

 

5.      This Plan and the Restructuring Documents shall not have been amended or modified other than in a manner consistent in all material respects with the Restructuring Support Agreement (to the extent applicable), and otherwise in form and substance reasonably acceptable to the Debtors, the Prepetition RBL Agent, and the Required Consenting Term Lenders;

 

6.      All consents, actions, documents, certificates and agreements necessary to implement this Plan and the transactions contemplated by this Plan shall have been, as applicable, obtained and not otherwise subject to unfulfilled conditions, effected or executed and delivered to the required parties and, to the extent required, filed with the applicable governmental units in accordance with applicable laws, and in each case in full force and effect;

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7.      Any and all governmental, regulatory, environmental, and third party approvals and consents, including Bankruptcy Court approval, that are legally required for the consummation of the Plan shall have been obtained, not be subject to unfulfilled conditions, and be in full force and effect;

 

8.      There shall not be in effect any (a) order, opinion, ruling, or other decision entered by any court or other governmental unit or (b) U.S. or other applicable law staying, restraining, enjoining, prohibiting, or otherwise making illegal the implementation of any of the transactions contemplated by the Plan;

 

9.      The Amended/New Organizational Documents shall be in full force and effect (with all conditions precedent thereto having been satisfied or waived), subject to any applicable post-closing execution and delivery requirements;

 

10.  The New Board shall have been selected;

 

11.  The Restructuring Support Agreement shall be in full force and effect and shall not have been terminated in accordance with its terms;

 

12.  The DIP Facility shall remain in full force and effect and shall not have been terminated;

 

13.  The DIP Facility shall have been fully drawn and funded, including all Initial Term Loan Commitments, the Plan Effective Date Term Loan Commitments, and the Case Extension Commitments (if applicable) (each as defined in the DIP Credit Agreement);

 

14.  Subject to entry of the Final DIP Order, all obligations for loans advanced under the Prepetition RBL Facility from January 6, 2021 through the Petition Date shall have been paid in full in Cash from the proceeds of the DIP Facility on the Effective Date;

 

15.  The Cash Paydown shall have been received by the Prepetition RBL Lenders;

 

16.  The Professional Fee Claim Reserve shall have been funded in full in Cash by the Debtors in accordance with the terms and conditions of this Plan; and

 

17.  To the extent invoiced, all Prepetition RBL Agent and Prepetition RBL Lenders’ Fees and Expenses and Prepetition Term Loan Agent Fees and Expenses shall have been paid in full in Cash or reserved in a manner acceptable to the Prepetition RBL Agent or the Prepetition Term Loan Agent, as applicable, (or approved by order of the Bankruptcy Court) to the extent of any disputes related thereto.

 

C.Waiver of Conditions

 

Subject to section 1127 of the Bankruptcy Code, the conditions to Confirmation and Consummation of this Plan set forth in this Article IX may be waived in writing by the Debtors, the Super-Majority RBL Lenders, and the Required Consenting Term Lenders, without notice, leave or order of the Bankruptcy Court or any formal action other than proceeding to confirm or consummate this Plan. The failure of the Debtors or Reorganized Debtors to exercise any of the foregoing rights shall not be deemed a waiver of any other rights, and each right shall be deemed an ongoing right that may be asserted at any time.

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D.Effect of Non-Occurrence of Conditions to Confirmation or Consummation

 

If the Confirmation or the Consummation of this Plan does not occur with respect to one or more of the Debtors, then this Plan shall, with respect to such applicable Debtor or Debtors, be null and void in all respects and nothing contained in this Plan or the Disclosure Statement shall: (1) constitute a waiver or release of any claims by or Claims against or Equity Interests in the Debtors; (2) prejudice in any manner the rights of the Debtors, any Holders or any other Entity; (3) constitute an Allowance of any Claim or Equity Interest; or (4) constitute an admission, acknowledgment, offer or undertaking by the Debtors, any Holders or any other Entity in any respect.

 

Article X.

RELEASE, discharge, INJUNCTION AND RELATED PROVISIONS

 

A.General

 

Pursuant to section 1123 of the Bankruptcy Code, and in consideration for the classification, distributions, releases and other benefits provided under this Plan, upon the Effective Date, the provisions of this Plan shall constitute a good faith compromise and settlement of all Claims and Equity Interests and controversies resolved pursuant to this Plan. The entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the compromise or settlement of all such Claims, Equity Interests and controversies, as well as a finding by the Bankruptcy Court that any such compromise or settlement is in the best interests of the Debtors, their Estates, and any Holders of Claims and Equity Interests and is fair, equitable and reasonable.

 

Notwithstanding anything contained herein to the contrary, the allowance, classification and treatment of all Allowed Claims and Allowed Equity Interests and their respective distributions (if any) and treatments hereunder, takes into account the relative priority and rights of the Claims and the Equity Interests in each Class in connection with any contractual, legal and equitable subordination rights relating thereto whether arising under general principles of equitable subordination, section 510 of the Bankruptcy Code or otherwise. As of the Effective Date, any and all contractual, legal and equitable subordination rights, whether arising under general principles of equitable subordination, section 510 of the Bankruptcy Code or otherwise, relating to the allowance, classification and treatment of all Allowed Claims and Allowed Equity Interests and their respective distributions (if any) and treatments hereunder, are settled, compromised, terminated and released pursuant hereto; provided, however, that nothing contained herein shall preclude any Person or Entity from exercising their rights pursuant to and consistent with the terms of this Plan and the contracts, instruments, releases, and other agreements or documents delivered under or in connection with this Plan.

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B.Release of Claims and Causes of Action

 

1.       Release by the Debtors and their Estates. Pursuant to section 1123(b) and any other applicable provisions of the Bankruptcy Code, and except as otherwise expressly provided in this Plan, effective as of the Effective Date, for good and valuable consideration provided by each of the Released Parties, the adequacy and sufficiency of which is hereby confirmed, the Debtor Releasing Parties shall be deemed to have conclusively, absolutely, unconditionally, irrevocably, and forever provided a full discharge, waiver and release to each of the Released Parties (and each such Released Party so released shall be deemed forever released, waived and discharged by the Debtor Releasing Parties) and their respective assets and properties (the “Debtor Release”) from any and all Claims, Causes of Action, Litigation Claims, and any other debts, obligations, rights, suits, damages, actions, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, liquidated or unliquidated, whether directly or derivatively held, existing as of the Effective Date or thereafter arising, in law, at equity or otherwise, whether for tort, contract, violations of federal or state securities laws, or otherwise, based in whole or in part upon any act or omission, transaction, or other occurrence or circumstances existing or taking place prior to or on the Effective Date arising from or related in any way in whole or in part to any of the Debtors or their Affiliates, including, without limitation, (i) the Chapter 11 Cases (including the filing thereof), the Disclosure Statement, this Plan (including the Plan Supplement), the Restructuring Support Agreement (and any annexes, exhibits, and term sheets attached thereto), the Prepetition RBL Facility and Prepetition RBL Loan Documents, the Prepetition Term Loan Facility and Prepetition Term Loan Documents, the DIP Facility and DIP Loan Documents, the Exit Facilities and Exit Facilities Loan Documents, the New Common Equity Interests and any related documentation, the Amended/New Organizational Documents, the Exit Debt Commitment Letter, and any other Restructuring Documents, (ii) the subject matter of, or the transactions or events giving rise to, any Claim or Equity Interest that is treated in this Plan, (iii) the business or contractual arrangements between any Debtor and any Released Parties, (iv) the negotiation, formulation or preparation of the Disclosure Statement, this Plan (including the Plan Supplement), the Restructuring Support Agreement (and any annexes, exhibits, and term sheets attached thereto), the DIP Facility and DIP Loan Documents, the Exit Facilities and Exit Facilities Loan Documents, the New Common Equity Interests and any related documentation, the Amended/New Organizational Documents, the Exit Debt Commitment Letter, and any other Restructuring Documents, or related agreements, instruments or other documents, (v) the restructuring of Claims or Equity Interests prior to or during the Chapter 11 Cases, (vi) the purchase, sale, or rescission of the purchase or sale of any Equity Interest or Plan Securities of the Debtors or the Reorganized Debtors, and/or (vii) the Confirmation or Consummation of this Plan or the solicitation of votes on this Plan, that such Debtor Releasing Party would have been legally entitled to assert (whether individually or collectively) or that any Holder of a Claim or Equity Interest or other Person or Entity would have been legally entitled to assert for, or on behalf or in the name of, any Debtor, its respective Estate or any Reorganized Debtor (whether directly or derivatively) against any of the Released Parties; provided, however, that the foregoing provisions of this Debtor Release shall not operate to waive or release (A) the rights of such Debtor Releasing Party to enforce this Plan and the contracts, instruments, releases, and other agreements or documents delivered under or in connection with this Plan (including, without limitation, the Exit Facilities and Exit Facilities Loan Documents) or assumed or assumed and assigned, as applicable, pursuant to this Plan or pursuant to a Final Order of the Bankruptcy Court and (B) claims or liabilities arising out of or relating to any act or omission of a Released Party that constitutes actual fraud, willful misconduct, or gross negligence, in each case as determined by Final Order of the Bankruptcy Court or any other court of competent jurisdiction. The foregoing release shall be effective as of the Effective Date without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule or the vote, consent, authorization or approval of any Person or Entity and the Confirmation Order shall permanently enjoin the commencement or prosecution by any Person or Entity, whether directly, derivatively or otherwise, of any claims, obligations, suits, judgments, damages, demands, debts, rights, Causes of Action, or liabilities released pursuant to this Debtor Release. Notwithstanding the foregoing, nothing in this Article X.B shall or shall be deemed to (i) prohibit the Debtors or the Reorganized Debtors from asserting and enforcing any claims, obligations, suits, judgments, demands, debts, rights, Causes of Action or liabilities they may have against any Person or Entity that is based upon an alleged breach of a confidentiality or non-compete obligation owed to the Debtors or the Reorganized Debtors and/or (ii) operate as a release or waiver of any Intercompany Claims or any obligations of any Entity arising after the Effective Date under the Exit Facilities or Exit Facilities Loan Documents, or any document, instrument or agreement set forth in the Plan Supplement, in each case unless otherwise expressly provided for in this Plan.

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Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval, pursuant to Bankruptcy Rule 9019, of the Debtor Release, which includes by reference each of the related provisions and definitions contained herein, and further, shall constitute the Bankruptcy Court’s finding that the Debtor Release is: (i) in exchange for the good and valuable consideration provided by the Released Parties; (ii) a good faith settlement and compromise of the Claims released by the Debtor Release; (iii) in the best interest of the Debtors and their Estates; (iv) fair, equitable and reasonable; (v) given and made after due notice and opportunity for hearing; and (vi) a bar to any of the Debtor Releasing Parties asserting any claim or Cause of Action released pursuant to the Debtor Release.

 

2.       Release By Third Parties. Except as otherwise expressly provided in this Plan, effective as of the Effective Date, to the fullest extent permitted by applicable law, for good and valuable consideration provided by each of the Released Parties, the adequacy and sufficiency of which is hereby confirmed, and without limiting or otherwise modifying the scope of the Debtor Release provided by the Debtor Releasing Parties above, each Non-Debtor Releasing Party shall be deemed to have conclusively, absolutely, unconditionally, irrevocably, and forever provided a full discharge, waiver and release to each of the Released Parties (and each such Released Party so released shall be deemed forever released, waived and discharged by the Non-Debtor Releasing Parties) and their respective assets and properties (the “Third Party Release”) from any and all Claims, Causes of Action, Litigation Claims, and any other debts, obligations, rights, suits, damages, actions, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, liquidated or unliquidated, whether directly or derivatively held, existing as of the Effective Date or thereafter arising, in law, at equity or otherwise, whether for tort, contract, violations of federal or state securities laws, or otherwise, based in whole or in part upon any act or omission, transaction, or other occurrence or circumstances existing or taking place prior to or on the Effective Date arising from or related in any way in whole or in part to any of the Debtors or their Affiliates, including, without limitation, (i) the Chapter 11 Cases (including the filing thereof), the Disclosure Statement, this Plan (including the Plan Supplement), the Restructuring Support Agreement (and any annexes, exhibits, and term sheets attached thereto), the Prepetition RBL Facility and Prepetition RBL Loan Documents, the Prepetition Term Loan Facility and Prepetition Term Loan Documents, the DIP Facility and DIP Loan Documents, the Exit Facilities and Exit Facilities Loan Documents, the New Common Equity Interests and any related documentation, the Amended/New Organizational Documents, the Exit Debt Commitment Letter, and any other Restructuring Documents, (ii) the subject matter of, or the transactions or events giving rise to, any Claim or Equity Interest that is treated in this Plan, (iii) the business or contractual arrangements between any Debtor and any Released Parties, (iv) the negotiation, formulation or preparation of the Disclosure Statement, this Plan (including the Plan Supplement), the Restructuring Support Agreement (and any annexes, exhibits, and term sheets attached thereto), the DIP Facility and DIP Loan Documents, the Exit Facilities and Exit Facilities Loan Documents, the New Common Equity Interests and any related documentation, the Amended/New Organizational Documents, the Exit Debt Commitment Letter, and any other Restructuring Documents, or related agreements, instruments or other documents, (v) the restructuring of Claims or Equity Interests prior to or during the Chapter 11 Cases, (vi) the purchase, sale, or rescission of the purchase or sale of any Equity Interest or Plan Securities of the Debtors or the Reorganized Debtors, and/or (vii) the Confirmation or Consummation of this Plan or the solicitation of votes on this Plan that such Non-Debtor Releasing Party would have been legally entitled to assert (whether individually or collectively) against any of the Released Parties; provided, however, that the foregoing provisions of this Third Party Release shall not operate to waive or release (A) the rights of such Non-Debtor Releasing Party to enforce this Plan and the contracts, instruments, releases, and other agreements or documents delivered under or in connection with this Plan (including, without limitation, the Exit Facilities and Exit Facilities Loan Documents) or assumed or assumed and assigned, as applicable, pursuant to this Plan or pursuant to a Final Order of the Bankruptcy Court and (B) claims or liabilities arising out of or relating to any act or omission of a Released Party that constitutes actual fraud, willful misconduct, or gross negligence, in each case as determined by Final Order of the Bankruptcy Court or any other court of competent jurisdiction. The foregoing release shall be effective as of the Effective Date without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule or the vote, consent, authorization or approval of any Person or Entity and the Confirmation Order shall permanently enjoin the commencement or prosecution by any Person or Entity, whether directly, derivatively or otherwise, of any claims, obligations, suits, judgments, damages, demands, debts, rights, Causes of Action, or liabilities released pursuant to this Third Party Release.

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Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the Third Party Release, which includes by reference each of the related provisions and definitions contained herein, and further, shall constitute the Bankruptcy Court’s finding that the Third Party Release is: (i) consensual; (ii) essential to confirmation of this Plan; (iii) in exchange for the good and valuable consideration provided by the Released Parties; (iv) a good faith settlement and compromise of the Claims released by the Third Party Release; (v) in the best interest of the Debtors, their Estates, and all Holders of Claims and Equity Interests; (vi) fair, equitable and reasonable; (vii) given and made after due notice and opportunity for hearing; and (viii) a bar to any of the Releasing Parties asserting any claim or Cause of Action released pursuant to the Third Party Release.

 

C.Waiver of Statutory Limitations on Releases

 

Each of the Releasing Parties in each of the releases contained above expressly acknowledges that although ordinarily a general release may not extend to Claims which the Releasing Party does not know or suspect to exist in its favor, which if known by it may have materially affected its settlement with the party released, they have carefully considered and taken into account in determining to enter into the above releases the possible existence of such unknown losses or claims. Without limiting the generality of the foregoing, each Releasing Party expressly waives any and all rights conferred upon it by any statute or rule of law which provides that a release does not extend to claims which the claimant does not know or suspect to exist in its favor at the time of providing the release, which if known by it may have materially affected its settlement with the released party. The releases contained in this Plan are effective regardless of whether those released matters are presently known, unknown, suspected or unsuspected, foreseen or unforeseen.

 

D.Discharge of Claims and Equity Interests

 

To the fullest extent provided under section 1141(d)(1)(A) and other applicable provisions of the Bankruptcy Code, except as otherwise expressly provided by this Plan (including, without limitation, Articles V.D and V.E of this Plan) or the Confirmation Order, effective as of the Effective Date, all consideration distributed under this Plan shall be in exchange for, and in complete satisfaction, settlement, discharge, and release of, all Claims, Equity Interests and Causes of Action of any kind or nature whatsoever against the Debtors or any of their respective assets or properties, including any interest accrued on such Claims or Equity Interests from and after the Petition Date, and regardless of whether any property shall have been distributed or retained pursuant to this Plan on account of such Claims, Equity Interests or Causes of Action.

 

Except as otherwise expressly provided by this Plan (including, without limitation, Articles V.D and V.E of this Plan) or the Confirmation Order, upon the Effective Date, the Debtors and their Estates shall be deemed discharged and released under and to the fullest extent provided under sections 524 and 1141(d)(1)(A) and other applicable provisions of the Bankruptcy Code from any and all Claims of any kind or nature whatsoever, including, but not limited to, demands and liabilities that arose before the Confirmation Date, and all debts of the kind specified in sections 502(g), 502(h), or 502(i) of the Bankruptcy Code. Such discharge shall void any judgment obtained against the Debtors or the Reorganized Debtors at any time, to the extent that such judgment relates to a discharged Claim.

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Except as otherwise expressly provided by this Plan (including, without limitation, Articles V.D and V.E of this Plan) or the Confirmation Order, upon the Effective Date: (i) the rights afforded herein and the treatment of all Claims and Equity Interests shall be in exchange for and in complete satisfaction, settlement, discharge, and release of all Claims and Equity Interests of any nature whatsoever, including any interest accrued on such Claims from and after the Petition Date, against the Debtors or any of their respective assets, property, or Estates; (ii) all Claims and Equity Interests shall be satisfied, discharged, and released in full, and each of the Debtor’s liability with respect thereto shall be extinguished completely without further notice or action; and (iii) all Entities shall be precluded from asserting against the Debtors, the Estates, the Reorganized Debtors, each of their respective successors and assigns, and each of their respective assets and properties, any such Claims or Equity Interests, whether based upon any documents, instruments or any act or omission, transaction, or other activity of any kind or nature that occurred prior to the Effective Date or otherwise.

 

E.Exculpation

 

Effective as of the Effective Date, to the fullest extent permitted by applicable law, the Exculpated Parties shall neither have nor incur any liability to any Person or Entity for any claims or Causes of Action arising prior to or on the Effective Date for any act taken or omitted to be taken in connection with, or related to, the Chapter 11 Cases (including the filing thereof), the formulating, negotiating, preparing, disseminating, implementing, administering, confirming or effecting the Confirmation or Consummation of this Plan (including the Plan Supplement), the Disclosure Statement, the Restructuring Support Agreement and related transactions, the Restructuring Documents, the Prepetition RBL Facility and Prepetition RBL Loan Documents, the Prepetition Term Loan Facility and Prepetition Term Loan Documents, the DIP Facility and DIP Loan Documents, the Exit Facilities and Exit Facilities Loan Documents, the New Common Equity Interests and any related documentation, the Amended/New Organizational Documents, the Exit Debt Commitment Letter, or any contract, instrument, release or other agreement or document created or entered into in connection with this Plan or any other prepetition or postpetition act taken or omitted to be taken in connection with or in contemplation of the restructuring of the Debtors, the approval of the Disclosure Statement or Confirmation or Consummation of this Plan; provided, however, that the foregoing provisions of this exculpation shall not operate to waive or release: (i) any Causes of Action arising from willful misconduct, actual fraud, or gross negligence of such applicable Exculpated Party as determined by Final Order of the Bankruptcy Court or any other court of competent jurisdiction and/or (ii) the rights of any Person or Entity to enforce this Plan and the contracts, instruments, releases, and other agreements and documents delivered under or in connection with this Plan (including, without limitation, the Exit Facilities and Exit Facilities Loan Documents) or assumed pursuant to this Plan or assumed pursuant to Final Order of the Bankruptcy Court; provided, further, that each Exculpated Party shall be entitled to rely upon the advice of counsel concerning its respective duties pursuant to, or in connection with, the above referenced documents, actions or inactions. The foregoing exculpation shall be effective as of the Effective Date without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule or the vote, consent, authorization or approval of any Person or Entity. Notwithstanding the foregoing, nothing in this Article X.E shall or shall be deemed to prohibit the Debtors or the Reorganized Debtors from asserting and enforcing any claims, obligations, suits, judgments, demands, debts, rights, Causes of Action, or liabilities they may have against any Person or Entity that is based upon an alleged breach of a confidentiality or non-compete obligation owed to the Debtors or the Reorganized Debtors, in each case unless otherwise expressly provided for in this Plan.

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F.Preservation of Causes of Action

 

1.      Maintenance of Causes of Action

 

Except as otherwise provided in this Article X (including, without limitation, and for the avoidance of doubt, the Releases contained in Article X.B and Exculpation contained in Article X.E hereof) or elsewhere in this Plan or the Confirmation Order, after the Effective Date, the Reorganized Debtors shall retain all rights to commence, pursue, litigate or settle, as appropriate, any and all Litigation Claims, whether existing as of the Petition Date or thereafter arising, in any court or other tribunal including, without limitation, in an adversary proceeding Filed in the Chapter 11 Cases. The Reorganized Debtors, as the successors-in-interest to the Debtors and the Estates, may, and shall have the exclusive right to, enforce, sue on, settle, compromise, transfer or assign (or decline to do any of the foregoing) any or all of such Litigation Claims without notice to or approval from the Bankruptcy Court.

 

2.      Preservation of All Causes of Action Not Expressly Settled or Released

 

The Debtors expressly reserve all Causes of Action and Litigation Claims for later adjudication by the Debtors or the Reorganized Debtors (including, without limitation, Causes of Action and Litigation Claims not specifically identified or of which the Debtors may presently be unaware or which may arise or exist by reason of additional facts or circumstances unknown to the Debtors at this time or facts or circumstances that may change or be different from those the Debtors now believe to exist) and, therefore, no preclusion doctrine, including, without limitation, the doctrines of res judicata, collateral estoppel, issue preclusion, claim preclusion, waiver, estoppel (judicial, equitable or otherwise) or laches shall apply to such Causes of Action or Litigation Claims upon or after the Confirmation or Consummation of this Plan based on the Disclosure Statement, this Plan or the Confirmation Order, except in each case where such Causes of Action or Litigation Claims have been expressly waived, relinquished, released, compromised or settled in this Plan (including, without limitation, and for the avoidance of doubt, the Releases contained in Article X.B and Exculpation contained in Article X.E hereof) or any other Final Order (including, without limitation, the Confirmation Order). In addition, the Debtors and the Reorganized Debtors expressly reserve the right to pursue or adopt any claims alleged in any lawsuit in which any of the Debtors are a plaintiff, defendant or an interested party, against any Person or Entity, including, without limitation, the plaintiffs or co-defendants in such lawsuits.

 

G.Injunction

 

except as otherwise EXPRESSLY provided in this Plan OR THE Confirmation Order, FROM AND AFTER THE EFFECTIVE DATE, All PERSONS AND Entities ARE, To the fullest extent provided under section 524 and other applicable provisions of the Bankruptcy Code, PERMANENTLY ENJOINED FROM (i) commencing or continuing, in any manner or in any place, any suit, ACTION or other proceeding; (ii) enforcing, attaching, collecting, or recovering in any manner any judgment, award, decree, or order; (iii) creating, perfecting, or enforcing any Lien or encumbrance of any kind; (Iv) asserting a setoff OR right of subrogation or recoupment of any kind; OR (V) COMMENCING OR CONTINUING IN ANY MANNER ANY ACTION OR OTHER PROCEEDING OF ANY KIND, IN EACH CASE ON ACCOUNT OF OR with RESPECT to ANY CLAIM, DEMAND, LIABILITY, OBLIGATION, DEBT, RIGHT, Cause of action, equity interest, or remedy released or to be released, exculpated or to be exculpated, settled or to be settled or discharged or to be discharged pursuant to this Plan or the confirmation order against any PERSON OR entity so released, discharged, or exculpated (or the property or estate of any PERSON OR entity so released, discharged, or exculpated). All injunctions or stays provided for in the Chapter 11 Cases under section 105 or section 362 of the Bankruptcy Code, or otherwise, and in existence on the Confirmation Date, shall remain in full force and effect until the Effective Date.

 51

 

H.Binding Nature Of Plan

 

on the effective date, and effective as of the effective date, This plan shall bind, AND SHALL BE DEEMED BINDING UPON, the DEBTORS, the Reorganized Debtors, any and all holders of claims AGAINST and Equity Interests IN THE DEBTORS, all PERSONS AND entities that are parties to or are subject to the settlements, compromises, releases, EXCULPATIONS, discharges, and injunctions described in this plan, each PERSON AND entity acquiring property under this plan, any and all non-debtor parties to executory contracts and unexpired leases with the debtors AND the RESPECTIVE SUCCESSORS AND ASSIGNS of each of the foregoing, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING WHETHER OR NOT SUCH PERSON OR entity (I) SHALL RECEIVE OR RETAIN ANY PROPERTY, OR INTEREST IN PROPERTY, UNDER THIS PLAN, (II) HAS FILED A pROOF OF CLAIM OR INTEREST IN THE CHAPTER 11 CASES OR (III) FAILED TO VOTE TO ACCEPT OR REJECT THIS PLAN, AFFIRMATIVELY VOTED TO REJECT THIS PLAN or is conclusively presumed to REJECT THIS PLAN.

 

I.Protection Against Discriminatory Treatment

 

To the extent provided by section 525 of the Bankruptcy Code and the Supremacy Clause of the United States Constitution, all Persons and Entities, including Governmental Units, shall not discriminate against the Reorganized Debtors or deny, revoke, suspend or refuse to renew a license, permit, charter, franchise or other similar grant to, condition such a grant to, discriminate with respect to such a grant, against the Reorganized Debtors, or another Person or Entity with whom the Reorganized Debtors have been associated, solely because any Debtor has been a debtor under chapter 11 of the Bankruptcy Code, has been insolvent before the commencement of the Chapter 11 Cases (or during the Chapter 11 Cases but before the Debtors are granted or denied a discharge) or has not paid a debt that is dischargeable in the Chapter 11 Cases.

 

J.Integral Part of Plan

 

Each of the provisions set forth in this Plan with respect to the settlement, release, discharge, exculpation, injunction, indemnification and insurance of, for or with respect to Claims and/or Causes of Action are an integral part of this Plan and essential to its implementation. Accordingly, each Entity that is a beneficiary of such provision shall have the right to independently seek to enforce such provision and such provision may not be amended, modified, or waived after the Effective Date without the prior written consent of such beneficiary.

 52

 

Article XI.

RETENTION OF JURISDICTION

 

Pursuant to sections 105(c) and 1142 of the Bankruptcy Code and notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date, the Bankruptcy Court shall, on and after the Effective Date, retain exclusive jurisdiction over the Chapter 11 Cases and all Entities with respect to all matters related to the Chapter 11 Cases, the Debtors and this Plan as legally permissible, including, without limitation, jurisdiction to:

 

1.      allow, disallow, determine, liquidate, classify, estimate or establish the priority or secured or unsecured status of any Claim or Equity Interest, including, without limitation, the resolution of any request for payment of any Administrative Claim and the resolution of any and all objections to the allowance or priority of any such Claim or Equity Interest;

 

2.      grant or deny any applications for allowance of compensation or reimbursement of expenses authorized pursuant to the Bankruptcy Code or this Plan, for periods ending on or before the Effective Date; provided, however, that, from and after the Effective Date, the Reorganized Debtors shall pay Professionals in the ordinary course of business for any work performed after the Effective Date and such payment shall not be subject to the approval of the Bankruptcy Court;

 

3.      resolve any matters related to the assumption, assignment or rejection of any Executory Contract or Unexpired Lease and to adjudicate and, if necessary, liquidate, any Claims arising therefrom, including, without limitation, those matters related to any amendment to this Plan after the Effective Date to add Executory Contracts or Unexpired Leases to the list of Executory Contracts and Unexpired Leases to be assumed or rejected (as applicable);

 

4.      resolve any issues related to any matters adjudicated in the Chapter 11 Cases;

 

5.      ensure that distributions to Holders of Allowed Claims are accomplished pursuant to the provisions of this Plan;

 

6.      decide or resolve any motions, adversary proceedings, contested or litigated matters and any other Causes of Action that are pending as of the Effective Date or that may be commenced in the future, and grant or deny any applications involving the Debtors that may be pending on the Effective Date or instituted by the Reorganized Debtors after the Effective Date, provided, however that the Reorganized Debtors shall reserve the right to commence actions in all appropriate forums and jurisdictions;

 

7.      enter such orders as may be necessary or appropriate to implement or consummate the provisions of this Plan and all other contracts, instruments, releases, indentures and other agreements or documents adopted in connection with this Plan, the Plan Supplement or the Disclosure Statement;

 

8.      resolve any cases, controversies, suits or disputes that may arise in connection with the Consummation, interpretation or enforcement of this Plan or any Person’s or Entity’s obligations incurred in connection with this Plan;

 

9.      hear and determine all Causes of Action that are pending as of the Effective Date or that may be commenced in the future;

 

10.    issue injunctions and enforce them, enter and implement other orders or take such other actions as may be necessary or appropriate to restrain interference by any Person or Entity with Consummation or enforcement of this Plan;

 

11.    enforce the terms and conditions of this Plan, the Confirmation Order, and the Restructuring Documents;

 53

 

12.    resolve any cases, controversies, suits or disputes with respect to the Release, the Exculpation, the indemnification and other provisions contained in Article X hereof and enter such orders or take such others actions as may be necessary or appropriate to implement or enforce all such provisions;

 

13.    hear and determine all Litigation Claims;

 

14.    enter and implement such orders or take such other actions as may be necessary or appropriate if the Confirmation Order is modified, stayed, reversed, revoked or vacated;

 

15.    resolve any other matters that may arise in connection with or relate to this Plan, the Disclosure Statement, the Confirmation Order or any release or exculpation adopted in connection with this Plan; and

 

16.    enter an order concluding or closing the Chapter 11 Cases.

 

Notwithstanding the foregoing, (i) any dispute arising under or in connection with the Exit Facilities, the Amended/New Organizational Documents and the New Stockholders Agreement shall be dealt with in accordance with the provisions of the applicable document and (ii) if the Bankruptcy Court abstains from exercising, or declines to exercise, jurisdiction or is otherwise without jurisdiction over any matter arising in, arising under, or related to the Chapter 11 Cases, including the matters set forth in this Article of this Plan, the provisions of this Article XI shall have no effect upon and shall not control, prohibit, or limit the exercise of jurisdiction by any other court having jurisdiction with respect to such matter.

 

Article XII.

MISCELLANEOUS PROVISIONS

 

A.Substantial Consummation

 

“Substantial Consummation” of this Plan, as defined in 11 U.S.C. § 1101(2), shall be deemed to occur on the Effective Date.

 

B.Payment of Statutory Fees; Post-Effective Date Fees and Expenses

 

All fees due and payable pursuant to section 1930 of title 28 of the United States Code prior to the Effective Date shall be paid by the Debtors. On and after the Effective Date, the Reorganized Debtors shall pay any and all such fees when due and payable, and shall file with the Bankruptcy Court quarterly reports in a form reasonably acceptable to the United States Trustee. Each Debtor shall remain obligated to pay quarterly fees to the Office of the United States Trustee until the earliest of that particular Debtor’s case being closed, dismissed, or converted to a case under chapter 7 of the Bankruptcy Code.

 

The Reorganized Debtors shall pay the liabilities and charges that they incur on or after the Effective Date for Professionals’ fees, disbursements, expenses, or related support services (including reasonable fees, costs and expenses incurred by Professionals relating to the preparation of interim and final fee applications and obtaining Bankruptcy Court approval thereof) in the ordinary course of business and without application or notice to, or order of, the Bankruptcy Court, including, without limitation, the reasonable fees, expenses, and disbursements of the Distribution Agents and the fees, costs and expenses incurred by Professionals in connection with the implementation, enforcement and Consummation of this Plan and the Restructuring Documents.

 54

 

C.Conflicts

 

In the event that a provision of the Restructuring Documents or the Disclosure Statement (including any and all exhibits and attachments thereto) conflicts with a provision of this Plan or the Confirmation Order, the provision of this Plan and the Confirmation Order (as applicable) shall govern and control to the extent of such conflict. In the event that a provision of this Plan conflicts with a provision of the Confirmation Order, the provision of the Confirmation Order shall govern and control to the extent of such conflict.

 

D.Modification of Plan

 

Effective as of the date hereof and subject to the limitations and rights contained in this Plan: (a) the Debtors reserve the right, in accordance with the Bankruptcy Code and the Bankruptcy Rules, to amend or modify this Plan prior to the entry of the Confirmation Order in a way that is in form and substance consistent in all respects with the Restructuring Support Agreement and otherwise in form and substance acceptable to the Prepetition RBL Agent and the Required Consenting Term Lenders, in accordance with section 1127(a) of the Bankruptcy Code; and (b) after the entry of the Confirmation Order, the Debtors or the Reorganized Debtors, as applicable, may, upon order of the Bankruptcy Court, amend or modify this Plan in a way that is in form and substance consistent in all respects with the Restructuring Support Agreement and otherwise acceptable to the Prepetition RBL Agent and the Required Consenting Term Lenders, in accordance with section 1127(b) of the Bankruptcy Code or to remedy any defect or omission or reconcile any inconsistency in this Plan in such manner as may be necessary to carry out the purpose and intent of this Plan. A Holder of a Claim that has accepted this Plan shall be deemed to have accepted this Plan, as altered, amended or modified, if the proposed alteration, amendment or modification does not materially and adversely change the treatment of the Claim of such Holder.

 

E.Revocation or Withdrawal of Plan

 

The Debtors reserve the right to revoke or withdraw this Plan prior to the Effective Date and/or to File subsequent chapter 11 plans with respect to one or more of the Debtors. If the Debtors revoke or withdraw this Plan, or if Confirmation or Consummation of this Plan does not occur with respect to one or more of the Debtors, then with respect to the applicable Debtor or Debtors for which this Plan was revoked or withdrawn or for which Confirmation or Consummation of this Plan did not occur: (1) this Plan shall be null and void in all respects; (2) any settlement or compromise embodied in this Plan, assumption or rejection of Executory Contracts or Unexpired Leases effected by this Plan and any document or agreement executed pursuant hereto shall be deemed null and void except as may be set forth in a separate order entered by the Bankruptcy Court; and (3) nothing contained in this Plan shall: (a) constitute a waiver or release of any Claims by or against, or any Equity Interests in, the applicable Debtors or any other Entity; (b) prejudice in any manner the rights of the applicable Debtors or any other Entity; or (c) constitute an admission, acknowledgement, offer or undertaking of any sort by the applicable Debtors or any other Entity.

 

F.Successors and Assigns

 

This Plan shall be binding upon and inure to the benefit of the Debtors, the Reorganized Debtors, all present and former Holders of Claims and Equity Interests, other parties-in-interest, and their respective heirs, executors, administrators, successors, and assigns. The rights, benefits, and obligations of any Person or Entity named or referred to in this Plan shall be binding on, and shall inure to the benefit of, any heir, executor, administrator, successor, or assign of such Person or Entity.

 55

 

G.Reservation of Rights

 

Except as expressly set forth herein, this Plan shall have no force or effect unless and until the Bankruptcy Court enters the Confirmation Order and this Plan is Consummated. Neither the filing of this Plan, any statement or provision contained herein, nor the taking of any action by the Debtors or any other Entity with respect to this Plan shall be or shall be deemed to be an admission or waiver of any rights of: (1) the Debtors with respect to the Holders of Claims or Equity Interests or other Entity; or (2) any Holder of a Claim or an Equity Interest or other Entity prior to the Effective Date.

 

H.Further Assurances

 

The Debtors or the Reorganized Debtors, as applicable, all Holders of Claims receiving distributions hereunder and all other Entities shall, from time to time, prepare, execute and deliver any agreements or documents and take any other actions as may be necessary or advisable to effectuate the provisions and intent of this Plan or the Confirmation Order.

 

I.Severability

 

If, prior to the Confirmation Date, any term or provision of this Plan is determined by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court shall have the power to alter and interpret such term or provision to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted. Notwithstanding any such holding, alteration or interpretation, the remainder of the terms and provisions of this Plan shall remain in full force and effect and shall in no way be affected, impaired, or invalidated by such holding, alteration, or interpretation. The Confirmation Order shall constitute a judicial determination and shall provide that each term and provision of this Plan, as it may have been altered or interpreted in accordance with the foregoing, is valid and enforceable pursuant to its terms.

 

J.Service of Documents

 

Any notice, direction or other communication given regarding the matters contemplated by this Plan (each, a “Notice”) must be in writing, sent by personal delivery, electronic mail, courier or facsimile and addressed as follows:

 

If to the Debtors:
 

Sundance Energy Inc.

1050 17th Street, Suite 700

Denver, CO 80265

Attn: Eric McCrady

Telephone: (303) 543-5700

Email: EMcCrady@sundanceenergy.net

 56

 

with a copy to:

 

Latham & Watkins LLP

885 Third Avenue

New York, NY 10022

Attn:   David A. Hammerman

            Keith A. Simon

            Annemarie V. Reilly

            Jeffrey T. Mispagel

Telephone: (212) 906-1200

Fax: (212) 751-4864

Email: david.hammerman@lw.com  

            keith.simon@lw.com

            annemarie.reilly@lw.com

            jeffrey.mispagel@lw.com

 

-and-

 

Hunton Andrews Kurth LLP

600 Travis Street, Suite 4200

Houston, TX 77002

Attn:  Timothy A. (“Tad”) Davidson II

           Ashley L. Harper

           Philip M. Guffy

Telephone: (713) 220-4200

Fax: (713) 220-4285

Email: taddavidson@HuntonAK.com

ashleyharper@HuntonAK.com

pguffy@HuntonAK.com

 
If to the Prepetition RBL Agent:
 

Haynes and Boone, LLP

2323 Victory Avenue, Suite 700

Dallas, TX 75219

Attn:   J. Frasher Murphy

            Eli Columbus

Telephone: (214) 651-5000

Fax: (214) 651-5940

Email:    Frasher.Murphy@haynesboone.com

   Eli.Columbus@haynesboone.com

 57

 

If to the Prepetition Term Loan Agent:
 

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, NY 10017

Attn:  Michael H. Torkin

           David Zylberberg

Telephone: (212) 455-2000

Fax: (212) 455-2502

Email:   Michael.Torkin@stblaw.com

             David.Zylberberg@stblaw.com

 

A Notice is deemed to be given and received (a) if sent by personal delivery or courier, on the date of delivery if it is a Business Day and the delivery was made prior to 4:00 p.m. (local time in place of receipt) and otherwise on the next Business Day, or (b) if sent by facsimile, on the Business Day following the date of confirmation of transmission by the originating facsimile, or (c) if sent by electronic mail, when the sender receives an email from the recipient acknowledging receipt, provided that an automatic “read receipt” does not constitute acknowledgment of an email for purposes of this Section. Any party may change its address for service from time to time by providing a Notice in accordance with the foregoing. Any element of a party’s address that is not specifically changed in a Notice shall be assumed not to be changed. Sending a copy of a Notice to the Debtors’ or Reorganized Debtors’ legal counsel as contemplated above is for information purposes only and does not constitute delivery of the Notice to that party. The failure to send a copy of a Notice to legal counsel does not invalidate delivery of that Notice to a party.

 

K.Exemption from Transfer Taxes Pursuant to Section 1146(a) of the Bankruptcy Code

 

Pursuant to and to the fullest extent permitted by section 1146(a) of the Bankruptcy Code, any issuance, transfer, or exchange of a security, or the making or delivery of an instrument of transfer of property, pursuant to or in connection with this Plan or the Restructuring Documents shall not be subject to any Stamp or Similar Tax or governmental assessment in the United States or by any other Governmental Unit, and the Confirmation Order shall direct the appropriate federal, state or local (domestic or foreign) governmental officials or agents to forgo the collection of any such Stamp or Similar Tax or governmental assessment and to accept for filing and recordation instruments or other documents evidencing such action or event without the payment of any such Stamp or Similar Tax or governmental assessment. Such exemption specifically applies, without limitation, to (i) all actions, agreements and documents necessary to evidence and implement the provisions of, transactions contemplated by and the distributions to be made under this Plan or the Restructuring Documents, (ii) the issuance and distribution of the New Common Equity Interests or Plan Securities and Documents, and (iii) the maintenance or creation of security interests or any Lien as contemplated by this Plan or the Restructuring Documents.

 

L.Certain Tax Matters

 

The Debtors, Prepetition RBL Agent, Prepetition RBL Lenders, Prepetition Term Loan Agent, Prepetition Term Lenders, and DIP Lenders, in each case to the extent applicable, will work together in good faith and will use reasonable best efforts to structure and implement the Restructuring Transactions and the transactions related thereto in a tax-efficient and advantageous structure.

 58

 

M.Governing Law

 

Except to the extent that the Bankruptcy Code, the Bankruptcy Rules or other federal law is applicable, or to the extent that a Restructuring Document or an exhibit or schedule to this Plan provides otherwise, the rights and obligations arising under this Plan shall be governed by, and construed and enforced in accordance with, the laws of New York, without giving effect to the principles of conflicts of law of such jurisdiction.

 

N.Tax Reporting and Compliance

 

The Reorganized Debtors are hereby authorized, on behalf of the Debtors, to request an expedited determination under section 505(b) of the Bankruptcy Code of the tax liability of the Debtors for all taxable periods ending after the Petition Date through and including the Effective Date.

 

O.Exhibits and Schedules

 

All exhibits and schedules to this Plan, including the Exhibits and Plan Schedules, are incorporated herein and are a part of this Plan as if set forth in full herein.

 

P.No Strict Construction

 

This Plan is the product of extensive discussions and negotiations between and among, inter alia, the Debtors, the Prepetition RBL Agent, the Consenting RBL Lenders, the Prepetition Term Loan Agent, and the Consenting Term Lenders and their respective professionals. Each of the foregoing was represented by counsel of its choice who either participated in the formulation and documentation of, or was afforded the opportunity to review and provide comments on, this Plan, the Disclosure Statement, the Exhibits and the Plan Schedules, and the agreements and documents ancillary or related thereto. Accordingly, unless explicitly indicated otherwise, the general rule of contract construction known as “contra proferentem” or other rule of strict construction shall not apply to the construction or interpretation of any provision of this Plan, the Disclosure Statement, the Exhibits or the Plan Schedules, or the documents ancillary and related thereto.

 

Q.Entire Agreement

 

Except as otherwise provided herein or therein, this Plan and the Restructuring Documents supersede all previous and contemporaneous negotiations, promises, covenants, agreements, understandings, and representations on such subjects, all of which have become merged and integrated into this Plan and the Restructuring Documents.

 

R.Closing of Chapter 11 Cases

 

The Reorganized Debtors shall, promptly after the full administration of the Chapter 11 Cases, File with the Bankruptcy Court all documents required by Bankruptcy Rule 3022 and any applicable order of the Bankruptcy Court to close the Chapter 11 Cases.

 

S.2002 Notice Parties

 

After the Effective Date, the Debtors and the Reorganized Debtors, as applicable, are authorized to limit the list of Entities receiving documents pursuant to Bankruptcy Rule 2002 to those Entities who have Filed a renewed request after the Combined Hearing to receive documents pursuant to Bankruptcy Rule 2002.

 59

 

Dated: March [●], 2021

 

  Respectfully submitted,
   
  SUNDANCE ENERGY INC. AND ITS AFFILIATE DEBTORS
     
    By:
  Title: Chief Executive Officer

 60

 

Exhibit A

 

Restructuring Support Agreement

 

 

Plan Schedule 1

 

Exit Facilities Credit Agreement

 

[To be Filed with the Plan Supplement]

 

 

Plan Schedule 2

 

Amended/New Organizational Documents

 

[To be Filed with the Plan Supplement]

 

 

Plan Schedule 3

 

Schedule of Litigation Claims

 

[To be Filed with the Plan Supplement]

 

 

Plan Schedule 4

 

Members of New Board

 

[To be Filed with the Plan Supplement]

 

 

Plan Schedule 5

 

Schedule of Rejected Executory Contracts and Unexpired Leases

 

[To be Filed with the Plan Supplement]

 

 

 

 

Exhibit B

 

DIP Credit Agreement

 

 

 

 

 

Final Form

 

 

 

JUNIOR SECURED DEBTOR-IN-POSSESSION

 

Credit Agreement

 

dated as of

 

[March 11], 2021

 

among

 

Sundance Energy Inc., 

A Debtor-in-possession 

as Parent,

 

Sundance Energy, Inc., 

a Debtor-In-Possession 

as Borrower,

 

Armadillo E&P, Inc.,
A Debtor-In-Possession
as Guarantor

 

SEA Eagle Ford, LLC,
A Debtor-In-Possession
as Guarantor

 

Morgan Stanley Capital Administrators Inc., 

as Administrative Agent,

 

and

 

the Lenders party hereto

 

 

  

Morgan Stanley Capital Administrators Inc.

 

Sole Lead Arranger and Sole Book Runner

 

[Credit Agreement]

 

TABLE OF CONTENTS 

 

  Page
   
Article I Definitions and Accounting Matters 1
   
Section 1.01   Terms Defined Above 1
Section 1.02   Certain Defined Terms 2
Section 1.03   Terms Generally; Rules of Construction 28
Section 1.04   Accounting Terms and Determinations; GAAP 28
Section 1.05   Timing of Payment or Performance 29
Section 1.06   Rates 29
Section 1.07   Divisions 29
   
Article II The Credits 29
   
Section 2.01   Loans 29
Section 2.02   Loans and Borrowings 30
Section 2.03   Requests for Borrowings 31
Section 2.04   Funding of Borrowings 31
Section 2.05   Priority and Liens 31
Section 2.06   No Discharge, Survival of Claims 32
   
Article III Payments of Principal and Interest; Prepayments; Fees 32
   
Section 3.01   Repayment of Loans 32
Section 3.02   Interest 32
Section 3.03   Alternate Rate of Interest 33
Section 3.04   Prepayments 34
Section 3.05   Fees 35
Section 3.06   Payments to MSCAI; Fundings made by MSCAI 35
   
Article IV Payments; Pro Rata Treatment; Sharing of Set-offs 35
   
Section 4.01   Payments Generally; Pro Rata Treatment; Sharing of Set-offs 35
Section 4.02   Presumption of Payment by the Borrower 36
Section 4.03   Certain Deductions by the Administrative Agent 36
Section 4.04   Disposition of Proceeds 37
Section 4.05   Defaulting Lenders 37
   
Article V Increased Costs; Taxes 38
   
Section 5.01   Increased Costs 38
Section 5.02   Taxes 39
Section 5.03   Designation of Different Lending Office 43
Section 5.04   Replacement of Lenders 43
Section 5.05   Break Funding Payments 43
   
Article VI Conditions Precedent 44
   
Section 6.01   Effective Date 44

 

[Credit Agreement]

i

 

Section 6.02   Each Credit Event 46
Section 6.03   Obligation to Make Plan Effective Date Term Loans 47
Section 6.04   Obligation to Make Case Extension Loans 47
   
Article VII Representations and Warranties 48
   
Section 7.01   Organization; Powers 48
Section 7.02   Authority; Enforceability 48
Section 7.03   Approvals; No Conflicts 48
Section 7.04   Financial Condition; No Material Adverse Change 48
Section 7.05   Litigation 49
Section 7.06   Environmental Matters 49
Section 7.07   Compliance with the Laws and Agreements; No Defaults 50
Section 7.08   Investment Company Act 50
Section 7.09   Taxes 50
Section 7.10   ERISA 51
Section 7.11   Disclosure; No Material Misstatements 51
Section 7.12   Insurance 52
Section 7.13   Restriction on Liens 52
Section 7.14   Group Members 52
Section 7.15   Foreign Operations 52
Section 7.16   Location of Business and Offices 52
Section 7.17   Properties; Titles, Etc. 53
Section 7.18   Maintenance of Properties 53
Section 7.19   Gas Imbalances; Prepayments 54
Section 7.20   Marketing of Production 54
Section 7.21   [Reserved] 54
Section 7.22   Swap Agreements 54
Section 7.23   Use of Loans 54
Section 7.24   [Reserved] 55
Section 7.25   OFAC 55
Section 7.26   Anti-Terrorism Laws 55
Section 7.27   Money Laundering 56
Section 7.28   Foreign Corrupt Practices 56
Section 7.29   EEA Financial Institutions. 56
Section 7.30   Beneficial Ownership 56
   
Article VIII Affirmative Covenants 56
   
Section 8.01   Financial Statements; Other Information 56
Section 8.02   Notices of Material Events 60
Section 8.03   Existence; Conduct of Business 60
Section 8.04   Payment of Obligations 60
Section 8.05   Performance of Obligations under Loan Documents 60
Section 8.06   Operation and Maintenance of Properties 61
Section 8.07   Insurance 61
Section 8.08   Books and Records; Inspection Rights 61
Section 8.09   Compliance with Laws 62
Section 8.10   Environmental Matters 62
Section 8.11   Further Assurances 63
Section 8.12   Reserve Reports 63

 

[Credit Agreement]

ii

 

Section 8.13   [Reserved] 64
Section 8.14   Additional Collateral; Additional Guarantors 64
Section 8.15   ERISA Compliance 65
Section 8.16   Marketing Activities 66
Section 8.17   [Reserved] 66
Section 8.18   Patriot Act, OFAC, FCPA 66
Section 8.19   [Reserved]. 66
Section 8.20   [Reserved] 66
Section 8.21   Deposit Accounts 66
Section 8.22   Hedge Amendments 66
Section 8.23   SBA PPP Loan 66
Section 8.24   Pleadings and Motions 67
   
Article IX Negative Covenants 67
   
Section 9.01   Financial Covenants 67
Section 9.02   Debt 67
Section 9.03   Liens 68
Section 9.04   Restricted Payments 68
Section 9.05   Investments, Loans and Advances 69
Section 9.06   Nature of Business; No International Operations 69
Section 9.07   Proceeds of Loans 70
Section 9.08   ERISA Compliance 70
Section 9.09   Sale or Discount of Receivables 70
Section 9.10   Mergers, Etc. 70
Section 9.11   Sale of Properties 70
Section 9.12   Sales and Leasebacks 70
Section 9.13   Environmental Matters 71
Section 9.14   Transactions with Affiliates 71
Section 9.15   Negative Pledge Agreements; Dividend Restrictions 71
Section 9.16   Take-or-Pay or other Prepayments 71
Section 9.17   Swap Agreements 71
Section 9.18   Amendments to Organizational Documents and Material Contracts 71
Section 9.19   Changes in Fiscal Periods 72
Section 9.20   Anti-Terrorism Laws 72
Section 9.21   Gas Imbalances 72
Section 9.22   [Reserved] 72
Section 9.23   DIP Proceeds Account Withdrawals 72
Section 9.24   Capital Expenditures 72
Section 9.25   Key Employee Plans 72
Section 9.26   Superpriority Claims 73
Section 9.27   Hedge Termination 73
   
Article X Events of Default; Remedies 73
   
Section 10.01   Events of Default 73
Section 10.02   Remedies 77
   
Article XI The Administrative Agent 78
   
Section 11.01   Appointment; Powers 78

 

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Section 11.02   Duties and Obligations of Administrative Agent 79
Section 11.03   Action by Administrative Agent 79
Section 11.04   Reliance by Administrative Agent 80
Section 11.05   Subagents 80
Section 11.06   Resignation of Administrative Agent 80
Section 11.07   Administrative Agent as Lender 81
Section 11.08   No Reliance 81
Section 11.09   Administrative Agent May File Proofs of Claim 81
Section 11.10   Authority of Administrative Agent to Release Collateral and Liens 82
Section 11.11   Duties of the Arranger 82
Section 11.12   Credit Bidding 83
Section 11.13   Certain ERISA Matters 83
   
Article XII Miscellaneous 85
   
Section 12.01   Notices 85
Section 12.02   Waivers; Amendments 85
Section 12.03   Expenses, Indemnity; Damage Waiver 87
Section 12.04   Successors and Assigns 90
Section 12.05   Survival; Revival; Reinstatement 94
Section 12.06   Counterparts; Integration; Effectiveness 95
Section 12.07   Severability 95
Section 12.08   Right of Setoff 95
Section 12.09   GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS 95
Section 12.10   Headings 96
Section 12.11   Confidentiality 96
Section 12.12   Interest Rate Limitation 97
Section 12.13   Case Milestone Extension Annex 97
Section 12.14   No Third Party Beneficiaries 97
Section 12.15   EXCULPATION PROVISIONS 98
Section 12.16   USA Patriot Act Notice 98
Section 12.17   Flood Insurance Provisions 98
Section 12.18   Releases 98
Section 12.19   Acknowledgement and Consent to Bail-In of EEA Financial Institutions. 99
Section 12.20   Conflict 99
Section 12.21   Intercreditor Agreement 99
Section 12.22   Acknowledgement Regarding Any Supported QFCs 100
Section 12.23   Guarantee of Payment 100

 

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ANNEXES, EXHIBITS AND SCHEDULES

 

Annex I List of Commitments
Annex II Milestones
Annex III Case Milestone Extension Annex
   
Exhibit A Form of Note
Exhibit B-1 Form of Borrowing Request
Exhibit B-2 Form of DIP Proceeds Withdrawal Certificate
Exhibit C Form of Compliance Certificate
Exhibit D Form of Assignment and Assumption
Exhibit E-1 Form of U.S. Tax Compliance Certificate (Non-U.S. Lenders; Non-Partnerships)
Exhibit E-2 Form of U.S. Tax Compliance Certificate (Foreign Participants; Non-Partnerships)
Exhibit E-3 Form of U.S. Tax Compliance Certificate (Foreign Participants; Partnerships)
Exhibit E-4 Form of U.S. Tax Compliance Certificate (Non-U.S. Lenders; Partnerships)
Exhibit F Interim Order
   
Schedule 1.02 Specified Swap Agreements
Schedule 7.05 Litigation
Schedule 7.06 Environmental Matters
Schedule 7.12 Insurance
Schedule 7.14 Group Members
Schedule 7.16 Location of Business and Offices
Schedule 7.19 Gas Imbalances
Schedule 7.20 Marketing of Production
Schedule 7.22 Swap Agreements
Schedule 9.01(a) Permitted Line Item Variances
Schedule 9.03 Liens
Schedule 9.05 Investments
Schedule 9.14 Transactions with Affiliates

 

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THIS JUNIOR SECURED DEBTOR-IN-POSSESSION CREDIT AGREEMENT dated as of [March 11], 2021 is among Sundance Energy Inc., a Delaware corporation (“Parent”) which is a debtor and debtor-in-possession in the Cases (as defined below), Sundance Energy, Inc., a Colorado corporation (the “Borrower”) which is a debtor and debtor-in-possession in the Cases, each of the Guarantors, each of the Lenders from time to time party hereto and Morgan Stanley Capital Administrators Inc. (in its individual capacity, “MSCAI”), as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the “Administrative Agent”).

 

R E C I T A L S

 

A.           The Borrower has entered into (i) the Revolving Credit Agreement (as defined below), (ii) an Amended and Restated Term Loan Credit Agreement, dated as of April 23, 2018 (as amended, modified and in effect prior to the date hereof, the “Existing Term Loan Credit Agreement”), among the Borrower, Parent, each of the Lenders from time to time party thereto, and MSCAI, as administrative agent, and (iii) a Restructuring Support Agreement, dated as of March 9, 2021, among each of the Loan Parties, the administrative agents under, and certain of the lenders under, the Revolving Credit Agreement and the Existing Term Loan Credit Agreement (the “Restructuring Support Agreement”).

 

B.            On March [●], 2021, (the “Petition Date”), each of the Loan Parties (collectively, the “Debtors”) filed a voluntary petition for relief (collectively, the “Cases”) under Chapter 11 of the Bankruptcy Code with the United States Bankruptcy Court for the Southern District of Texas (the “Bankruptcy Court”). The Debtors are continuing in the possession of their assets and continuing to operate their respective businesses and manage their respective properties as debtors and debtors in possession under Sections 1107(a) and 1108 of the Bankruptcy Code.

 

C.            In connection with the Cases, the Borrower has requested that the Lenders provide the Borrower with a junior secured multi-draw term loan debtor-in-possession credit facility in an aggregate principal amount of up to $50,000,000 (the “DIP Facility”) in commitments and loans (the “DIP Loans”) from the Lenders, which shall consist of (a) subject to, among other conditions, obtaining Bankruptcy Court approval of the Interim Order and the Hedging Order, an initial draw under the DIP Facility in an amount which shall not exceed an aggregate principal amount of $10,000,000 (the “Interim Period Draw”), (b) subject to, among other conditions, the entry of the Final Order, a second draw under the DIP Facility in an amount which shall not exceed an aggregate principal amount of $35,000,000 (the “Final Period Draw”), and (c) subject to, among other conditions, the exercise of the Case Extension Required Lenders’ rights under the Restructuring Support Agreement to an extension of the milestones thereunder and the related delivery of an updated Annex III hereto by the Administrative Agent (acting on behalf of the Case Extension Required Lenders) (such extension together with such delivery, a “Case Milestone Extension”), additional draws solely in the amount reasonably required by the Debtors and agreed to by the Case Extension Required Lenders in their sole and absolute discretion and not to exceed the Case Extension Commitments (the “Case Extension Draws”).

 

D.            In consideration of the mutual covenants and agreements herein contained and of the loans, extensions of credit and commitments hereinafter referred to, the parties hereto agree as follows:

 

Article I
Definitions and Accounting Matters

 

Section 1.01          Terms Defined Above. As used in this Agreement, each term defined above has the meaning indicated above.

 

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Section 1.02          Certain Defined Terms. As used in this Agreement, the following terms have the meanings specified below:

 

Additional Commitments” has the meaning assigned to such term in the DIP Order.

 

Adequate Protection Liens” has the meaning assigned to such term in the DIP Order.

 

Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the then effective LIBO Rate multiplied by the Statutory Reserve Rate.

 

Administrative Agent” has the meaning set forth in the preamble hereto.

 

Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent.

 

Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

 

Agent” means each of the Administrative Agent and any other agent or sub-agent pursuant to Section 11.05 appointed by the Administrative Agent with respect to matters related to the Loan Documents.

 

Agent Fee Letter” that certain fee letter dated as of [March 9, 2021], in respect of an administrative agent fee, between the Borrower and the Administrative Agent.

 

Agreement” means this Junior Secured Debtor-In-Possession Credit Agreement, including the Schedules and Exhibits hereto, as the same may be amended, modified, supplemented, restated, replaced or otherwise modified from time to time.

 

Anti-Terrorism Laws” has the meaning assigned to such term in Section 7.26.

 

Applicable Percentage” means, with respect to any Lender, the percentage of the aggregate Commitments represented by such Lender’s Commitment (or, at any time after the Effective Date, the percentage of the aggregate principal amount of Loans then outstanding represented by such Lender’s Loans then outstanding). The initial percentage of each Lender is set forth on Annex I.

 

Approved Fund” means any Fund that is administered, managed, advised or sub-advised by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

Approved Petroleum Engineer” means (a) Netherland, Sewell & Associates, Inc., (b) Ryder Scott Company Petroleum Consultants, L.P., and (c) any other independent petroleum engineers reasonably acceptable to the Required Lenders.

 

Approved Plan” means (a) an Approved RSA Plan or (b) any Cash Pay Plan, in each case, as such plan may be modified, amended, restated or supplemented from time to time; provided that the consent of the Administrative Agent and the Required Lenders shall be required in respect of any such modification, amendment, restatement or supplement.

 

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Approved RSA Plan” means a plan of reorganization in the form attached to the Restructuring Support Agreement, as may be amended from time to time in accordance with the Restructuring Support Agreement and such plan.

 

Arranger” means Morgan Stanley Capital Administrators Inc., in its capacity as the sole lead arranger and sole bookrunner hereunder.

 

Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 12.04(b)), and accepted by the Administrative Agent, in the form of Exhibit D or any other form approved by the Administrative Agent.

 

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

 

Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

 

Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.

 

Bankruptcy Court” has the meaning assigned to such term in the recitals hereto.

 

Benchmark Replacement” means the sum of: (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to the LIBO Rate for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.

 

Benchmark Replacement Adjustment” means, with respect to any replacement of the LIBO Rate with an Unadjusted Benchmark Replacement for each applicable Interest Period, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBO Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBO Rate with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time.

 

Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the timing and frequency of determining rates and making payments of interest and other administrative matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement).

 

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Benchmark Replacement Date” means the earlier to occur of the following events with respect to the LIBO Rate:

 

(a)           in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of the LIBO Rate permanently or indefinitely ceases to provide the LIBO Rate; and

 

(b)           in the case of clause (c) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.

 

Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the LIBO Rate:

 

(a)           a public statement or publication of information by or on behalf of the administrator of the LIBO Rate announcing that such administrator has ceased or will cease to provide the LIBO Rate, permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBO Rate;

 

(b)           a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR, the Federal Reserve System of the United States of America, an insolvency official with jurisdiction over the administrator for the LIBO Rate, a resolution authority with jurisdiction over the administrator for the LIBO Rate or a court or an entity with similar insolvency or resolution authority over the administrator for the LIBO Rate, which states that the administrator of the LIBO Rate has ceased or will cease to provide the LIBO Rate permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBO Rate; or

 

(c)           a public statement or publication of information by the regulatory supervisor for the administrator of the LIBO Rate announcing that the LIBO Rate is no longer representative.

 

Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders, as applicable, by notice to the Borrower, the Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.

 

Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the LIBO Rate and solely to the extent that the LIBO Rate has not been replaced with a Benchmark Replacement, the period (a) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the LIBO Rate for all purposes hereunder in accordance with Section 3.03(b) and (b) ending at the time that a Benchmark Replacement has replaced the LIBO Rate for all purposes hereunder pursuant to Section 3.03(b).

 

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Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

 

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

 

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

 

BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

 

Board” means the Board of Governors of the Federal Reserve System of the United States of America or any successor Governmental Authority.

 

Borrower” has the meaning set forth in the preamble hereto.

 

Borrowing” means the Loans made on the Effective Date, the Plan Effective Date or from time to time as a result of Case Extension Draws.

 

Borrowing Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03.

 

Budget” means the Initial Budget and the 13-Week Forecast delivered on the Thursday of each seven (7) week anniversary of the Petition Date, that reflects, for the periods covered thereby, on a line-item basis the Loan Parties’ projected cash receipts and cash disbursements, including, without limitation, disbursements on account of the reasonable and documented fees and expenses of advisors (including, without limitation, advisors of the Administrative Agent and the Lenders) and which budget shall be in form and substance acceptable to the Required Lenders and which budget shall be updated every seven (7) weeks in form and substance acceptable to the Required Lenders as required by Section 8.01(t). To the extent that any updated Budget is not acceptable to the Required Lenders, the then-existent approved budget will remain the “Budget” (which may be the Initial Budget) until replaced by an updated budget that is acceptable to the Required Lenders.

 

Budget Certificate” has the meaning assigned to such term in Section 8.01(t).

 

Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; and if such day relates to a Borrowing or continuation of, a payment or prepayment of principal of or interest on a Eurodollar Loan, any day which is also a day on which banks are open for dealings in Dollar deposits in the London interbank market.

 

Capital Expenditures” means, for any period, all expenditures related to Oil and Gas Properties or the purchase of property, plant or equipment of Parent, the Borrower and the other Loan Parties that are (or would be) capitalized under GAAP; provided that Capital Expenditures for Parent, the Borrower and the other Loan Parties shall not include (a) expenditures to the extent incurred in response to an emergency or urgent situation, as determined by the Borrower in good faith and (b) expenditures to the extent required under any applicable Governmental Requirement.

 

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Capital Leases” means, in respect of any Person, all leases that are or should be, in accordance with GAAP, recorded as capital leases on the balance sheet of the Person liable (whether contingent or otherwise) for the payment of rent thereunder. Any lease that was treated as an operating lease under GAAP at the time it was entered into that later becomes a capital lease as a result of a change in GAAP during the life of such lease, including any renewals, shall be treated as an operating lease for all purposes under this Agreement, and any lease that was treated as a capital lease under GAAP at the time it was entered into that later becomes an operating lease as a result of a change in GAAP during the life of such lease, including any renewals, shall be treated as a capital lease for all purposes under this Agreement.

 

CARES Act” means the Coronavirus Aid, Relief, and Economic Security Act, and applicable rules and regulations, as amended from time to time.

 

CARES Allowable Uses” means “allowable uses” of proceeds of the SBA PPP Loan as described in Section 1102 of the CARES Act.

 

Carve-Out” has the meaning assigned to such term in the applicable DIP Order.

 

Case Extension Applicable Percentage” means, with respect to any Lender, a percentage equal to a fraction (a) the numerator of which is the sum of (i) the aggregate outstanding principal amount of the Case Extension Loans of such Lender and (ii) the unused outstanding Case Extension Commitments of such Lender and (b) the denominator of which is the sum of (i) the outstanding principal amount of the Case Extension Loans of all Lenders and (ii) the total unused outstanding Case Extension Commitments of all Lenders.

 

Case Extension Availability Amount” means the amount set forth in Annex III under the caption “Case Extension Availability Amount”, when such Annex is delivered, provided that the Case Extension Availability Amount shall in no case exceed the Case Extension Commitments.

 

Case Extension Availability Period” means the period from and including the date on which a Case Milestone Extension occurs to the Maturity Date.

 

Case Extension Commitments” means, as to any Lender, the obligation of such Lender to make a Loan hereunder during the Case Extension Availability Period in the amount set forth opposite such Lender’s name on Annex I under the caption “Case Extension Commitment”. The aggregate Case Extension Commitments of the Lenders are $5,000,000.

 

Case Extension Draw” has the meaning assigned to such term in the recitals hereto.

 

Case Extension Loans” means the term loans made available by the Lenders pursuant to Section 2.01(c).

 

Case Extension Required Lenders” means (a) at any time if there are two (2) unaffiliated Lenders, both Lenders and (b) otherwise, Lenders holding greater than 70% of the outstanding Case Extension Commitments and/or exposure under the DIP Facility, provided that the aggregate principal amount of the Case Extension Commitments and aggregate credit exposures of the Defaulting Lenders (if any) shall be excluded from the determination of Case Extension Required Lenders.

 

Case Milestone Extension” has the meaning assigned to such term in the recitals hereto.

 

Cases” has the meaning assigned to such term in the recitals hereto.

 

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Cash Collateral Termination Trigger” has the meaning assigned to such term in the DIP Order.

 

Cash Equivalents” means cash held in Dollars and all Investments of the type identified in Section 9.05(c) through (f).

 

Cash Pay Plan” has the meaning assigned to such term in Section 10.01(o)(ii).

 

Casualty Event” means any loss, casualty or other insured damage to, or any nationalization, taking under power of eminent domain or by condemnation or similar proceeding of, any Oil and Gas Properties having a fair market value in excess of $1,000,000.

 

CERCLA” has the meaning assigned to such term within the definition of “Environmental Laws.”

 

Change in Control” means (a) Parent shall at any time after the Effective Date fail to own, in the aggregate, 100% of the then issued and outstanding Equity Interests in Borrower or, except as permitted by Section 9.10, any other direct or indirect Subsidiary of Parent that is a Guarantor or (b) Borrower shall cease to own and control 100% of the voting and economic interest in the Equity Interests in each Subsidiary of Borrower.

 

Change in Law” means the occurrence, after the Effective Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States of America or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

Code” means the Internal Revenue Code of 1986.

 

Collateral” means all the DIP Priority Collateral and the Other DIP Collateral, but excluding any Excluded Assets, provided that, notwithstanding anything herein or any other Loan Document to the contrary, the Collateral does not and shall not include any Building or Manufactured (Mobile) Home (each as defined in the applicable Flood Insurance Regulations).

 

Commitment” means as to any Lender, the obligation of such Lender to make a Loan hereunder on the Effective Date in the amount set forth opposite such Lender’s name on Annex I under the caption “Commitment”. The aggregate Commitments of the Lenders are $50,000,000 and consist of the Initial Term Loan Commitments, the Plan Effective Date Term Loan Commitments and the Case Extension Commitments.

 

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.) as amended from time to time and any successor statute.

 

Confirmation Order” means an order confirming the Approved Plan and approving the related disclosure statement, in form and substance satisfactory to the Administrative Agent and the Required Lenders.

 

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Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

 

Covered Entity” means any of the following:

 

(a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

 

(b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

 

(c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

Covered Party” has the meaning assigned to such term in Section 12.22(a).

 

Credit Party” means the Administrative Agent or any Lender.

 

Debt” means, for any Person, the sum of the following (without duplication): (a) all obligations of such Person for borrowed money or evidenced by bonds, bankers’ acceptances, debentures, notes or other similar instruments; (b) all obligations of such Person (whether contingent or otherwise) in respect of letters of credit, surety or other bonds and similar instruments; (c) all accounts payable and all accrued expenses, liabilities or other obligations of such Person to pay the deferred purchase price of Property or services that are more than one hundred-twenty (120) days past their invoiced due date, other than those which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP; (d) all obligations of such Person as lessee under Capital Leases; (e) all obligations under Synthetic Leases; (f) all Debt (as defined in the other clauses of this definition) of others secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) a Lien on any Property of such Person, whether or not such Debt is assumed by such Person; (g) all Debt (as defined in the other clauses of this definition) of others guaranteed by such Person or in which such Person otherwise assures a creditor against loss of the Debt (howsoever such assurance shall be made) to the extent of the lesser of the amount of such Debt and the maximum stated amount of such guarantee or assurance against loss; (h) all obligations or undertakings of such Person to maintain or cause to be maintained the financial position or covenants of others or to purchase the Debt or Property of others for the purpose of maintaining the financial position or covenants of others; (i) obligations to deliver commodities, goods or services, including Hydrocarbons, in consideration of one or more advance payments, made more than one (1) month in advance of the month in which the commodities, goods or services are to be delivered other than gas balancing arrangements and/or prepaid drilling obligations in the ordinary course of business; (j) take-or-pay or similar obligations that require such Person to pay for goods or services whether or not such goods or services are not actually received or utilized by such Person; (k) any Debt of a partnership for which such Person is liable either by agreement, by operation of law or by a Governmental Requirement but only to the extent of such liability; (l) Disqualified Capital Stock; and (m) the undischarged balance of any production payment created by such Person or for the creation of which such Person directly or indirectly received payment. The Debt of any Person shall include all obligations of such Person of the character described above to the extent such Person remains legally liable in respect thereof notwithstanding that any such obligation is not included as a liability of such Person under GAAP. Debt shall not include liabilities resulting from endorsements of instruments for collection in the ordinary course of business.

 

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Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.

 

Debtors” has the meaning assigned to such term in the recitals hereto.

 

Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

 

Defaulting Lender” means, subject to Section 4.05(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within five (5) Business Days of the date such Loans were required to be funded hereunder (or solely in the case of the Initial Term Loans, eight (8) Business Days) unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied or (ii) pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within five (5) Business Days of the date when due, (b) has notified the Borrower or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower) or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 4.05(b)) upon delivery of written notice of such determination to the Borrower and each Lender.

 

DIP Facility” has the meaning assigned to such term in the recitals hereto.

 

DIP Loan” has the meaning assigned to such term in the recitals hereto.

 

DIP Order” means the Interim Order, the Final Order and/or the Hedging Order, as applicable.

 

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DIP Priority Collateral” has the meaning assigned to such term in the DIP Order.

 

DIP Proceeds Account” shall have the meaning assigned to such term in Section 2.02(d).

 

Disqualified Capital Stock” means any Equity Interest that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event, matures or is mandatorily redeemable for any consideration other than other Equity Interests (which would not constitute Disqualified Capital Stock), pursuant to a sinking fund obligation or otherwise, or is convertible or exchangeable for Debt or redeemable for any consideration other than other Equity Interests (which would not constitute Disqualified Capital Stock) at the option of the holder thereof, in whole or in part, on or prior to the date that is one (1) year after the earlier of (a) Maturity Date and (b) the date on which there are no Loans or other obligations hereunder outstanding.

 

Dollars” or “$” refers to lawful money of the United States of America.

 

Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States of America or any state thereof or the District of Columbia.

 

Early Opt-in Election” means the occurrence of:

 

(a)           (i) a determination by the Administrative Agent or (ii) a notification by the Required Lenders to the Administrative Agent (with a copy to the Borrower) that the Required Lenders have determined that U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in Section 3.03(b) are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the LIBO Rate, and

 

(b)           (i) the election by the Administrative Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.

 

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

Effective Date” means the date on which the conditions specified in Section 6.01 and Section 6.02 are satisfied (or waived in accordance with Section 12.02).

 

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Environmental Laws” means any and all Governmental Requirements pertaining in any way to health and safety (insofar as either may be affected by a Release of, or exposure to, Hazardous Materials) the environment, the preservation or reclamation of natural resources, or the management, Release or threatened Release of any Hazardous Materials, in effect in any and all jurisdictions in which the Borrower or any Subsidiary is conducting, or at any time has conducted, business, or where any Property of the Borrower or any Subsidiary is located, including, the Oil Pollution Act of 1990, as amended, the Clean Air Act, as amended, the Comprehensive Environmental, Response, Compensation, and Liability Act of 1980 (“CERCLA”), as amended, the Federal Water Pollution Control Act, as amended, the Occupational Safety and Health Act of 1970, as amended, the Resource Conservation and Recovery Act of 1976 (“RCRA”), as amended, the Safe Drinking Water Act, as amended, the Toxic Substances Control Act, as amended, the Superfund Amendments and Reauthorization Act of 1986, as amended, the Hazardous Materials Transportation Act, as amended, the Natural Gas Pipeline Safety Act of 1968, as amended, the Hazardous Liquid Pipeline Safety Act of 1979, as amended, and other environmental conservation or protection Governmental Requirements.

 

Environmental Permit” means any permit, registration, license, notice, approval, consent, exemption, variance, or other authorization required under or issued pursuant to applicable Environmental Laws.

 

Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such Equity Interest.

 

ERISA” means the Employee Retirement Income Security Act of 1974.

 

ERISA Affiliate” means each trade or business (whether or not incorporated) which together with any Group Member would be deemed to be a “single employer” within the meaning of Section 4001(b)(1) of ERISA or subsections (b), (c), (m) or (o) of Section 414 of the Code.

 

ERISA Event” means (a) a Reportable Event with respect to any Plan subject to Title IV of ERISA, (b) the withdrawal of the Borrower or any of its Subsidiaries or ERISA Affiliates from a Plan subject to Title IV of ERISA during a plan year in which it was a “substantial employer” (as defined in Section 4001(a)(2) of ERISA), (c) the providing of notice of intent to terminate a Plan in a distress termination (as described in Section 4041(c) of ERISA), (d) the institution by the PBGC of proceedings to terminate a Plan or a Multiemployer Plan or, (e) any event or condition (i) that provides a basis under Section 4042(a)(1), (2), or (3) of ERISA for the termination of, or the appointment of a trustee to administer, any Plan subject to Title IV of ERISA, or (ii) that may result in termination of a Multiemployer Plan pursuant to Section 4041A of ERISA, or (f) the partial or complete withdrawal within the meaning of Sections 4203 and 4205 of ERISA, of the Borrower, any of its Subsidiaries or ERISA Affiliates from a Multiemployer Plan.

 

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

 

Eurodollar” when used in reference to any Loan or Borrowing, refers to such Loan, or the Loans comprising such Borrowing, bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

 

Event of Default” has the meaning assigned to such term in Section 10.01.

 

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Excepted Liens” means: (a) Liens for Taxes, assessments or other governmental charges or levies which are not delinquent or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP; (b) Liens in connection with workers’ compensation, unemployment insurance or other social security, old age pension or public liability obligations which are not delinquent or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP; (c) landlord’s liens (including liens granted to the lessor of any oil and gas lessor and any financing statement giving notice thereof), operators’, vendors’, carriers’, warehousemen’s, repairmen’s, mechanics’, suppliers’, workers’, materialmen’s, construction or other like Liens arising by operation of law or otherwise in the ordinary course of business or incident to the exploration, development, operation and maintenance of Oil and Gas Properties each of which is in respect of obligations that are not delinquent or which are being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP; (d) Liens arising solely by virtue of any statutory or common law provision or customary deposit account terms relating to banker’s liens, rights of set-off or similar rights and remedies and burdening only deposit accounts or other funds maintained with a creditor depository institution and which deposit accounts and funds are explicitly contemplated by the “first day” cash management motion, provided that no such deposit account is a dedicated cash collateral account or is subject to restrictions against access by the depositor in excess of those set forth by regulations promulgated by the Board and no such deposit account is intended by any Group Member to provide collateral to the depository institution to secure any Debt (other than pursuant to the Loan Documents); (e) zoning and land use requirements, easements, restrictions, servitudes, permits, conditions, covenants, rights-of-way, building codes, exceptions or reservations in any Property of any Group Member for the purpose of roads, pipelines, transmission lines, transportation lines, distribution lines for the removal of gas, oil, coal or other minerals or timber, and other like purposes, or for the joint or common use of real estate, rights of way, facilities and equipment, that do not secure any monetary obligations and which in the aggregate do not materially impair the use of such Property for the purposes of which such Property is held by any Group Member or materially impair the value of such Property subject thereto; (f) Liens on cash or securities pledged to secure performance of tenders, surety and appeal bonds, government contracts, performance and return of money bonds, bids, trade contracts, leases, statutory obligations, regulatory obligations and other obligations of a like nature incurred in the ordinary course of business and not in connection with the borrowing of money; (g) judgment and attachment Liens not giving rise to an Event of Default, provided that any appropriate legal proceedings which may have been duly initiated for the review of such judgment shall not have been finally terminated or the period within which such proceeding may be initiated shall not have expired and no action to enforce such Lien has been commenced; and (h) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto; provided that Liens described in clauses (a) through (d) above shall remain “Excepted Liens” only for so long as no action to enforce such Lien has been commenced, and no intention to subordinate the Liens, subordinate to only that of the Senior Liens, if any, otherwise granted in favor of the Administrative Agent and the Lenders is to be hereby implied or expressed by the permitted existence of such Excepted Liens.

 

Excluded Account” means (a) each deposit account all or substantially all of the deposits in which consist of amounts utilized to fund payroll obligations of any Loan Party for the then-current pay period, employee benefit obligations of any Loan Party for the then-current pay period or tax obligations of any Loan Party that have accrued or that will accrue in the then-current calendar month and (b) any fiduciary, trust, suspense, escrow or third-party oil and gas royalty account in each case that is permitted to be incurred hereunder (including by Section 9.05), provided that in no event shall any of the principal operating accounts of any Loan Party constitute an Excluded Account.

 

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Excluded Assets” means (a) any property to the extent that the grant of a security interest thereon shall constitute or result in a breach of, a default under, an invalidation of, a termination of, or the unenforceability of any right of any Person under, any agreement related to such property or requires the consent of, or creates a right of termination in favor of, any Person (other than the Loan Parties), or (b) any property to the extent that the grant of a security interest thereon would be prohibited by applicable law, treaty, rule or regulation or a court or a Governmental Authority would be required to grant consent, license or approval (but excluding the proceeds thereof, to the extent the assignment of such proceeds is not prohibited by applicable law and does not require the consent, license or approval of such Governmental Authority); provided, however, that the Collateral shall include (and such security interest shall attach) immediately at such time as the contractual or legal provisions referred to above shall no longer be applicable; provided, further, that the exclusions referred to above shall not apply to the extent that such laws, rules, regulations, agreements, terms or provisions referred to therein would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York Uniform Commercial Code or the uniform commercial code of any relevant jurisdiction or any other applicable law (including any debtor relief law or principle of equity) and shall not include any proceeds (as defined in the New York Uniform Commercial Code or the uniform commercial code of any relevant jurisdiction) of such permit, lease, license, contract or other agreement or property, unless any assets constituting such proceeds are themselves subject to the exclusions set forth above.

 

Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower or any Guarantor hereunder or under any other Loan Document, (a) Taxes imposed on or measured by net income (however denominated), state franchise Taxes, and branch profits Taxes, in each case, (i) by the United States of America (or any political subdivision thereof) or such other jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 5.04) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 5.02, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to any such recipient’s failure to comply with Section 5.02(g), and (d) any United States federal withholding Tax that is imposed under FATCA.

 

Executive Order” has the meaning assigned to such term in Section 7.26(a).

 

Existing Term Loan Credit Agreement” has the meaning assigned to such term in the recitals hereto.

 

Exit Facilities Credit Agreement” has the meaning assigned to such term in the Restructuring Support Agreement.

 

FATCA” means Sections 1471 through 1474 of the Code, as of the Effective Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to such intergovernmental agreement.

 

FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.

 

Federal Funds Effective Rate” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

 

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Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.

 

Fee Letters” means the Upfront Fee Letter and the Agent Fee Letter.

 

Final” means, with respect to an order of the Bankruptcy Court, an order as to which the time to appeal, or seek certiorari or move for a new trial, reargument, or rehearing has expired and no appeal or petition for certiorari or other proceedings for a new trial, reargument, or rehearing has been timely taken, or as to which any appeal that has been taken or any petition for certiorari that has been or may be timely filed has been withdrawn or resolved by the highest court to which the order or judgment was appealed or from which certiorari was sought or the new trial, reargument, or rehearing shall have been denied, resulted in no stay pending appeal of such order, or has otherwise been dismissed with prejudice; provided, however, that the possibility that a motion under Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the bankruptcy rules, may be filed with respect to such order shall not preclude such order from being Final.

 

Final Order” means the order or judgment of the Bankruptcy Court substantially in the form of the Interim Order with such changes as are acceptable to the Administrative Agent and the Required Lenders.

 

Final Order Entry Deadline” means, as to the Final Order, entry thereof by the Bankruptcy Court on or before the date that is forty-five (45) days following the Petition Date (or if such date is extended by the Administrative Agent (acting at the direction of the Case Extension Required Lenders) as a result of a Case Milestone Extension, such extended date).

 

Final Period Draw” has the meaning assigned to such term in the recitals hereto.

 

Financial Officer” means, for any Person, the Chief Executive Officer, Chief Financial Officer, Vice President of Finance, principal accounting officer, treasurer or controller of such Person. Unless otherwise specified, all references herein to a Financial Officer means a Financial Officer of the Borrower.

 

First Amendment” means that certain First Amendment to Amended and Restated Term Loan Credit Agreement dated as of July 31, 2018 by and among the Borrower, the Parent, the Lenders party thereto and the Administrative Agent.

 

First Amendment Effective Date” means the date that all conditions to the effectiveness of the First Amendment have occurred.

 

fiscal quarter” means each fiscal quarter ending on the last day of each March, June, September and December.

 

fiscal year” means each fiscal year of the Borrower and its Subsidiaries for accounting and tax purposes, ending on December 31 of each year.

 

Flood Insurance Regulations” has the meaning assigned to such term in Section 12.17.

 

Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

 

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Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

 

GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time subject to the terms and conditions set forth in Section 1.04.

 

Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court (including the Bankruptcy Court), central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

 

Governmental Requirement” means any law, statute, code, ordinance, order, determination, rule, regulation, judgment, decree, injunction, franchise, permit, certificate, license, rules of common law, authorization or other directive or requirement, whether now or hereinafter in effect, of any Governmental Authority.

 

Group Members” means the collective reference to Parent, the Borrower and their respective Subsidiaries.

 

Guarantors” means Parent and each Subsidiary (as of the Effective Date and those that guarantee the Secured Obligations pursuant to Section 8.14(b)).

 

Hazardous Material” means any substance regulated or as to which liability might arise under any applicable Environmental Law including: (a) any chemical, compound, material, product, byproduct, substance or waste defined as or included in the definition or meaning of “hazardous substance,” “hazardous material,” “hazardous waste,” “solid waste,” “toxic waste,” “extremely hazardous substance,” “toxic substance,” “contaminant,” “pollutant,” or words of similar meaning or import found in any applicable Environmental Law; (b) Hydrocarbons, petroleum products, petroleum substances, natural gas, oil, oil and gas waste (including drilling fluids and any produced water), crude oil, and any components, fractions, or derivatives thereof; and (c) radioactive materials, explosives, asbestos or asbestos containing materials, polychlorinated biphenyls, radon, infectious materials or medical wastes.

 

Hedging Motion” means a motion, in form and substance satisfactory to the Administrative Agent, authorizing the Loan Parties to continue prepetition Swap Agreements and enter into postpetition Swap Agreements, among other relief, which may be heard at the “first day” hearing in the Cases.

 

Hedging Order” means the order, in form and substance satisfactory to the Administrative Agent, granting the Hedging Motion.

 

Hedging Order Amendments” means those letter agreements substantially in the form of Exhibit A to the Hedging Motion by and between the Borrower and each of The Toronto Dominion Bank and Truist Bank.

 

Highest Lawful Rate” means, with respect to each Lender, the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the Notes or on other Secured Obligations under laws applicable to such Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws allow as of the date hereof.

 

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Hydrocarbon Interests” means all rights, titles, interests and estates now or hereafter acquired in and to oil and gas leases, oil, gas and mineral leases, or other liquid or gaseous hydrocarbon leases, mineral fee interests, overriding royalty and royalty interests, net profit interests and production payment interests, including any reserved or residual interests of whatever nature.

 

Hydrocarbons” means oil, gas, casinghead gas, drip gasoline, natural gasoline, condensate, distillate, liquid hydrocarbons, gaseous hydrocarbons and all constituents, elements or compounds thereof and all products refined or separated therefrom.

 

Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a) above, Other Taxes.

 

Indemnitee” has the meaning set forth in Section 12.03(b).

 

Initial Term Loan Commitment” means, as to any Lender, the obligation of such Lender to make a Loan hereunder on the first Business Day immediately following entry of the Final Order in the amount set forth opposite such Lender’s name on Annex I under the caption “Initial Term Loan Commitment”. The aggregate Initial Term Loan Commitments of the Lenders are $10,000,000.